NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4916 OF 2012
(Against order dated 24.09.2012 in First Appeal No.
Consumer Disputes Redressal Commission, Rajasthan, Jaipur)
1077/2012
of
the
State
ICICI Lombard General Insurance Company Limited, Plot no. 9, Basant Vihar, Jaipur,
Rajasthan Also At: 3rd Floor, Narain Manzil, 23, Barakhamba Road, New Delhi-110001
…Petitioner
Versus
Bhaneshwar Dayal Sharma S/o Sh. Bhuwneshwar Dayal, R/o A-45, Shivaji Marg, Nehru
Nagra, Paanipech, Jaipur, Rajasthan
…Respondent
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
For the Respondent
:
:
Mr. Amit Tyagi, Advocate
Mr. R. P. S. Bhatti, Advocate
PRONOUNCED ON 3rd FEBRUARY, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
The complainant Bhaneshwar Dayal Sharma availed a housing loan of Rs.4,61,000/- from
the ICICI Lombard General Insurance Co. Ltd for which a mediclaim policy was also
provided to him, for the period valid from 28.09.2006 to 27.09.2011. An amount of
Rs.26,756/- was collected from the complainant on account of policy. On 07.07.2007, the
complainant underwent an operation at Sawai Mansingh Hospital for Aerotic Beformoval
Bypass Grafting Aerotic Elec Block and incurred total charges in the sum of Rs.1,25,000/-.
The complainant claimed this amount from the OP under his mediclaim policy, but it was
rejected. Therefore, alleging deficiency in service and unfair trade practice by the OP, the
complainant filed a complaint before District Consumer Disputes Redressal Forum(in short,
‘District Forum’) for the recovery of complete treatment amount of Rs.1,25,000/- and
compensation under several heads.
2.
The District Forum partly allowed the complaint and directed the OP to pay a sum of
Rs.1,25,000/- along with interest at the rate of 10% per annum, a sum of Rs.25,000/towards mental agony and Rs.3,000/- towards litigation expenses.
3.
Against the order of District Forum, the OP preferred First Appeal (FA.1077/2012) the
State Commission; which was dismissed.
4.
Aggrieved by the order of State Commission, the OP preferred this revision. We have heard
both the parties. The learned Counsel for OP vehemently argued and denied of any
deficiency in service. The claim of the complainant was repudiated on two grounds. Firstly,
that the surgical procedure was outside the purview of the nine critical illness and procedure
defined and covered in the Policy. Secondly, as per Exclusion Clause 2.1.4 of the
Insurance Policy, the disease was diagnosed on 14/12/2006, which fell within 90 days of the
inception date of the Insurance Policy. The Counsel drew our attention to the terms and
conditions of said mediclaim policy, and the events which are covered under the said
policy, are reproduced, as below:
The following Insured Events were covered under the Policy:
a. Diagnosis of the following illness, namely:
List of covered illness:
Cancer, End Stage Renal Failure, Multiple Sclerosis.
b.
Undergoing of the following surgical procedures:
List of covered procedures:
Major Organ Transplant, Heart Valve Replacement or Coronary Artery Bypass
Graft.
c.
Occurrence of the following Medical Events:
List of covered events:
Stroke, Paralysis and Myocardial Infection
A Death of the Insured on account of an Accident:
B Permanent Total Disablement of the Insured on account of Accident.
Coronary Artery Bypass Graft as defined under the Policy:
The actual undergoing for the first time of an open chest coronary artery
bypass surgery to correct narrowing or blockage of one or more coronary
arteries with bypass grafts provided it is recommended by Cardiologist and
supported with coronary angiographic evidence but excluding balloon
angioplasty and/or any other intra arterial procedures or laser relief.
5.
It was an admitted fact that ,on 07/07/2007, the complainant was operated for Aortic Bifemoral Bypass Grafting – Aortic Iliac Block on thigh region at Sawai Mann Singh Hospital
and had incurred an expenditure of Rs.1,25,000/-; the said claim was repudiated by OP.
Clarification was given by Dr. Neerja Grova that it was not concerned with heart or CABG
operation, but it was Aorto- Femoral by-pass. The Fora below clearly misunderstood the
medical terminology and interpreted the term “By-pass” as coronary artery bypass
graft(CABG). On perusal of operative notes, it clearly goes to show that, the operation was
performed for the disease in the leg. It was not concerned at all with heart i.e., coronary
arteries. Therefore, there is nothing wrong that the OP has repudiated the claim. The District
Forum mixed the 2 procedures which are entirely different and done on 2 different organs
viz. namely CABG for heart blockage, Aorto-Femoral Bypass graft for artery blockage, in
the leg.
6.
We are also surprised to peruse the order of the State Commission which is absolutely a non
speaking order. It has just endorsed the order of the District Forum, without considering the
evidence or medical literature or operative notes.
7.
Therefore, we set aside the order passed by the fora below and allow this revision petition.
Accordingly, the complaint is dismissed. Parties are directed to bear their own costs.
..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
..…………………………
(S. M. KANTIKAR)
MEMBER
Mss/14
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4317 OF 2012
(Against order dated 31.07.2012 in First Appeal No. 243/2010 of the State Consumer Disputes
Redressal Commission, Delhi)
B.S.E.S Yamuna Power Ltd. Through its CEO Shakti Kiran Building, Karkardooma, Delhi110092
…Petitioner
Versus
Smt. Krishna W/o Sh. Jeet Singh, R/o 6/207, Khichripur, Delhi-110091
…Respondent
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
For the Respondent
:
:
Mr. Abhinav Hansaria, Advocate
Mr. R.S. Rai, Advocate
PRONOUNCED ON 3rd February 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
The Petitioner has filed the present revision petition against the order in First Appeal No.
243/2010 passed by the Learned State Consumer Disputes Redressal Commission, (in short,
‘State Commission’) Delhi, which dismissed the appeal, contrary to law and erroneously
upheld the order and judgment dated 13.01.2010 passed by the District Consumer Disputes
redressal Forum (hereinafter referred to as, ‘District Forum’) New Delhi.
2.
Brief facts of the case are:
The Petitioner/OP B.S.E.S Yamuna Power Ltd, installed an electricity connection in the
house of the Complainant/Respondent on 15.11.2003. The electricity bill for the use was not
being issued by the OP, till 27.7.2008. In the meantime, the complainant made requests to OP
on 22.09.2004, 25.10.2005 and again, on 29.01.2007, he visited the office of OP, but
did not get the bill. However, on 27.07.2008, the OP issued a bill for Rs.1070/-, which was
paid by the Complainant, on 01.10.2008. Thereafter, on 3.2.2009, the officials of the OP
slapped a huge bill in the sum of Rs.98,840/- on the complainant, without any
proper explanation. Hence, alleging deficiency in service by OP, the complainant filed
complaint No. 207/2009, before the District Forum, on 20.03.2009.
3.
The District Forum partly allowed the complaint and directed the OP/Petitioner to recover
only Rs.9,026/- from the complainant, along with subsequent amount on current bills. It
alsoawarded compensation in the sum of Rs.5,000/- for mental agony and a sum of
Rs.1,000/- towards costs of litigation.
4.
Aggrieved by the order of District Forum, the OP filed First Appeal (FA No. 243/2010)
before the appeal before the State Consumer Disputes Redressal Commission (in short,
‘State Commission’), Delhi. The State Commission dismissed the appeal.
5.
Hence, the OP preferred this revision petition.
6.
We have heard both the parties. The learned counsel for OP brought our attention to the
terms of Regulation 16(ix) and (iv) of the DERC Regulations, 2007, and averred that a
consumer cannot be allowed to consume electricity, without paying the bills for
consumption. It was the responsibility of the consumer to inform the OP, in writing, that he
has not been receiving the bills relating to the consumption charges. Complainant has not
taken any steps to get the bills from the Petitioner and enjoyed the consumption of
electricity, for more than 5 years.
7.
The counsel for OP contended that due to non-punching of data in the computer system, the
meter was not punched, hence, bill of the Complainant was not raised. It was noticed by OP,
first time, under the scheme of UBC (unbilled cases) and only after that, the OP punched the
data in the system, on 17/07/2008 and downloaded reading as 28009 dated 26/09/2008.
Thereafter, till April 2009, a bill for Rs.1,00,223/- including arrears was raised against the
Complainant.
8.
The OP put reliance upon the judgment held by this Commission in Maharashtra
State Electricity Board vs. Swastic Industries (1996) CPJ 71 (NC), wherein it upheld the
demand raised after a span of 9 years of actual consumption of electricity, clearly holding
that raising bill for electricity consumed, howsoever belated, cannot be termed as
‘deficiency of service’. The relevant portion of the said judgment stating the question of law
in issue, reads as follows:
“We have perused the order in the case of M/s Bharat Barrel and Drum
Manufacturing Company Pvt. Ltd. vs. The Municipal Corporation of Greater
Bombay & Another reported in AIR 1978 Bom 1978 369… In the light of these
statutory provisions, they held that there is no warrant to read the word due in
the narrower sense viz. as only restricted to amounts within the period of
limitation or which could be successfully claimed by a suit. In other words,
there is no logical basis shown for preferring the narrower construction to the
ordinary construction i.e. wider construction. The wider meaning would be
more in accord with the scheme of the statutory provisions as also with
commercial honesty.
9.
It is well settled that normal law of limitation is not applicable for recovery of electricity
dues. The period in question, arose before the implementation of Electricity Act, 2003, and
will be governed by the provisions of Electricity Act, 1910. Reference in this regard may be
made to the decision in H.D. Shourie vs. Municipal Corporation of Delhi and Another,
reported in 32 (1987) DLT 73…” Similar view was taken by Hon’ble High Court of Delhi,
in a recent judgment, in the case of B.S.E.S. Rajdhani Power Ltd. vs. Consumer Grievance
Redressal
Forum W.P.
(C)
13556/2006
B.S.E.S. Rajdhani Power Ltd. W.P. (C) 14873/2006 .
with Nalin Bhushan Chandlok vs.
10. Therefore, we are of considered view that, the amount due and payable by the Complainant is
public money. Electricity is not merely a commercial commodity, bought and sold, but a
national energy resource. The Complainant has used and enjoyed the electricity for about
one decade, without paying any bill. The series of judgments have recognized the legislative
intent behind preventing loss to public money. This view was taken by this Commission
in Swastic Industries Case(supra) and observed as follows:
“However, the inefficiency of the functionaries of the Appellants, deplorable
though it is, cannot and should not be made a ground to cause a loss to a public utility
concern”.
11. As the OP has not specified about what was the rate per unit of electricity consumption,
during 2003, we are also in dilemma as the OP raised a huge bill in the sum of Rs.1,00,223/till April 2009, which needs further scrutiny and clarification.
12. Accordingly, we allow this revision petition and set aside the order of State Commission. The
OP is directed to issue fresh bill with proper calculation as per prevalent electricity rates
during the period November 2003 to April 2009. It was a case of contributory negligence,
hence we direct that OP should charge only for units consumed and should not levy any
penalty or interest. It is further directed that the amount due by the Complainant, be
recovered in equal monthly installments, for 12 months, after proper verification and
calculation. No orders as to costs.
..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
..…………………………
(S. M. KANTIKAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3324 OF 2012
(Against order dated 02.05.2012 in First Appeal No. 22/2012 of the State Consumer Disputes
Redressal Commission, UT, Chandigarh)
Oriental Insurance Company Ltd. Through Chief Manager 88, Janpath New Delhi – 110001
…Petitioner
Versus
Delhi Assam Roadways Corporation, Presently known as DRACL
(DARCL),
Logistics Limited, Through Authorized Rep. Office at: 19/3, Tilak Bazar, Hissar, Haryana
…Respondent
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
For the Respondent
:
Ms. Manjusha Wadhwa, Advocate
Mr. Karan Jain, Advocate Mr. Mridul Chakravarty, Advocate
PRONOUNCED ON 3rd FEBRUARY, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
The
Delhi
Assam
Roadways
Corporation the
Respondent/Complainant
herein
took Cash in Transit Insurance Policy, from Oriental Insurance Company Ltd., the
Petitioner/Opposite Party, which was valid for the period from 11.08.2009 to 10.08.2010.
Theft took place on the night intervening 06/07.10.2009., in the premises of the
Complainant, at Rudrapur, Uttarakhand. The thieves took away an amount of Rs.1,18,246/-,
from the safe, by breaking open the lock of the room, in which the said safe was kept.
The incident was immediately reported to the concerned Police Station, on 07.10.2009 and
an FIR was registered. The matter was also reported to the local branch of the OP at
Haldwani. The OP repudiated the claim of the Complainant, on the ground that there was no
threat or violence involved, for obtaining the keys. The OP turned a deaf ear to the several
requests made by the Complainant. Thereafter, alleging deficiency in service, the
complainant on 30.08.2011, filed a complaint before the District Forum.
2.
The District Forum allowed the complaint on 20.12.2011 and directed the OP/Petitioner to
pay Rs.1,18,246/- along with interest @ 9% per annum, from the date of repudiation i.e.
31.03.2010, till its actual payment, along with Rs.10,000/- as litigation cost.
3.
Aggrieved by the order of District Forum, the Petitioner/OP filed First Appeal (FA No
22/2012) before the State Consumer Disputes Redressal Commission (in short, ‘State
Commission’), Chandigarh,
on 16.1.2012.
The
State
Commission
dismissed
the
appeal, vide order dated 02.05.2012.
4.
Hence, the Petitioner/OP preferred this revision petition.
5.
We have heard Counsel for both the parties. The Counsel for the Respondent
raised objections on delay of 36 days in filing this revision. We condone the delay on the
basis of reasons stated in the IA for condonation of delay.
6.
On merits of this case, the Counsel for the Respondent/Complainant argued that, theft had
occurred and there was no delay either in filing the FIR or giving intimation to the insurance
company/(OP). Police arrested three persons, but theft amount was not recovered. He also
submitted that, the claim of complainant was a justified one, as per terms of policy. Even the
said claim was covered under risk of burglary, house breaking, dacoity, robbery and hold
up.
7.
The Counsel for the Petitioner/OP argued that there was no deficiency or negligence. He
further drew our attention to the said insurance policy particularly, to Condition No. 4
and the Exclusion Clause which run, as follows:
“The insured shall keep a daily record of the amount of Cash contained in the
safe or strong room and such record shall be deposited in a secured place other
than the said sale or strong room and be produced as documentary evidence in
support of a claim under this policy. The keys of the safe or strong room shall not
be left on the premises out of business hours unless the premises are occupied by
the insured or any authorized employee if insured in which case such keys if left
on the premises shall be deposited in a secured place not in the vicinity of the safe
or strong room. The insured shall keep a daily….. The policy does not cover loss
of cash abstracte4d from safe/strong room or any duplicate there of belonging to
the insured unless such key has been obtained by threat or violence.”
8.
Therefore, we are of considered view that the insured had not taken all reasonable
precautions for safety of the property which was insured. In the instant case, admittedly, the
keys were taken from below the pillow of the employee, without the use of any threat or
violence. Thus, simply because the things were stolen, will not make the insurer liable,
unless the essential ingredients i.e. use of ‘violence’ and/or ‘threat’, is missing. Further, the
keys were not kept at safe place and the keys lying below the pillow, were easily
accessible. Thus, the keys were taken from under the pillow of the concerned employee of
the Respondent and thereafter the room lock and the safe lock was opened by use of said
keys. Thus, opening of the safe was done, without the use of ‘threat’ or ‘violence’, and thus
not covered under the policy terms and conditions. Consequently, the claim of the
Complainant was repudiated.
9.
Counsel for the Respondent/Complainant argued that police have already investigated the
matter and arrested the thieves in the case. However, we do not find any iota of evidence on
record to show that the thieves were arrested and whether investigation, if any, is pending or
concluded, qua the alleged thieves. There was a delay of 31 days in filing the FIR and
giving intimation to the Insurance Company. Therefore, such delay in reporting would be a
violation of condition of policy, as it deprives valuable right of insurer to investigate the
case.
10. Such delay is fatal to the insured, for which the counsel for OP relied upon several judgments
of Hon’ble Apex court and that of this commission. Hon’ble Supreme Court in “United
India Insurance Company Limited vs. M/s Harchand Rai Chandan Lal (2004) 8 SCC
644”, has held that “the terms of Policy have to be construed as it is and nothing can be
added or subtracted from the same.” The Policy provides that in the case of theft, the matter
should be reported ‘immediately’. Similar view was taken by this Commission in “New
India Assurance Company Limited Vs. Trilochan Jane, FA/321/2005 decided on
09/12/2009.” To the similar effect, the judgment of this Commission in Aerolux India Pvt.
Ltd.
vs.
New
India
Insurance
Company
Limited,
Original
Petition
No.365/2002, decided on 13/4/2012, this Commission has observed, as under :“overall, we are convinced that the Complainant has not been able to make out a case
to support his claim, in as much as, he has failed to take reasonable care to protect the
insured premises and the stock of raw materials kept therein and has further failed to
comply with the mandatory and specific conditions of the policy relating to immediate
notice of the loss to the police and to the Insurance Company. We are also not
convinced that there has been any violent and forcible entry of any outsider/burglar to
commit theft. Rather there is every possibility about the involvement of his own staff in
the Commission of the offence.”
11. On the basis of forgoing discussion, we find that the complainant was negligent, and also did
not comply with the terms and conditions of the policy. Accordingly, we allow this revision
petition and set aside the order passed by the State Commission and dismiss the Complaint.
The parties are directed to bear their own costs.
..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
..…………………………
(S. M. KANTIKAR)
MEMBER
Mss/11
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2429 OF 2013
(Against order dated 22.04.2013 in First Appeal No. 181/2012
Consumer Disputes Redressal Commission, Uttarakhand, Dehradun)
of
the
State
Koto Trade & Services (P) Ltd. Through its Director, Koto Trade & Services Pvt. Ltd. E-153,
Forest Lane, Sainik Farm, Neb Sarai, New Delhi-110068
…Petitioner
Versus
Sh. B. D. Gupta, S/o Prayag Das R/o Chander Road Dehradun
…Respondent
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
For the Respondent
:
:
Mr. N.C. Agrawal, M.D.
Mr. Vikrant Gambhir, Advocate
PRONOUNCED ON 3rd FEBRUARY, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
The Complainant Mr. B.D. Gupta had purchased a solar water heater system from Mr. Anil
Kumar Singh, Manager, Koto Trade and Services Pvt. Ltd., Dehradun- the Opposite Party
No. 1. It was installed in his house on 10.02.2010 and there was a warranty of one year. He
had spent Rs.18,750/- for the purchase of Solar water heater, plus Rs.9,600/- for installation,
total being a sum of Rs.28,350/-. However, in the month of May, 2010, the tank of the solar
water heater system started leaking from various points. To repair the defect of the tank, the
OP-1 sent his employee to the Complainant’s house, but the employee damaged the
insulation of the tank, while examining it and told the Complainant that he cannot repair the
tank. After this, the Complainant contacted OP No.-1 and also the Director, Koto House, the
OP.-2, who always assured him that the defect will be removed and, in case the defect is not
removed, they will replace the solar water heater system. The Complainant furnished a
written complaint to OP-1, on 16.06.2010, but of no result. Ultimately, the Complainant
purchased a new solar water heater system for Rs.27,000/- and spent an amount of
Rs.2,000/- on the purchase of its parts and Rs.1,000/- on labour. Thus, the Complainant
filed a consumer complaint before the District Consumer Disputes Redressal Forum, (in
short, ‘District Forum’) Dehradun and prayed for refund.
2.
The District Forum partly allowed the complaint and directed the OPs to pay jointly and
severally the cost of Solar water heater Rs.22,750/- with 9% interest per annum and to pay
Rs.2,000/- for mental agony and Rs.2,000/- as costs.
3.
Aggrieved by the order of District Forum, the OP filed an appeal before State Consumer
Disputes Redressal Commission (in short, ‘State Commission’). Before the State
Commission, the Director,
Mr. N. C. Agrawal and authorized representative of OP, was
also present.
4.
The State Commission partly allowed the appeal and modified the order of District Forum
by reducing the rate of interest to from 9% p.a. to 6% p.a. and disallowed Rs.2,000/- for
mental agony.
5.
Against the order of State Commission, this revision petition arose.
6.
We have heard both the parties. The Counsel for Petitioner/OP vehemently argued that,
the warranty does not cover the breakage due to mishandling, impact or fall of any external
object on the said system. Warranty also ceases if the system is shifted/handled by outsiders
mechanic. The Complainant/Respondent has signed the invoice no. LS-100/09-10 dated
19.02.2010, wherein he has also accepted the terms and conditions annexed to the said
invoice. The counsel for OP, further submitted that grounding and foundation is very
important to prevent from wind pressure due to which the system may fall and get damaged.
Hence, such work needs highly skilled engineers of the company. The complainant had
totally ignored the advice and recommendation given by the representative of OP, thus,
violated the terms and conditions of supply. Hence, the warranty was ceased. Despite the
termination of warranty, on 09.06.2010, OP sent a mechanic to the complainant’s house
who removed/repaired the defects to entire satisfaction visited of the complainant.
Thereafter, the complainant served a legal notice to the OP on 30.06.2010 stating therein
that the system had been dislocated and had fallen down from the second floor to the first
floor due to storm and had been destroyed completely.
7.
We have perused Clause No. (vii) and (xi) of the Terms and Conditions of supply, which
state that:“ (vii) If the system is shifted/handled by outsider mechanic, the
warranty will cease.
(xi) Due to any substandard accessories, used by customer, the responsibility of damage
will be of customers.”
8. We have given thoughtful consideration to the entire evidence and documents on file. The
OP has not produced any cogent evidence with regard to shifting and mishandling of the
solar water heater system by the Complainant. There is no iota of evidence to prove that the
complainant had used substandard accessories. It is pertinent to note that both parties
admitted that the Solar system was installed in the presence of the company’s employee.
Hence, the entire work, including grounding and foundation, was done, per the requirement
for erection and installation of the system. The OP/company’s employee should have
objected to any fault during installation. Hence, without any evidence, OP cannot take the
plea that the grounding and foundation work’s quality was very poor and due to this, the
said system had fallen on 23-24.06.2010. OP did not provide proper services to the
complainant and it amounts to deficiency. Due to this, the complainant has installed another
Solar System and incurred further expenses and mental agony.
9. In view of the above discussion, it is held that the impugned order passed by the State
Commission is well a considered one and is without any illegality. The present revision
petition is therefore, dismissed, with no order as to costs.
..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR)
MEMBER
Mss/19
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3761 OF 2012 (Against order dated 08.05.2012 in First Appeal
No. 106/2011 of the State Consumer Disputes Redressal Commission, New Delhi)
Natarajan Bohidar R/o U-24/15 FF, DLF City3, Gurgaon-122002
…Petitioner
Versus
Citibank N.A. Jeevan Bharti Building 124, Connaught Circus, New Delhi
…Respondent
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
In person
For the Respondent
:
Ms. Suruchi Suri, Advocate
PRONOUNCED ON 3rd FEBRUARY, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
Mr. Natarajan Bohidar , the Complainant obtained a loan in the sum of Rs.2,93,025/from City Bank, the Opposite Party, to purchase a car, in the year 2000. The loan was repayable in 59 EMIs of Rs.7,089/- each, commencing from Dec.1, 2001 to Oct. 2005. The
complainant made regular EMI payments in the sum of Rs. 7,089/- per month, till
September, 2004 by ECS mode, through his Savings Bank account (S/B Ac) at
ABN AMRO Bank, New Delhi. Thereafter, from October-November, 2004, the
complainant preferred for the repayment of the installments, by cheques. He revoked the
ECS mandate from ABN AMRO Bank and intimated the OP that it should not make further
demands of ECS transfer on its banker to avoid duplication of payments. Nine cheques were
given by the complainant to the opposite party, at the time of signing the Loan Agreement.
The OP did not use the cheques, but again, made ECS demand , which was not honoured
by the ABN AMRO Bank. Thereafter, the OP issued him a notice for default in the agreed
terms. Hence, the Complainant paid the amount by cheque for 4 instalments which was
accepted by OP. Out of 59 instalments, only 5 remained to be paid. On 15.06.2005, when
the Complainant was on his way, 4-5 persons, forcibly took the car from his possession. The
complainant informed the matter to the police. The OP sold the car, without a pre-sale
notice and after crediting the proceeds in his account, raised an outstanding demand of
Rs.5,000/-. It is alleged that OP sent a pre-sale notice, the next day of re-possession i.e. on
16.06.2005 and also a notice was sent to clear the outstanding dues, within 7 days. The OP
actually sold the car for Rs.50,000/- and after crediting the proceeds in his account, raised an
outstanding demand of Rs.5,000/- .
2.
The Complainant filed a complaint, alleging deficiency of service, in repossessing of car
when only 4-5 instalments, out of 59, remained unpaid, before the State Consumer Disputes
Redressal Commission (in short, ‘State Commission’) and claimed compensation of
Rs.30,00,000/-. The State Commission while observing that the claim was exaggerated just
to make it come within the purview of the jurisdiction of the State Commission, remanded
the complaint back to the District Forum to treat the claim as for Rs.20,00,000/-
3.
The District Forum partly allowed the complaint and directed the OP to pay Rs.3,00,000/as damages for loss and harassment caused to him and also awarded Rs.25, 000/towards litigation charges.
4.
Aggrieved by the quantum of award made by District Forum, the complainant preferred
First Appeal FA No.2011/106 before the State Commission, which was dismissed.
5.
Hence, this revision petition.
6.
We have heard both the parties. The complainant was present in person. He argued
vehemently about the loss which he had suffered due to the act of OP, who took
his vehicleforcibly, which is like a ‘robbery’ and sold it, at ‘throw-away’ price. He further
stated that the company had taken 9 undated cheques, as security and same could have been
used for payment of balance instalments, instead of ECS mode, from October 2004,
onwards.
7.
We have perused the evidence and relevant documents on file. The learned Counsel for OP
argued that, it has relied strictly on the terms and conditions of the agreement and it has the
right to repossess the vehicle, for any default. The counsel brought our attention to copies of
various letters of communications sent to Complainant. He further denied having received
any instructions from the Complainant to stop ECS mode, from last 12 instalments, or any
authority to use undated cheques. The counsel for OP relied upon the decision in the case of
Charanjeet Singh Chadha and Ors. Vs. Sh. Jagmander Singh and Anr. (2006) 2 SCC, 598.
8.
The Learned Counsel for the OP further argued that the OP has not instructed the
Complainant to give post dated cheques, in advance and contended that the pre and post
datednotice was given. We have insisted the counsel for OP to produce copy of the notice
served upon the Complainant, prior to the possession of vehicle, but the Counsel for OP
failed produce such crucial document. Hence, the argument made on behalf of OP lacks
conviction.
9.
We have perused the documents, OP bank statements and evidence on record, which
clearly indicate that the OP, which is a responsible bank, did not show it’s prudence. From
October 2004, OP made 4 times ESC instalment demands, which were not honoured by the
complainant’s bank. Hence, OP made the Complainant to pay delay charges or dishonour
charges. There were only 4-5 instalments which remained due for payment and the OP was
in possession of 9 undated cheques in-hand, as a security. Therefore, we are unable to
understand as to why OP failed to appreciate those cheques. The OP also did not disclose
the reason as to why the cheques were not en-cashed in lieu of ECS.
10. We are not satisfied with OP’s conduct and the manner of forcible repossession of the car,
without any intimation or prior notice to the complainant. OP subsequently sold the car, by
issuing notice on next day 16/6/2005. The car was sold at ‘throw-away’ price, just,
equivalent to the outstanding amount of 4-5 instalments. It appears to be a deliberate act and
deficiency in service by the OP.
11. The Complainant has approached the fora below claiming compensation to the tune
Rs.30,47,559/- , but he was awarded only Rs.3,00,000/-. The Complainant filed this
revision for enhancement of compensation. Hence, this revision will decide whether
compensation granted by the fora below is correct or is inadequate.
12. Complainant is a professional and suffered huge loss for which he has claimed a huge
compensation. He has not filed any candid evidence to prove his loss. It appears to be a
general vague assessment of losses suffered by the Complainant.
13. We are not convinced by the argument of the complainant. The car was purchased in the year
2000, for Rs.3,91,000/- and, it was repossessed in the year 2005. The depreciation will be at
maximum of 30%, accordingly, the value of car will be around Rs.2.75 lacs or more. The
fora below have considered this point, but did not award the compensation for the
complainants’ agony and sufferings. In such a situation, we cannot enhance the
compensation, abruptly. No doubt, the Consumer Protection Act is a benevolent act, and its
purpose is to provide social justice . Its misuse should not be allowed. The Consumer Fora
are not lottery centres to try luck and get huge amount. The fora below have considered all
points and awarded a sum of Rs.3,00,000/-. Therefore, in our view, the complainant
deserves further compensation for mental agony and cost. Hence, we are of considered
opinion that, additional compensation of Rs.50,000/- will be just and proper.
14. On the basis of forgoing discussion, we partly allow this revision petition and modify the
order of fora below as follows: The opposite party is directed to pay Rs.3,00,000/- to the
complainant, with interest @ 6% per annum, from 15.06.2005, the date of re-possession of
the car. OP is further directed to pay a sum of Rs.40,000/- towards mental agony and
Rs.10,000/- as a costs of litigation. The entire order be complied, within 90 days from the
date of receipt of order, otherwise it will carry interest @ 9%, till it’s realisation.
..…………………………
(J. M. MALIK, J.) PRESIDING MEMBER
..…………………………
(S. M. KANTIKAR) MEMBER
Mss/10
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 253 OF 2002 WITH IA /543/2013
Smt. Munesh Devi W/o Late Shri Jagbir Singh R/o. A/103, Sunita Vihar 100 ft. Road, Loni
Tehsil & District Ghaziabad Uttar Pradesh Presently residing at : C/o B.P.Singh, C-31 Gali
No.1, Khajoori Khas, Delhi – 110094
.... Complinant
Vs.
1. The U.P. Power Corporation Ltd. Shakti Bhavan, 14, Ashoka Marg Lucknow
2. The Executive Engineer
Ghaziabad
–
Electricity Distribution Division
11
SB-VI, Shastri Nagar,
3. The Sub-Divisional Officer Electricity Distribution Division Pargana Loni, District Ghaziabad
….. Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Complainant
: Mr. Vishal Saxena, Advocate
For all the Opp. Parties : Mr. Pradeep Misra, Advocate
Pronounced on 3rd FEBRUARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
The facts germane to this complaint case filed before this Commission on 11.07.2002,
by Smt. Munesh Devi, Widow of late Shri Jagbir Singh, R/o. A/103, Sunita Vihar, 100 ft.
Road, Loni, Tehsil & District Ghaziabad, Uttar Pradesh, (Presently residing at C/o B.P.Singh, C31, Gali No.1, Khajoori Khas, Delhi – 110 094) are these. The Complainant has claimed a
sum of Rs.25,00,000/- because the death of her husband was caused due to the transformer
installed and
maintained
by
the
Opposite
Parties,
while
he was returning
home from duty. The transformer of the Uttar Pradesh Power Corporation Ltd., (UPPCL, in
short), arrayed as OP No.1, suddenly burst and the hot oil of the transformer fell upon
her husband,
late
Sh. Jagbir Singh,
6.00PM. He received 85% burn injuries. He
on
05.02.2000
was
at
about
taken
to Safdarjung Hospital, where he succumbed to burn injurieson 08.02.2000.
2.
Sh Jagbir Singh who was residing at the above mentioned address was an employee of
the Mahanagar Telephone Nigam Ltd., (‘MTNL’, in short) at Delhi. The information regarding
the death of the deceased was given to the Police. The complainant claimed Rs.25.00 lakhs as
compensation under different Heads before the OPs. The said claim has not been decided so
far. The transformer in question was very old and rusty. The OPs were entrusted with the job
of maintenance, removal and replacement of equipments which are needed for the
generation and supply of
electricity.
The
local inhabitants informed the
OPs
about the pathetic condition of the transformer but the OPs did not pay any heed to it. The
deceased at the time of the death was drawing a monthly salary in the sum of Rs.6,275/-. He
was born on 01.07.1961 and he passed away when his age was 38 years 7 months. The
complainant, at the time of her husband’s death, was about 33 years and she has to look
after her three minor children.
3.
The complainant approached the civil court, Hon’ble High Court and Hon’ble Supreme
Court, respectively, on the ground that she was unable to pay a sum of Rs.1,00,000/as court fee and wanted exemption from paying the court fee, but her request was not
allowed. It is prayed that complainant be awarded a sum of Rs.25,00,000/- on account of the
deficiency, negligence and
dereliction of duty on the part of the OPs.
4.
The
Ops
contested the case
and set
up
the
following
defences. The complainant is not a consumer and she is not entitled to Rs.25,00,000/. The details given
by
her
are
not
clear.
All
the allegations have
been
denied
including that no application for compensation was received by the replying OPs. It is,
admitted that UPPCL, OP1 is a Government Company which has been entrusted with the
work of transformation and distribution of electricity in Uttar Pradesh. It is also admitted that a
transformer of the OPs was burnt due to sudden fall. No copy of FIR was enclosed with the
complaint. The
OPs
were maintaining the transformer from
time
to
time
and
its
capacity and load and oil used to be checked from time to time. It is denied that the
transformer
burst
out
due
to
negligence
of
the
OPs. There
is
no
provision
under which compensation for sudden accident due to the fact which was beyond the
control of the replying OPs could be granted. The incident did not occur in the premises
of the
complainant but
had
occurred on the road, and by
chance, the
complainant’s husband was passing by it, at that time. No cause of action has arisen in
favour of the complainant and she is not entitled to any compensation.
5.
Previously, we (Justice J.M. Malik and Sh. Vinay Kumar), have heard the case and
decided that the case was barred by time, vide our order dated 18.02.2013. Aggrieved by that
order,
the
complainant
Court. The said SLP was
filed
a
Special
accepted. It
Leave
Petition
was held that the
before
delay
the Hon’ble Apex
in
filing the
original petition was condonable. The delay had been condoned and the case was remanded
back to this Commission, vide order dated 19.07.2013.
6.
We have heard the counsel for the parties and gone through the evidence led by them,
through affidavits. The complainant, Mrs. Munesh Devi has supported her case by filing an
affidavit. She contended that she has been consuming electricity, distributed by U.P.
Power Corporation Ltd. She has proved the
receipt
of
bill,
Ex.P-
2. She has also placed on record, Ex.P-3, wherein
Executive Engineer (Electrical),
she
made
Supply
Ghaziabad, the copy of the
picture
the Post Mortem report, Ex.PW-1/1,
of
claim
before
the
Division-VI, Shastri Nagar,
the
Discharge
Transformer,
Ex.P-4,
summary report,
PW-
1/2 and the documents showing that the electricity distribution estimate for the replacement of
damaged transformer have been placed on record by the complainant. It is also apparent
that the damage was caused to the transformer on 16.01.2000 and on 06.02.2000. She has also
proved on record the salary of her husband at Rs.6,275/- dated 20.09.2000. On the other
hand, the OPs have denied all these allegations.
7.
The submissions made by the counsel for the OP has the following five prongs.
The complainant has approached the Civil Court, Hon’ble High Court and Hon’ble Supreme
Court
in
respect
of
exemption
of court
fees. All the above said courts gave
short shrift to her request. Ultimately, this consumer complaint was filed, which is barred
by principles of res judicata.
8.
We clap no significance to this feckless argument. The expression of ‘Matter in Issue’ in
Section 11 of the Code means the right litigated between the parties, i.e., the facts on which the
right is claimed and the law applicable to the determination of that issue. The merits of the case
were never adjudicated. This view neatly dovetails with the cases reported in Jaswant Singh
Vs. Custodian of Evacuee Property, AIR 1985 SC 1096 and Syed Mohd. Vs. Mohd. Hanijfa,
AIR 1976 SC 1569. The matter in question is still to be decided.Even if the case is decided on a
preliminary issue, there lies no rub in deciding the case on merits. Last, but not the
least, there is no inkling in the order of the Supreme Court that this case is barred by principles
of res judicata. While condoning the delay of 156 days, the Hon’ble Apex Court held that the
case
is
remitted
back
to this
Commission
for
disposal
thereof
on
merits. Consequently, we pin no value to this argument.
9.
The second submission made by the counsel for the OP was that the complainant had an
alternative remedy under the Fatal Accident Claims Act.
10.
This
argument
was
of the complainant herself
stated
either
for
to
its
file
outright
complaint
rejection. It
under
is
CP
the
choice
Act,
1986
or under any other Act. Section 3 of the CP Act, 1986, has crystallined clarity. Section 3 lays
down that the provisions of this Act shall be in addition to and not in derogation of the
provisions of any other law for the time being in force. Consequently, this argument has to
be left out of consideration.
11.
The third submission advanced by the
counsel
for the
OP was that the accident took place on 05.02.2000, but the intimation to the Department,
was
not
given
till,
28.07.2000. The
delay
was never explained. The complainant has never filed the
claim
before the OPs. There is no representation or its copy or any entry, etc., on record.
12.
This plea is mere palliative and does not delve deep to the roots of the malady. The case
of the opposite party is at sixes and sevens. The FIR, Post Mortem report and admission of OP
itself,
clearly go
to
show that the
could have waited for two years and with
accident took place. The
an
application
complainant
for condonation of
delay for more time. Even if there is no representation or entry in the record, it does not
mean that the complainant does not have any case. It was known to the MTNL Department,
(Mahanagar Telephone Nigam Limited) and, therefore, she got service
of Class IV Employment on compassionate ground. This was a well-known fact and there is
no
use to bury
your
head
in
the
sand. It has become a fashion to
deny
the obvious facts which is against the spirit and object of the jurisprudence.
13.
The last submission made
by the
counsel
for OP
is
that the
complainant has got employment as Class IV employee and that fact should be
considered while granting compensation.
14.
The record reveals that the OP was very well aware of the fact that their Transformer was
not working properly. The documents themselves show that from 16.01.2000 and, on
06.02.2000, they were aware of these defects in the Transformer. The employees of the OP
perused the matter in a lackadaisical manner till the whole drama ended in tragic death
ofShri Jagbir Singh. This
is
dereliction
of
duty. This is negligence
and
with
a
vengeance. They should have removed the defects immediately, rather than putting the lives
of the people in jeopardy. It is well said “A Stitch in Time, Saves Nine”. The deceased was a
young man. On the date of his death, he was aged about 38 years and 7 months and his young
wife
was
about
years, it comes
33 years at that time. If
to
we
calculate
Rs.16,56,600/-. This
the 6th Pay Commission report. If we count the
6th Pay
the salary for remaining 22
is
Commission,
without
his
increments/promotions, his Provident Fund, etc., it will be around Rs.10,00,000/- p.a. or
more,
tentatively.
However, the complainant has claimed
only. This appears to be just and
reasonable. In
the
a
sum
celebrated
of
Rs.25,00,000/-
authority,
reported
in Balram Prasad (Dr.) Vs. Dr. Kunal Saha, IV (2013) CPJ 1 (SC), it was held :“He has further rightly contended that with respect to the
fundamental principle for awarding just and reasonable
compensation, this Court, in Malay KumarGanguly’s case (supra),
has categorically stated while remanding this case back to the
National Commission that the principle for just and
reasonable compensation
is based
on
‘restitutio in integrum’ that is, the claimant must receive sum of
money which would put him in the same position as he would have
been if he had not sustained the wrong”.
15.
Under the circumstances, we allow the complaint and direct the OP to pay a sum
of Rs.25,00,000/- to the complainant, along with interest @ 9% p.a. from 08.02.2000, the date
of death of the complainant’s husband. The complainant has been deprived of the company
of
her
husband.
She
is
the
only
person
to
look after her minor children. Shemust have undergone harassment, mental agony, anguish,
despair,
frustration,
sadness,
her compensation in the
anger,
etc.,
all
these
years. Consequently, we award
sum of Rs.10,00,000/- and litigation
of Rs.2,00,000/-. Hopefully,
she
will
continue
charges
with her service in
in
the
the
sum
MTNL. The
order be complied with, within 90 days from the date of receipt of this order. Otherwise, the
compensation and litigation charges will also carry interest @ 9% p.a., till realisation.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
..……………….……………
(DR.S.M.KANTIKAR)
MEMBER
Dd/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 680 OF 2014
(From order dated 28.06.2013 First Appeal No. 521/2012 of the State Consumer Disputes
Redressal Commission, Kerala, Thiruvananthapuram)
WITH IA/339/2014 IA/340/2014 (STAY, CONDONATION OF DELAY)
Suresh Kumar S.S. Managing Partner M/s. Babu’s Medicals, Kanjikuzhi Kottayam R/o Santhosh
Bhavan, Muttambalam P.O. Kottayam
… Petitioner
Versus
1. IFFCO-TOKIO General Insurance Co. Ltd. IFFCO Sadan, C1 Centre Saket, New Delhi
2. The Branch Manager IFFCO TOKIO General Insurance Co. Ltd. XL/1485 1st Floor
Sathagamava, M.G. Road, Cochin
… Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. Prasanth P., Advocate
PRONOUNCED ON 3rd FEBRUARY, 2014
ORDER
JUSTICE J.M.MALIK
1.
During the subsistence
of
the insurance
the business premises of the complainant,
policy,
Sh.Suresh
Kumar
on
S.S.,
26.04.2008,
were
gutted in
fire. Adjacent four shops were also damaged. The entire goods were totally damaged. The
complainant made a claim of Rs.8,52,398/- before the IFFCO TOKIO General Insurance Co. Ltd.,
OP1, in this case. ASurveyor was appointed and the insurance company offered to settle the
claim only at Rs.4,56,661/-, as full and final settlement. The company also insisted that
the demand draftwould be paid in favour of M/s. Mini Muthoottu. The petitioner objected to it.
2.
The
case
of
the
respondent
is
that
in
complainant, there is no lien/hypothecation endorsed in
Muthoottu, Kottayam,
Thirnakkara
Branch. It
the
favour
also
policy
issued
of
to
the
M/s.
Mini
transpired
that
there was another policy issued by National Insurance Co. Ltd. They are liable to pay the
proportionate amount in the sum of Rs.4,56,661/- . The District Forum allowed the complaint
and awarded a sum of Rs.8,52,398/- with interest @ 10% p.a., from 10.06.2008 till
realization and awarded costs in the sum of Rs.3,000/-.
3.
The State Commission held, as under:-
“The
opposite
parties
relying
on
the Tariff Advisory
Committee Directives, dated 31.03.01, sought to apportion the loss to
the complainant between the insurers. The directive is as below, “if
at the time of any loss or damage happening to any property hereby
insured there
be any
other
subsisting
insurance
or
insurances, whether effected by the insured or by any other person
or persons covering the same property, this company shall not be
liable to pay or contribute more than its rateable proportion of such
loss or damage”. The answer to this argument was two-fold.
Firstly, it is contended that in Ext.A1 policy, the directive of the Tariff
Advisory Committee is not incorporated by the appellants. On the
contrary, the relevant directive is incorporated in Ext.B6 policy
issued by the National Insurance Company and secondly in the two
policies different interests in the property are covered against the
same
risk. Hence,
it
cannot
be
said
that there
is double insurance. Both the policies are available and it is
difficult to accept the second argument, particularly in the light of
Ext.B4,
consent for the
settlement which shows
that
the
complainant was aware of the relevant directive and
the subject matter of both policies is the same. Not only that,
nothing is alleged in the complaint that he had not submitted any
claim before the National Insurance Company based on Ext.B6 or
that he had not received rateable proportion of his loss from the
National Insurance
Company. So, in the light of Ext.B4, it was reasonable for the
appellants to have offered settlement of the claim of the complainant
at Rs.4,56,661/- towards full and final settlement of the appellants
liability”.
4.
Ultimately, the State Commission held that an amount of Rs.4,56,661/- be paid to the
complainant
with
interest
@
9%
p.a.,
from
the
date
of
complaint,
till the date
of realization and costs of Rs.2,000/- was also awarded. The plea raised by the opposite party
that the amount could be released only through M/s. Mini Muthoottu was rejected.
5.
We have heard the counsel for the petitioner. He contended that he is entitled to the entire
claim of Rs.8,52,398/-.
6.
This argument is devoid of merit for the reasons detailed above. We have seen the complaint
itself which was placed on record, as Ex.P1. Para 4 of the complaint is relevant, which runs as
follows:“4…………..Since the opposite party had made the said
proposal with an unreasonable condition by which it is offered to
release the claim settlement amount through DD in favour of M/s.
Mini Muthoottu a Private money lending company, the complainant
had objected to the releasing of the settled claim amount through
M/s. Mini Muthoottu and demanded to release the amount
through a nationalized Bank and expressed his willingness to
accept
the
proposed
offer
of
settlement
for
an
amount of Rs.4,56,661/-. Since M/s. Mini Muthoottu has nothing to
do with the contract of insurance between this complainant and
IFFCO-TOKIO
General
Insurance
Company
Ltd.,
this complainant had conveyed his objection and dissent to
the said proposal through
a
reply
letter
dated
04.12.2009 sent to the opposite party Insurance Company, but
signified his consent to the proposed offer of settlement of the
claim for an amount of Rs.4,56,661/- (Four lakhs fifty six thousand
six
hundred
and
sixty
one
only) and demanded to
release the amount through DD to be drawn in a nationalized
bank preferably to this complainant’s account No.20013616040 in
the State Bank of India, Kottayam, Thirunakkara Branch”.
7.
Thus,
there
is
admission
on
the
part
of
the
complainant
himself. We
are not aware what is the agreement between the petitioner and National
Insurance
Company. The non-filing of the case against National Insurance Company causes a film of doubt
on their bonafides. The revision petition is, therefore, dismissed. No order as to costs.
.…..…………………………
(J. M. MALIK, J) PRESIDING MEMBER
.…..…………………………
(DR. S. M. KANTIKAR) MEMBER
dd/8
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 5 OF 2014
Sunil Gupta S/o. Sh. D.R. Gupta R/o N-155, Panchshila Park New Delhi – 110017
… Complainant
Versus
Today Homes & Infrastructure (Pvt.) Ltd. Statesman House, 8th Floor Barakhamba Road, New
Delhi Also at : B-21, First Floor, Sector-2, Noida
… Opposite Party
And
CONSUMER COMPLAINT NO. 6 OF 2014
Sunil Gupta S/o. Sh. D.R. Gupta R/o N-155, Panchshila Park New Delhi – 110017
… Complainant
Versus
Today Homes & Infrastructure (Pvt.) Ltd. Statesman House, 8th Floor Barakhamba Road, New
Delhi Also at : B-21, First Floor, Sector-2, Noida
… Opposite Party
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For Complainant in both cases : Mr. Arvind Bhatt & Mr. A.K. Mishra,
Advocates
PRONOUNCED ON _3rd February, 2014
ORDER
JUSTICE J.M. MALIK
1.
The principal controversy revolves around the question, “Whether, the complainant,
Sh.Sunil Gupta, is a ‘consumer’, in this case?”. This judgment shall decide two complaintswhich
are mentioned above. Both the complaints filed by the same complainant are against the
same Opposite party. They entail the same questions of law. Therefore, those will be decided
by a common judgment.
2.
This is an admitted fact that
26, Opulence Villa, Mayfield Garden,
Sh.Sunil
Gupta booked two Villas,
one,
M-
Gurgaon, measuring 826.81
sq.yds with superstructure (consisting of Ground, First and part Second Floor measuring
6,500 sq.ft. as the built-up area with front and rear courtyard) and the other, M-1, Opulence
Villa, Mayfield Garden, Gurgaon, measuring 1029.75 sy.yds (861 sq.mts) with superstructure
(consisting of Ground, First and part Second Floor measuring 6,500 sq.ft. as the built-up area
with front and rear courtyard). The moot question is, ‘Whether, a ‘consumer’ can book two
different Villas, while this is an admitted fact that Sh.Sunil Gupta and his family resides in
a third house, bearing No.N-155, Panchshila Park, New Delhi – 110 017?”. Counsel for the
complainant submits that this house belongs to the
complainant’s
father and the complainant has no house in his name.
3.
We have perused the pleadings. He has explained how he is a ‘consumer’, in paras
48 & 51 of both the complaints, respectively. The said para, which is same in both the cases,
runs as follows:“Complainant is a consumer. He has bought the property for his
personal
use. The
actions
of the
THIPL
are
mischievous and not understandable. They amount to ‘deficiency
in service’. In these circumstances, it is necessary that this Hon’ble
Commission is approached and appropriate orders are granted”.
4.
The namby pamby pleas set up by the complainant are vague, evasive and lead the
Commission nowhere. In both the cases, he has stressed that he has bought the property for his
personal use. The learned counsel for the complainant also pointed out that Consumer
Protection Act, 1986, vide section 2(1)(d), does not make any distinction between one or a
number
of
flats. It
is
the
sweet
choice of the
‘consumer’ to
purchase as
many residential Villas, as he wants. He has also invited our attention to Section 11
of Consumer Protection Act, 1986, and according to him, there lies no rub in getting the two
independent houses, besides, the third house, his father is holding. He has also invited our
attention towards the judgment of this Commission, titled as M/s. Controls & Switchgear
Co. Ltd. Vs. M/s. Daimlerchrysler India Pvt. Ltd. & Anr., in Original Petition No.9 of 2006,
decided
on
17.09.2007, wherein two luxurious brand
of cars,
namely, Mercedez-
Benz, were purchased by the same consumer. It was held that the said two Mercedez-Benz
cars were not purchased for commercial purposes.
5.
We are unable to clap any importance with these arguments. Purchase of motor car
and purchase of two flats are entirely different. Those cannot be equated.
6.
Counsel
for
the
complainant
states
that the
complainant
has
purchased
the
problem,
one house for his son and the other for his daughter.
7.
The
learned counsel, instead of
touching
the
heart
of
just skirted it. He could not invite our attention towards pleadings. All these facts are co
nspicuously missing. Who are the family members, are they minor or major, married or
unmarried, why there is need of second and third house, etc., have not been explained.
8.
This Commission, in case titled, Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III
(2012) CPJ 315, has held, as under :“Arguments
of
the
learned
Counsel
have
been
considered. However, we are of the view that the complaint as
presented cannot be maintained before a Consumer Fora, like ours,
as the agreement was for the construction
of two showrooms, which obviously relate to
commercial
purpose
and
the
complainant, therefore,
will not come within the definition of a ‘consumer’, as per
Section 2(1)(d) of the Consumer Protection Act, 1986. This has
been
the
consistent view
of this
Commission. It has
held that even when a consumer has booked more than one
unit of residential premises; it amounts to booking of such premises
for investment/commercial purpose. This Commission in the case
of Jagmohan Chabra and another Vs. DLF Universal Ltd., IV
(2007) CPJ 199, in a somewhat similar case held that the
complaint was not maintainable under the Consumer Protection
Act, 1986. It had, therefore, disposed the complaint with
liberty
to
the
complainant to
approach
Civil
Court. The said order has since been upheld by the Hon’ble
Supreme Court as Civil Appeal No. 6030-6031 of 2008, filed before
the
Supreme Court stands dismissed, vide Apex
Court’s
order dated 29.09.2008”.
9.
The complainant is not a ‘consumer’. We cannot arrogate to ourselves the powers with which
we are not armed with. Consequently, both the complaints are hereby dismissed. No order as to
costs.
10.
However, we reserve the right of the complainant to
approach
the
appropriate Civil Court to seek his remedy, if so advised. He may take advantage of the ruling
of the Hon’ble Supreme Court in the case of Laxmi Engineering Works Vs. PSG Industrial
Institute, II (1995) CPJ 1 (SC), to seek exclusion of the time spent in prosecuting these
complaints before this Commission.
...…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
...…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
dd/8 & 9
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3060 OF 2011
(Against the order dated 25.5.2011 in Appeal No.603 of 2009 of the State Commission,
Andhra Pradesh)
M/s. Steel City Securities Ltd. VI Floor, Sanous Manohar Complex, Opp Dinmy Pen
Shop Sindhi Colony PG Road, Secunderabad, AP Rep. by its Manager
…. Petitioner
Versus
1. Shri G.P. Ramesh So Late Pentaiah A Aged about 53 years OCC: Retired Employee Indian
R/o H. No.E-109, Madhuranagar.R. Nagar, Hyderabad A.P.
2. Smt. Padma G. W/o G.P. Ramesh Aged about 51 years Occ: Housewife Indian R/o H. No.E109, Madhuranagar S.R. Nagar, Hyderabad A.P.
…Respondents
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mrs. Radha Rao, Advocate
For the Respondents : Mr. K. Subba Rao, Advocate
Pronounced on: 3rd February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed by the Petitioner/Opposite Party under Section 21(b)
of Consumer Protection Act, 1986 (for short, ‘Act’) challenging the impugned order dated
25.5.2011 passed in F.A. No. 603 of 2009 by Andhra Pradesh State Consumer Disputes
Redressal Commission, Hyderabad (for short, ‘State Commission’).
2. Respondents/Complainants, filed a consumer complaint under Section 12 of the Act on
the allegation that they are husband and wife and they are transacting shares with the petitioner
through their Client ID No.1202230000004809 with OPID No.22300 and client I.D.
No.1202230000005023 with DPID No.22300 respectively. On 24.01.2008, respondent no.1
parked his Scooter in front of a shop to purchase a refill. After he came out he found that his
Rexene box was missing which was hanged to his scooter. The said bag contained blank signed
depository participant slip books of himself and of respondent no.2. Thereafter, he immediately
informed the said incident over phone to the petitioner and requested it not to allow any
transactions on the said depository participant slips. The petitioner advised him to lodge a police
complaint and enclose the same alongwith his representation for their record purpose. Petitioner
also assured him that they will not allow any transaction on the said depository participant slips
which were lost. Accordingly, respondent no.1 lodged a complaint before the S.R. Nagar, Police
on the same day i.e. on 24.01.2008. The police authorities after investigation issued a certificate
on 30.01.2008 stating that efforts were made to trace the above slips but all are in vain. Then,
respondent no.1 submitted a written representation to the petitioner on 30.01.2008 along with the
copy of the police complaint and requested them to issue new DPID books. However, there was
no response. Later on, respondents came to know that petitioner sold the shares worth
Rs.11,768.37/- dated 29.01.2008 and Rs.1,78,661.69 respectively, belonging to the respondent
No.2. In spite of the assurance that petitioner will not transact till new books are issued, the
petitioner sold the shares which is unfair and hence it is bound to reimburse the same, Since there
no response, the respondent sought reimbursement of a sum of Rs.1,78,661.69 and Rs.11,768.37
with interest @ 18% per annum from 29.01.2008 till date of payment to respondent No.2.
Further petitioner to issue new DPID books in favour of respondents, besides Rs.30,000/- each
towardscompensation and Rs.10,000/- as costs of the complaint.
3. Petitioner filed its counter denying the averments. Further, it denied having advised the
respondents to lodge a complaint before the Police. The complaint is not maintainable as there is
agreement between them that in case of dispute, they shall approach the Arbitrator. The
respondents have failed to show any deficiency of service/unfair trade practice. Lastly, the
respondents are not ‘consumers’ since the transactions are commercial in nature.
4. After hearing the parties and going through the record, District Forum held that the
petitioner has not committed any deficiency in service nor unfair trade practice and accordingly
dismissed the complaint.
5. Aggrieved by the order of District Forum, respondents filed appeal before the State
Commission which allowed the appeal and set aside the order passed by the District Forum. It
directed the petitioner to reimburse a sum of Rs.1,78,661.69 and Rs.11,768.37 to the second
complainant.
6. Now, petitioner has filed the present revision petition.
7. We have heard the learned counsel for the parties and gone through the record.
8. It is an admitted fact that respondents had been indulging in trading of the shares as
respondents in their complaint have stated that they are regularly transacting the transactions
through the petitioner.
9. Thus, the short question which arise for consideration in the present case is as to whether
respondents are ‘consumers’ or not as per Section 2(1)(d) of the Act.
10. Expression ‘consumer’ has been defined in Section 2 (1) (d) of the Act, which reads as
under;
“d
“Consumer” means any person who,--(i)
buys any goods for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of
deferred payment and includes any user of such goods other than
the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system
of deferred payment, when such use is made with the approval of
such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system
of deferred payment and includes any beneficiary of such services
other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly
promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned
person but does not include a person who avails of such services
for any commercial purpose;
Explanation------ For the purpose of this clause, “commercial purpose”
does not include use by a person of goods bought and used by him and
services availed by him exclusively for the purposes of earning his
livelihood by means of self-employment”.
11. Respondents have nowhere pleaded in their complaint that they are doing the share trading
business for self-employment nor it has been pleaded that the services provided by the petitioner
are being availed exclusively for the purpose of earning their livelihood by means of selfemployment. It is well settled that the dispute between the parties relating to commercial
purposes are excluded under the Act.
12. This Commission in Vijay Kumar Vs. Indusind Bank, II (2012) CPJ 181 (NC) has held;
“Since, petitioner has been trading regularly in the shares which is a
commercial transaction and for which he has also availed the “over draft
facility” from the respondent, as such he would not be a consumer as per
Section 2 (1) (d) (ii) of the Act. Moreover, regular trading in the purchase
and sale of the shares is a commercial transaction and the only motive is
to earn profit. Thus, this activity is purely commercial one and is not
covered under the Act”.
13. Since, respondents are trading regularly in the share business which is commercial activity,
under these circumstances, respondents would not fall under the definition of ‘consumer’ as per
the Act. Moreover, regular trading in the sale and purchase of shares is a purely commercial
activity and the only motive is to earn profits. Therefore, this activity being purely commercial
one, is not covered under the provisions of the Act.
14. Accordingly, we hold that since respondents are not the ‘consumers’ as per provisions of the
Act, the State Commission committed grave error in allowing their complaint. Consequently, we
allow the present revision petition and set aside the impugned order passed by the State
Commission and restore the order of the District Forum. With the result, the complaint filed by
the respondents before the District Forum shall stand dismissed.
15. With these observations, the present revision petition stand disposed of.
16. No order as to cost.
…………………………………….J
(V.B. GUPTA) PRESIDING MEMBER
……………………………………………
(REKHA GUPTA) MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.443 OF 2013
(From the order dated 22.10.2012 in F.A. No.1366/2010 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
MOHD. UNIS, S/O SH. MEHMOOD KHAN, R/O VILLAGE TEEKRI BRAHMIN,
DISTRICT PALWAL, HARYANA.
.….. PETITIONER
Versus
UNITED INDIA INSURANCE COMPANY LTD
(i) THROUGH ITS BRANCH MANAGER, CHAMPA BHAWAN, 1st FLOOR,
OPP. SYNDICATE BANK, OLD G.T. ROAD, PALWAL, HARYANA
(ii) THROUGH ITS DEPUTY MANAGER, SCO 123-124, SECTOR 17-B, CHANDIGARH.
....... RESPONDENTS
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
For the Respondent
: Mr. Gagan Gupta, Advocate
: Mr.Rajesh K. Gupta, Advocate
PRONOUNCED ON: 03rd February, 2014
ORDER
PER SURESH CHANDRA, MEMBER
Challenge in this revision petition is to the impugned order dated 22.10.2012 passed
by the State Consumer Disputes Redressal Commission, Haryana (‘the State Commission’,
for short) in First Appeal No.1366 of 2010 whereby the State Commission has upset the
order
dated
28.07.2010
passed
by
the
District Forum,
Faridabad
in Consumer
ComplaintNo.293 of 2006 and allowed the appeal filed by the OP insurance company,
respondent herein. The District Forum had earlier accepted the complaint of the petitioner
herein vide its aforesaid order in terms of the following directions:“7.
Since the vehicle was insured for an amount of Rs.3,50,000/- and
the complainant is entitled to compensation on non standard basis at
Rs.75% of the insured amount, the compensation comes to Rs.2,62,500/-.
8.
The respondent is, therefore, directed to pay Rs.2,62,500/- as
compensation for loss of his vehicle to the complainant with interest @
9% per annum from the date of complaint till the date of payment. The
respondent is further directed to pay Rs.2200/- as litigation expenses to
the complainant. …”
2.
Briefly stated, the facts relevant for disposal of this revision petition are that the
complainant/petitioner got his vehicle bearing registration no.HR63-6854 insured from the
OP/respondent insurance company for the period 20.07.2005 to 19.07.2006. During the
period of the policy, the vehicle met with an accident on 08.10.2005 for which FIR was
registered with the concerned police station and necessary intimation was given to the
insurance company. As per the version of the complainant, the vehicle was got repaired
from Shree Balaji Motors Palwal which gave an estimate of Rs.3,85,158/- for its repairs. The
complainant submitted his claim to the insurance company which appointed a surveyor to
assess the damage and loss to the vehicle. The surveyor in his report assessed the loss to the
tune of Rs.2,49,000/- on repair basis but the insurance company repudiated the claim on the
ground that the vehicle was being used for hire and reward. Challenging the action of the
OP insurance company, the complainant invoked the jurisdiction of the District Forum by
filing the consumer complaint. The OP insurance company resisted the complaint by filing
a written statement justifying the repudiation on the ground that during the investigation
carried out by the surveyor it was revealed that the vehicle in question was being used as
a commercial vehicle whereas the complainant had got the vehicle insured as a private
car. Denying any deficiency in service or unfair trade practice on their part, the OP insurance
company pleaded for dismissal of the complaint. Both the parties led evidence in support of
their respective claims. On appraisal of the pleadings and evidence adduced on record, the
District Forum accepted the complaint on non-standard basis and granted relief as reproduced
above to the complainant. Aggrieved of the order of the District Forum, the OP insurance
company challenged the same by filing an appeal before the State Commission, which came
to be allowed by the State Commission by its impugned order. It is in these circumstances
that the present revision petition has been filed by the complainant.
3.
We have heard learned Sh. Gagan Gupta, Advocate for the petitioner and Sh. Rajesh K.
Gupta, Advocate for the respondent and perused the record.
4.
Learned counsel for the petitioner has submitted that even though there was violation of
a condition of the policy regarding use of the vehicle in question for hire and reward as
alleged by the respondent insurance company, keeping this aspect in view, the District Forum
had rightly accepted the claim on non-standard basis since the decision of the District Forum
is in line with the view taken by the Supreme Court in the case of Amalendu
Sahoo vs. Oriental Insurance Co. Ltd. (2010 CTJ 485 SC). He submitted that the facts of
this case are identical to those in Amalendu Sahoo’s case and so the ratio of that case will be
squarely applicable to the present case also. He further submitted that the State Commission
gravely erred in relying on the judgment of the Apex Court in the case of M/s Suraj Mal
Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Co. Ltd. & Anr. (2011 CTJ 11
SC). He further submitted that the OP insurance company has not provided any proof
regarding the allegation of overloading which could have triggered or contributed to the
accident in question. In this context, he has also drawn our attention to the contents of the
FIRs No.75 dated 09.10.2005 and No.74 dated 08.10.2005 filed with the police station which
clearly indicate that the number of passengers in the vehicle in question was below 10 and
not 28 as alleged by the OP insurance Company in its reply before the District
Forum. Copies of the two FIRs have been placed on record by the petitioner. He, therefore,
submitted that the impugned order of the State Commission which is based on wrong
application of the ratio of the Apex Court in Suraj Mal Ram Niwas Oil Mills’ case cannot
be sustained and is liable to be set aside keeping in view the judgment of the Apex Court
in Amalendu Sahoo’s case.
5.
On the other hand, learned counsel for the respondent insurance company has
contended that the there were two violations in the present case inasmuch as the vehicle was
used for hire and reward even though it was registered as a private vehicle and the vehicle
carried more passengers than permissible thereby causing overloading. According to him,
there were 11 passengers in the vehicle (10+1) including the driver which led to losing of
control over the vehicle by the driver resulting in the accident in question on account of
overloading. He, therefore, submitted that the State Commission has appropriately relied on
the judgment of the Apex Court in the case of Suraj Mal Ram Niwas Oil Mills (P.)
Ltd. while accepting the appeal and dismissing the complaint.
6.
We have carefully considered the contentions of the learned counsel for the
parties. The short question which has arisen before us is as to whether the District Forum
was correct in applying the ratio laid down by the Apex Court in the case of Amalendu
Sahoo while settling the claim of the petitioner on non-standard basis and granting him relief
as per its order dated 28.07.2010. As stated above, the State Commission has reversed the
order of the District Forum relying on the later judgment of the Apex Court in the case
of Suraj Mal Ram Niwas Oil Mills (P.) Ltd. In our view, the facts of this case are
identical to the case of Amalendu Sahoo where the private motor car was being driven on
hire at the time of accident and based on surveyor report the claim was repudiated keeping in
view the terms of the insurance policy according to which the use of the car for hire was not
permitted. The District Forum dismissed the complaint and the appeal was dismissed by the
State Commission. Orders of the fora below were upheld by the National Commission,
which dismissed the revision petition of the complainant. However, the Hon’ble Supreme
Court allowed the appeal. In this context, we may refer to the following observations of their
Lordship’s of the Apex Court:“12. Reference in this case may be made to the decision of National Commission
rendered in the case of United India Insurance Company Limited v. Gian
Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National
Consumer Disputes Redressal Commission (NCDRC) it has been held that in a
case of violation of condition of the policy as to the nature of use of the vehicle,
the claim ought to be settled on a non-standard basis. The said decision of the
National Commission has been referred to by this Court in the case of National
Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE
351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra)
this Court held:“..The appellant Insurance Company is liable to indemnify the
owner of the vehicle when the insurer has obtained comprehensive
policy for the loss caused to the insurer. The respondent submitted
that even assuming that there was a breach of condition of the
insurance policy, the appellant Insurance Company ought to have
settled the claim on non-standard basis.”
13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75%
of the claim of the claimant on non-standard basis. The said order was upheld by
the National Commission and this Court refused to interfere with the decision of
the National Commission.”
7.
On the other hand, in the case of Suraj Mal Ram Niwas Oil Mills (P.) Ltd. the Apex
Court has laid emphasis on the need for the courts to strictly construe the terms of a contract
of insurance in terms of the words used therein without adding, deleting or substituting any
words. However, this observation was specifically with reference to the question of coverage
of the risk under the policy so as to determine the extent of liability of the insurer. In other
words, if a particular risk is not covered by the words of the policy, it would not be open to
the courts to add, delete or substitute any of the words used in the contract and the terms of
the insurance contract have to be strictly construed without any exception made on the
ground of equity by the courts. This celebrated ruling holds good without any doubt but facts
of this case and the issue involved therein are different and as such, in our view the State
Commission wrongly relied on the judgment of the Suraj Mal Ram Niwas Oil Mills’ case
while setting aside the order of the District forum. In this context, it would be fair and just to
reproduce the following observations of the Apex Court in Para 24 of the judgment:“24.Thus, it needs little emphasis that in construing the terms of a
contract of insurance, the words used therein must be given paramount
importance, and it is not open for the Court to add, delete or substitute
any words. It is also well settled that since upon issuance of an insurance
policy, the insurer undertakes to indemnify the loss suffered by the insured
on account of risks covered by the policy, its terms have to be strictly
construed to determine the extent of liability of the insurer. Therefore, the
endeavour of the court should always be to interpret the words in which
the contract is expressed by the parties.”
[Emphasis provided by us]
8.
It may not be out of place to mention that in the aforesaid case of Suraj Mal Ram
Niwas Oil Mills the question before the Hon’ble Supreme Court was regarding claim in
respect of dispatch of goods which had not been declared so as to cover them in terms and
conditions of the policy. Also, there was an allegation of insurance company regarding the
complainant exceeding the limit of coverage. It was with reference to these two questions
that the Apex Court in the case of Suraj Mal Ram Niwas Oil Mills had dismissed the appeal
of the complainant, namely, M/s Suraj Mal Ram Niwas Oil Mills (P.) Ltd. by holding that the
rights and obligations of the parties under an insurance contract are governed by the terms of
the said contract which have to be strictly construed and no exception can be made on the
ground of equity. In the present case admittedly the petitioner had taken a comprehensive
policy for the vehicle in question and, as such, keeping in view the ratio in the case
of National Insurance Company Limited v. Nitin Khandelwal (2008 (7) SCALE 351)
reiterated in the case of Amalendu Sahoo, the District Forum rightly accepted the claim of
the petitioner on non-standard basis. The State Commission failed to appreciate the fine
distinction between the two judgments of the Hon’ble Supreme Court and hence, the
impugned order cannot be sustained in the eye of law and is liable to be set
aside. Accordingly, we accept the revision petition, set aside the impugned order and
confirm the order of the District Forum with the parties bearing their own costs.
……………sd/-……..…
(AJIT BHARIHOKE, J.) PRESIDING MEMBER
…………sd/-…….………
(SURESH CHANDRA)
MEMBER
bs
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 206 OF 2013
Vipin Garg S/o. Sh.Brij Bhushan Garg R/o. 23, Abul Fazal Road Bengali Market New Delhi –
110001
… Complainant
Versu
1. Union of India Through Land & Development Office Ministry of Urban Development
Nirman Bhavan, New Delhi – 110001
2.
Sh.
Raj Bhushan Garg
S/o
Late
Sh. Jagdish Chand Garg
1A, Mehtra Garden, Opp.Sadar Thana Church Road, Saharanpur, Uttar Pradesh
3. Sh.Brij Bhushan Garg S/o. Late Sh.Jagdish Chand Garg R/o. 23, Abul Fazal Road Bengali
Market, New Delhi – 110001
… Opposite Parties
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Complainant : Mr. Rakesh Pathak, Advocate
PRONOUNCED ON 4th FEBRUARY 2014
ORDER
JUSTICE J.M.MALIK
1. This complaint pertains
to
a
family
dispute. The
most
intricate
questions involving succession and partition of a HUF property are involved. The partition
suit
is
already
pending
before
the Hon’ble Delhi High
Court. The
key
question which falls for consideration is, “Whether, the complainant, Mr.Vipin Garg, is a
‘consumer’?”. The short facts of the above detailed complaint are these.
2.
The complainant is a member of Hindu Undivided Family (HUF) and resides in an
immoveable residential property
No.23, Abul Fazal Road,
Delhi. Thecomplainant is sharing the suit
Bengali Market,
New
property with his mother,
father, Sh.Brij Bhushan Garg, OP3 and his brother, Sh.Neeraj Garg and his family.
3.
The main grievance of the complainant is in respect of OP2, Sh.Raj Bahadur Garg, who is
his paternal uncle, brother of his father. The said suit property measures about 212.5 sq.yds. It
was purchased by Late Sh. Ladli Prasad, the great grand-father of the complainant and his
brother, Late Sh. Har Prasad, in the name of HUF. From time to time, the members of the
HUF/ shareholders/ heirs of Late Sh. Ladli Prasad and Late Sh. Har Prasad took money in
consideration of relinquishment of their rights in the above said suit property and
other properties. The
properties
complainant was never a
party
were divided by way of settlement.
to
the
above
said
settlement. In
The
1956,
at Karnal, some members divided the properties of HUF firm and left the suit property
for Sh.Jagdish Chander Garg,
the
grand-father
of the
complainant.
However, the HUF was not dissolved.
4.
The complainant was born
on
02.03.1972. Karta
Sh. Jagdish Chand Garg passed away,
intestate. OP2 abandoned his membership
of
on
of the
HUF
HUF
firm,
29.03.1978,
Firm
and left for Uttar
Pradesh, where he was employed as Engineer in Irrigation Department of Uttar Pradesh.
5.
On 20.11.2007, Union of India, through Land & Development Officer, Ministry of Urban
Development, Nirman Bhavan,
New
Delhi,
OP1, executed a Conveyance Deed
in favourof OPs 2 & 3. In the Conveyance Deed, it was stated that in the year, 1940, Lease
Deed was executed in favour of Late Har Prasad, Late Sh. Ladli Prasad, Bankers by mutation
in the names of Mr.Raj Bhushan Garg and Mr.Brij Bahadur Garg, OP 2 & 3, respectively, was
jointly recorded. It is also explained that nobody had objected to that.
6.
It is alleged that Union of India through Land and Development office- OP1 did not ask
for objections from LRs and other persons interested in the property. No notice was served
upon the petitioner. OP2, after the death of his mother, put his lock on the room which was
earlier occupied by her. The mutation was got done secretly by OP2 in the year 2007. He did
not have good relations even with his wife. Thereafter, OP-2 started demanding one-half of the
whole property. OP2 also filed suit for partition of the suit property against his elder brother,
OP3. The partition suit is still pending before the Delhi High Court. OP3 is an old person
of 76 years and is unable to participate in settlement, mediation with OP2, in the premises
of Delhi High Court. The complainant, being Member of HUF, is entitled to have his
share. All the maintenance of the building is done by OP3.
7.
The complainant came to
know
about the wrong
mutation and
Conveyance Deed, on 07.01.2013 when OP3 asked him to represent him in mediation with
OP2. The cause of action for correction of Conveyance Deed, arose on 16.05.2013. The above
said complaint was filed before this Commission, on 01.07.2013, with the following prayer :“The OP 1 be directed to rectify the Conveyance Deed dated
20.11.2007 and/or correct the defect by executing another
supplementary conveyance deed infavour of HUF Firm or Legal Heirs/
Members, jointly.
Any other relief in interest of justice as this Commission deem proper in
facts and circumstances of the case”.
8.
We have heard the
counsel
for
the Complainant. He contended that the present complaint was filed within time, because it
came to the knowledge of the complainant that wrong entry was made in the Conveyance
Deed, in
the
year
2013.
It
is further surprising to
note
that the complainant has
not mentioned as to when did OP2 file the Partition Suit before the Hon’ble High
Court. However, we refrain from deciding this controversy at this stage.
9.
Counsel for the complainant submitted that he is a ‘consumer’. We clap no value to his
feeble submission. Nowhere in the complaint he has stated that he is qualified to be a
‘consumer’, in accordance with the law laid down in Section 2(1)(d) of the Consumer
Protection
Act,
1986. That para is conspicuously missing. It is not understood, who
is the ‘service provider’. His name does not appear in the record. He is trying to be a new
entrant. He is making bricks without straw. So far consumer case is concerned, he has got no
‘locus-standi’.
This
is
a
case
of the
nature
of a
civil dispute and this Commission cannot arrogate itself to the powers with which it is not
armed
with.
This
case involves complicated questions of law and facts, which
cannot
be decided by this Commission. It requires the oral and documentary evidence to be
recorded. The complainant isneither a
‘consumer’ nor this
Commission has the jurisdiction to try this case. The consumer complaint is, therefore,
dismissed, with no order as to costs.
10.
This complaint is found to be malafide, vexatious and frivolous. The litigants have to
adhere to the provisions of CP Act, 1986, in respect of matters not falling within its
purview. This
tendency has to be
curtailed. In
view of this frivolous complaint, we
impose costs in the sum of Rs.10,000/- on the complaint, under Section 26 of the Consumer
Act, to be
deposited with
Consumer Welfare Fund, by
in favour of ‘PAO-Ministry
of Consumer
receipt of this
otherwise, it
order,
drawing
a
demand draft
Affairs’, New Delhi, within 90 days from the
will carry interest
@
9%
p.a.,
till realization. The learned Registrar of this Commission is directed to
of this order and report.
.…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
dd/9
see
compliance
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3483 OF 2013
(From order dated 23.07.2013 in First Appeal No. 1627 of 2010 of the U.P. State Consumer
Disputes Redressal Commission, Lucknow )
WITH I.A. No. 6193 OF 2013, I.A. No. 6194 OF 2013 I.A. No. 6195 OF 2013, I.A. No. 6196
OF 2013 & I.A. No. 6412 OF 2013
(Stay, Exemption from filing English Translation & certified copy, impleadment, placing addl.
Documents)
1. Punjab National Bank, Chandpur District Bijnor, U.P. Head Office 7, Bhikaji Cama Place
Through Branch Manager, Punjab National Bank Branch Chandpur, District Bijnor
2. Mangal Giri Ashok, Senior Manager Punjab National Bank Branch Chandpur, District Bijnor,
U.P.
…Petitioners
Versus
1. M. Shahnaz W/o Late Rais Ahmad
2. Nadeem Ahmad S/o. Late Rais Ahmad
3. Azim Ahmad S/o Late Rais Ahmad
All R/o. Mohalla Muftisarai Old Basta Chungi, Pargana & Tehsil Chandpur, District Bijnor,
U.P.
… Respondents
AND
REVISION PETITION NO. 3484 OF 2013
(From order dated 23.07.2013 in First Appeal No. 1628 of 2010 of the U.P. State Consumer
Disputes Redressal Commission, Lucknow )
WITH I.A. No. 6197 of 2013, I.A. No. 6198 of 2013 & I.A. No. 6199 of 2013
(STAY, EXEMPTION FROM FILING THE OFFICIAL TRANSLATION DOCUMENTS &
IMPLEADMENT)
1. Punjab National Bank, Chandpur District Bijnor, U.P. Head Office 7, Bhikaji Cama Place
Through Branch Manager, Punjab National Bank Branch Chandpur, District Bijnor
2. Mangal Giri Ashok, Senior Manager Punjab National Bank Branch Chandpur District Bijnor,
U.P
. … Petitioners
Versus
1. Hafiz Ahmad S/o Nafiz Ahmad
2. Shahnaz Bano W/o Late Sanjeed Ahmad
3. Talat Ahmad (Minor) Through Mother, Smt. Shahnaz Bano
4. Kum.Alina Bano (Minor) Through Mother, Smt. Shahnaz Bano
All R/o. Mohalla, Muftisarai Qusba, Paragna Tehsil Chandpur, District Bijnor, U.P.
… Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For Petitioner in both cases : Ms. Arti Singh & Ms. Pooja Singh, Advocates With Mr. O.P.
Chabra, Auth.Rep. (Bank Officer)
For the Complainants/Respondents in both cases : Mr. Anil Kumar Mishra, Advocate
For LIC
: Mr. Mohd. Juned for LIC
PRONOUNCED ON _4th FEBRUARY, 2013
ORDER
JUSTICE J.M. MALIK
1.
from
This judgment shall decide the above said two revision petitions which arise out
two
separate complaints and the
single judgment, rendered
by the
State
Commission, Uttar Pradesh. The facts of the revision petition No.3483/2013 (CC No.10/07) are
these. Sh.
Rais
Ahmad
(since
deceased),
now,
represented by his wife, Ms.M.
Shahnaz Parveen, complainant No.1 and their two sons Nadeem Ahmad and Azim Ahmad,
along with deceased two real brothers, Late Sanjeed Ahmad and Hafiz Ahmad/complainants
in second complaint (CC No. 11/07 & RP No.3484/2013), formed one firm, in the
name and style of “Three Brothers”. They obtained Cash
Credit limit of
Rs.2,25,000/-
from Punjab National Bank, Branch Chandpur, District Bijnor, OP1, on 13.06.2000,
after execution of
the loan
documents. With
regard to said loan,
Sh.
Rais
Ahmad pledged three policies, obtained from LIC and his brother pledged ten policies.
2.
OP1 sent notice
dated
17.08.2006 which
was
received
by
deceased Sh.Rais
Ahmad. This notice was addressed to ‘M/s. Three Brothers’. It was stated that M/s. Three
Brothers had committed negligence towards re-payment of loan and were not depositing their
installments, on time. As on 01.07.2006, the outstanding balance in their account was
Rs.82,899/- and further, interest was increasing continuously. It was alleged that they had
violated the terms of the agreement. Notice was given to them to pay the amount, within 30
days, failing which, legal proceedings would be initiated.
3.
Unfortunately, Rais Ahmad passed away, on 04.09.2006. On 12.09.2006, Sanjeed Ahmad
and Hafeej Ahmed, for the purposes of depositing amount, approached the Senior Manager,
Sh. Mangal Giri Ashok, Chandpur Branch, OP2. He informed that after issuance of notice,
they had surrendered all the policies, obtained payments and the balance amount was
deposited in their bank account.
4.
It is contended that in case the policy subsisted, the complainants would have received
the whole amount of Rs.5,50,000/- of the aforesaid three policies because of sudden death
of Sh.Rais Ahmad. Consequently, complainants suffered loss and filed complaint (cc 10/07)
before District Forum claiming a sum of Rs.5,00,000/-, as compensation and a sum
of Rs.20,000/-, towards litigation expenses. In the other RP No. 3484 of 2013, the
complaint (CC 11/07) was filed by the remaining two brothers, Sanjeed Ahmad and Hafiz
Ahmad. In this case, the complainants had pledged 10
insurance policies and after
surrendering the insurance policies, an amount of Rs.60,815/- was deposited in excess in
their accounts. They have asked for compensation amounting to Rs.5,00,000/-for the
payment prior to the period the payment is taken, Rs.1,00,000/- for mental agony, litigation
charges in the sum of Rs.15,000/- and interest @ 18% p.a. on the amounts claimed
towards compensation and mental agony.
5.
The District Forum, vide order dated 19.08.2010, directed as under :
“……. Therefore, the liability to pay whole compensation amount is
of opposite parties. In complaint No.10/07 complainant No.1
(because complainant No.2 & 3 are minor) compensation
amounting to Rs.5,00,000/- along with 12 per cent interest and in
the form of litigation expenses the amount of Rs.1,000/- and in
complaint no.2 and complaint no.1/1 (because during the course of
hearing of the complaint complainant no.1 died and in his place his
wife two children are made as legal heirs, both of them are minor)
for compensation the amount of Rs.50,000/- and for mental agony
the amount of Rs.1,00,000/- along with 12 per cent interest and in
the form of litigation expenses is entitled to the amount of
Rs.1,00,000/-.
ORDER
Opposite parties are hereby directed that they in complaint
No.10/07 to complainant No.1, should pay Rs.5,00,000/along with 12% interest (from the date of filing of the suit till the
date of actual payment) and in the form of litigation expenses, the
amount of Rs.1,00,000/- and to complainant No.2 of complaint
No.11/07, and for compensation of complaint No.1/1, Rs.5,00,000/for mental agony Rs.1,00,000/- along with 12% (from the date of
filing of the suit till the date of actual payment) and in the form of
litigation expenses the amount of Rs.10,000/- is to be paid within
30 days”.
6.
The above said order is a wee bit confusing, if it is read as a whole. Aggrieved by that
order, two appeals were filed before the State Commission. The State Commission, vide its
order dated 23.07.2013, dismissed the appeals.
7.
We have heard the counsel for the parties. Counsel for the
Petitioner, Bank, vehemently argued that the documents appearing from pages 79 to 88 of the
paper-book, clearly go to show that the complainants had already surrendered the LIC
policies. They had affixed their signatures on the surrender Deed, with open eyes and at the
time when they took the loan, the originals bear their signatures. The Clerk of LIC who was
called from LIC produced documents showing that the complainants had affixed their
signatures.
The
counsel
for
10 insurance policies, seven had
the petitioner
also submitted that,
lapsed. The
complainants did
further premiums. Under these circumstances, the Bank
was
out
of
not pay the
well within its
right to
get those policies surrendered.
8.
We find force in her arguments, in a measure. The notice dated 17.08.2006, is
crucial/main
pillar,
the
foundation
on
which
the
entire
case
rests. It surpasses
the other relevant facts. The petitioner - Bank has committed an egregious mistake
in not waiting
for one full
amount within one
month. The
complainants
month. The policies were
had
no
chance
to
already surrendered. For
pay the
all
these
reasons, this piece of evidence gets preponderance over all the submissions made by the
counsel for the OP. This also, clearly goes to show the negligence, inaction and passivity on
the part of the petitioner-Bank. The attitude of the authorities adds a shocking dimension to the
situation. They are contesting this case without realizing that they had committed a flagrant
mistake. The higher authorities are prone to turn a Nelson’s eye to indiscipline in the branches
rather taking the bull by horns. The petitioner is spending/wasting the so-called public money
on this frivolous case but did not take any action against those who could not wait for a month of
notice. They are liable to pay compensation to the complainants. The District Forum and
State Commission have granted the value of the policies in favour of the complainants
which were allegedly surrendered. The District Forum was pleased to note :“If the payment of aforesaid policies would not have been received,
then, complainants would have received the whole amount of
around Rs.5,50,000/- of the aforesaid policies because Policy No.
250409571 was amounting to Rs.1,20,222/- which was of 10.10.1990
policy No.251588505 amounting of Rs.1,50,000/- was of 28.12.1997
at policy No.251588504 was amounting to Rs.1,50,000/- which was of
28.12.1997, payment of the same was received to the complainants
along with all the benefits but opposite parties while adopting unfair
trade practice have obtained the payment while surrendering the
policies prior to the time period
of payment mentioned in notice which clearly
shows the unfair trade practice of opposite parties. The amount of
total of Rs.56,426/- is found to be included in the aforesaid three
policies by which it is clear that the complainants suffered the
loss of around Five Lac rupees and responsibility of the payment of
the same with the opposite parties”.
9.
However, it is made clear that we modify the orders passed by both the
fora. The complainants in RP No.3483 of 2013 (Complaint Case No.10/07)
would get total compensation in the sum of Rs.5,00,000/- only, with interest @
9% p.a., instead of 12% p.a., for harassment and mental agony. Costs of the
case, the total amount payable to the complainants would be Rs.1,00,000/-. Other
benefits are hereby deleted in the said case.
10.
In Case No.3484 of 2013 (CC No.11/07), also, the orders passed by the fora below
are modified and the complainants will get compensation in the sum of Rs.1,00,000/only, with interest @ 9% p.a, from the date of filing of the complaint, till the date of actual
payment.
The revision petitions stand partly allowed.
…...…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
.…....…………………………
(DR. S. M. KANTIKAR)
MEMBER
dd/3 & 4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1301 OF 2013
With Application for Condonation of Delay
(Against the order dated 22.3.2012 in C-No.312 of 2011 of the State Commission, Delhi)
Delhi International Airport Ltd. New Udaan Bhawan Opposite Terminal NO.3 Indira Gandhi
International Airport New Delhi – 110037.
…. Petitioner
Versus
1. Chief Justice (Retired ) S.S. Sodhi S/o Late Shri Karam Singh Sodhi Resident of 51, Sector9, Chandigarh
2.
Airport Authority of India Rajiv Gandhi Bhawan, Safdarjung Airport New Delhi.
….Respondents
REVISION PETITION NO.1349 OF 2013
(Against the order dated 22.3.2012 in C-No.312 of 2011 of the State Commission, Delhi)
Airport Authority of India, Through its Chairman, Rajiv Gandhi Bhawan, Safdarjung Airport,
New Delhi – 110033.
…. Petitioner
Versus
1. Shri S.S. Sodhi S/o Late Shri Karam Singh Sodhi Resident of 51, Sector-9, Chandigarh
2. Delhi International Airport Ltd. New Udaan Bhawan Opposite Terminal NO.3 Indira
Gandhi International Airport New Delhi – 110037.
…. Respondent
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For R.P. No.1301 of 2013
For the Petitioner : Mr. Saurabh Kirpal, Advocate with R.K. Kohli, Advocate
For the Respondent : Mr. Prateek Dahiya, Advocate for R-1
Mr. A.P. Vinod, Advocate for R-2
For R.P. No.1349 of 2013
For the Petitioner : Mr. A.P. Vinod, Advocate
For the Respondent: Mr. Prateek Dahiya, Advocate for R-1
Mr. Saurabh Kirpal, Advocate with R.K. Kohli, Advocate for R-2
Pronounced on: 4th February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Respondent no.1/Complainant filed a consumer complaint against Petitioner-Delhi
International Airport Pvt. Ltd./O.P. No.2 (R.P. No.1301 of 2013)as well as against Petitioner-
Airport Authority of India /O.P. No.1 (R.P. No.1349 of 2013 on the allegations that on 16.6.2011
complainant’s foot tripped over the hole just opposite the entry gate of Terminal -3 at IGI
Airport, New Delhi. Thus, the complainant suffered severe injurywhich has been caused solely
due to the negligence and callous attitude of the Airport staff and the failure of the senior
management to enforce any level of public safety. Thus, alleging failure on the part of the
opposite parties to ensure safety in public area and other deficiencies, the complainant prayed for
the following reliefs;
“a. A sum of Rs.10,00,000/- towards punitive compensation for the failure of the OPs to take
preemptive steps which would have prevented the severe injury to the
complainant.
b. A sum of Rs.5,00,000/- towards compensation for the physical and mental trauma
suffered by the complainant.
c. A sum of Rs.38,000/- towards the ticket cancellation charges expenses incurred by the
complainant.
d. A sum of Rs.10,966/- towards the expenses incurred on the Schengen visa to Spain, for
the complainant’s aborted vacation plans.
e. A sum of Rs.800/- towards the expenses incurred on the travel insurance for the
complainant’s aborted vacation plans.
f. A sum of Rs.6,00,000/- towards the loss of mobility, work and income for a period of
three months.
g. Interest @ 18% on the monies awarded by the State Commission from the date of the
injury up till the date of actual payment."
2. The consumer complaint came up for hearing before the State Commission, Delhi on
9.11.2011 in which following orders were passed on that date and subsequent thereto;
“09.11.2011
C-312/11
Present : None for the Complainant
Heard. Perused the record. Admit. Issue notice to the OP for filing
written version and for further orders.
Put up on 19th Jan., 2012 before bench No.2 for hearing.
19.01.2012
C-11/312
Present : None for the Complainant
Ms. Meenakshi Gautam, Counsel for OP No.1
Shri A.P. Vinod, Counsel for OP No.2
1. Memo of appearance filed on behalf of both the Counsel for OPs.
Both Counsel undertake to file vakalatnama on the next date of hearing.
2. At the request copy of complaint book is supplied to each of OP counsel from
office record against acknowledgement. Reply be filed within six weeks with
copy served well in advance to complainant.
3. Issue notice to Complainant/Counsel for Complainant through registered
cover AD card why his complaint should not be dismissed in default as he is
not appearing since last twoconsecutive dates.
4. Re-list on 10-04-2012.
10-04-2012
C-312/2011
Present : Sh. Malhotra alongwith Sh. Yashpreet Singh, Counsel for the Complainant
Sh. A.P. Vinod, Counsel for OP-1
None for OP-2
1. Reply filed on behalf of the OP-1 alongwith Vakalatnama is on record. Copy
of the reply of OP-1 supplied to the complainant’s counsel who will file
rejoinder alongwith entire complainant’s evidence within 4 weeks with copy
to OP-1 counsel.
2. In the interest of justice one more last opportunity is provided to the OP-2 for
filing reply alongwith Vakalatnama within 15 days otherwise opportunity for
filing the reply will be automatically closed.
3. Re-list on 13.8.2012.”
3. Thereafter, it appears that on 13.8.2012 the building of the State Commission was sealed due
to security reasons for Independence Day. Thus, as per Petitioner-Delhi International Airport
Pvt. Ltd., it could not file the written statement on that day.
4. On 2.11.2012, State Commission passed the following order;
“1. In this case on 10.4.12, OP-2 was given time to file the reply along
with vakalatnama within 15 days otherwise the opportunity of filling the
written statement is automatically closed. No reply has been filed in the
stipulated time so that the reply filed today does not taken on record.
2. Ld. Counsel for the complainant stated that he has already filed rejoinder
and evidence of the complainant.
3. Fix 29.11.2012 for evidence of OP-1.”
5. On 29.11.2012, the Member of the Commission was on leave.
6. Thereafter, on 22.3.2013 State Commission passed the following order;
“1, O.P. No.1 has not filed evidence nor any time is sought by the authorized
counsel for the OP-1, therefore, evidence of the OP-1 is closed.
2. An application is moved on behalf of the OP-2 to recall the order dated
2.11.12. Neither the District Forum nor the State Commission has any power
to recall or review their order as per the latest judgement of
the Hon'ble Supreme Court, therefore, this application is hereby rejected.
3. Fix 10.4.13 for arguments.”
7. The Petitioners have filed the above revision petitions praying that orders dated 22.3.2013
and 2.11.2012 passed by the State Commission be modified and written statement and evidence
filed by the petitioners be taken on record and matter be decided on merits.
8. Notice of these petitions were issued to the complainant.
9. We have heard the learned counsel for the parties and gone through the record.
10. Delay condoned.
11. It has been contended by learned counsel for the Petitioner (R.P. No.1301 of 2013) that nonfiling of the written statement by it was neither voluntary, deliberate nor intentional. This
petitioner was prevented from filing the written statement on 13.2.2012, when building of the
State Commission was sealed due to security reasons. Further, no prejudice will be caused to the
complainant if written statement is taken on record. It is also contended that petitioner should be
given opportunity to contest the case on merits. Merely on technical ground, petitioner should
not be deprived of his legal right. In support, learned counsel has relied upon following
judgments;
i) Manoharan Vs. Sivarajan & others,
Civil Appeal No.10581 of 2013 decided by Apex Court on 25th November, 2013;
ii) M/s. Colgate-Palmolive Co. Vs. M/s. Hindustan Rimmer and others,
AIR 1995 DELHI 95 and
iii) Topline Shoes Ltd. Vs. Corporation Bank,
AIR 2002 SC 2427.
12. Whereas, learned counsel for petitioner (R.P. No.1349/2013) has contended that due to bona
fide mistake it could not file the evidence. In the interest of justice, opportunity be granted to file
the evidence. Otherwise, gross injustice shall be caused. 13.
On the other hand, it has been
contended by the learned counsel for the complainant, that petitioners had been given more than
sufficient opportunity to file the written statement/evidence. However, they failed to file the
same within the specified period. As such, there is no infirmity or illegality in the impugned
order.
14. It
is
apparent
from
the
record
that
after
filing
the
complaint
before
the
State Commission, none appeared for the complainant on 9.11.2011 as well as on 19.1.2012. The
State Commission had shown indulgence to the complainant by not dismissing its complaint for
its
non-appearance
on
two
consecutive
dates.
So,
on
the
principles
petitioners herein, are also entitled to certain indulgence in this case.
15. Be that as it may, Hon'ble Supreme Court in Topline Shoes Ltd. (supra) has held;
“14. We have already noticed that the provision as contained under
Clause (a) of Sub-section (2) of Section 13 is procedural in nature. It is
also clear that with a view to achieve the object of the enactment, that
of
parity,
there may be speedy disposal of such cases, that it has been provided
that reply is to be filed within 30 days and the extension of time may not
exceed 15 days. This provision envisages that proceedings may not be
prolonged for a very long time without the opposite party having filed his
reply. No penal consequences have however been provided in case
extension of time exceeds 15 days. Therefore, it could not be said that
any substantive right accrued in favour of the appellant or there was any
kind of bar of limitation in filing of the reply within extended time though
beyond 45 days in all. The reply is not necessarily to be rejected. All
facts and circumstances of the case must be taken into account. The
Statement of Objects and Reasons of the Act also provides that principles
of natural justice have also to be kept in mind.”
16. Hence, keeping in view the facts and circumstances of the present case, in order to have
decision on merits it would be in the fitness of things that the above noted revisions should be
allowed and petitioners should be given one more opportunity to file their written
statement/evidence.
17. Accordingly, we allow the present revision petitions and set aside the impugned order
passed by the State Commission and direct the Petitioner-Delhi International Airport Ltd. to file
its written statement with the State Commission within six weeks from today with copy to the
opposite party, subject to payment of Rs.25,000/- (Rupees Twenty Five Thousand only) as
cost. Similarly, Petitioner–Airport Authority of India is also permitted to file its evidence by
way of affidavits within six weeks with copy to the opposite party, subject to payment of
Rs.25,000/- (Rupees Twenty Five Thousand only) as cost.
18. In case petitioners fail to comply with the above directions within the specified period, then
their opportunity to file written statement/evidence shall stand closed automatically without any
further orders.
19. With these observations, present revision petitions stand disposed of.
20. Parties are directed to appear before the State Commission on 28.3.2014 for further
proceedings.
21. Dasti to all parties.
…………………………………….J
(V.B. GUPTA)
PRESIDING MEMBER
……………………………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4172 OF 2011
(From the order dated 30.08.2011 in Appeal
State Consumer Disputes Redressal Commission)
No.
1156/2011
of
Haryana
Smt. Praveen Dalal w/o Sh. Ajay Dalal r/o H. No. 1350, Sector – 6, Bahadurgarh, Distt. Jhajjar
Presently residing at 3545, Nt. Mountain View San Bernadino California 92405 USA
Through:- Dr. Samunder Singh Lather, s/o Late Sh. Zile Singh r/o Deep Farms, IOC Road
V.P.O. Brijwasan, Delhi – 110061
… Petitioner
versus
1. Oriental Insurance Company Jawahar Market Model Town Rohtak, Through its Branch
Manager
2. Office Incharge, Oriental Insurance Co. Ltd. Oriental House, A-25/27, Asaf Ali Road, New
Delhi
3. Industrial Bank Limited Subhash Complex Opp. ADC Office, Civil Road, Rohtak, through
its Manager
… Respondents
BEFORE
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner(s):
Mr. K.P.S. Rao, Advocate
Alongwith Ms. A. Subhashini, Advocate
For Respondent 1 & 2
Mr. Rahul Sharma, Advocate
For Respondent 3
NEMO
PRONOUNCED ON : 4TH FEBRUARY 2014
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by Smt. Praveen Dalal, who is also the original
complainant in this case. The three respondents in this revision petition were opposite parties no.
1, 2 & 3 before the District Forum. The parties, therefore, have been referred to according to
their status before the District Forum.
2.
Briefly stated the complainant got her truck bearing registration no. HR-63-A-2965 insured
with the opposite parties no. 1 & 2 for the period from 18.10.2006 to 17.10.2007 for a sum of
Rs.12 lakh. As per the averments, this truck was stolen by some unknown person in the
intervening night of 14th and 15th April 2007. The matter was reported with the Police
Station under F.I.R. No. 104 dated 15.04.2007 but insurance company was informed after a
period of more than 17 days. When the complainant submitted her claim before the OP
Insurance Company the same was repudiated vide letter dated 28.08.2008 which led the
complainant/petitioner to file the complaint in question. On notice, the OP Insurance Company
filed written statement and took the plea that while the vehicle was stolen in the intervening night
of 14 / 15.04.2007, intimation to the Insurance Company was given in this regard after a period
of more than 17 days and as such the complainant had violated the terms and conditions of the
Policy. Denying any deficiency in service on its part, the Insurance Company pleaded for
dismissal of the complaint. Both the parties led evidence in support of their stands before the
District Forum. Keeping in view the evidence adduced by the parties and the submissions made
during the course of hearing, the District Forum dismissed the complaint vide its order dated
21.06.2011 in complaint no. 523/2008. Feeling aggrieved by this order of the District Forum, the
complainant filed an appeal before the Haryana State Consumer Disputes Rederssal Commission
(for short ‘the State Commission’), which vide its impugned order dated 30.08.2011 in FA No.
1156/2011 upheld the order of the District Forum and dismissed the appeal of the complainant. It
is against this order of the State Commission that the present revision petition has been filed by
the petitioner.
3.
We have heard arguments of Shri K.P.S. Rao, Advocate for the petitioner and Shri Rahul
Sharma, Advocate for the respondent no. 1 & 2. None has appeared for respondent no. 3, i.e., the
Bank which had financed the purchase of the truck.
4.
Learned counsel for the petitioner has submitted that the impugned order passed by the State
Commission is arbitrary and unjust and has been passed without appreciating the vital issues
raised by the petitioner and as such it deserves to be set aside. He submitted that the State
Commission did not give an opportunity to the complainant/petitioner to explain her case and
arbitrarily dismissed her appeal at the stage of admission itself, thereby violating the rule of
natural justice. More specifically, learned counsel contended that the Fora below failed to
appreciate the fact that intimation to the Police was given on 16.04.2007 itself and the same is
evident from the complaint dated 16.04.2007 lodged with the local Police Station. He submitted
that this aspect was not considered by the Fora below which arbitrarily discarded the evidentiary
value of the application in question filed with the Police Station while rejecting the claim of the
petitioner on the ground of delay in intimation and registration of the FIR. He submitted that it
was also wrong on the part of the Fora below to conclude that there was delay in intimation of the
theft to the OP Insurance Company because the petitioner had informed the Insurance Company
soon after the incident. Supporting his argument, learned counsel said that the OP Insurance
Company had appointed the surveyor soon after the incident and if the petitioner had earlier not
informed the Company about the theft, as has been concluded by the Fora below how could the
Insurance Company take the action regarding appointment of the surveyor so early after the
incident. Regarding the lodging of formal FIR, learned counsel contended that even though the
formal FIR bearing no. 104 was registered by the local Police Station on 02.05.2007, Exhibit P-3
which is a copy of application given to the Police Authorities on 16.04.2007 was filed before the
District Forum and it clearly establishes and proves that intimation to the Police had been given
immediately after the incident of theft of the vehicle. He, therefore, submitted that it was a grave
mistake on the part of Fora below to have ignored the documentary evidence which would
establish beyond doubt that there was no delay either in reporting the incident to the Police
Station or to the Insurance Company and as such rejection of her claim on the ground of delay is
not at all justified. He, therefore, pleaded that the impugned orders of the Fora below be set aside
and the revision petition be allowed.
5.
Per contra, learned counsel for the OP Insurance Company supported the impugned orders
passed by the Fora below and submitted that same are based on proper appreciation of the
evidence adduced by the parties and rejection of the claim and dismissal of the complaint are
perfectly in order.
6.
We have carefully considered the rival contentions and also perused the record. The short
point which has arisen for decision in this case is as to whether there was delay in reporting the
incident to the Police and the Insurance Company and if so whether the Fora below were justified
in non-suiting the claim of the complainant on the basis of the delay in question.
7.
As regards the delay in informing the Police and the Insurance Company, the Fora below
have returned the concurrent finding of fact based on the evidence adduced by the parties. The
District Forum has duly considered the documents produced by the petitioner/complainant in this
regard. This is duly reflected in the following observations of the District Forum in its order:-
“In order to prove their case the complainant has relied upon Ex.P3 an
application allegedly moved on 16.04.07 to SHO, P.S. Sampla
regarding intimation of theft on 15.04.2007. The minute perusal of
application Ex.P3 reveals that the said application is merely a
photocopy and it cannot observed as to who has received the said
application at P.S. Sampla. The application also does not bear the
stamp of the relevant police station, the name, designation of the police
official, who have allegedly received the application is also not
mentioned or visible on the application in order to prove that the said
application has been moved to the concerned P.S. at any
time. Coupled with this fact it is also observed that the filing of any
such application such Ex.P3 with the P.S. Sampla on 16.04.07 has not
been mentioned or reflected in FIR Ex.P4. It is also observed that
Chassis number and engine number of the vehicle has not been
mentioned in the application Ex.P3 and FIR Ex.P4. Similarly, Ex. R6,
the statement of driver Ranbir Singh also nowhere depicts the fact of
moving any application to the police authorities such as Ex.P3. The
Chassis No. and Engine No. has also not been reflected in untraced
report Ex.P5. Under these circumstances it is not proved that the
complainant has intimated the police regarding the incident on
16.04.2007 vide Ex.P3 which is not reliable document as discussed
above. As such it stands proved that the complainant has not intimated
the police authorities of occurrence on 15.04.07 at 4:30 A.M.
immediately but has informed the police only on 02.05.2007 after an
unexplained delay of 17 days. It is also proved that complainant has not
informed the respondent company immediately as there is no evidence
to this effect.”
8.
The State Commission has upheld the finding returned by the District Forum in this regard.
9.
We have also called for the record of the Fora below and perused the documents referred to
by learned counsel for the petitioner and do not find any reason to differ with the finding of the
District Forum and the State Commission. The assumption drawn by learned counsel about the
immediate appointment of the surveyor by the Insurance Company following and based on the
alleged intimation of the incident by the petitioner to the Insurance Company is not supported by
the facts on record. Copy of the surveyor’s report dated 24.03.2008 filed by the petitioner along
with the revision petition indicates on the top of the report that the surveyor was deputed on
5.07.2007 which is more than 2½ months after the date of incident of theft. The petitioner has
not produced any other document to support the plea taken by learned counsel to make us believe
that the petitioner had informed the Insurance Company about the incident immediately after
occurrence of the theft. In the circumstances, we are convinced that the concurrent finding
returned by the Fora below regarding the delay in intimating the Insurance Company and lodging
the FIR is correct. This being the factual position, no fault could be found with the impugned
orders non-suiting the claim of the petitioner and dismissing her complaint because the impugned
orders are in line with the view taken by this Commission and the Apex Court that immediate
intimation to the Police and filing of FIR as also the intimation to the Insurance Company are of
paramount importance in the theft cases and any delay in this respect will have serious adverse
effect on the interest of the Insurance Company. We, therefore, agree with the view taken by the
Fora below.
10. In view of the aforesaid discussion, we do not find any merit in this revision petition and the
same is accordingly dismissed with the direction that the parties will bear their own costs.
..……………Sd/-………………..
(AJIT BHARIHOKE J.)
PRESIDING MEMBER
....…………Sd/-…………………
(SURESH CHANDRA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4610 OF 2013
(From order dated 23.10.2013 in First Appeal No. CC/13/166 of the Maharashtra State
Consumer Disputes Redressal Commission, Mumbai )
M/s Dudhal Associates, a partnership firm Through their partner Mr. Ramesh Dudhal
Having office at B-21, Ashoka Super Market S.V. Road/Aarey Road Junction Goregaon (W),
Mumbai-400062
… Petitioner
Versus
1. Mr. Swatantra Kumar Mishra S/o Late Shri Kamathnarayan Mishra C/o R. D. Shukla B2, Khandwala Apartment, Vakola Pipe Line Santacruz (E) Mumbai- 400055 Presently residing
at B-37, Surabhi CHS Flat No. A-002, Gokuldham Goregaon (E) Mumbai-400063
2. Mrs. Vandana S. Mishra Wife of Mrs. Swatantra Kumar Mishra C/o R. D. Shukla B2, Khandwala Apartment, Vakola Pipe Line Santacruz (E), Mumbai – 400055 Presently residing
at B-37, Surabhi CHS Flat No. A-002, Gokuldham Goregaon (E) Mumbai 400063
3. M/s M. K. Developers, a proprietary concern Through the Proprietor Mr. Rahul M. Nagda
Having office at 1, Kapadia Niwas Nidadwala Colony No. 1, S. V. Road, Malad(W), Mumbai
4. M/s Ashish Enterprises a partnership firm Through Partner Mr. Ram Kumar Pal Having
office at G-119, Shagun Arcade Gen. A. K. Vaidya Marg, Dinoshi Malad (East), Mumbai
400097
… Respondent
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. Gurdeep Singh, Advocate
Pronounced on 5th February, 2014
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER (ORAL)
1.
In this case, a consumer complaint No. 166 of 2013 was filed before the State
Commission. Learned counsel for the petitioner-Dudhai Associates admitted that the petitioner
was served in this case on 10.6.2013. On 9.7.2013, the State Commission passed the following
order:
“09/07/2013
Complainant as well as counsel for the Complainant is absent. Opponent No. 1 is
present through Adv. Reena Singh. She undertakes to file her Vakalatnama on the
next date. Adv. Smt. Bindu Jain is present on behalf of the Opponent No.
3. She files her Vakalatnama. It is taken on the record. In spite of due service
of notice after admission, the Opponent No. 2 is absent today. Complaint to
proceed in absence of the Opponent No. 2. Both the learned advocates requested
for grant of extension of time for filing written version. Time granted. In the
interest of justice time is granted to the Opponents No. 1 and 3 by way of a last
chance for filing written version and complaint stands adjourned to 23.10.2013.”
2.
On 23.7.2013, the petitioner moved an application for adjournment. It was contended
that settlement talks were going on between the complainants and the opposite parties. A further
adjournment was prayed. On the same day, i.e. on 23.10.2013. The State Commission passed
the following order :“Adv. S. B. Prabhawalkar appears for the complainant without letter of
authority. He undertakes to file letter of authority during the course of
day. Adv. Ramvilas I.Yadav is present for the opponent No. 1 and he
files vakalatnama of Mr. Sanjeev Singh-advocate for the opponent No. 1. He also
files letter of authority. Adv. BinduJain is present for the opponent no. 3.
Opponents
have failed to
file
written
version
in
spite
of
sufficient
opportunity. Hence, the complaint to proceed without written version against the
opponent nos. 1 to 3. Interim application filed by the complainant is not opposed
by the opponents by filing reply in writing. Orally, they have opposed the interim
application. Adv. BinduJain has made a statement at Bar on behalf of the
opponent no. 3 that the opponent no. 3 will not create third party interest in the
subject matter. But Adv. Bindu Jain has strong objection for refund of
rent. Adv. Yadav for the opponent no. 3 is not ready with arguments. Prayer (b)
of the interim application will be considered at the time of final hearing of the
consumer complaint. Now, the interim relief is granted in terms of the prayer (a)
of the interim application.
Matter now stands adjourned for leading evidence by the complainant. Hence
complainant is directed to file evidence on affidavit as per Section 13(2)(b)(ii) r/w
Sec. 13(4) of the Consumer Protection Act, 1986. Adjourned to 13.01.2014.”
3.
A bare perusal on record clearly goes to show that there is no inkling that negotiations for
compromise were going on. Even learned counsel for the opponent no. 1 was not present. He
appeared through his proxy counsel. On the contrary, the arguments on interim relief were heard
and the interim relief was granted. No joint request was ever made in order to get the case
adjourned. The petitioner wanted to procrastinate the proceedings for one reason or the other.
4.
It
may
be
mentioned
here
that
as
per Dr.
J.
J.
Merchant
& Ors.
Vs. Shrinath Chaturvedi III(2002) CPJ 8 (SC), decided by three judges bench the written
version is barred by time. In that case, the Supreme Court had held that for having speedy trial,
this legislative mandate of not giving more than 45 days in submitting the written statement or
the version of the case is required to be strictly adhered to. It was further held that if this is not
adhered, the legislative mandate of disposing of the cases within three or five months would be
defeated.
5.
A wee bit different view was taken in Kailash vs. Nanhku and Ors. AIR 2005 SC
2441. That too was decided by three judges bench in civil appeal No. 7000 of 2004 decided on
6.4.2005 wherein it was held:
“(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence
directly, keeping in view the need for expeditious trial of civil causes which
persuaded the Parliament to enact the provision in its present form, it is held that
ordinarily the time schedule contained in the provision is to be followed as a rule
and departure therefrom would be by way of exception. A prayer for
extension of time made by the defendant shall not be granted just as a matter
of routine and merely for asking, more so when the period of 90 days has
expired. Extension of time may be allowed by way of an exception, for reasons to
be assigned by the defendant and also be placed on record in writing, howsoever,
briefly, by the Court on its being satisfied. Extension of time may be allowed if it
was needed to be given for the circumstances which are exceptional, occasioned
by reasons beyond the control of the defendant and grave injustice would be
occasioned if the time was not extended. Costs may be imposed and affidavit or
documents in support of the grounds pleaded by the defendant for extension of
time may be demanded, depending on the facts and circumstances of a given
case.”
The case of the petitioner is not covered under this authority as well.
6.
The petitioner has just routinely asked for a date without any substance. He has tried to
make bricks without straw. There should be some reasons for which the time should be
extended. The consumer fora cannot be taken for granted that they must adjourn the cases on
one pretext or the other. There should be some reasonable just and pressing grounds as
described in para 39 of the judgment in Kailash vs. Nanhku and Ors.(supra). The grounds
were discussed by learned counsel for the appellant and accepted by the Hon’ble Supreme
Court. No effort was made to file the written
statement
even
in
petition. Learned counsel for the petitioner wants to delay the case unnecessarily.
The revision petition is dismissed.
.…..…Sd/-………………………
(J. M. MALIK, J) PRESIDING MEMBER
.…..……………Sd/-……………
(S. M. KANTIKAR) MEMBER
Naresh/6
the
revision
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1453 OF 2012
(Against the order dated 6.7.2011 in Appeal No.309 of 2009 of the State Commission, Uttar
Pradesh)
V.K. Chaturvedi S/o Late Shri H.C. Chaturvedi R/o Sector 16, House No.256/5, Vasundhara,
Ghaziabad (UP)
…. Petitioner
Versus
1. Commissioner Municipal Corporation Area Office, Sector 10, Water Tank Vasundhara,
Ghaziabad
2.
Asstt. Commissioner UP Awas Vikas Parishad Sector-16, Ghaziabad (UP)
3. Lucknow Jal Board Zone South City Udyan 1, ELDICO 1, ELDICO Market, Rai Barreily
Road, Lucknow (UP)
…Respondents
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : In person
Pronounced on: 5th February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/Complainant had filed the present revision petition under Section 21(b) Consumer
Protection Act, 1986 (for short, ‘Act) with following prayers;
“It is therefore prayed to kindly set aside the judgment dated 6.7.2011 of State
Commission, Lucknow and Cancel Rs.19,875/- illegal bill of House, Water and
Sewerage Tax being demanded in the year 2011/12 and Rs.15,041 water charges
taken by Respondent no.2 on 18% interest.
2. Kindly pass order to keep out Sewerages of 4 Houses from my Courtyard being
used by others with outside Service lane.
3. Order to Cancel Rs.5402/- from Lucknow Jal Board illegal billing of years
together.
4. Pass order to snatch House NO.256/6 and 256/7 the Allotment of which has
been cancelled in the year 2006 as because it is not Unauthorized Construction
but encroachment of my place.
5. Pass any order which this Hon'ble Commission may Consider fit and
Appropriate in the circumstances of the Case with Compensation of Rs.20/- Lac
and refund of money @ 18% which has been claimed by Respondent No.2.
2. Brief
facts
are that
Petitioner/Complainant filed a consumer complaint
against
Respondent/Opposite Party not to realize any taxes from him as his colony was not supervised or
maintained by them. Petitioner pleaded in his complaint that House No.256/5 Sector-16,
Vasundhara, Ghaziabad at the relevant time was not located within the territorial limits of
respondent. Thus, they were not competent to levy water, sewer, drainage and house taxes.
3. The District Consumer Forum, Ghaziabad (for short, ‘District Forum’) vide order dated
16.4.2007, rejected the petitioner’s complaint on the ground that it was not maintainable before
the Consumer Forum.
4. Petitioner filed (Appeal No.1035/SC/2007) before the State Consumer Disputes Redressal
Commission, Uttar Pradesh (for short, ‘State Commission’) which disposed of the same vide
order dated 18.7.2007, observing as under;
“According the impugned order dated 16-04-2007 so far as it relates to
the disposal of the appellant’s complaint pertaining to recovery of taxes,
is set aside. The matter is remanded to the District Consumer Forum,
Ghaziabad for rehearing of the said issue and a fresh decision in
accordance with law. In case the complainant prays for amendment of
his complaint, his application shall be allowed, and then the complaint is
heard on the issue of taxes alone.”
5. Thereafter, the petitioner was heard and fresh order dated 01-11-2008 was passed by the
District Forum with the finding that complaint pertaining to the municipal board taxes was not
maintainable before it. Accordingly it dismissed the complaint.
6. Petitioner again challenged the order of the District Forum before the State Commission
which vide impugned order dated 6.7.2011 observed;
“In our considered opinion, the judgement of this Forum passed
on 18-07-2007 had been fully carried out. The complainant was to
be heard on the merit of his plea relating to the issue of taxes alone
and the District Consumer Forum clearly spelled out that such an
issue was not cognizable by it and as such his complaint being not
maintainable was liable to be dismissed. Obviously, there was no
question of any breach of our judgment. The contention of the
appellant that it was not sincerely carried out is absolutely
misconceived and accordingly it is rejected. His contention that
some other issues pertaining to deletion of name of Sri Hari Singh
Karnyal were not dealt with is not sustainable as the judgment of the
State Commission specifically mentioned that the issue of taxes
alone would be re-examined and decided. It was implied in this
order that any other issue except the taxes was not to be examined
and adjudicated upon. The appellant must have been convinced with
this factual position and should not have raised any other issue. We
are, therefore, of the considered opinion that the appeal against the
order dated 17-01-2009 is merit-less and as such it deserves to be
dismissed.
The other issue relates to taxes which were allegedly levied by
the Municipal Board, Ghaziabad without any jurisdiction, as alleged
by the appellant. In this regard, it may be observed that the
appellant knocked at a wrong door of the District Consumer Forum.
As a matter of fact, he should have filed civil suit in a civil court of
competent jurisdiction praying for a prohibitory injunction against
the Municipal Board or Corporation, retraining it from realizing the
taxes on the basis of his alleged plea that the colony in which he was
residing was not located within the municipal limits of Ghaziabad
Municipal Corporation. But instead of taking the right course of
action before a competent Forum, he filed his complaint under the
Consumer Protection Act before the District Consumer Forum,
Ghaziabad without realizing that it was not a case of
deficiency in
service as the complainant himself stated that neither any service
was rendered by the Municipal Board, nor his residential colony
could have been subjected to levy of municipal board taxes. How
then a question of deficiency in service would have arisen? It is a
settled law that municipal board taxes are realized by a
Municipal Board or a Corporation not for the services rendered but
for maintaining the roads, streetlights, managing and maintaining
the sewer line and regulating the water ferrule. Since these facilities
are not extended to the citizens on payment for consideration,
question of a deficient service would not be attracted. In other
words, these facilities are arranged on payment of token fees as
taxes and not as a consideration. Therefore, on the basis of this fine
distinction it can be observed that the matter relating to municipal
board taxes are not cognizable before the Consumer Fora. And, in
the case of the complainant, the complainant himself has alleged
that the service of municipal board being not available during the
relevant years (for which the taxes were allegedly levied), where
would come the plea of deficiency? On the face of the complaint of
the appellant it is abundantly clear that neither any service was
available, nor liability was attached. In this situation the
complainant was expected to have moved his application before a
Civil Court for appropriate relief on payment of stamp fees as
prescribed. By no stretch of reasoning, thus the complaint of the
appellant was maintainable before the District Consumer Forum. It
has rightly been dismissed by the District Consumer Forum and we
have no cogent reason to record a different finding.
The appellant has raised irrelevant issues in his memorandum of
appeal. We do not consider it worthwhile to refer to them. We have
dealt with the point of the complainant‘s main grievance as held
above, we are of the decisive view that his complaint was not
maintainable before the Forum below.
In the result, this appeal being
dismissed.”
devoid of merit is hereby
7. Petitioner in its amended complaint has prayed for the following reliefs before the District
Forum;
“It is therefore most respectfully prayed to kindly order to keep out
Sewerage at Common Place out of 4 Houses away from the Court yard
Less area had been given with pollution & Municipal Corporation is
cashing the deficiency done by Awas Vikas. Rs.20 Lakh compensation
which spent and for mental torture.
2. Cancel illegal Bill House, Sewerage and Water Tax
and refund Water Charges of Rs.1504/- and Rs.1,220/-, 90/-, 100/- taken
at initial stage at the time of allotment of house at 18% interest when the
possession of the house was done on 31.7.1995 and Rs.30/- Per Month
were Claimed but here claimed Rs.1504/- which comes to Rs.1,441/only this was illegal Bill and after three years Bill was time barred.
3. Enforce order of State Commission dated 3.5.05 regarding raising of
Wall and Contempt of State Commission U/S 25 and 27 which was not
permissible under Rules and Bye laws. The Respondent given the licence
to the Residents for Raising of Wall.”
8. It is apparent from the record that some of the reliefs sought by the petitioner in its amended
complaint are different from the reliefs which the petitioner is now seeking in the present
revision petition. Petitioner cannot change the nature of its complaint which was filed before the
District Forum.
9. Be that as it may, the case of petitioner is that respondent cannot realize any taxes from the
petitioner since petitioner’s house at the relevant time was not located within the territorial
limits of the respondent. When as per petitioner’s own case the respondent cannot levy any taxes
upon his house as his house was not within the territorial limits of the respondent-Corporation,
the complaint filed before the Consumer Fora is not maintainable and petitioner could have
sought relief before the Civil Court.
10. It is well settled that 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.
11. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance
Company, 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 that 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 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 finding of two fora.”
12. Hence, we do not find any illegality or infirmity in impugned order passed by the State
Commission. There is no merit in this revision petition. Accordingly, the same is hereby
dismissed.
13. No order as to cost.
(V.B. GUPTA)
PRESIDING MEMBER
……………………………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 701 OF 2013
With I.A. No. 6295 of 2013 for C/Delay
(Against order dated 21.11.2012 in MA 12/370 a/w Complaint Case No.12/294 of the State
Consumer Disputes Redressal Commission, Maharashtra)
Smt. Yasmin J. Dhanani Residing at, Alhubedia, B/12, Flat No.501, Millat Nagar, Behind
Lokhandawala Complex, Andheri (W)
...... Appellant
Versus
ICICI Lombard General Insurance Co. Limited, Through its Manager, Having office at, Zenith
House, Kesavrao Khade Marg, Mahalanmi, Mumbai-4000034.
....... Respondent
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Appellant
: Mr. Baliram V. Kamble, Advocate
Dated : 5th February, 2014
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Along with present Appeal, an application seeking condonation of delay of 208 days has been
filed.
2. Brief facts are that Appellant/Complainant’s husband died in a railway accident on
30.6.2004. Thereafter, on 9.9.2004 she filed a claim before the Railway Claims Tribunal, which
granted her a sum of Rs.4 lacs(Rupees Four Lacs only) as compensation, vide order dated
21.7.2010. Having received the said amount from the Railway, appellant filed a Consumer
Complaint before State Consumer Disputes Redresdssal Commission, Mumbai(for short, ‘State
Commission’) on 16.10.2012. Alongwith it, an application seeking condonation of delay of six
years three months and sixteen days in filing of the complaint was filed.
3. State Commission, vide its impugned order dated 21.11.2012, dismissed the application for
condonation of delay. Consequently, it held that the complainant does not survive for
consideration.
4. Now appellant has come before this Commission by way of present appeal.
5. We have heard the learned counsel for the appellant and gone through the record.
6. State Commission, while dismissing the application for condonation of delay observed;
“In a delay condonation application, it is stated that applicant/
complainant lady is unaware of the law and she was not educated and it
was very difficult for her to understand and get knowledge to go through
all the process work every time. The applicant/complainant had to rush
here and there from one department to another to get all the documents to
complete thelegal process and then it is submitted that balance of
convenience lies in her favour. It is further stated that she
had suffered an accident on 11.06.2011 and was admitted in the hospital
and has undergone an operation on 02.07.2011 and therefore, delay may
please be condoned. In fact illness or hospitalization is of the year
2011.The accident of her husband had taken place in 2004 and
immediately claim was lodged with the Railway Claims Tribunal.
Similarly, the applicant/complainant could have filed present claim
against the Insurance Company. However, said claim was not filed. There
are no valid reasons and sufficient cause for not filing the claim with the
Consumer Fora. This is an afterthought application filed after having
received `4’ Lakhs as compensation from the Railway Claims
Tribunal. Though we have sympathy with the family of the deceased as
they have lost their family member in the accident, yet it is not a case
of ignorance of law. They were very well aware of the fact that
compensation can be claimed and accordingly they have claimed and
have recovered also. This is a belated attempt on the part of the
applicant/complainant to recover another compensation without any valid
reason. Therefore, delay condonation application stands rejected.
-: ORDER :Misc. Application No. 370/2012 for condonation of delay stands
rejected. Consequently, complaint No.294/2012 does not survive for
consideration”.
7. It is well settled principle of law that any relief can be claimed under the Consumer
Protection Act, 1986 (for short as ‘Act’),within two years from the date on which the
cause of action accrues.
8. Section 24-A of the Act deals with this situation which is reproduced as under;
“24-A. 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 sub-section (1) a
complaint may be entertained after the period specified in subsection (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”.
9. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the
time of entertaining the complaint, whether it has been filed within the stipulated period of two
years from the date of cause of action.
10. Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance
Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made
in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)=JT 2009
(4) SC 191, as under;
“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009
CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the
same provision, has held:
“8. 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 the 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 sort of a legislative command to the consumer forum to
examine on its own whether the complaint has been filed within
limitation period prescribed thereunder. 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, the
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”.
11. Admittedly, appellant had earlier filed the claim before the Railway Claims Tribunal and
after getting a sum of Rs.4 lacs, she filed the consumer complaint after a period of six years.
Under these circumstances, it cannot be said that the appellant was not aware of her legal rights.
Moreover, as per appellant’s own case she remained confined to bed only for a period for six
months from June,2011. Even if we exclude this period of six months, there is no explanation for
long delay of more than five and half years, in filing of the complaint before the State
Commission.
12. The impugned order passed by the State Commission is very well reasoned and leaves no
scope for any interference by this Commission.
13. Lastly, before this Commission also there is delay of 208 days in filing this First Appeal.
The only plea taken by appellant in the application seeking condonation of delay is, that she is
poor lady and due to insufficient funds she had to arrange for the money and as such delay took
place.
14. Appellant has nowhere stated as to how she has arranged the funds now and what was the
source of those funds.
15. Hon’ble 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.”.
16. In view of the aforesaid discussion, we do not find any infirmity or illegality in the
impugned order passed by the State Commission. Moreover, no sufficient cause whatsoever has
been shown to us to condone the long delay of 208 days in filing the present appeal.
17. Present appeal is nothing but gross abuse of the process of law, as appellant after having
received the claim amount of Rs.4 lacs from the Railway Claims Tribunal has sought further
compensation. Accordingly, present appeal being without any legal basis at all, is hereby
dismissed with cost of Rs.5,000/-(Rupees Five Thousand only).
18. Appellant 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.
19. In case, appellant fails to deposit the cost within the prescribed period, then she shall be
liable to pay the interest @9% p.a. till its realization.
20. List on 07.03.2014 for compliance.
…….……………………J
(V.B. GUPTA) PRESIDING MEMBER
…………………………
(REKHA GUPTA) MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2852 OF 2013
(Against order dated 26.04.2013 in First Appeal No. 1073/2011
State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad)
of
the
National Insurance Co. Ltd. Through its Authorized Signatory, 40/343 A, 1st Floor, Tula
Complex, Gandhi Nagar, Kurnool- 518001
…Petitioner
Versus
B. Venkataswamy, S/o B. Naganna, R/o H. no. 9-10-4-9, Gandhi Nagar, Kotha Peta, Dhone518222
…Respondent
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
For the Respondent
:
:
Ms. Neerja Sachdeva, Advocate
Nemo
PRONOUNCED ON 6th February 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1. The Complainant B. Venkatswamy got his Mahindra Maxx vehicle insured with the
OP National Insurance Co. Ltd. for the period from 08.04.2009 to 07.04.2010 for
Rs.5,00,000/-. On 07.04.2009, said vehicle was confiscated on the ground of having IMFL
liquor bottles in the vehicle and a case in crime No. 49/2009 under section 34(a) of Andhra
Pradesh Excise Act was registered at Sanjamala Police Station. The vehicle was in the
custody of Deputy Commissioner of Prohibition & Excise, Kurnool (in short DC). On the
intervening night of 2/3 October 2009 flood water entered into Kurnool city wherein his
vehicle was also damaged. On intimation, the insurance company deputed a Surveyor, who
took photographs of the damaged vehicle. As the vehicle was in the custody of Excise
Department, he could not get the vehicle repaired till 07.01.2010. When the DC issued
proceedings for release of the vehicle, in the first week of February, 2010 he got the vehicle
repaired at Kadapa incurring an amount of Rs.1,08,680/-. The OP did not entertain the claim
as the intimation was given after 4 months’ of the alleged damage of the vehicle. The
Complainant submitted that the delay in intimation, was due to confiscation of the vehicle
by the Excise Department. In spite of addressing letters explaining the reasons for delay in
intimation the OP did not settle the claim. Hence, a complaint claiming Rs.1,08,860/-
towards the amount spent for repairs together with compensation and costs was filed before
the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’).
2. The District Forum dismissed the Complaint.
3. Aggrieved by the said order, the Complainant preferred the appeal F.A.1073/2011 before the
State Consumer Disputes Redressal Commission (in short, ‘State Commission’) contending
that the Complainant was not aware of the condition of the vehicle till it was handed over to
him on 22.02.2010, and the OP did not investigate into the matter about the genuineness of
the claim.
4. The State Commission held that, the Complainant had proved that the vehicle was lying with
the Excise Department and as an admitted fact about floods in Kurnool, at that point and
therefore, held, repudiation by OP was unjustified, merely because there was delay in making
the claim. The State Commission partly allowed the appeal and directed the OP to pay
Rs.108,680/- with interest @ 9% p.a. from the date of repudiation, together with costs of
Rs.3000/5. Aggrieved by the order of the State Commission the Complainant filed this revision
petition.
6. At the admission stage, we have heard the Counsel for the Petitioner/OP. The Counsel
reiterated his stand taken before the State Commission, and contended that the delay in
intimation to the OP is fatal in such cases.
7. We have perused the evidence on record. It was an admitted fact that , the vehicle of
complainant was in the custody of the Excise Department , and on 2/3.10.2009, there were
unprecedented flood and water entered into Kurnool town. The Complainant’s vehicle
which was parked in the Excise Department premises, was completely damaged. After
release of the vehicle, the OP turned a deaf ear to the requests of the Complainant, for
settlement of the claim. Thereafter, the Complainant had taken the vehicle to Kadapa, in
the first week of February, 2010 and spent Rs.1,08,680/- towards repairs. Ex. A3 comprises
of 20 repair bills, filed by the Complainant evidencing the repairs conducted by him.
8. The Counsel for the OP relied upon condition No. 4 in Ex. B1 policy in which it is stated,
as follows:
“The insured shall take all reasonable steps to safeguard the vehicle from loss or
damage and to maintain it in efficient conditions and the company shall have at all
times free and full access to examine the vehicle or any part thereof or any driver or
employee of the insured. In the event of any accident or breakdown, the vehicle shall
not be left unattended without proper precautions being taken to prevent further
damage or loss and if the vehicle be driven before the necessary repairs are effected
any extension of the damage or any further damage to the vehicle shall be entirely at
the insured’s own risk.”
9.
We solely agree with the significant observations made by the State Commission pertaining
to delay in making the claim, that the insurance company, cannot repudiate the claim, which
is repudiated, as follows:
“In
this
regard
it
is
fruitful
to
take
note
of
the
circular
Ref: IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 issued by the Insurance
Regulatory & Development Authority pertaining to delay in claim intimation/documents
submission with respect to:
All life insurance contracts and
All non-life individual and group insurance contracts.
Re: Delay in claim intimation/documents submission with respect to
i.
All life insurance contracts and
ii.
All Non-life individual and group insurance contracts
The Authority has been receiving several complaints that claims are being rejected on
the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be
intimated to the insurer, with prescribed documents within a specified number of days, is
necessary for insurers for effecting various post-claim activities, like investigation, loss
assessment, provisioning, claim settlement, etc. However, this condition should not prevent
settlement of genuine claims, particularly, when there is delay in intimation or in submission
of documents, due to unavoidable circumstances.
The insurers’ decision to reject a claim shall be based in sound logic and valid
grounds. It may be noted that such limitation clause does not work in isolation and is not
absolute. One needs to see the merits and good spirit of the clause, without compromising on
bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will
result in policyholders losing confidence in the insurance industry giving rise to excessive
litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their
own to handle such claims, with utmost care and caution. It is also advised that the insurers
must not repudiate such claims, unless and until the reasons of delay are specifically
ascertained, recorded and the insurers should satisfy themselves that the delayed claims
would have otherwise been rejected, even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents,
suitably enunciating insurers’ stand to condone delay on merit, for delayed claims, where the
delay is proved to be, for reasons beyond the control of the insured.”
10. Therefore, we are of considered view that the insurance company cannot repudiate the
bonafide claims on technical grounds, like delay in intimation and submission of certain
documents. Therefore, the act of OP herein, in closing the claim of complainant, as ‘No
Claim’ is unjustified. Taking into consideration the facts and circumstances of the case, we
do not find any need of interference in the well-considered order of the State Commission.
11. Hence, the revision petition is dismissed. No order as to costs.
..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
..…………………………
(S. M. KANTIKAR)
MEMBER
Mss/20
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 168 OF 2001
M/s. Alliance Inorganics Ltd. 128/38/H-2, Kidwai Nagar Kanpur – 208011 Through
its Managing Director Sh. S.R. Bhansali
...... Complainant
Vs
1. The Pradeshiya Industrial & Investment Corporation of U.P. Ltd. PICUP Bhawan,
Vibhuti Khand, Gomtinagar Lucknow – 226010
2. Uttar Pradesh Financial Corporation 14/88, Civil Lines Kanpur – 208001 Through its Managing
Director
….Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Complainant
: Ms. Madhurima Tatia, Advocate
For Opposite Party No.1: Mr. P.C. Sen , Advocate
For Opposite Party No.2: Mr. Vinay K. Sharma, Advocate With Mr. Mukul Kumar, Advocate
PRONOUNCED ON_6th FEBRUARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
How much help could be extended to a company, which has waddled out of its
commitments and declared as a ‘defaulter’? What is the effect of keeping the material
facts, under a hat and suppress those from a court of law? Is it incumbent upon the
opposite parties to
approve
the
rehabilitation
package? Is
the
complainant,
a
‘consumer’?. These are the few knotty problems which are to be adjudicated by this
Commission.
2.
M/s.
Alliance Inorganics
Ltd.,
the
complainant, submitted a Scheme to manufacture Sodium Dichromate and allied products
to Pradeshiya Industrial & InvestmentCorporation, OP1, and U.P. State Financial Corporation,
OP2 to have their financial assistance. An Agreement was executed between all the three
parties. OP1
was
to
be
the leading financial institution and
it
agreed
to
advance
Rs.90.00 lakhs and OP2 agreed
to advance
The complainant Company was
Rs.
to arrange
32.10
lakhs
Rs.35.90
as term
lakhs
loan.
as Equity
Share Capital and Rs.7.00 lakhs as Unsecured loan, totaling to Rs.42.90 lakhs. Both OP1 &
2 sanctioned the above said loan vide letters dated 07.03.1989 and 20.04.1989, respectively,
which was proved on record as Annexure P-1 and P-2, respectively. The complainant also raised
an amount of Rs.40.00 lakhs and invested more than 75% of the same towards implementation of
the project, in accordance with the package approved by the OPs, before
31.07.1989. OP1 agreed to sanction a bridge loan of Rs.45.00 lakhs vide sanction letter dated
20.08.1989.
3.
OP1
disbursed
a
loan
of
Rs.35
lakhs
towards
bridge
loan
on
09.11.1989. They also disbursed Rs.10.00 lakhs towards bridge loan, on 21.05.1990. A
common Deed of Hypothecation with OPs 1
& 2, jointly, was executed on 26.06.1990, by deposit of title deeds. The bridge loan was
converted into regular term loan, w.e.f. 05.07.1990. Third installment of Rs.21.50 lakhs, i.e., 15
lakhs, on behalf of OP2 and Rs.6.50 lakhs, on behalf of OP1, on 24.07.1990, was released.
4.
Due
to
non-availability
of
central
investment
subsidy,
OP1 refused means of finance and under the new Scheme, OP1 agreed to sanction additional
term
loan
of
Rs.12.00
lakhs
and
the
burden
of
balance
of gap
of central investment worth Rs.13.00 lakhs was placed on the complainant company. OP1
disbursed 4th loan term for Rs.28.50 lakhs on 28.11.1990, meaning thereby that till November,
1990, a sum of Rs.80.00 lakhs was disbursed by OP1 against its term loan of Rs.102 lakhs.
Under the revised Scheme, a sum of Rs.15.00 lakhs was disbursed by OP1 against its term loan
of
Rs.32.10 lakhs.
5.
lakhs
Thereafter, the complainant asked OP1 to disburse the remaining amount of Rs.39.10
and
requested
OP1 vide letter dated 20.10.1991
for the rehabilitation
of the project vide Annexure A-3. The said package was approved vide joint meeting
dated 24.05.1993, Annexure P-4. After a delay of 1½ months, the OP1 issued sanction
letter dated 06.07.1993 approving the package with revised ‘cut-off’ date of the validity of the
rehabilitation package. The said letter was placed on record as Annexure P-5.
6.
OP
2 did not
really sanction the package immediately,
but
only after
repeated
requests and reminders, it issued sanction letter dated 15.12.1993 with another ‘cut off’ date
i.e., 21.03.1994, without any coordination /consultation with OP1. It is alleged that by the
time
OP2 approved the
rehabilitation
package,
the
revised
‘cut
off’
date,
i.e.,
01.10.1993 had already expired. Thereafter, requests were made to OP1 to extend the cut-off
date upto 31.03.1993, but it did not pay any heed. Copy of the letter dated
15.12.1993, has been placed on record as Annexure P-6.
7.
lakhs
Complainant, vide its letter dated 03.03.1994, informed OP1 that it had raised Rs.57.65
in share
capital and
invested
the
same
on the project. It also requested OP1
to fix the date for
inspection of the unit, before 16.03.1993, so that disbursement by OP2 may be
released. However, only OP1 sent a team of experts for inspection only on 04.04.1994, after the
expiry of cut-off date and therefore, no disbursement was released by OP2. Later, both the
OPs agreed to extend the ‘cut-off’ date, but OP 1 issued its sanction
letter only on 13.01.1995, vide Annexure P-7.
8.
OP2
issued notice
dated
27.01.1995, under
Section
29
of
the
State
Financial Corporation Act, for taking over physical possession of the project of the complainant
company. The complainant had already brought to the notice of the OP2, vide letter dated
16.01.1995 that OP1 had already extended the cut-off date upto 31.03.1995. The said
letter and notice were annexed as Annexures P-8 & P-9. On the other hand, vide letter dated
30.01.1995, Annexure P-10, the OP2 informed the complainant that they were considering
their request for extension of ‘cut-off’ date but on the contrary, the recovery Cell of the OP
hurriedly issued the above said notice for recovery. Request for withdrawal of notice and
extension of the ‘cut-off’ date was made vide letter dated 02.02.1995, Annexure P-11. Vide
letter dated 19.05.1995, OP1 requested OP2 to expedite the extension of ‘cut off’ date,
Annexure P-12. OP2
considered the request of the complainant for extension of ‘cut off’ date, vide Annexure P13, but at the same time, did not withdraw notice under Section 29 of State Financial
Corporation Act.
9.
In the meantime, the Allahabad High Court passed an interim order directing the
OP2 not to make any recovery by way
of
any coercive action
in pursuance to the
notice dated
27.01.1995.
A
Joint
meeting was held on 06.04.1996 and 24.06.1996 due to intervention of Udyog Bhandu, a
State
Government Organisation for co-operation among the
industries
and Company Bodies for rehabilitation of the complainant company. Both the OPs had agreed
to prepare a fresh package as required by OP2. Joint inspection of the site was conducted on
16.08.1996. As required, the complainant furnished all requisite information to OPs vide copy
of letter dated 07.01.19,Annexure P-14.
10.
On 10.04.1997, OP2 informed the complainant that it had decided to close the case
of the complainant company because OP1 is looking for sale/change of management of the
complainant company vide copy of the letter, placed as Annexure P-15. In the meantime, OP1
came up with rehabilitation programme for the complainant company vide letter dated
19.05.1997, and requested OP2 to participate in the joint meeting on 29.05.1997, placed on
record as Annexures
P-16
&
P-17. OP1 sought post-ponement for the
date
of
meeting. Thereafter, no meeting was held despite of any requests. OP 1 vide its letter dated
4-5.11.1997, vide Annexure P-18, closed the case of the complainant. Again, with
the intervention of Udyog Bandhu, a joint meeting was convened on 13.05.1998 and both the
parties agreed to call Tripartite meeting. OP1 asked the complainant to furnish the details of the
Bank to whom it had approached for the working capital assistance, vide copy of the letter,
dated 01.08.1998, Annexure P-19. The complainant vide its letters dated 01.09.1998 and
23.09.1998, Ex.P-20 & P-21, informed the OPs that in view of the past experience of the Banks,
“the proposal of the complainant company for working capital would be considered by them
only after the approval after the rehabilitation package by
both the OPs.
11.
The OP1 issued notice under Section 29 of the SFC Act on 26.05.1999, Ex.P-22. OP1
also advertised that they were going to auction the unit of the complainant company vide
newspaper dated 26.07.1999, Annexure P-23. Vide letter dated 06.08.1999, the State Minister
for
Industry
and
Export
Promotion,
Govt.
of Uttar
Pradesh,
vide his letter dated 06.08.1999, directed OP1 to prepare the rehabilitation package for the
complainant,
Annexure
P-24. OP2
advertised that they were going to auction the unit of the complainant vide newspaper
dated 12.01.2000, Annexure P-25. Due to failure of the OPs to release the balance disbursement,
led to the huge loss of the complainant. The negligence and deficiency on the part of the OPs
stand established. Consequently, the following compliant was lodged on 28.05.2001, before this
Commission, with the following prayers :“a) hold the Opposite parties jointly and severally liable for causing
loss and injury to the complainant on account of negligence and
deficiency in service on part of the opposite parties.
b) direct the opposite parties to pay the complainant a sum of
Rs.389.96 lakhs as compensation for the loss suffered by the
complainant company.
c) direct the opposite parties to pay interest at the rate of 18% per
annum.
d) direct opposite party No.1 to waive the
demand raised vide notice dated 26.05.1999.
e) pass such other orders as this Hon’ble Commission may deem fit
in the facts and
circumstances of the case”.
DEFENCE OF OPSs
12.
The OPs have challenged the
jurisdiction
of this
Commission. It is explained that since the recovery proceedings
are pending, the complainant can approach the appropriate forum. They did not pick up a
conflict with the loan agreement. They contend that the complainant is a defaulter and
deserve no leniency. The rehabilitation package to the OPs was not approved by them because
the complainant had committed default in repayment of loan. Consequently, notice under
Section 29 of the SFC Act was served. The property of the complainant was auctioned as per
law, in order to recover the loan amount. The complainant has not come to this
Commission with clean hands and suppressed a number of facts and, therefore, the
complaint should be dismissed at the very threshold.
FINDINGS:
13.
We
have
heard the
counsel
for
the
parties.
The
learned
counsel for the complainant vehemently argued that the complainant has to
suffer because the OPs failed to honour their commitments. Both the parties did not pay the
loan amount, in time. The complainant was not in a position to run the factory. He contended
that he has already placed on record all the necessary documents pointed out above, to prove its
case. She has invited our attention towards the Annexures P-1 to P-25, in support of her
case. She has cited the authority reported in Aquadev India Ltd. Vs. State Bank of Hyderabad
& Ors., 1986-2005 Consumer 9193 (NS), decided on 02.09.2004. Its para 66, runs as follows :-
“66. Hence, even though we have arrived at the
conclusion that the banks were entitled to repudiate the
contract for justifiable reasons, the delay in taking such decision
and in the meantime, asking the complainant to proceed
ahead with the project has caused heavy loss to the complainant.
The loss claimed by the complainant is for implementing the
project, for commencing the civil works, for recruitment of senior
officers, for placement of orders for machinery and components,
for release of advances to various contractors, besides spending
large amount for obtaining Government clearances and the
amount incurred for public issue. On this account, the
complainant has claimed large amount of Rs.8.5 crores, which we
are
not
inclined
to
grant
in
view
of various facts stated above. It is
also
quite
possible
that public at large might not have subscribed for the
shares if it was not stated that the State Bnak of Hyderabad was
the lead bank and the State Bank of Travancore and the Bank of
Maharashtra were Co-Managers to the public issue. Hence, even
though this is not a fit case for grant of compensatory
compensation/
damages,
but
grant
of
nominal
compensation is fully justified for the deficiency in service
arising out of repeatedly obtaining appraisal reports/
verifications and giving assurances, and thereafter not
disbursing the funds. Hence, we direct the State Bank of
Hyderabad
which has accepted to be the lead Bank as mentioned in the
prospectus by the complainant to pay Rs.10.00 lakhs as nominal
compensation and also refund the amount of Rs.6.00 lakhs which
was charged as fees for appraisal report, because the appraisal
report was in favour of the complainant. Respondent Nos. 2 and
4, i.e., the State Bank of India and the Dena Bank are directed to
pay Rs.2.00 lakhs and the Respondent Nos. 3, 5 & 6 are directed
to pay Rs.1.00 lakh each to the complainant towards nominal
compensation”.
14.
The facts of the above said authority hardly dovetail with the facts of this case. The most
pertinent question is, “Why did the complainant fail to abide, to what it had offered in the
agreement?”. Why notice under Section 29 of the SFC Act had to be issued? Notice
under Section 29 was given on 27.01.1995, its relevant portion runs as follows :“That in contravention of the terms of the said deed of mortgage
several defaults have been committed by you, to the Corporation as
per the repayment schedule and the following amount is still
outstanding against you:
Principal
14,94,650.00
Interest (20.12.21994) 3,44,685.04
Interest re-sch. o/s
15.
7,64,722.77”.
We enquired from the counsel for the complainant as to why there was a
default. The complainant had
signed the
agreement
with
open
eyes.
The
complainant was quite aware of pros and cons of the said agreement. The learned counsel
indulged in hubble bubble and did not clarify the position. It, therefore, stands proved that the
complainant was a defaulter. Even the Banks did not want to come
to its rescue.
16.
Secondly, the complainant did not approach this Commission with clean hands. It has
made a vain attempt in pushing the facts under the carpet. It mentioned that it filed a Writ
Petition No.12095/1995 and an interim order was also passed but did not state as to
what happened to that Writ Petition,
which
was
pending
before the Hon’ble
High Court. Both the counsel admitted that, that Writ Petition was dismissed in default for
non-appearance of both the parties. The complainant did not make any attempt to get that Writ
Petition restored. Moreover,
the
complainant,
earlier, filed
a
suit before the Civil Court, Kanpur, being Suit No. 895/1995 of
1995, which was pursued by the complainant. As a matter of fact, an injunction order was
passed in favour of the complainant, subject to deposit of entire dues on or before 30.09.1995.
Obviously, the complainant failed to pay the said dues and as such, his case was dismissed.
All these facts were not disclosed by the complainant, for the reasons best known to it.
17.
It
is
also
interesting to note
complainant vehemently argued that the
that
the
OPs were
counsel
for
the
bound to approve the
rehabilitation package. The State Government also desired the same. In this context, our
attention was invited to the letter written
by a Minister. The said letter is hereby reproduced:“Babu Ram, M.Com
Vidhan Bhavan
Minister
Lucknow
Small Industries
And Export Promotion
To
Managing Director
PICUP, Gomti Nagar
Lucknow (U.P.)
Please take notice of enclosed letters. It is mentioned in the letter
that Company Alliance Inorganics Ltd., Kanpur, has been jointly
financed by PICUP and UPFC but due to non-coordination between
these institutions, the company could not receive the sanctioned
loan. Thus, production could not be started whereas the project is in
the last stage. It has been requested in the letter to prepare a
rehabilitation package.
I would wish that an order should be passed to grant a rehabilitation
package to the above named company.
Sd/
(BABU RAM)/ 06.08.99”.
18.
Moreover, the complainant also concealed the fact that there were earlier, three Directors
of the Company, along with Sh. S.R.Bansali, but because, after the loan was sanctioned
in their favour, in the year 1989, the dispute arose between the Directors and the
Company did not transact any business.
19.
OPs.
The following authorities
go
to
fortify the
case
of
the
In UP Financial Corporation & Ors. Vs. Naini Oxygen & Acetylene Gas Ltd. & Anr.,
(1995) 2 SCC 754, it was held as under :
“21. However, we cannot lose sight of the fact that the
Corporation is an independent autonomous statutory body
having its own constitution and rules to abide by, and
functions and obligations to discharge. As such, in the
discharge of its functions, it is free to act according to its own
light. The views it forms and the decisions it takes are on the
basis of the information in its possession and the advice it
receives and according to its own perspective and
calculations. Unless its action is mala fide, even a wrong
decision taken by it is not open to challenge. It is not for the
courts or a third party to substitute its decision,
however more prudent, commercial or business like it may
be, for the decision of the Corporation. Hence, whatever, the
wisdom (or the lack of it) of the conduct of the Corporation,
the same cannot be assailed for making the Corporation
liable.
22. It cannot further be forgotten that in the present case, the
Company had made persistent defaults in repayment of the
loan installments with the result that recovery certificate had
to be issued against it under Section 3 of the U.P. Public
Moneys (Recovery of Dues) Act. The then Management had
mismanaged the Company and a company petition had to be
filed seeking its removal on grave charges of manipulation of
accounts, re-allotment of forfeited shares, etc. The nondischarge of the liabilities of the Company was on account of
the said fraudulent practices of the Management. By 30.05.86,
the dues of the Company mounted to Rs.90,31,102.13 with the
result that on 13.06.1986, the Corporation had to take over its
industrial establishment under Section 29 of the Act. The
report of the IRBI which was given at the instance of this
Court on 29.01.1988, had stated that the industrial unit
could be made only marginally viable provided another Rs.
One crore were invested in it and the loan installments were
rescheduled. Between 1981 when the industrial establishment
was closed down and 1988 when the IRBI report was
submitted, the machinery of the establishment was lying idle
and became almost rusty with the result that by 1988, the
value of the machinery had gone down considerably, while its
liabilities had gone up still further. In the circumstances, if
the Corporation thought that the revival of the Unit even after
giving all concessions and reliefs as per the package deal was
problematic and the Corporation will stand to lose whatever
little it could retrieve towards its dues, the Corporation could
hardly be blamed for the same”.
20.
In Punjab Financial Corporation Vs. Surya Auto Industries, (2010) 1 SCC 297, it was
held :
“21. The proposition of law which can be culled out from the
decisions noted above is that even though the primary function of a
corporation established under Section 3 of the Act is to promote
small and medium industries in the State, but it is not obliged to
revive and resurrect every sick industrial unit dehors the financial
implications of such exercise. The Corporation is not supposed to
give loans and refrain from taking action for recovery
thereof. Being an instrumentality of the State, the Corporation is
expected to act fairly and reasonably qua its borrowers/debtors, but
it is not expected to flounder public money for promoting private
interests.
22. The relationship between the Corporation and borrower is that
of creditor and debtor. The Corporation is expected to recover the
loans already given so that it can give fresh loans/financial
assistance to others. The proceedings initiated by the Corporation
and action taken for recovery of the outstanding dues cannot be
nullified by the courts except when such action is found to be in
violation of any statutory provision resulting in prejudice to the
borrower or where such proceeding/action is shown to be wholly
arbitrary, unreasonable and unfair. The court cannot sit as an
appellate authority over the action of the Corporation and substitute
its decision for the one taken by the Corporation”.
21.
In Chairman-cum-Managing Director, Rajasthan Financial
Corporation & Anr. Vs. Commander S.C. Jain (Retd.) & Anr., (2010) 4 SCC 107, it was held
that :“Thus, it is clear that the Act has provided provision for correcting
the shortcomings in the service or goods provided by way of
awarding compensation or other means specified in the provision
above mentioned only when the Consumer Forum comes to the
conclusion that there is “deficiency” in service provided or goods
sold. The loss suffered by the respondent for the reason of not being
able to start the unit cannot be the basis for awarding the
compensation specifically when the respondent was at fault for the
non-release of the balance loan amount. Therefore, when there is no
deficiency found on the part of the appellant Corporation, it cannot
be asked to pay compensation”.
22.
Lastly, the Delhi High Court in case titled Chinar Fabrics Vs. SBI, decided on
17.11.2005, by Hon’ble Markandeya Katju, Chief Justice and Hon’ble Mr.Justice
M.B.Lokur, was pleased to hold in para 24, of its judgment :“24. In our opinion, no one has a legal right to get
rehabilitation. When a person has taken a loan, he has to repay the
same in accordance with the loan schedule as per the agreement
between the parties. Rescheduling of the loan is in the sole discretion
of the bank or the financial institution which granted the loan and the
Court cannot compel it to reschedule the loan. The matter regarding
loan from financial Corporation/banks is purely contractual and a
party has to abide by the agreement which he has entered into”.
23.
To rehabilitate the company is the discretion of the OPs. The
OPs were playing the game of ‘hide and seek’ because of the
pressure from the Minister of a State Government. The Minister of State has no business to write
such like letters without knowing the facts of this case or putting pressure on his
employees. Otherwise too, the complainant did not deserve the rehabilitation package in view
of its previous record. The complainant was given enough time, including vide order passed
by the Civil Court, to pay off the dues, but it failed to do so.
24.
Last, but not the least, the complainant does not fall in the category of ‘consumer’, as
defined in Section 2(1)(d) of the Consumer Protection Act, 1986. It must be borne in mind that
the definition of ‘consumer’, was amended, with effect from 18.06.1993,
and the celebrated authority in Laxmi Engineering Works vs.PSG Industrial Institute – (1995) 3
SCC 583, was delivered on 04.04.1995. The complainant is transacting ‘commercial activities’,
and as such, this Commission has no jurisdiction to try this case.
25.
In
the result, we
find
that
the
complainant’s
wind mills, does not ring the bell. Section 26 of the CP Act, 1986,
attempt
to
tilt
at
runs as follows :“26. Dismissal of frivolous or vexatious
complaints. – Where a complaint instituted
before the District Forum, the State Commission or, as the case
may be, the
National Commission, is found to be frivolous or vexatious, it shall,
for reasons to be recorded in writing, dismiss the complaint and
make an order that the complainant shall pay to the opposite party
such cost, not exceeding ten thousand rupees, as may be specified
in the order”.
26.
The complainant had wasted the precious time of this Commission and that of both the
opposite parties, for about more than a decade. Consequently, we dismiss the complaint with the
direction to the complainant, to pay a sum of Rs.10,000/- to each of the OPs, within a period of
90 days, from the receipt of this order, through demand draft in favour of the OPs, else, it will
carry interest @ 9% p.a., till its realization. Learned Registrar to see the compliance of the order
and report.
.…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………………………
(DR.S. M. KANTIKAR)
MEMBER
dd/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3010 OF 2013
(Against the order dated 16.07.2013 in Appeal No.547/2012 of the State Commission,
Rajasthan)
Kanha Sweet Shop Through its Prop. Natawar Lal Sharda Shop No. J-6, Himmat Nagar
Gopalpura Mod, Tonk Road, Jaipur (Raj.)
....... Petitioner
Versus
Mohan Lal Prajapat S/o Jamanaram, by caste Kumawat Age-65 years, R/o House No.106/110
Ashok Marg, Agarwal Farm, Mansarovar, Jaipur (Raj.)
…... Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Tanmaya Agarwal, Advocate
Pronounced on : 6th February, 2014
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Petitioner/Opposite Party has filed the present revision petition under section 21(b) of
the Consumer Protection Act, 1986 (short, ‘Act’) challenging order dated 16.7.2013 passed in
(First Appeal No.547 of 2012) by Rajasthan State Consumer Disputes Redressal Commission,
Jaipur (short, “State Commission”).
2.
Brief facts are that Respondent/Complainant, purchased 2 kg. of Kaju Katli (a sweet) on
26.10.2011 from the shop of the petitioner and payment was made through the credit card of his
sonManoj. When, the sweet was served on 27.10.2011 to the guests, it was found that it smelled
foul and the taste was also not good. Respondent reported the matter to the petitioner
overtelephone and a person from the petitioner’s shop came on 28.10.2011 after repeated
reminders and he too found that the Kaju Katli was not good. The matter was reported to the
District Supply Officer (DSO) and Chief Medical & Health Officer (CMHO). After great
persuasion, an officer of the CMHO sent the sample on 31.10.2011 for analysis to the food
analyst. After analysis, the sweet was found to be “infested with fungus”. A complaint in this
regard was filed by the respondent before the District Consumer Disputes Redressal Forum,
Second Jaipur (short, District Forum).
3.
Notice of the complaint was issued to the petitioner.
4.
Despite service, none appeared for the petitioner before the District Forum. Accordingly,
petitioner was proceeded ex-parte.
5.
Thereafter, District Forum vide order dated 30.3.2012, allowed the complaint and directed
the petitioner to make payment of Rs.1,328/- along with interest @ 18% p.a. and Rs.4 lakhs
towards the damages for mental agony, out of which Rs.50,000/- was to be paid to the
respondent and remaining amount of Rs.3.5 lakhs was to be deposited in favour of State
ConsumerWelfare Fund, Jaipur. Further, cost of Rs.5,000/- was also awarded.
6.
Aggrieved by the order of the District Forum, petitioner filed an appeal before the State
Commission which dismissed the same, vide its impugned order.
7.
Hence, this revision petition.
8.
We have heard the learned counsel for the petitioner and gone through the record.
9.
It is an admitted case of the petitioner also that it was duly served before the District
Forum but none appeared on its behalf and as such was proceeded ex-parte.
10.
Petitioner had made the following averments in its appeal filed before the
State Commission ;
“The complaint was filed on 14.12.2011, heard for admission on
14.12.2011, admitted on 14.12.2011, notices were also issued to
the humble appellant/defendant on 14.12.2011 and the notices sent
through registered post on 14.12.2011, which were received by the
humble defendant/appellant on 15.12.2011. The next date for filing the
reply to the complaint was fixed for 17.1.2012 and on the date for filing
the reply, there was a strike call from the advocates, and for this reason
the advocate for the humbledefendant/ appellant as per the procedure
awaited communication for next date which was never informed.”
11.
The State Commission in its impugned order has observed ;
“It is evident from the record that the complaint was filed by the
complainant on 14.12.2011 and after its registration, the notices were
issued to the appellant for appearance before the DCF on
17.1.2012. The notices of the appellant was duly served on 15.12.2011,
which the appellant has himself admitted in the memorandum of
appeal. From the order sheet of the complaint, it appears that advocate
boycotted the work on 17.1.2012 and the appellant did not appear
before the DCF, despite due services of the notices on him. If the
advocates were on strike, the appellant could have appeared in person
before the DCF or through any other representative, but he did not
bother and prefer to appear in the Forum. It appears that the Forum
did not proceed ex-parte on 17.1.2012 against the appellant on account
of his absence and adjourned the matter for 17.2.2012. The appellant
again did not appear on 17.2.2012 and the Forum proceeded ex-parte
against the appellant on that day. The appellant did not appear on
subsequent dates till the decision of the complaint. If it is assumed for
the sake of arguments that the appellant or his counsel could not appear
on the first date of hearing i.e. 17.1.2012 due to strike by advocates,
then the appellant or his counsel could have appeared on the next
dates. The appellant could not show any justifiable reason for his
absence on 17.2.2012 and subsequent dates. The District Forum was
not required to issue fresh notices to the appellant after his absence on
17.1.2012 after due service of notices on it, as there is no provision to
issue notices again to the opposite party. It appears that the appellant
took the service of the notices on him very lightly or else he could have
appeared in person before the DCF due to strike of
advocates. Thus, there is no justification of absence of the appellant
on 17.1.2012 and on subsequent dates after due service of notices on
him and the DCF rightly proceeded ex-parte on the next date and
allowed the complaint after taking into consideration, the evidence
submitted by the complainant.”
12.
Thus, it is manifestly clear that petitioner had received a notice from the District Forum for
17.1.2012 but as per petitioner’s case due to lawyer strike, he could not appear before the District
Forum. Be that as it may, there is nothing on record to show that thereafter, petitioner made any
efforts to enquire about the next date of hearing. This fact that petitioner did not make any
enquiry with regard to the next date of hearing after 17.1.2012, goes on to show that petitioner
had been pursuing the case before the District Forum in a very casual and careless
manner. Under these circumstances, District Forum has rightly proceeded ex-parte against the
petitioner.
13.
Even on merits, petitioner has no case since he had no defence before the District
Forum. Be that as it may, the State Commission with regard to the merit of the case has held ;
“The report of the food analyst (2.11.2011) clearly reveals that the sample
was sent in a sealed condition and the seal was intact and the sample
of Kaju Jatli was unfit for analysis due to “fungus infestation”. Thus, it is
amply clear that the sample of the Kaju Katli purchased by the
complainant from the appellant shop was infested with fungus and was not
in conformity with the prescribed standards and thus, the sweet was not fit
for human consumption.”
14.
It is well settled that under Section 21 (b) of the Act, the scope of revisional jurisdiction is
very limited. Under Section 21 of the Act, this Commission can interfere with the order of the
State Commission where such State Commission has exercised a jurisdiction not vested in it by
law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its
jurisdiction illegally or with material irregularity.
15.
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.”
16.
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 the Act as two Fora below have given detailed and
reasoned orders which does not call for any interference nor they suffer from any infirmity or
erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby,
dismissed.
17.
No order as to cost.
…………………..………J
(V.B. GUPTA) (PRESIDING MEMBER)
…………………...……….
(REKHA GUPTA) (MEMBER)
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1607 OF 2011
(Against the order dated 6.4.2011 in Appeal No.10 of 2011 of the State Commission, UT
Chandigarh)
Kuldip Studley W/o Nigel Studley Aged 39 years R/o House No.3745/1, Sector-46C,
Chandigarh. Present address : 1513. First Floor Sector 34-D, Chandigarh
…. Petitioner
Versus
1. ICICI Prudential Life Insurance Company Ltd. Vinod Silk
Chakraborty Ashok Nagar, Ashok Road, Kandivali (E) Mumbai – 400404.
2. The Branch Manager
Madhya Marg, Chandigarh
Mills
Compound,
ICICI Prudential Life Insurance Company Ltd. Sector 9,
3. Mr. Paramdip Oberoi, Area Manager, ICICI Prudential Life Insurance Company Ltd.
Sector-9, Chandigarh.
…Respondents
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Ms. Kuldip Studley, in person
For the Respondents : Mr. Avanish Kumar, Advocate for No.R-1 & 2
Pronounced on: 6th February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being
aggrieved
by
judgment
dated
6.4.2011
passed
by
State
Consumer
Disputes Redresal Commission, Chandigarh (for short, ‘State Commission’) (in Appeal No.10 of
2011), Petitioner/Complainant has filed the present revision against the Respondents/OPs.
2. Brief facts are that petitioner took Life Insurance Policy for insurance cover of Rs.36,000/in her name and in the name of her two minor children through respondent No.2. She also took,
another policy for Rs.36,000/- in the name of her husband Sh.Nigel Studley along with her
minor daughter namely Abigail Studley, aged 5 years through respondent No.3. It was stated
that the splitting of the insurance into two policies as per the petitioner was on the initiative of
respondent No.3. The insurance of just one person for Rs.36,000/- was not demanded or
requested
by
the
petitioner.
The proposal
petitioner was received on 10.8.2009, alongwith first
form for
insurance
premium deposit
of
from
Rs.36,000/-.
Accordingly, respondents issued the policy on 10.8.2009. The policy document was delivered to
the petitioner on 20.8.2009. It was further stated that the proposal form and the other forms were
signed by the petitioner and her husband on the assurance of respondent No.3 on 16.7.2009. The
petitioner made one time payment of Rs.72,000/- for insurance cover and insurance cover of her
husband and three children. The petitioner gave two cheques drawn on HSBC Bank for
Rs.36,000/- each to respondent No.3. The policy holder as per the assurance of the respondents
had the option to cancel the policy during the free look period of 15 days from the date of receipt
of the policy documents, as mandated by the Insurance Regulatory & Development Authority. It
was further stated that the petitioner was surprised to find that policy No.12339976 received on
2.8.2009 for Rs.36,000/- was only in her name and did not include the names of her three
children and husband. The total premium of Rs.72,000/- was paid for whole family to have one
time policy, whereas the annual policy in the name of only the petitioner was issued by the
respondents. The petitioner tried to contact respondent No.1 to 3 for revoking policy
No.12339976 within the free look period but they intentionally and deliberately did not
acknowledge the receipt of telephone calls and emails sent by her. It was further stated that the
husband of the petitioner fell seriously ill, in the intervening period and was in need of medical
help, but as there was no policy cover provided by the respondents in his name, the petitioner
had to spend huge amount on his treatment. The above said act of the respondents amounted to
deficiency in service and unfair trade practice. Hence, the complaint was filed.
3. Reply was filed by the respondents wherein they stated that they received the duly filled and
signed application form/proposal form, from the petitioner on 10.8.2008, for the issuance of a
policy. In the proposal form, the petitioner had opted for yearly mode of premium payment of
Rs.36,000/- and on receipt of the first premium deposit vide cheque No.055565 dated 16.7.2009
for Rs.36,000/-, the policy bearing No.12339976 was issued, as per the details updated in the
proposal
form.
As
prescribed
under
Regulation
4(1)
of
the
Insurance Regulatory and Development Authority Regulation 2002, the policy document was
duly dispatched to the petitioner on 17.8.2009, and the same was received by her on 20.8.2009. It
was further stated that as per regulations of the IRDA, the petitioner was entitled to revoke the
policy during the free look period of 15 days but she retained the same and did not return the
same to the respondents for cancellation during this period. It was further stated that the
petitioner contacted the respondents only in December, 2009 and started raising frivolous
allegations and demanded that the amount paid by her be refunded. Since, request of the
petitioner was received by the respondents long after the free look period, so they were not liable
to refund the amount of the policy to the complainant. The respondents have, however, returned
the amount of Rs.36,000/- vide another cheque for the second policy. All other material
allegations levelled by the petitioner, in the complaint, were denied. It was further stated that
there was no deficiency in service on their part nor did they indulge into unfair trade practice.
4. The District Consumer Disputes Redressal Forum, Chandigarh (for short, ‘District Forum’)
dismissed the complaint, vide its order dated 13.1.2011.
5. Aggrieved by the order of District Forum, an appeal was filed by the petitioner. However, the
same was also dismissed by the State Commission, vide the impugned order.
6. Hence, the present revision petition.
7. We have heard the petitioner, who argued her case in person, as well as counsel for
respondents no.1 and 2 and gone through the record.
8. The main grouse of the petitioner is that respondents did not cover the entire family of the
petitioner under the Life Insurance Scheme despite having received the premium of Rs.72,000/for ensuring the entire family, petitioner herself, her husband and three minor children.
9. In support of her contention, petitioner relied upon various the following judgments namely;
i) United India Insurance Company Ltd. Vs. M/s. M.K.J. Corporation,
[ 1997 AIR ( SC) 408 ];
ii) Andagro United Services Ltd. Vs. United India Insurance Company Ltd. and another,
[ O.P. No.165 of 2000 decided on 19.2.2013 by
this Commission. ];
iii) Bajaj Allianz Life Insurance Company Ltd. and others Vs. Sali Thomas,
[ R.P. No.1953-1954 of 2012 decided on 2.7.2012 by this Commission ];
iv) Usha Kumari Ranawat Vs. Senior Divisional Manager, LIC of India and another,
[ 2011(ACJ 2505 ] and
V) Sundaram BNP Paribas Home Finance Limited and another Vs. Consumer Guidance
Society,
[ R.P. No.4308 of 2012 decided on 27.11.2012 by this Commission ].
10. On the other hand, it has been contended by learned counsel for the respondents that as per
the proposal form, petitioner has clearly mentioned that policy is being sought in her
name alone and not in the name of other family members. Under these circumstances, there is
no infirmity or ambiguity in the orders passed by the fora below.
11. District Forum in its order held;
“The complainant has filed this complaint against the OPs because she is
aggrieved and dis-satisfied that they have issued a policy in
her favour and not in favour of her husband. Also the names of her children as
promised by the OPs have not been entered in her policy. Again the complainant
has alleged that the premium payable was one time and not annual. The OPs
have contended that the policy had been issued to the complainant as per the
proposal form and the terms contained therein. The policy was in the name of
the complainant with premium payable annually. Further, they had not issued a
policy in the name of the husband and the amount had accordingly been
refunded to the applicant. The complainant has submitted that she was not
willing to continue with the policy in her name alone after her husband’s
premium amount was returned. However, she has not been able to impress this
fact upon them within the time of free look period. All the correspondence
exchanged between the parties relates to a period beyond the free look period.
Hence, we are of the opinion that the complaint is not maintainable and
deserves dismissal. The allegations and desire for refund of the complainant
seem an afterthought when her husband did not receive his policy.
12. The State Commission while affirming the decision of District Forum, in its impugned order
observed;
“10. After giving our thoughtful consideration, to the rival contentions advanced by
the Counsel for the parties, we are of the considered opinion that the appeal is
liable to be dismissed for the reasons to
be recorded herein after it is evident from Annexure C-4, application/proposal form
submitted by the appellant that she signed the same, for obtaining ICICI
Prudential Health Care Policy, in her own name. The annual premium
mentioned in the form aforesaid is Rs.36,000/-. She paid this amount
through cheque and receipt in that regard is Annexure C-6. She nominated her
husband as a nominee, in the proposal from. In Annexure C-4, there is nothing
to show that she intended to obtain two policies, in her name, and in the names
of her minor children and husband. The OPs are required to act according to
the terms and conditions of the proposal form, at the time of issuing the policy.
In case, the appellant was not satisfied with the terms of the policy issued to her,
she could revoke the same, within 15 days i.e. the free look period, from the date
of receipt of the policy documents. She, however, failed to revoke the policy,
within the free look period. No doubt, the appellant sent e-mails Annexure C-1
dated 7.12.2009, Annexure C-2 dated 9.1.2010, Annexure C-3 dated 30.12.2009
and letter Annexure C-8 dated 8.10.2009, for cancellation of the policy, but the
said correspondence, was beyond the free look period of 15 days, from the date
of receipt of the policy papers. In these circumstances, there was no deficiency
in rendering service by the OPs, nor they indulged into unfair trade practice.
The appeal is, thus, liable to be dismissed.”
13. As per proposal form placed on record, in the column of Life Assured name of petitioner
alone has been mentioned. It would be pertinent to point out that name of spouse and children
have not been mentioned by the petitioner at all in this proposal form.
14. There are concurrent findings of facts to this effect that the proposal form was only for the
petitioner alone and not for her family members. Under these circumstances, when petitioner
herself has furnished the proposal form seeking policy for herself alone, the respondents were
fully justified in not issuing the policy in the name of her other family members.
15. It is well settled that 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.
16. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance
Company, 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 that 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 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 finding of two fora.”
17. Hence, we do not find any illegality or infirmity in impugned order passed by the State
Commission. There is no merit in this revision petition. Accordingly, the same is hereby
dismissed.
18. No order as to cost.
…………………………………….J
(V.B. GUPTA)
PRESIDING MEMBER
……………………………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2476 OF 2012
(Against the order dated 17.04.2012 in F.A.No. 1626/2011 of the State Commission Rajasthan,
Jaipur)
New India Assurance Company Ltd. Through its duly Constituted attorney Manager,
New India Assurance Co. Ltd. R.O-1, Level 5, Tower –II Jeevan Bharti, 124, Connaught Circus
New Delhi – 11001
........ Petitioner
Vs.
Birbal Singh Jhakhar s/o Shivehand Jhakhar r/o Adarsh Colony, Nawalgarh Road Sikar, Tehsil
& Distt. Sikar
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
For the Respondent
:
:
Mr. Abhishek Kumar, Advocate
Mr. J.M.Bari & Ms. Shweta Bari, Advocates
Dated : 06th February, 2014
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of the State Commission Rajasthan Jaipur dated
17.04.2012 whereby the State Commission accepted the appeal preferred by the respondent
complainant and allowed the complaint.
2.
Briefly put facts relevant for the disposal of this revision petition are that motor
vehicle no. RJ 23 T 0765 belonging to Sunil Jhakhar son of the respondent complainant was
insured with the petitionercompany. On 26.01.2009 at about 12.00 in the night, aforesaid vehicle
was hit by a bus on road from Bhadhadar to Sikar. As a consequence, Sunil Jhakhar as also the
passengers,
namely, Mukesh,
Sachin,Prakash, Parmeshwar and Dharmender suffered fatal
injuries and the vehicle was damaged. The petitioner company was intimated. A surveyor was
appointed who assessed the damage caused to the vehicle at Rs.1,94,950/-. The insurance
claim preferred by the respondent complainant, however, was repudiated by the petitioner
company on the ground that at the time of incident, insured vehicle was being plied without a
route permit and fitness certificate. This led to the filing of the consumer complaint.
3.
District Forum Sikar on consideration of the pleadings and the evidence came to the
conclusion that the petitioner was justified in repudiating the claim because the insured had
violated the terms and conditions of the insurance policy and dismissed the complaint.
4.
Being aggrieved of the order of the District Forum, the respondent preferred an
appeal. The State Commission allowed the appeal and directed the petitioner to pay to the
respondent a sum of Rs.1,94,950/- minus Rs.500/- as excess clause. Respondent was also
directed to pay 9% interest on the awarded amount from the date of filing of the complaint
before the District Forum besides a compensation of Rs.25000/- and litigation cost of
Rs.10,000/- was awarded.
5.
Learned counsel for the petitioner has contended that the impugned order is based upon
the incorrect appreciation of law and fact. It is argued that the State Commission
while accepting the appeal against the dismissal of complaint has failed to appreciate that at the
time of accident the vehicle in question was being plied without a valid permit and fitness
certificate which is not only the violation of terms and conditions of the insurance policy but also
provisions
of
the
Motor
Vehicle
Act. It
is
contended
that
in
view
of
the
aforesaid fundamental breach of condition of insurance contract, the petitioner was justified in
repudiating the insurance claim.
6.
Learned Shri J.M.Bari, Advocate on the contrary has argued in support of the impugned
order. It is argued that although the vehicle was being plied without permit and
fitness certificate, it is of no consequence because it cannot be termed as a breach which is
fundamental to the accident particularly when it is established on record that the accident was not
caused because of any fault of driver in question but due to the fault of the driver of the truck
which dashed into the insured vehicle. In the alternative, learned counsel for the respondent
submitted that even if it is assumed for the sake of argument that the insured violated the terms
and conditions of the insurance policy, then also, the petitioner is under obligation to settle the
claim on non-standard basis. In support of his contention, learned counsel for the respondent has
relied upon the judgment of the Supreme Court in the matter of National Insurance Co.
Ltd. Vs. Nitin Khandelwal in
Appeal
No.
(Civil)
3409
of
2008 decided
on
08.05.2008, AmalenduSahoo Vs. Oriental Insurance Co. Ltd. in Civil Appeal No. 2703 of
2010 decided on 25.03.2010 as also judgment in the matter of G.Kothainachiar Vs. United
India Insurance Co. Ltd. IV (2007) CPJ 347 (NC).
7.
Before adverting to the submissions made on behalf of the parties, it would be useful to
have a look at the law on the subject. In the matter of National Insurance Company
Ltd. Vs. Nitin Khandelwal(supra), the insurance claim filed by the insured in relation to theft of
his vehicle was repudiated on the ground that the vehicle was being plied in violation of the
terms and conditions of the insurance policy as a taxi. In the said case, Hon’ble Supreme Court
held thus :
“In the case in hand, the vehicle has been snatched or stolen. In the case of theft of
vehicle breach of condition is not germane. The appellant insurance company is liable
to indemnify the owner of the vehicle when the insurer has obtained comprehensive
policy for the loss caused to the insurer. The respondent submitted that even assuming
that there was a breach of condition of the insurance policy,the appellant insurance
company ought to have settled the claim on non-standard basis. The insurance
company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.
Following the aforesaid judgment, in the case of Amalendu Sahoo vs. Oriental
Insurance Co. Ltd., the Supreme Court held thus:
“In the instant case the entire stand of the insurance company is that claimant has used
the vehicle for hire and in the course of that there has been an accident. Following the
aforesaid guidelines, this Court is of the opinion that the insurance company cannot
repudiate the claim in toto”.
In the matter of G.Kothainachiar Vs. United India Insurance Co. Ltd., the three
members Bench of this Commission after analysing the law laid down by the Supreme Court in
the matters of Oriental Insurance Co. Ltd. Vs. Sony Cheriyan II (1999) CPJ 13
(SC), New India Assurance Co. Ltd.,
Shimla
Vs. Kamla & Ors.(
2001)
4
SCC
342, Jitendra Kumar Vs. Oriental Insurance Co. Ltd. (2003) 6 SCC 420, National
Insurance Co. ltd. Vs. Swaran Singh (2004) 3 SCC 297, National Insurance Company Ltd.,
Chandigarh Vs. Nicolletta Rohtagi & Ors. (2002) 7 SCC 456, B.V. Nagaraju V. Oriental
Insurance Co. Ltd., Divisional Officer, Hasan (1996) 4 SCC 647, held thus:
“From the settled law quoted above, it is apparent that the Insurance Company can
repudiate the claim of the insured in case where there is a breach of the policy
condition / conditions; and, the breach is fundamental or material so as to vitiate the
insurance contract”.
8.
In the context of the above noted settled legal position, we now proceed to analyse the
facts of the case. Section 66 (1) of the Motor Vehicles Act, 1988 deals with “Necessity for
permits”, which reads thus:
“Necessity for permits.
(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport
vehicle in any public place whether or not such vehicle is actually carrying any
passengers or goods save in accordance with the conditions of a permit granted or
countersigned by a Regional or State Transport Authority or any prescribed authority
authorising him the use of the vehicle in that place in the manner in which the vehicle is
being used”.
9.
From the above, it is clear that no transport vehicle can be used on any public place
without a valid permit. In other words, a transport vehicle without a valid permit cannot be plied
on the road. For the violation of the said provision, there is a penal liability provided under
section 192 (A) of the Motor Vehicle Act, 1988.
10.
It is undisputed that at the time of incident, the vehicle in question was being plied on a
public road from Bhadhadar to Sikar. On perusal of the Policy Schedule-cum-Insurance
Certificate, we find that at the bottom left corner, the insurance also provides “Limitations as to
Use”, which reads thus:
“The Policy covers use only under a permit within the meaning of the Motor Vehicles
Act, 1988 or such a carriage falling under sub-section (3) of Section 66 of the Motor
Vehicles Act, 1988. The policy does not cover use for (a) organised racing, (b) Pace
making, (c ) Reliability trails, (d) Speed Testing, ( e) use whilst drawing a trailer
except the towing (other than for reward) of any one disabled mechanically propelled
vehicle”.
11.
On bare reading of the above, it is clear that under the insurance contract between the
parties, the insurance cover extended to the insured is subject to the use of the vehicle only under
a permit within the meaning of Motor Vehicle Act, 1988. It is well settled that insurance
contract is a species of commercial transaction and it must be construed like any other contract as
per
its
own
terms
conditions. Hon’bleSupreme
and
Court
in the matter of Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. being
Civil Appeal No. 2080 of 2002 decided on 01.04.2009 while dealing with the question about the
construction of an insurance contract has held thus :
“An insurance contract, is a species of commercial transactions and must be
construed like any other contract to its own terms and by itself. In a contract of
insurance, there is requirement of uberimma fides i.e. good faith on the part of the
insured. Except that, in other respects, there is no difference between a contract of
insurance and any other contract. The four essentials of a contract of insurance are,
(i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv)
the amount of insurance. Since upon issuance of insurance policy, the insurer
undertakes to indemnify the loss suffered by the insured on account of risks covered by
the insurance policy, its terms have to be strictly construed to determine the extent of
liability of the insurer. The endeavour of the court must always be to interpret the
words in which the contract is expressed by the parties. The court while construing the
terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties.
The insured cannot claim anything more than what is covered by the insurance policy.
[General Assurance Society Ltd. Vs. Chandumull Jain and another, Oriental
Insurance Co. Ltd. Vs. Sony Cheriyan and United India Insurance Co. Ltd.
Vs.Harchand Rai Chandan Lal].
Document like proposal form is a commercial document and being an integral part of
policy, reference to proposal form may not only be appropriate but rather essential.
However, the surveyors’ report cannot be taken aid of nor can it furnish the basis for
construction of a policy. Such outside aid for construction of insurance policy is
impermissible.”
From the above judgment, it is clear that an insurance contract is like any other
commercial
contract
and
it
must
be
construed
strictly
as
per
its
terms
and
conditions. Admittedly, in this case, at the time of incident, vehicle was being plied on a public
place without a permit. Therefore, in view of the above noted clause relating to Limitation as to
Use, the insurance cover is not available to the insured. It is contended on behalf of the
respondent complainant that the above noted Limitation as to Use clause is immaterial for the
reason that the vehicle in question was comprehensively insured and it was hit by a bus coming
from the opposite direction without there being any fault on the part of the driver of the vehicle
in question. The aforesaid argument is of no avail to the respondent complainant because the
vehicle was being plied in violation of a “Limitation as to Use” clause which is fundamental
breach of insurance contract. Thus, it is clear case of violation of material terms and conditions
of insurance contract having direct bearing on the extension of insurance cover. Therefore, the
petitioner insurance company was justified in repudiating the claim.
12.
In view of the discussion above, we are of the opinion that impugned order is passed
ignoring the basic condition of the insurance policy. As such, it cannot be sustained. Revision
petition is allowed, impugned order of the State Commission is set aside and complaint filed by
the respondent complainant is dismissed. Parties to bear their own costs.
………………………….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
…………………………
(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3916 OF 2013
(Against order dated 27.08.2013 in First Appeal No.
State Consumer Disputes Redressal Commission, Punjab, Chandigarh)
822/2011
of
the
1.
Dr. Raj Kumar Garg
2.
Dr. Kamlesh Garg Both C/o Kumar Divine Hospital & Heart Centre, Fauji Road,
Kotkapura, Tehsil & District Faridkot (Punjab)
…Petitioners
Versus
1.
Radhey Sham R/o Near S.B.S. College, Cold Storage Road, Kotkapura, Tehsil & District
Faridkot (Punjab)
2.
Dr. Maninder Singh (General Sec.), C/o Maninder Surgical Centre, Faridkot (Punjab)
3.
United India Insurance Company Ltd., 54, Janpath, Connaught Place, New Delhi-110001
…Respondents
BEFORE:
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
For the Respondent No.1 :
For the Respondent No.2 :
Mr. K.G. Sharma, Advocate
Nemo
Mr. Arvind Jha, Advocate
PRONOUNCED ON 7th FEBRUARY, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1.
On
7.12.2009,
the
deceased
Meeran,
wife
of
Radhey
Sham,
the
complainant was diagnosed as a case of Gall Stones by Dr. Raj Kumar Garg and Dr.
Kamlesh Garg, the OP Nos. 1 & 2. She was operated on 13.12.2009 by OP-1 and 2, which
was not successful. The OPs also failed to stitch the GB properly, there was leakage, which
the OP 1 & 2 could not stop. Her condition further deteriorated due to infection and died on
22.01.2010. Complainant alleges that OP-1 & 2 were not competent to operate and they did
not have anyDegree or Diploma in Surgery and hence his wife died due to negligence on the
part of OP. The Complainant has lost consortium, having three minor children who have
deprived of love and affection of their mother due to negligence of OPs. He has also
sustained mental agony and financial loss. The OP has failed to compensate the
Complainant. Hence, a complaint was filed before District Consumer Disputes Redressal
Forum (in short, ‘District Forum’).
2. The District Forum allowed the complaint and directed the OP-1 and 2 to pay Rs.3,00,000/as consolidated compensation.
3. The OP preferred an appeal FA No.822/2011 before State Consumer Disputes Redressal
Commission (in short, ‘State Commission’) which was dismissed.
4. Aggrieved by the order of State Commission the OPs filed this revision petition.
5. We have heard the counsels for the parties and perused the hospital records of Kumar Divine
Hospital & Heart Centre, i.e. the hospital of Petitioner/OP. The counsel for the OP argued
that, the operation of gall bladder (cholecystectomy) was performed by a surgeon
Dr. Maninder Singh (OP-3), which was assisted by the OP-1. The gall bladder specimen was
sent for Histopathological Examination (HPE) to the Pathologist Dr. Monika Dixit, of Dr.
Monika’s Lab, Bhatinda, who reported it, as a case of adenocarcinoma (cancer), on
15/12/2009. Thereafter, on 6/1/2010, the patient Meeran was referred to cancer hospital at
Bikaner for further management. Hence, there was no negligence in treatment and care taken
by OPs.
6. The counsel for the Complainant resisted the contention of OPs and contended that the death
of wife of complainant was due to negligence of OPs because of lack of proper care, delay
and no proper reference to the cancer hospital, in time.
7. On perusal of hospital records, we found that OP 1 and 2 are qualified doctors (physicians)
and the OP No.3 is a qualified surgeon (M.S.). The OP-3 is a visiting Surgeon to the said
hospital who operated Smt. Meeran, wife of the Complainant. The said surgery was a
complicated one and the GB was adherent. During operation OP-3 called OP- 1 in the
operation theatre, to assist him. After operation, a tube drain was put in the abdomen and
abdomen was closed in layers, after obtaining complete homeostasis. The Operative (OT)
Notes were written by OP-3; which clearly shows that the surgery was performed by Dr.
Maninder Singh and OP-1 had just assisted. This was also supported by the affidavit of Dr.
M.L. Kapoor, Anaesthesiologist.
8. We have perused the Medical Board report of P.G.I. Chandigarh, which also do not support
the Complainant’s allegations. The report states that –
“ The patient had persistent bile leak and repeated ultrasound was done on
21.12.2009, which reported as normal CBD. Bile Stent was considered by
gastroenterologist, which was not put on histopathology report of adenocarcinoma and
the patient was referred to Bikaner. Preoperative ultrasound report states that the GB
was thickened with multiple hyper echoic acoustic shadows with CBD 7mm in diameter.
The patient was readmitted on 05.01.2010 at Kotkapura with distension of abdomen and
150 ml of haemorrhagic fluid was drained. The patient was referred to Cancer hospital
on 6-1-2010 and died on 22-1-2010”.
We do not find any findings suggestive of negligence in treatment.
9.
We have referred to standard Surgical and Pathology books to know about prognosis in case
of Adenocarcinoma of Gall bladder. The patient Meeran was diagnosed as a case of
adenocarcinoma and subsequently she developed malignant ascites. Therefore, there was
very poor prognosis. For the final diagnosis after surgery, the histopathology study and the
reporting will normally take 3 to 5 days. In this case the HPE dated 15.12.2010 revealed it
as adenocarcinoma and thereafter, it was advised to take her to Cancer Hospital, Bikaner. It
was not a delay in reference. The advice was not followed and she expired after a period of
1½ months. Hence, in our opinion, the death of patient was neither due to wrong surgery
nor any delay in reference to cancer hospital. The condition of patient deteriorated as she
developed malignant ascites. Thus, as per medical literature the prognosis in such a case will
be extremely poor and very remote chance of survival for 1-2 months.
10. What constitutes Medical Negligence, is now well established by the Hon’ble Supreme court
of India and by several orders of this commission. In the Bolam’s case (Bolam Vs. Frien
Hospital Management Committee (1957)1 WLR 582). The locus classicus of the test for
the standard of care in law, required of a doctor, developed from this landmark case.
Mr Justice McNair, in his direction to the jury, said:
[a doctor] is not guilty of negligence if he has acted in accordance with the
practice accepted as proper by a responsible body of medical men skilled
in that particular art …Putting it the other way round, a man is not
negligent, if he is acting in accordance with such a practice, merely
because there is a body of opinion who would take a contrary view.
11. In the case of Kusum Sharma Vs. Batra Hospital (2010 CPJ) discussed several principles to
decide negligence. The relevant para is reproduced as:
“ xi. The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the interest of
the patients. The interest and welfare of the patients have to be paramount for
the medical professionals”.
12. In view of above discussions, we are of considered opinion that, the surgery was performed
by OP-3, a qualified surgeon. Specimen was sent to HPE examination and after confirmed
diagnosis of malignancy (cancer), patient was referred to Cancer Hospital. This is a standard
of medical practice and no negligence.
13. Hence, orders passed by both the fora below are set aside. The RP is allowed and complaint
is dismissed. The parties are directed to bear their own costs.
..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
..…………………………
(S. M. KANTIKAR)
MEMBER
Mss/22
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 734 OF 2014
(From order dated 18.10.2013 in First Appeal No. 56/2013, 57/2013, 168/2013 & 169/2013
of the State Consumer Disputes Redressal Commission, MAHARASHTRA, CIRCUIT
BENCH, AURANGABAD)
With IA/449/2014
1. Sh. Deepak Annasaheb Patil M/s. Sunil Farm Engineering Company Sunil Plaza,
Tuljabhavani Stadium R/o Vikas Nagar, Murud, Taluka & Dist. Latur Osmanabad – 413501
(Maharashtra)
2. Smt. Jayashree Kishanrao Nade M/s. Sunil Farm Engineering Company R/o Vikas
Nagar, Murud, Taluka & Dist. Latur
… Petitioners
Versus
1. Dr. Kaushali Vilas Rokade
(Maharashtra)
R/o Akshya Hospital, Sanja Road
Osmanabad –
431501
2. The Chairman, Tuljabhavani District Stadium Committee, Osmanabad &
3. The Collector, Collector Office Osmanabad – 431501 (Maharashtra)
… Respondents
AND
REVISION PETITION NO. 735 OF 2014
(From order dated 18.10.2013 in First Appeal No. 56/2013, 57/2013, 168/2013 & 169/2013
of the State Consumer Disputes Redressal Commission, MAHARASHTRA, CIRCUIT
BENCH, AURANGABAD)
WITH
IA/449/2014
1. Sh. Deepak Annasaheb Patil M/s. Sunil Farm Engineering Company Sunil Plaza,
Tuljabhavani Stadium R/o Vikas Nagar, Murud, Taluka & Dist. Latur Osmanabad – 413501
(Maharashtra)
2. Smt. Jayashree Kishanrao Nade M/s. Sunil Farm Engineering Company R/o Vikas
Nagar, Murud, Taluka & Dist. Latur
… Petitioners
Versus
1. Dr. Adinath Sopan Rajguru
Maharashtra
R/o Akshya Hospital, Sanja Road
Osmanabad –
2. The Chairman, Tuljabhavani District Stadium Committee, Osmanabad &
3. The Collector, Collector Office Osmanabad – 431501 Maharashtra
… Respondents
BEFORE:
431501
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioners in both cases : Mr. J.N. Singh, Advocate
PRONOUNCED ON 7th FEBRUARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
This order will decide two revision petitions which arise from the same judgment. The
petitioners/OPs, Sh. Deepak Annasaheb Patil & Smt. Jayashree Kishanrao Nade are the partners
of M/s. Sunil Farm Engineering Company which transacts the business of construction and
development
of
property.
The
Chairman, Tuljabhavani District StadiumCommittee, Osmanabad and
its Collector,
Collector Office, Osmanabad,
OP3, undertook
the
project
of construction of shopping
complex at the Stadium of Osmanabad. On 22.05.2008, OPs 1 & 2 agreed to develop the
property
of
OP3
by
construction of shopping complex and
the
said
constructors
& developers company was authorized to transfer the shops on lease basis for the period of 30
years in favour of occupiers. The necessary permission of local authorities was obtained.
2.
OP
1
& 2 published advertisement in
the prospective purchasers.
the
newspaper
Both the
inviting
complainants,
Dr. Kaushali Vilas Rokade and Dr. Adinath Sopan Rajguru applied
for
purchase
of shops
bearing Nos.30& 29, measuring 177.00 sq.ft, for a consideration of Rs.6,31,000/-, each,
respectively. The payments were made by both the complainants to the OPs 1 & 2, in the
sum of Rs.3,33,000/- each. According to the complainants, they had also made payment of
Rs.8,000/- and Rs.7,000/-, respectively. Thecomplainants were always ready and willing to
pay OPs 1 & 2 to pay the balance amount.
3.
However, there was another
construction of the shops. OPs
complainants and without serving
development
1
&
2,
any
in respect of the
without seeking
notice,
the
made
consent
changes
of
the
in
the sanction plan, making additional construction in open space in front of the shops. The
complainants were asked to pay
extra
amount
for
extra
construction at
the
same
rate. They insisted that the shops be handed over to them, as per the agreement.
4.
The District Forum, vide its order dated 10.01.2013, directed the OPs 1 to 3 to transfer
the shop Nos. 30 & 29, measuring 177.00 sq.ft. each, for a total consideration of Rs.6,31,000/and out of it, the complainants were directed to pay the residue amount in the sum of
Rs.2,98,000/- and Rs.2,91,000/, respectively. OPs 1 to 3 were also directed to return
the unencashed cheques to the complainants and OPs 1 & 2 were directed to pay Rs.5,000/- each
as costs, to the complainants.
5.
The State Commission modified the order and discharged OP3, as it had no role to play
in handing over the possession of shops to the complainants. It directed OPs 1 & 2 to
handover the possession of shop Nos. 30 & 29, to the complainants, respectively, by accepting
the
balance amount
of Rs.2,90,000/-
and
Rs.2,91,000/-,
respectively. They
werealso directed to return the cheques and pay costs of litigation of appeals in the sum
of Rs.5,000/-, each, to the complainants.
6.
We have heard the counsel for the petitioners, at the time of admission of these cases. Our
attention was invited towards the agreement. The relevant clause of the agreement, germane to
this controversy is :3) Developer has reserved rights to change plans. Elevations other
minor change as per the direction of land owner
Shree Tuljabhawani Dist. Stadium Committee, Osmanabad.”
7.
Counsel for the petitioners admitted at bar that area of shop of the complainants was
more than double of the total area and the OPs have charged enhanced rates for additional
construction. The counsel for the petitioners has invited our attention towards the minutes of
the meeting held between OP 1 & 2 on the one side and OP3 on the other side. The
complainants were not party to the same. The relevant para of the minutes of the meeting is
reproduced, as under :-
5. The developer has ready to give the
rent for using the additional
commercial area regarding that, they
have givethe rent for additional
commercial area.
5.The developer has demanded the
various changes out of that, the committee
has granted the some changes therefore,
the commercial using of carpet area has
enhanced and about that enhanced carpet
area the developer has binding to give
the rent as per the contract and the said
change is granted on the condition that, if
the developer has constructed the enhance
commercial using carpet area same is
constructed to residential using carpet
area and the said changes has demanded
by the developers therefore, no any
additional changes is granted or without
any change in the financial bid in the
contract, the said decision is not accepted
by the developers then they should
construct without any change of the
original map.
8.
The argument advanced by the counsel for the petitioners is a strawman intended to
divert us from the real issue. The agreement, clearly, specifically and unequivocally mentions
that they can make minor changes. It is apparent that they have made major
changes without the knowledge of the complainants. The OPs committed an egregious mistake
in not bringing this fact to the notice of the complainants. The record reveals that
the petitioners have made additional construction of 351 sq.ft. in front of each shop and the
total construction of each shop is 528 sq.ft. The sale of the shop during the
pendency of the case is not permissible. As per their new demand, they are asking the
complainants
to
pay
more
than
the
double
amount. They
should
have
taken
the complainants’ consent. It is not known whether the complainants are ready to accept the
large constructed piece of land or they are in a position to pay the said amount or
whether the large
area
of the amount will
us of the following
incident.
solve
“The Judge attempted
their
to
purpose. This
play the
LEWIS
reminds
CARROL,
whose pronouncement : “I will be the Judge, I will be the Jury”, said Cunning Old Fury, “I
will try the whole case and sentence you to death” had place only in fictional fantasy.
9.
No other argument was advanced before us. It is clear that the petitioners have taken
the complainants for a ride. Petitioners are deficient in service and guilty of unfair trade
practice. There is not even a scintilla of doubt in our mind. Both the revision petitions are
hereby dismissed with costs of Rs.10,000/- in each case, payable by the petitioners to the
complainants, as per Section 26 of the Consumer Protection Act. The said amount be paid to
the complainants, in their names, through demand draft, personally, within 90 days’ from the
date of receipt of this order, otherwise, it will carry interest @ 10% p.a., till realization.
10.
The petitioners/OPs 1 & 2 are further directed to execute the order of the State
Commission, within 90 days, from the date of receipt of this order, else, they will have to pay
penalty, in the sum of Rs.1,000/- per day, to the complainants, till the compliance of the said
order. The period of lease is only 30 years and what is the use of entering into an agreement,
which is going to lapse, on each and every day. Copies of this order be sent to both the parties.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
..…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
dd/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1331 OF 2011
Along with I.A. No. No.1 of 2011 for Stay I.A. No. 2 of 2011 for C/Delay
(From order dated 11.11.2010 in in First Appeal No.1604 of 2006 of State Consumer Disputes
Redresdsal Commission, Uttar Pradesh)
1. Uttar Pradesh Power Corporation Ltd.(UPPCL), Through its Chairman, Having office at
Shakti Bhawan, Ashok Marg, Lucknow : U.P.
2. U.P. Power Corporation Ltd. Branch Office, Pilibhit, through its Executive Engineer,
Pilibhit, UP.
………Petitioners
Versus
Shri Om Prakash Kohli, S/o Late Damodar Das Kohli R/o 33, Ashok Nagar Colony, Pilibhit,
U.P.
…… Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr.Anurag Kishore, Advocate
For the Respondent :
Mr. P. N. Jain, Advocate
Pronounced on: 7th February, 2014
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed by the Petitioners/Opposite Parties under Section
21(b) of the Consumer Protection Act, 1986(for short, ‘Act’) challenging order dated
11.11.2010, passed by State Consumer Disputes Redressal Commission, Lucknow, Uttar
Pradesh(for short, ‘State Commission’) in First Appeal No. 1604 of 2006, vide which appeal of
the petitioners against order dated 6.5.2006, passed by District Consumer Protection Forum,
Pilibhit(for short, ‘District Forum’) was partly allowed.
2. Brief facts are that Respondent/Complainant was carrying on the cotton and woolen clothes
business in his shop in Pilibhit, in which he had taken the electricity connection. Petitioners
supplies electricity in the shop and respondent never defaulted in the payment of the electricity
bill. On the night of 26.01.2000 at about 1.00 p.m, a short circuit took place in the pole situated
near the shop from which connection through cable was given to his shop and the fire broke out
in his shop. At that time, clothes worth Rs.3 lakh kept in the shop got burnt due to which
respondent suffered loss of about Rs.3 lakh. Respondent immediately gave information of the
fire to the petitioners. However, they did not pay any heed nor completed any formality which
was required to be done by them. The fire brigade reached there to control the fire in the night
itself and the same was controlled. By that time, three other shops along with the shop of the
respondent had been burnt. The respondent has prayed for the compensation of Rs.3,00,000/- for
the loss suffered due to the clothes burnt in the fire and Rs.50,000/- for the reconstruction of the
shop and Rs.100/- per day for the fulfillment of loss suffered against the petitioners.
3. Petitioners in their written statement have stated that respondent had a small wooden shop.
There were other two shops also adjacent to the shop of the respondent. In all these shops,
business of clothes was being conducted. It is stated that it is not possible for the shop to catch
fire due to short circuit unless there is a load on the connection. In case there was heavy load in
the shops then incident could occur any time. Apart from this, if incident has occurred due to the
fault in the wiring, then petitioners are not responsible. Further, it is alleged that respondent has
not given any information about such incident to the petitioners. Pole is situated far away from
the shop of the respondent. By filing a complaint on false facts, respondent wants to recover the
compensation from the petitioners.
4. The District Forum, after hearing the parties and pursuing the record, partly allowed the
complaint and directed the petitioners to pay Rs.80,000/- for the clothes destroyed in fire and
Rs.10,000/-for reconstruction of the shop and Rs.6,000/- as compensation.
5. Being aggrieved, petitioners filed an appeal before the State Commission which partly
allowed the same. It modified the order of the District Forum and directed the petitioners to pay a
sum of Rs.50,000/- for loss of clothes due to fire and another sum of Rs.10,000/- for
reconstruction of the shop along with simple interest @ 6% p.a.
6. Not satisfied with the order of the State Commission, petitioners have filed the present
revision.
7. We have heard learned counsel for the parties and gone through the record.
8. Delay of 19 days is condoned.
9. It has been argued by learned counsel for the petitioners that complaint is not maintainable
as short circuit was caused due to fire in the internal wiring in the shop. As such, there was no
negligence on the part of the petitioners. In fact, it was the respondent who was negligent in not
maintaining the proper wiring in his shop.
10. On the other hand, it has been argued by learned counsel for the respondent, that
short circuit has been taken place in the pole near the shop from which the connection through
cable was given to the respondent’s shop and fire broke out. Thus, there was negligence on the
part of the petitioners alone. Moreover, there are concurrent finding of facts given by both the
Fora below. In these circumstances, present petition is not maintainable.
11. District Forum, in its order held;
“It has been admitted in the report certified by Fire Brigade forwarded
through Superintendent of Police that the fire broke out due to short circuit
and the loss suffered by the complainant has been assessed at Rs.1,50,000/and as evidence, it is also published in the original copy of Danik Jagran
dated 28.01.2000 that loss of lakhs of rupees has taken place due to fire
broke out in the shops due to short circuit. Respondents have failed to prove
that whether short circuit was the reason behind the breaking out of fire or
not and complainant despite of being informed by the complainant and news
published in the newspaper on 28.1.2000, respondent did not carry out the
survey. Negligence committed by the Department is clearly appearing.”
12. The State Commission, while partly allowing the petitioners’ appeal observed;
“Junior Engineer on behalf of the appellant has submitted his report
dated 01.09.2001 according to which had the incident occurred due to
short circuit, some fault must have occurred in the electricity meter. Thus,
Department is not responsible for the short circuit. In this context, we
have also perused the written statement filed by the appellant/
respondents, which has been produced in February 2002. This report does
not find mention anywhere in it. It becomes clear from it that information
of the fire broke out in the said shop was given. Police Station informed
the Fire Brigade and the fire fighters had controlled the fire. In this
regard, we have perused the report of the Fire Brigade in which it has
been clearly mentioned that reason behind the breaking out of fire is short
circuit.”
13. Admittedly, short circuit has taken place on the night intervening 26/27.01.2000. However,
learned counsel for petitioners has relied upon the report of its Junior Engineer, dated 1.9.2001.
This report was prepared about 19 months after the incident of fire which has taken place in the
shop of the respondent. Thus, no reliance can be placed on this much belated report which is
clearly an after-thought and has got no bearing on the facts and circumstances of the present
case.
14. 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.
15. 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.”
16. Since fire has taken place due to short circuit, there is clear cut negligence on the part of
the petitioners. Under these circumstances, we do not find any infirmity or illegality in the
impugned order passed by the State Commission. The present revision petition being
meritless and without any legal basis is hereby dismissed with cost of Rs.5,000/-(Rupees Five
Thousand only).
17. Petitioners are directed to deposit cost of by way of demand draft in the name of “Consumer
Legal Aid Account” of this Commission, within four weeks.
18. In case, petitioners fail to deposit the cost within the prescribed period, then it shall also be
liable to pay interest @ 9% p.a., till realization.
19. Pending applications if any, stand disposed of.
20. List on 14.03.2014 for compliance.
……..……………………J
(V.B. GUPTA) PRESIDING MEMBER
…………………………
(REKHA GUPTA) MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2438 OF 2013
(From the order dated 22.05.2013 in First Appeal No.
the Jharkhande State Consumer Disputes Redressal Commission, Ranchi)
109/2012
of
With IA/4041/2013 (STAY)
Smt. Madhu Rani W/o Shri Manoj Kumar Sah R/o Ganesh Ambika Bhawan, Sahja Nand
Colony, L.C. Road, P.S. P.O. & District Dhanbad (Jharkhand)
…Petitioner/Opp. Party (OP)
Versus
Shiva Kant Verma Railway Guard, Railway Quarter No. 53, MN Rangatard, Dhanbad
(Jharkhand)
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner :
of petitioner
Mr. Madhurendra Kumar, Advocate With Mr. Manoj Kr. Sah, husband
For the Respondent: In person
PRONOUNCED ON 7th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 22.05.2013
passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (in short, ‘the
State Commission’) in Appeal No. 109 of 2012 – Madhu Rani Vs. Shiva Kant Verma by which,
while dismissing appeal, order of District Forum was allowed with furthercompensation.
2.
Brief facts of the case are that complainant/respondent filed Complaint No. 157/2007
before District Forum and learned District Forum vide order dated 5.2.2008, allowed complaint
and directed OP to handover flat to the complainant as per terms and conditions of the agreement
within 30 days or return Rs.7,50,000/- with interest @ 8% p.a. pandelite till realization with
compensation of Rs.5,000/- for harassment. Appeal filed by the complainant was dismissed
as withdrawn by learned State Commission vide order dated 27.8.2010 and revision petition
filed by the complainant before National Commission was dismissed vide order dated 19.4.2011.
3.
Complainant filed Execution Case No. 42 of 2011 before District Forum and learned
District Forum vide order dated 10.7.2010 directed OP/Judgment Debtor to handover physical
possession of Flat No. 2/A within 30 days. Judgment Debtor was given liberty to withdraw
Rs.7,50,000/- deposited by him in the account of Decree Holder. Appeal filed by Judgment
Debtor/Petitioner was dismissed by learned State Commission vide impugned order but while
dismissing appeal, Learned State Commission further directed Judgment Debtor to pay
Rs.5,000/- per month as compensation for this period and Rs.20,000/- were allowed as cost
of litigation against which, this revision petition has been filed.
4.
Heard learned Counsel for the petitioner and respondent in person finally at admission
stage and perused record.
5.
Learned Counsel for the petitioner submitted that order passed by learned District Forum
was
without
jurisdiction
as
it
was
passed
by only two
Members
shown
one
Member Mrs.Meena Kumari herself as President of the District Forum, whereas she was not
President
of
the
District
deposited deecretal amount
Forum
in
and
further
complainant’s
submitted
account,
that inspite of
learned
District
having
Forum
committed error in directing delivery of possession of the flat and learned State Commission
further committed error in dismissing appeal and further allowing Rs.5,000/- per month as
compensation; hence, revision petition be allowed and impugned order be set aside. On the other
hand, respondent submitted that as prices of flat has increased, respondent is entitled
to possession of the flat and order passed by learned State Commission is in accordance with
law; hence, revision petition be dismissed.
6.
Perusal of record clearly reveals that order dated 5.2.2008 passed by District forum
bears signatures of President and 2 other Members in which Smt. Meena Kumari has been
shown
as
Member
whereas
order
dated
10.7.2012
has
been
signed
by Meena Kumari depicting herself to be President. Leaned Counsel for the petitioner submitted
that MeenaKumari was only Member of District Forum and she was not President of District
Forum; even then, she has signed the order in the capacity of President. Respondent has not
submitted on this point whether Meena Kumari was ever appointed President of District Forum
or not. If Meena Kumari was only Member then order dated 10.7.2012 could not have been
passed by Meena Kumari depicting herself to the President of District Forum and if order dated
10.7.2012 has been passed by only 2 Members without President of the District Forum, this order
itself is against the provisions of law because as per Section 14 (2) of the Consumer Protection
Act, every order of District Forum has to be signed by the President and Member or Members
who conducted the proceedings. In such circumstances, if order of District Forum is without
jurisdiction, impugned order passed by Ld. State Commission is to be set aside.
7.
Perusal of record makes it clear that as per original order dated 5.2.2008, petitioner was
directed to handover flat or return Rs.7,50,000/- with interest @ 8% p.a. pandelite till realization
within a period of 30 days. Record further reveals that petitioner deposited Rs.7,50,000/- in
respondent’s account on 4.3.2008, meaning thereby within a period of 30 days principal amount
had already been deposited. No doubt, there is delay in depositing Rs.5,000/- cost and
interest pandelite. It appears that Rs.5,000/- has been deposited on 6.8.2008 and again
Rs.37,000/- were deposited on 11.8.2008 and Rs.3,000/- were deposited on 12.8.2008. It appears
that interest amount was deposited after 5 months. Merely because there was delay of sometime
in depositing interest amount, learned District Forum committed error in directing the petitioner
to handover possession of the flat and withdraw Rs.7,50,000/-. District Forum has not considered
deposit of aforesaid amounts against interest and cost.
8.
Learned State Commission while upholding order of District Forum further allowed
Rs.5,000/- per month for this period as compensation which could not have been allowed by
learned State Commission beyond the scope of decree in original complaint.
9.
As compliance of the order of District Forum dated 5.2.2008 has been made by the
petitioner, Revision Petition is allowed and the impugned order dated 22.5.2013 passed by
learned State Commission in Appeal No. 109/2012 – Madhu Rani Vs. Shiva Kant Verma and
order of District Forum dated 10.7.2012 passed in Execution Case No. 42 of 2011 – Shiva
Kant Verma Vs. Madhu Rani are set aside and Execution Petition stands dismissed as satisfied
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
FIRST APPEAL NO. 135 OF 2013
(From the order dated 06.12.2012 in Complaint Case No. 19 of 2012 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
M/s. JMD Ltd., Through its General Manager (Marketing), Upper Ground Floor, Devika Tower,
6, Nehru Place, New Delhi
… Appellant (s)
Versus
Mrs. Meenu Aggarwal, Wife of Shiv Kumar Aggarwal, Resident of 651, Model Town,
Jallandhar, Punjab
… Respondent (s)
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B C. GUPTA, MEMBER
For the Appellant
: Mr. Abhishek, Advocate
For the Respondent
: Mr. Shubham Bhalla, Advocate
PRONOUNCED ON 07th FEBRUARY, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 06.12.2012 passed by
the
Ld.
State
Commission
in
complaint
No.
19/2012-Meenu Aggarwal Vs.
M/s.
JMDPromotors Ltd., by which complaint was allowed and opposite party was directed to allot
flat on receiving price of the flat along with 18% per annum interest on due installments and
complainant was further granted Rs. 11,000/- as litigation expenses.
2.
Brief facts of the case are that the complainant-respondent was allotted flat No. D-1201 on
12th Floor
in
JMD Garden,
Gurgaon
for
Rs. 28,59,375/- vide buyers agreement dated 01.04.2006. Complainant paid Rs. 3,00,000/- on
07.10.2004, Rs.
Rs.
2,00,000/-
7,67,723
on
22.05.2006
on
and
also
24.03.2006
paid Rs.
5,70,000/-
and
in cash to
Mr. Anil Sharma and Mr. Rajesh Soni on 24.03.2006 as premium for adjustment. Complainant
further submitted that her mother fell ill and was admitted in the hospital and ultimately expired
on 11.05.2007 so, complainant could not make payment of installments in time. It was further
alleged that the complainant did not receive any reminders sent by the opposite party-petitioner
for making payment but was shocked to receive letter dated 09.10.2007 regarding cancellation of
flat. It was further submitted that the opposite party No.2 was notcompetent to terminate the
agreement. Complainant is still willing to pay all dues with interest @ 18% per annum as per
condition No.8 of the agreement, but opposite party, inspite of receipt of legal notice has not
restored flat. It was further submitted that complainant earlier filed complaint before the
District Forum, Gurgaon, which was dismissed vide order dated 15.02.2011 and appeal filed by
her was dismissed by the State Commission vide order dated 31.03.2011, against which, revision
was filed by the complainant before this Commission and this Commission, vide order dated
14.02.2012, granted complainant four weeks’ time to file the complaint. Complainant filed this
complaint alleging deficiency on the part of the opposite parties. Opposite party No.2appellant contested complaint and submitted that the complaint is bad for misjoinder of opposite
party No.1 as OP-1 does not exist and opposite party No.2 was known earlier as M/s. JMD
Promoters Ltd. and name of OP-1 had been changed to M/s. JMD Ltd. It was further submitted
that the complainant deliberately omitted to pay the installments as per payment plan, so, his
allotment was cancelled and aforesaid flat has already been sold to another purchaser much
before filing of the complaint and possession has also been handed over to him. It was further
submitted that the complaint was barred by limitation. It was further submitted that as
complainant failed to make the payment of outstanding amount, opposite party returned the
deposited amount vide Pay Orders dated 08.10.2007 along with cancellation letter dated
09.10.2007 and prayed for dismissal of the complaint.
3.
Learned State Commission after hearing both the parties allowed complaint and directed
the opposite party to allot flat after receiving price of the flat along with 18% per annum interest
on due installments, against which this appeal has been filed.
4.
Heard learned counsel for the parties finally at admission stage and perused the record.
5.
Learned counsel for the appellant submitted that respondent has not come with clean hands
and on account of default in making payments, appellant rightly cancelled flat and allotted to
some other person, even then, learned State Commission has committed error in allowing
complaint hence appeal be allowed and impugned order be set aside. On the other hand, learned
counsel for the respondent submitted that on account of complainant’s mother’s treatment and
death, due installments could not be deposited in time and as complainant was willing to make
payment along with interest, learned State Commission has not committed any error in allowing
the complaint hence appeal be dismissed.
6.
Perusal of earlier complaint filed before the District Forum clearly reveals that the
complainant in para-5 of the complaint conceded receipt of reminders sent by opposite party
during March and April, 2007. But in the present complaint, complainant has intentionally
denied receipt of reminders sent by the opposite party for making payments of due
installments. Opposite party has placed on record reminders dated 28.03.2006, 18.08.2006,
06.01.2007, 19.03.2007, 18.04.2007, 17.07.2007 and 15.09.2007, asking complainant to make
payment along with interest but as complainant did not make payment, opposite party vide letter
dated 09.10.2007, cancelled the allotment as per Clause-7 of the agreement, which runs as under:
“That the time of payment of installments and other dues as stated in Schedule of
Payments (Annexure-II) is the essence of this Agreement. It shall be incumbent on the
Flat / Unit Allottee (s) to comply with the terms of payment and other terms and
conditions of sale, failing which he shall forfeit to the Company the entire amount of
earnest money and this Agreement shall stand cancelled and the Flat / Unit Allottee (s)
shall be left with no lien on the said Flat / Unit. The Company shall thereafter be free to
deal with the said Flat / Unit in any manner, whatsoever, at its sole discretion. The
amount (s), if any, paid over and above the earnest money shall be refunded to the Flat /
Unit Allottee (s) by the Company without any interest after sale of the said Flat / Unit”.
7.
We do not find any deficiency on the part of the opposite party in cancelling allotment of
Flat on account of non-payment of the due installments as per Clause-7 of the Agreement.
8.
Learned counsel for the respondent submitted that as per Clause-8 of the aforesaid
agreement, complainant was willing to pay interest @ 18% per annum on delayed installments
and learned State Commission has not committed any error in allowing complaint, subject to
payment with interest. No doubt, Clause-8 of the agreement enables opposite party to accept
payment of due installments along with 18% per annum interest but this Clause does not give
any right to the complainant to make payment of due installments with interest as of right and
complainant does not get any right to compel opposite party to accept payment and not to cancel
allotment. Preceding clause-7 of the agreement enables opposite party to cancel allotment on
account of default in making payment of installments. Complainant’s mother’s treatment and
ultimate death does not automatically empower complainant to get cancellation letter set aside;
particularly when her mother expired on 11.05.2007 and even after that date, opposite party
issued demand notice dated 17.07.2007 and 15.09.2007, which ultimately led to cancellation of
allotment vide letter dated 09.10.2007.
9.
Learned State Commission also observed in the order that complainant paid Rs.5,70,000/-
in cash to Mr. Anil Sharma and Rajesh Soni, which fact has not been admitted by opposite party
in its written statement. Complainant had not adduced any evidence in support of this payment;
except her own affidavit. In such circumstances, payment does not stand proved and learned
State Commission has committed error in holding that Rs. 5,70,000/- has been paid by
complainant in cash to the opposite party.
10.
In the light of the above discussion, it becomes clear that as complainant failed to make
payment of due installments, opposite party rightly cancelled allotment as per Clause-7 of the
buyer agreement and learned State Commission committed error in allowing complaint and
impugned order is liable to set aside; particularly when this flat has already been allotted to some
other person and possession has been handed over to him.
11.
Consequently, appeal filed by the appellant is allowed and impugned order dated
06.12.2012 passed by the learned State Commission in Complaint No. 19/2012Meenu AggarwalVs. M/s. JMD Promotors Ltd. is set aside and complaint stands dismissed, with
no order as to costs.
Sd/..…………………..………J
(K. S. CHAUDHARI)
PRESIDING MEMBER
Sd/……………….……………
(DR. B. C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3113 OF 2013
(From the order dated 20.06.2013 in First Appeal No. 886/2011 of Gujarat State
Consumer Disputes Redressal Commission)
M/s Radhika Fancy Stores through its Proprietor Rameshgiri Umedgiri Goswami Harshad
Mataji Temple Main Road, Gandhvi Taluka : Jam Kalyanpur
... Petitioner
Versus
Bajaj Allianz General Insurance Company Limited, 405 – 406, Iskon Mall, Above Star Bazaar,
Satellite, Ahmedabad.
… 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. Varshal M. Pancholi, Advocate
PRONOUNCED ON : 7th FEBRUARY 2014
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 20.06.2013, passed by the Gujarat State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 886/2011, “Bajaj
Allianz General Insurance Company Limited versus M/s. Radhika Fancy Stores,” vide which
while allowing the appeal, the order dated 21.07.2011, passed by the District Consumer Disputes
Redressal Forum, Jamnagar in consumer complaint no. 51/2011, partly allowing the said
complaint was set aside.
2.
Brief facts of the case are that the petitioner/complainant M/s Radhika Fancy Stores
is carrying out the business of dealing in gift articles and handicrafts at Godhavi (Harshad). The
petitioner had taken insurance cover from the National Insurance Company against theft &
natural calamities, for the period 24.05.2008 to 23.05.2009 and then from 16.06.2009 to
15.06.2010. As the term of the said Insurance Policy was about to expire, the petitioner took
another insurance policy from M/s Bajaj Allianz General Insurance Company, present
OP/respondent. It has been stated by the petitioner/complainant that a representative of the OP,
Rajeshbhai had approached them and requested to take insurance policy from their
Company. The petitioner informed him that he had obtained insurance policy from the National
Insurance Company which was valid till 15.06.2010. The petitioner gave his insurance policy to
the agent and requested him that the new policy should be taken in such a way that it should
commence from the date of completion of the earlier policy. The petitioner claims that he is
illiterate and hence the proposal form etc. was filled by the agent, a premium of `3,120/- was
given to the agent and insurance for `10.67 lakh was taken. The said insurance policy was issued
to take effect from 10.06.2010. The complainant informed the agent on phone that there
was error in the date and the policy should commence from 16.06.2010. Further, due to heavy
rain-fall on 10.08.2010, there was water around their shop up to 7 to 8 ft., resulting in damage to
the stocks. A surveyor was appointed to assess the damage. The said surveyor calculated the
damage to goods as `4,83,991/- and to furniture as `1,43,550/-. However, the OP repudiated the
claim of the petitioner on the ground that earlier insurance had been taken from the National
Insurance Company and claims had also been filed with that Company.
3.
The stand taken by the OP/respondent says that their agent never contacted the petitioner
and did not request him to take the insurance policy in question. They have taken the plea that
the claim had been solely repudiated on the ground that the petitioner suppressed material
information from them regarding the factum of insurance already taken and insurance claims
previously filed.
4.
The
petitioner
submitted
the
consumer
complainant
in
question
before
the
District Forum and the said Forum partially allowed the same and directed the OPs to pay an
amount of `3,97,692/- with interest @7.5% per annum from 14.11.2010 till the date of
payment. A sum of `2500/- was also ordered to be paid as compensation for mental harassment
and cost of complaint. However, an appeal filed against the order of the District Forum before
the State Commission was allowed vide impugned order and the order of the District Forum was
set aside, saying that the petitioner had received the claim time and again from the National
Insurance Company, but did not make any mention about the same in the proposal form
submitted by them to the OP/respondent. It is against this order that the present petition has been
made.
5.
At the time of hearing, the learned counsel for the petitioner stated that the petitioner was
an illiterate fellow. He had taken the present insurance policy at the instance of the agent of the
OP and the proposal form etc. was also filled by that agent. He admitted that in the proposal
form, the details about the existing insurance and the claims made during the last 36 months had
not been given, rather it had been stated that no such insurance had been taken and no claims had
been made. The learned counsel admitted that the petitioner had previously taken two claims
from the National Insurance Company.
6.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. A perusal of the reply to the complaint filed before the
District Forum by the OP/respondent indicates that the OP/respondent have taken the main plea
that the petitioner deliberately suppressed material facts about the existing insurance policy with
other insurer and about the previous claims made by them. The respondents had accepted the
proposal form on bonafide belief that the information given in the proposal form was
correct. The OP / respondent stated that contract of insurance was a contract of ‘Uberrima Fides’
and hence, there must be complete good faith about the facts on the part of the assured. The
assured was under solemn obligation to make full disclosure of material facts which could be
relevant for taking a decision by the new insurer to issue fresh insurance policy.
7.
A perusal of the copy of the proposal form on record shows that in column no. 12 and 13
of the said form, the petitioner has not given any information about the existing insurance and
also stated that he had not filed any claim during the last 36 months. It is clear from these facts
that the petitioner suppressed material information from the OP/respondent about taking
insurance policy from the National Insurance Company and about taking two claims previously
from the said Company. The State Commission have observed in the impugned order that the
petitioner has received claims time and again, and he is in the habit of filing and receiving such
claims.
8.
In view of the above facts, we do not find any illegality, irregularity or jurisdictional error
in the impugned order and there is no ground for any interference in the said order. The revision
petition is, therefore, ordered to be dismissed at admission stage and the order of the State
Commission is confirmed. 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. 4822 OF 2012
(From the order dated 29.08.2012 in First Appeal No. A/11/442 of Maharashtra State
Consumer Disputes Redressal Commission)
Life Insurance Corporation of India Survey No. 668 AB-2, Mahavir Park, 4th Floor, Satara
Road, Bibewadi, Pune through Assistant Secretary (Legal) C.O. Legal Cell (LIC), H-39, New
Asiatic Building First Floor, Connaught Place, New Delhi.
... Petitioner
Versus
Archna Dayanand Vakade Khadak Galli, Bale Tal, North Sholapur Maharashtra.
… 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. Ashok Kashyap, Advocate
For the Respondent
NEMO
PRONOUNCED ON : 7th FEBRUARY 2014
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 29.08.2012, passed by the Maharashtra State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. A/11/442, “Life
Insurance Corporation of India (hereinafter referred to as LIC) versus Smt. Archna Dayanand
Vakade”, vide which while dismissing the appeal, the order dated 31.03.2011, passed by the
District Consumer Disputes Redressal Forum, Sholapur was upheld.
2.
After preliminary hearing, a notice was sent to the respondent for appearance before this
Commission. However, the respondent sent a written reply which is on record and requested that
she being an illiterate lady and facingfinancial crisis and starvation, was unable to appear before
this Commission. The petition was ordered to be admitted on 07.10.2013 and again notice was
sent to the respondent for final hearing, but she did not appear despite service. The arguments
advanced by the learned counsel for the petitioner have been heard and written reply submitted
by the respondent has been taken into consideration.
3.
The brief facts of the case are that the respondent Archna Dayanand Vakade, aged 22
years, filed the consumer complaint in question, saying that her husband Dayanand obtained
two insurance policies, i.e., 956920468 and 956922785 from OP/respondent LIC for sum
assured `1 lakh and `2 lakh respectively. The proposal for the first policy was filed on
12.01.2007 and the same was issued on 08.02.2007. The proposal for taking second policy was
filed on 25.02.2007 and the policy was issued on 2.03.2007. The husband of the complainant,
thereafter, died a natural death on 28.02.2008. The complainant/respondent approached the LIC
for payment of insured amount as per the two insurance policies. However, the respondents
repudiated the claim on 03.07.2009, saying that the insured had withheld correct/material
information regarding his health at the time of taking insurance and hence, violated the basic
principle of utmost good-faith applicable to insurance policies. It has been stated in the letter of
repudiation that the insured had given false answers to some of the questions in the proposal
form as per the details below:“Q. No. 11]
A.
During the last five years did you consult a medical
practitioner for any ailment requiring treatment for more
than a week?
NO
B.
Have you ever been admitted to any hospital or nursing
home for General check-up/observation, treatment or
operation?
NO
D.
Are you suffering from or have you ever suffered from ailments
pertaining to liver, stomach, heart, lungs, kidney, brain
or nervous system?
NO
E.
Are you suffering from or have you ever suffered
from diabetes, tuberculosis, high blood pressure, low blood
pressure, cancer, epilepsy, hernia, hydrocele, leprosy, or any
other disease?
NO
I.
What has been your usual state of health?
Good”
4.
The respondent stated that the answers to above questions were false as the insured had
suffered from giddiness/headache and had undergone the C.T. scan. It was stated in the report of
the C.T. Scan that the respondent suffered from right temporal hematoma. The respondent had
remained admitted in Dr. Chidgupkar Hospital Private Limited, Solapur from 16.08.2006 to
22.08.2006 before taking the policy. It was, therefore, evident that he had made
incorrect/deliberate mis-statements and withheld correct/material information from OP/petitioner
regarding his health at the time of affecting the insurance.
5.
The consumer complaint filed by the complainant/respondent was allowed by the District
Forum vide their order dated 31.03.2011 and the LIC was directed to make payment of the
insurance amount along with interest @9% p.a. from 3.07.2009 and also `1,000/- as cost of the
litigation. It was observed by the District Forum as follows:“7. Indisputably, before giving the insurance policy to insurer Dayanand,
his medical examination was done and then policy was issued. In our
opinion, when prior to giving policy to the policyholder, LIC gets insurer
medically examined by the medical professional and then issues policy
then in that case the questions asked in the proposal form relating to
health and ints answers become secondary. If LIC has issued the policy
after getting authentic information about the health of the policyholder
from medical professional then again by taking advantage of questions
asked in the proposal form the policyholder’s legal right of insurance
cannot be taken away.”
6.
It was further concluded by the District Forum in the said order as follows:“Para 10:- In today’s world, people face problems like acidity,
indigestion, back pain and headache, which are sometimes chronic in
nature. These symptoms may occur from time to time with different
levels of intensity. They cannot be considered as diseases, which
require to be enumerated while answering the questionnaire of the
LIC in its proposal form.
From the above discussion it cannot be proved that while taking the
policy in the proposal form insurer Dayanand furnished wrong
information or suppressed the truth. LIC by repudiating the
insurance claim of the complainant on very technical and wrong
reasons, has made deficiency in the service to be rendered to the
complainant. Thus, Complainant is entitled to get insurance amount
payable on policy numbers 956920468 & 956922785 alongwith all
its allied benefits and also interest at the rate of 9% p.a. from the
date of reputation of claim, i.e., from 3.07.2009.”
7.
An appeal was filed before the State Commission against the order of the District Forum
which was decided vide impugned order and the order of the District Forum was upheld. It was
stated by the State Commission that the Insurance Company had not produced any evidence to
show that the insured was hospitalised and had suffered from brain ailment. It is against this
order that the present revision petition has been filed.
8.
At the time of hearing before us, the learned counsel for the petitioner LIC argued that
copies of the record from Dr. Chidgupkar Hospital Pvt. Ltd. have been produced on record,
according to which, the insured was admitted in the said hospital from 16.08.2006 to 22.08.2006,
i.e., just a few months before obtaining the policies in question. It is very clear from the record
that he was admitted with complaints of giddiness, headache etc. and CT scan was advised. The
report of the CT scan conducted on 16.08.2006 gives the following conclusions:“….that this CT scan study shows right temporal hematoma with minimal surroundings oedema
- ? venus origin ? Post traumatic cause. Mild cerebral oedema (+). “
9.
Learned counsel argued that in replies to the various questions in the proposal form, as
stated in the earlier part of this order, the insured had concealed material information from the
Insurance Company and thus, had violated the terms and conditions of the contract. The
assertion by the State Commission that the insurance company had not led any evidence to
support their version is not correct because record from the hospital has been produced. In view
of the concealment of material facts, therefore, the claim had been rightly repudiated.
10.
The respondent Smt. Archana Dayanand Vakade, in her written reply has stated that as
observed by the State Commission, the petitioner had not submitted the necessary evidence in
support of their version before the lower consumer fora and hence, the said evidence could not
be considered in revisional jurisdiction. The orders passed by the District Forum and the State
Commission were in accordance with law. The so-called disease had no connection or nexus
with the cause of death of the deceased. It has also been stated that the respondent is a widow
and illiterate lady, residing in rural area and has no source of income and as such facing
starvation. The claim should, therefore, be allowed.
11.
A letter dated 27.08.2009 sent by the respondent to the LIC is also on record in which the
respondent has stated that after the C.T. Scan, the doctors had told them that the insured was not
suffering from a major problem. Her husband had resumed his daily work after taking the
medicines prescribed by the doctors. He had taken the insurance policy after 6 to 7 months of
the C.T. scan and at that time, he did not have any physical or mental problem, and no medicines
were being given to him as he was totally fit. On the date of his death also, he had gone to his
work and he was feeling normal throughout the day. The respondent has also stated that she was
21 years of age and she had a daughter one year old. They had invested all their savings in the
LIC and many of their family members had taken policies from the LIC. The respondent
requested the LIC to give a sympathetic consideration to the case and decide the claim in their
favour.
12.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The main contention taken by the LIC, upon which the claim
was repudiated, relates to withholding / concealment of material information by the insured at
the time of obtaining the policies. It is made out from the record available and not denied by the
respondent also, that the insured remained admitted in hospital from 16.08.2006 to 22.08.2006
on complaint of giddiness / headache etc. It is also clear that a C.T. scan was done upon him and
as per its report, the insured was found to be suffering from right temporal hematoma. These
facts have not been disclosed by the insured while filling the proposal form as reproduced
earlier. The answers to the four questions mentioned at para (11) A, B, D & E of the proposal
form have been given in the negative. The first question at 11A relates to consultation with a
medical practitioner for any ailment, requiring treatment for more than a week. In the instant
case, the insured remained admitted in the hospital exactly for a week, i.e., from 16.08.2006 to
22.08.2006. It cannot be, therefore, stated that the answer to this question has been wrongly
given. However, the answers to question 11 B & 11 D have been wrongly given because the
insured remained admitted in the hospital for treatment and he also suffered from a brain ailment
as the C.T. scan has shown right temporal hematoma. The answer to question 11E is also
incorrect as it mentions the word, “any other disease”. It is made out, therefore, that the
concealment / suppression of material facts is proved from the material on record. The
contention given by the State Commission that the Insurance Company has not been able to give
evidence about his disease etc. is not correct, as the record of hospital shows otherwise, and it
has not been denied by the complainant as well.
13.
The Hon’ble Apex Court in their judgement in “Satwant Kaur Sandhu versus
New India Assurance Co. Ltd.” as reported in (2009) 8 SCC 316, in which a case relating to
Mediclaim policy was discussed, have held clearly that a contract of insurance falls in the
category of contract uberima fides meaning a contract of utmost good faith on the part of the
assured. The non-disclosure of material facts may enable the insurer to repudiate its liability
under the policy. The term material fact has also been discussed in this very judgement in detail
and it has been held as follows:“The upshot of the entire discussion is that in a Contract of
Insurance, any fact which would influence the mind of a prudent
insurer in deciding whether to accept or not to accept the risk is a
“material fact”. If the proposer has knowledge of
such fact, he is obliged to disclose it particularly while answering
questions in the proposal form. Needless to emphasise that any
inaccurate answer will entitle the insurer to repudiate his liability
because there is clear presumption that any information sought for in
the proposal form is material for the purpose of entering into a
Contract of Insurance.”
14.
Further, the Hon’ble Supreme Court in another judgement in “P.C. Chacko and Anr.
versus Chairman, Life Insurance Corporation of India & Anr.” as reported in (2008) 1 SCC 321,
have held that a misstatement by itself is not material for repudiation of a policy unless the same
is material in nature. In the present case, the insured died within a period of less than 2 years of
taking the policy and hence, he cannot get the advantage of section 45 of the Insurance Act,
according to which an element of ‘fraud’ has to be seen in the wrong statement made by the
insured. In the present case, although the element of ‘fraud’ may not be there, but the
concealment of material information about his disease stands proved from record. Hence, the
insurance company was well within its rights to repudiate the claim in question.
15.
In the light of the discussion above, this revision petition is allowed and the orders passed
by the State Commission and the District Forum are 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. 1654 OF 2008
(From the order dated 28.11.2007 in CD Appeal No. 116/2004 of Orissa State
Consumer Disputes Redressal Commission)
Santosh Kumar Das s/o Sh. Bhaskar Chandra Das r/o Village Tanti Sahi Lane P.O. Motiganj,
PS/Town/Dist. Balasore, Orissa.
... Petitioner
Versus
Dr. P.C. Dey,
MS
Orthopaedic
PS/Town/Dist. Balasore Orissa.
c/o Modern
Orthopaedic Clinic
Hospital Road,
… 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
NEMO
For the Respondent
Mr. Suchit Mohanty, Advocate
PRONOUNCED ON : 7th FEBRUARY 2014
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 28.11.2007, passed by the Orissa State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 116/2004,
“Dr. P.C. Dey versus Santosh Kumar Das”, vide which while allowing appeal, the order dated
03.02.2004, passed by the District Consumer Disputes Redressal Forum, Balasore in c.d. case
no. 126/2002 was set aside.
2.
Brief facts of the case are that the petitioner/complainant Santosh Kumar Das met with
an accident, as a result of which, the femur bone of his right leg was fractured. He was admitted
in Government Hospital, Balasore, Orissa, where various tests and x-rays were done and it was
stated that a surgical operation would be required. The petitioner got discharged from the
Government Hospital on 22.10.99 and approached the respondent / OP, Dr. P.C. Dey and on his
advice, he got himself admitted at a nursing home called ‘Health Point’, situated
at Gopalgaon, Balasore. The petitioner was operated upon by the OP/respondent on 25.10.99
and was discharged from the Hospital on 06.11.99. It has been alleged that the petitioner
suffered serious pain in the leg, despite taking various medicines. The petitioner then consulted
another
doctor, Dr. N.K. Aggarwal,
retired
Professor
and
Head
of
the
Department
of Orthopaedic Surgery, SCB Medical College, Cuttack. Dr. Aggarwal, advised that due to
some defect in earlier surgical operation, the fractured portion of the bone had not joined
properly and he advised for second operation. The petitioner then consulted Dr. C.P. Das,
Consultant Orthopaedic and Trauma Surgeon, Sun Apollo Diagnostic, which was attached
with Kalinga Hospital,
Bhubaneswar. The
said
doctor
after
his examination, suggested
immediate operation, otherwise, the affected portion of his leg may lead to amputation of the
leg. The petitioner was operated for the second time on 22.3.2001 at Kalinga Hospital
by Dr. C.P. Das. He had to spend a sum of `40,000/- for the purpose. After the second
operation, the union of bones took place, but his leg was shortened by 1½ inches and as alleged,
he became physically handicapped by 55%. The petitioner filed the consumer complaint in
question before the District Forum for allegednegligence and deficiency in service on the part of
the respondent and claimed a total sum of `3 lakh as compensation including `40,000/for expenses incurred for his treatment and the rest for mental agony, harassment etc. The
District Forum, by a majority judgement on 3.02.2004, passed by two Members of the Forum
allowed the complaint and directed the OP/respondent to pay a sum of `40,000/- spent by the
petitioner at the time of second operation and `50,000/- as compensation for suffering, mental
agony, etc. and physical handicap. The President of the District Forum, however, recorded a
dissenting order, dismissing the complaint in question. An appeal was filed against this majority
judgement of the District Forum before the State Commission and vide impugned order, the
appeal was allowed and the order passed by the District Forum was set aside and the consumer
complaint was ordered to be dismissed. It is against this order that the present petition has been
made.
3.
After filing the revision petition, the learned counsel for the petitioner appeared on some
of the hearings. On 22.04.2009, it was ordered that the case should be listed as per its turn in due
course. However, when the case was listed on 14.03.2013, the learned counsel for the petitioner
did not appear. A notice was again sent to the petitioner, but despite service, he did not choose
to appear before us. The respondent was, however, represented by his counsel and his arguments
were heard. Learned counsel for the respondent stated that the State Commission had passed a
well-reasoned order and carried out a correct appreciation of the facts on record. The order
passed by the State Commission was mainly based on the testimony of Dr. N.K. Aggarwal,
retired Professor and Head of the Department of Orthopaedic Surgery, SCB Medical
College, Cuttack. Dr. Aggarwal has categorically stated that the earlier operation done by the
respondent was absolutely correct. The present petition should, therefore, be ordered to be
dismissed.
4.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us.
5.
There is a delay of 34 days in filing the present revision petition. An application for
condonation of delay has been filed, saying that the delay occurred because the petitioner
underwent certain medical problems. The application is accompanied by an affidavit. In view of
the position explained in the said application, the delay in filing the revision petition is
condoned.
6.
It has been contended in the revision petition that there was negligence on the part of the
respondent because the fractured part of the bones did not join after the first operation, whereas
the union of bones took place after the second operation. It was, therefore, not correct to say that
it was simply a physiological process that the union did not take place after the first
operation. In fact, the first operation was defective due to which the petitioner had to undergo
the agony of going through the second operation.
7.
A close examination of the order passed by the State Commission reveals that this order is
based on the statement of Dr. N.K. Aggarwal, retired Head of Department of Orthopaedics in
S.C.B. Medical College Cuttack, before the State Commission in support of his affidavit filed
earlier. In the said affidavit, Dr. Aggarwal had clearly stated that he examined the petitioner on
07.06.2000 and found that the earlier operation done by Dr. P.C. Dey, upon the respondent/OP
was absolutely correct. The said operation was done by K’nailing, but the non-union of the bone
happened due to the lack of formation of callus, which is totally a physiological process and
happens in many cases. Dr.Aggarwal has also stated in his affidavit that the respondent no. 1
had done the bone grafting operation which was to enhance the physiological union and which
was an extra pre-caution taken by him. Further, Dr. C.P. Das who conducted the second
operation has opined that the non-union of such fractures required a more aggressive approach
and hence, he adopted interlocking nailing after removal of k’nail at Kalinga Hospital. The State
Commission have quoted extensively from the medical literature bringing out clearly that there
were various causes for non-union or delayed union of the fractures, and came out with the
conclusion that the respondent no. 4 cannot be blamed for the non-union, after the first operation.
8.
Based on the material on record, it is made out that the allegations of medical negligence
against the respondent doctor is not established from record. He may have adopted a different
approach for the treatment of the fracture, but as borne out from the statements of experts in the
field, there is no reason to believe that the respondent indulged in medical negligence of any
kind. We, therefore, do not find any reason to disagree with the well-reasoned order passed by
the State Commission. We observe, therefore, that there is no illegality, irregularity or
jurisdictional error in the said order and the same is hereby affirmed. The revision petition is
ordered to be dismissed. 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. 4857 OF 2013
(From the order dated 16.09.2013 in First Appeal No. 1270/2013 of Uttar Pradesh State
Consumer Disputes Redressal Commission)
Naveeen Rawat s/o Shri Radha Krishan Rawat, r/o 119, Avas Vikas, Pili Kothi Civil Lines,
Moradabad (U.P.).
... Petitioner
Versus
1. U.P. Avas & Vikas Parishad, F-2, 3 and 4 through Sampatti Prabandh Officer, Moradabad
(U.P.)
2.
U.P. Avas & Vikas Parishad, House No. 21, 22, 23 & 24 in front of Satyam Cinema through
Executive Engineer, Construction Division – 4, Moradabad – 24001.
3.
U.P. Avas & Vikas Parishad, through Avas Ayukt Office, 104, Mahatma Gandhi Marg,
Lucknow, U.P.
… 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. R.K. Rawat, Advocate
PRONOUNCED ON : 7th FEBRUARY 2014
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 16.09.2013, passed by the U.P. State Consumer Disputes
Redressal Commission (for short ‘the State Commission’) in FA No. 1270/2013, “Naveen Rawat
versus U.P. Avas & Vikas Parishad & Ors.” vide which, while dismissing the appeal, the order
dated 22.05.2013, passed by the District Consumer Disputes Redressal Forum, II Moradabad,
dismissing the consumer complaint no. 94/2012, filed by the present petitioner, was upheld.
2.
In brief, the facts of the case are that the petitioner/complainant booked a
house vide application no. 4831 with the OP by depositing the registration money of `90,000/on 06.02.2009. The OP/respondent declared him eligible for the house vide their letter number
3815
dated
18.07.2009. The
petitioner deposited a
further
sum
of
`6,76,000/-
on
26.10.2009. According to the complainant, at that time, the rate of developed land was `6,200/per sq. meter, whereas he was made to pay @ `7,500/- per sq. meter along with 12% of money as
free hold charges. The petitioner alleged deficiency in service on the part of the OP for having
charged the enhanced cost of land. According to him, house no. 6A/98 was allotted to some
other person on 30.03.2011 for which a different amount was charged, but the petitioner was
allotted house no. 6A/183 on 30.04.2011 for which higher amount was charged. The petitioner
stated in his complaint that according to Rule 10 of the Costing Manual 1986 of the OP, the
developed cost is to be charged, which was prevailing on the date of payment of the first
instalment. The OP on the other hand has maintained that there was amendment in the 1986
provision of the Manual in the year 2006, according to which, in all Self-Financing Schemes, the
prevailing cost is to be charged. In the Registration Booklet-2009, it has been mentioned that
the prevailing rate of land cost shall be charged. The petitioner filed the consumer complaint in
question before the District Forum which was dismissed on 22.05.2013, upholding the stand of
the OP. An appeal filed against this order before the State Commission was also dismissed vide
impugned order. It is against this order that the present petition has been made.
3.
The learned counsel appearing on behalf of the petitioner/complainant submitted that the
OP were guilty of deficiency in service as they had charged more price from him than required
as per the provisions of the Scheme. He stated that the total cost of the house as shown in the
Registration Booklet-2009 was `17,80,000/- whereas he was made to pay a sum of `24,59,570/-.
4.
We have examined the material on record and given a thoughtful consideration to the
arguments advanced at admission stage before us. The only issue to be adjudicated in the
present case is whether the OPs should have charged the petitioner for the cost of the house,
according to the rates prevalent at the time of booking or at the time of making allotment. It has
been clarified by the OPs in their reply to the complaint that the provisions made in 1986 in the
Manual was subsequently amended in the year 2006 for cases under the selffinancing scheme and as per the amended provisions, the prevalent rate was to be charged from
the allottee. The petitioner has not been able to show anywhere that the exercise of power in
making amendment in the policy by the OP was arbitrary or whimsical in any manner. It is an
accepted legal provision that the developer has a right to determine and adopt the pricing policy,
but the same should not be arbitrary or violative of accepted norms of justice. We are supported
in this view in the order passed by the Delhi High Court in “Sheelawanti & Ors. versus DDA &
Anr.” [as reported in 57 (1995) DLT 801 (FB)], in which it has been held that in the matter of
costing and fixation of prices, the scope of judicial review was very much limited. A similar
view has been expressed by this Commission also, in the case of “Kartar Singh versus DDA” [as
reported in 2008 (CPJ) 283 (C.P.)]
5.
Based on the discussion above, it is clear that the OPs have charged the price of the house
from the petitioner in accordance with the policy already declared by them. The petitioner is not
justified in raising a demand, therefore, that he should be charged in accordance with the price at
the time of booking. It is held, therefore, that the State Commission and the District Forum have
not committed any illegality, irregularity or jurisdictional error while passing the orders in
question. The said orders are, therefore, upheld and the present revision petition is ordered to be
dismissed at the stage of admission hearing. 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. 881 OF 2013
(From the order dated 16.09.2013
Consumer Disputes Redressal Commission)
in
CC
No.
16/2011
of
Punjab
State
Dr. Ajay Singh Bhambri s/o Shri Avtar Singh Bhambri r/o House No. 1509, Phase – X, Mohali.
... Appellant
Versus
1.
M/s Axis Bank Limited The Mall, Ludhiana through its Manager
2.
M/s Metlife Insurance Company Limited 4th Floor, Kunal Towers No. 88 The Mall,
Ludhiana through its Manager
… 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 Appellant(s)
Mr. Brijesh Kumar Tamber, Advocate
Mr. Quisar Ali, Advocate
PRONOUNCED ON : 7th FEBRUARY 2014
ORDER
PER DR. B.C. GUPTA, MEMBER
This appeal has been filed under section 19 of the Consumer Protection Act, 1986 against
the impugned order dated 16.09.2012, passed by the Punjab State Consumer Disputes Redressal
Commission (for short ‘the State Commission’) in Consumer Complaint No. 16/2011, “Dr. Ajay
Singh Bhambri versus M/s. Axis Bank Limited & Anr.” vide which, the said consumer
complaint was ordered to be dismissed and it was held that no concluded contract had come into
existence between the parties and hence, the OP No. 2 Insurance Company could not be held
liable to pay the loan amount of the share of the deceased wife.
2.
Brief facts of the case are that OP No. 1 M/s Axis Bank sanctioned a loan of `52,08,975/-
for the purpose of purchase of a house to the complainant Dr. Ajay Singh Bhambri and his wife
Smt. Vandana Bhambri. The loan was to be repaid in monthly instalments for the period of
1.12.2009 to 1.06.2031. There was an agreement executed between the parties, according to
which, the loanees were to be insured for the said time period from the OP No. 2, M/s. Metlife
Insurance Company. The premium amount of `3,24,260/- was also paid to the OP No. 2 by
debiting the said amount from their account on 28.11.2009. As per the terms and conditions of
the insurance policy, if any person died during the tenure of the loan, the rest of
the payment with regard to loan was to be borne by the insurance company. The wife of the
complainant, Smt. Vandana Bhambri died on 09.12.2009 due to heart attack and hence, the
complainant requested the Insurance Company to pay the rest of the loan amount to OP No.
1. However, he was told that some medical examination with regard to taking of the insurance
policy was pending, due to which the insurance policy had not been issued and hence, the
insured amount could not be paid by the insurance company to the Bank. The complainant filed
the consumer complaint in question, alleging deficiency in service on the part of theOPs and
stated that he was never told about any medical examination at the time of charging the insurance
premium. He demanded that the OP / respondent should be directed to adjust the loan amount of
`48.70 lakh and should also be directed to pay compensation for deficiency in service and
harassment at `5 lakh. Vide impugned order, the State Commission held that in the absence of a
concluded contract between the parties, the Insurance Company could not be held liable to pay
the loan amount of the share of Smt. Vandana Bhambri, who died just within 12 days of signing
the proposal form and merely debiting the premium amount by OP No. 1 and sending it to OP
No. 2, was not sufficient to fix any liability on OP No. 2. The complaint was ordered to be
dismissed. 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 appellant while narrating the
facts of the case, stated that the Insurance Company had accepted the proposal for insurance and
hence, they were liable to pay the amount in question for the repayment of loan. The proposal
form does not mention about any medical test. It was the duty of the OP No. 2 to intimate them
about any medical test before accepting the premium amount. The Insurance Company had
deliberately delayed the issuance of the policy and hence, the complainant should not be allowed
to suffer. Learned counsel, however, could not put forward any reasons to say that mere
acceptance of a premium had resulted in a concluded contract between the parties.
4.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us at admission stage.
5.
Alongwith the memo of appeal, the complainant has filed an application for condonation
of delay saying that the delay of 99 days in filing the appeal should be condoned. It has been
stated that the final judgement was passed by the State Commission on 16.09.2013 but the
appellant was not aware about the same till 21.11.2013, when they applied for getting a copy of
the same and were given a copy on 21.11.2013 itself. The date of filing the appeal is
24.12.2013. It is very clear that from the date of the impugned order 16.09.2013 the appeal has
been filed after a period of 99 days. The time of 30 days is allowed for filing the appeal as per
the procedure prescribed and hence, even if it is presumed that the appellant was aware of the
order on 16.09.2013 itself, there is a delay of 69 days. In case, the version of the appellant that
they came to know about the order on 21.11.2013 is believed, there is a delay of only 3 days in
filing the appeal. The appellant has stated that he is already suffering because of death of his
spouse and is in a state of struggle and stress. In view of the position explained, the delay in
filing the appeal is condoned.
6.
The factual matrix of the case makes it very clear that although the proposal form was
submitted and the premium was also paid to the Insurance Company, the Policy in question had
not been issued, when the death of the wife of the complainant took place. We have, therefore,
no reasons to differ with the findings of the State Commission that no concluded contract had
come into existence between the parties. The State Commission, in their well-reasoned order
have relied upon the order of the Hon’ble Supreme Court in “Life Insurance Corporation of India
versus Raja Vasireddy Komalavalli Kamba & Ors.” [1984 (2) SCC 719] saying that merely
filling any proposal for insurance and depositing first premium with the Life Insurance
Corporation, do not create a binding contract between the parties. The State Commission has
also placed reliance on the order passed by this Commission in “ELSA Tony Phillip versus LIC
of India & Ors.” [I (2009) CPJ - 18 (NC)], in which similar view has been taken.
7.
From the above discussion, it is very clear that the State Commission have rightly
concluded that there was no liability on the OP Insurance Company to pay the loan amount in
question, to the OP No. 1 Bank on behalf of the complainants. The order passed by the State
Commission, therefore, does not suffer from any illegality, irregularity or jurisdictional error and
the same is upheld. The appeal is, therefore, ordered to be dismissed. 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. 2670 OF 2008
(From the order dated 18.03.2008 in First Appeal No. 617/2007 of U.T. Chandigarh State
Consumer Disputes Redressal Commission)
State Bank of Patiala Branch Dadu Majra, U.T. Chandigarh.
... Petitioner
Versus
Kusum Kalra, Warden Working Women Hostel, Sector – 24 B, Chandigarh. also at: H. No.
130/A, Sector – 51, Chandigarh.
… 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. S.L. Gupta, Advocate
For the Respondent
Mr. S.K. Gupta, Advocate
PRONOUNCED ON : 10TH FEBRUARY 2014
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 18.03.2008, passed by the U.T. Chandigarh State
Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.
617/2007, Kusum Kalra versus Branch Manager, State Bank of Patiala, vide which, while
allowing the appeal, the order dated 31.07.2007, passed by the District Consumer Disputes
Redressal Forum - I, Chandigarh, dismissing the complaint in question, was set aside.
2.
Brief facts of the case are that the complainant/respondent Kusum Kalra deposited a sum
of `70,000/- with the petitioner, State Bank of Patiala Branch Dadu Majra, U.T. Chandigarh as
a fixed deposit in the year 2000. Therepayment of the FDR was to take place on
17.04.2002. The said FDR was get renewed with Bank and the maturity date was
17.10.2004. The bank issued a fixed deposit receipt bearing no. 496486, undertaking to encash
the same on or after 17.10.2004 for a sum of `81,588/-. The complainant presented the FDR to
the bank on 18.11.2004 for encashment, but the petitioner/OP refused to credit the amount in
her savings bank account with the same bank, saying that the complainant had stood as a
guarantor in the loan account of one Tejinder Kaur and the said loan had become NonPerforming Asset (N.P.A.). The complainant has alleged that she had already made a
programme to visitBombay to purchase an off-set printing machine alongwith her husband and
had also booked tickets for the same. However, due to refusal of the bank to en-cash the FDR,
she failed to honour her commitment of going to Bombay. The OP vide their letter dated
17.12.2005, sent a banker cheque to her for `15,657/- as balance proceeds of the FDR, after
retaining a sum of `67,155/- out of the total payable proceeds of `81,588/-. However, the
complainant returned the said cheque, saying that it was illegal and unjustified action on the part
of the bank. The complainant then sent a legal notice dated 8.02.2005 to the bank, asking them
to make the payment of FDR, but in vain. The complainant then filed the consumer complaint in
question before the District Forum. The petitioner/OP filed a reply before the District Forum,
saying that the complainant stood guarantor for Tejinder Kaur, who failed to repay the loan
amount and hence, the amount was rightly recovered from the complainant after giving due
notice to her. There was no deficiency on the part of the OPs and hence the complainant was not
entitled for any compensation. The District Forum after taking into account the evidence of the
parties, dismissed the complaint vide their order dated 31.07.2007. An appeal was filed before
the State Commission against this order by the complainant and the State Commission vide
impugned order dated 18.03.2008, set aside the order of the District Forum and directed the
petitioner/OP to credit the amount of FDR in the savings account of the complainant/respondent,
alongwith interest @9% p.a. from the date of maturity till payment and also allowed litigation
cost of `10,000/-. It has been observed by the State Commission in their order as follows:“13. It is also not disputed that Smt. Tejinder Kaur had taken loan
of `50,000/- on 29.09.2000 from the respondent bank vide annexure
OP – 1 but there is no evidence that appellant had stood as
guarantor/surety of Tejinder Kaur against the said loan and had
executed the guarantee deed or surety bond in favour of the bank. A
perusal of the promissory note Ex. OP/2 reads as under:
“On demand I Tejinder Kaur promise to pay to Smt. Kiran & Smt.
Kusum or order at the State Bank of Patiala Dadu Majra the sum of
Rupees fifty thousand only for value received with interest at the rate
of ….. the State Bank of India Advance rate, rising and falling
therewith with a minimum of 15% per annum with quarterly
rests.”
Signed by Tejinder Kaur
On the revenue stamp
It is further mentioned in Ex.OP/3 as under:
“pay to State Bank of Patiala & Order”
Signed by Kusum Kalra & Smt. Kiran
14. Therefore, it shows that Smt. Tejinder Kaur had executed
promissory note in favour of Smt. Kusum Kalra and Smt. Kiran and
Smt. Kusum Kalra and Smt. Kiran had further endorsed the
promissory note in favour of State Bank of Patiala or order. It means
that there was promissory note on behalf of Tejinder Kaur in favour
of State Bank of Patiala or other. It is not the case that the
promissory note had been executed by Smt. Kiran and Kusum Kalra
in favour of Tejinder Kaur who had further endorsed it in favour of
State Bank of Patiala. There is no evidence that Smt. Kusum Kalra
and Smt. Kiran were to take any amount from Smt. Tejinder Kaur or
they were to pay any amount to the State Bank of Patiala. In fact
such an endorsement either from Tejinder Kaur in favour of Smt.
Kusum Kalra and Smt. Kiran or further endorsement on behalf of
Kiran and Kusum Kalra in favour of State Bank of Patiala is without
consideration and such a promissory note without consideration is
void. At best the promissory note could be considered a document
executed by Tejinder Kaur in favour of State Bank of Patiala through
Smt. Kiran and Kusum Kalra.
15. Ex. OP/4 is copy of the ‘D.P. Note delivery letter’ vide which
Demand Promissory Note was delivered. However, under law by any
stretch of imagination appellant could not be considered as
guarantor for repayment of loan of Tejinder Kaur. In fact appellant
had no obligation to perform in favour of the bank. Instructions of
the bank to the contrary that if a promissory note is executed by the
borrower in favour of the guarantor then guarantor endorses the
same in favour of the bank then it would be a valid document cannot
be taken into account as it is not supported by any legal provision,
hence, bank was not justified to deduct the amount of Rs.67155/from the FDR of appellant and to send cheque of Rs.15657/- only.
16. Therefore, we hold that the order of District Forum is illegal
and consequently, the appeal is accepted with costs of Rs.10,000/and the respondent is directed to credit the amount of FDR in the
saving account of appellant bearing account no. 5405. It shall also
pay interest @9% p.a. from the date of maturity till payment. ”
3.
It is against this order that the present revision petition has been made.
4.
At the time of final hearing before us, the learned counsel for the petitioner Bank stated
that the respondent Kusum Kalra had stood surety for Tejinder Kaur who had taken loan from
the State Bank of Patiala. He has drawn our attention to a document dated 29.09.2000, which is
a D.P. note executed by Tejinder Kaur in favour of Kusum Kalra & Kiran, saying that she
promises to pay a sum of `50,000/- to these two persons. There is an endorsement made and
signed by Kusum Kalra and Kiran at the back of this note in favour of ‘State Bank of Patiala or
order’. Our attention has further been drawn to D.P. note delivery letter, addressed to
the Manager, State Bank of Patiala, Dadu Majra on 29.09.2000 itself from Tejinder Kaur. This
letter is also signed by Kusum Kalra and Kiran. Further, there is a letter dated 1.10.2003 sent by
the Bank to Tejinder Kaur asking her to pay the necessary amount of `5,000/- within 15 days as
her account had become irregular. A copy of this letter has been endorsed to Kusum Kalra
‘guarantor’. There are also letters dated 09.09.2004 and 21.01.2005 signed by Tejinder Kaur to
the Bank, requesting for One Time Settlement (OTS) for the said loan. Another letter sent by the
Bank to Tejinder Kaur and duly acknowledged by Tejinder Kaur says that on 1.09.2003, a sum
of `54,678/83ps was outstanding balance with Tejinder Kaur. Further, there is a letter dated
12.12.2004 addressed by the Bank to Kusum Kalra in which they have stated as follows:“In this regard, we had already got the sanction of our controlling
authority to appropriate the proceeds of your FDR to adjust the loan
account of Tajinder Kaur; but seeing your credit worthiness and
good clinatale we had not used the right to set off Bank dues. You
are requested to appraise the borrower to adjust loan A/c. fully
within 15 days of this letter failing which the Bank will be left with no
option other than to adjust the Bank dues form to proceeds of your
FDR. Hoping you will cooperate us this regard.”
5.
The learned counsel argued that from the facts of the case, it was very clear that the
complainant Kusum Kalra had stood guarantor for the loan taken by Tejinder Kaur and the Bank
had every right to recover the same from the complainant in case of default on the part of the
Tejinder Kaur. The learned counsel has quoted a judgement of this Commission in this regard in
the case of “Gurgaon Gramin Bank & Anr. versus Om Parkash” as reported in IV (2010) CPJ
385 (NC), saying that the petitioner Bank was justified in appropriating the amount from
respondent’s saving bank towards outstanding loan amount. In this very judgement, an order
passed by the Hon’ble Apex Court in “Industrial Investment Bank of India Ltd. versus
Biswanath Jhunjhunwala,” as reported in VI (2009) SLT 625, has been mentioned, in which the
Hon’ble Apex Court stated that the liability of guarantor and principal debtor are ‘co-extensive
and not in alternative’. Learned counsel stated that in view of these facts, the petition should be
allowed and the order passed by the District Forum should be restored.
6.
In reply, the learned counsel for the respondent stated that the document produced on the
file was only a hypothecation agreement executed on 29.09.2000 by Tejinder Kaur and there was
no guarantee deed executed on the prescribed proforma. Learned counsel argued that there
should have been a proper agreement between the parties in support of the version that the
complainant had stood guarantee for the loan taken by Tejinder Kaur. He has drawn our
attention to a copy of proforma of guarantee in this regard. Further, in this case, there had been
no evidence that the complainant Kusum Kalra or Kiran had taken any money from Tejinder
Kaur. The said Tejinder Kaur had also approached the Bank for OTS, which was not accepted
by the Bank. The order passed by the State Commission was, therefore, in accordance with law
and should be upheld.
7.
In reply, the learned counsel for the petitioner has drawn our attention to section 37 of the
Negotiable Instrument Act, 1881 as stated in the grounds of revision petition as follows:“The maker of a promissory note or cheque, the drawer of a bill of
exchange until acceptance, and the acceptor are, in the absence of a
contract to the contrary, respectively liable thereon as principal
debtors, and the other parties thereto are liable thereon as sureties
for the maker, drawer or acceptor, as the case may be.
8.
We have examined the material on record and given a thoughtful consideration to the
arguments advanced before us. The factual matrix of the case brings out that Tejinder Kaur did
take loan from the petitioner Bank for which the complainant Kusum Kalra had stood
guarantor. The copy of the promissory note on record also makes it clear that Kusum Kalra and
Kiran had made an endorsement on the note in favour of the Bank itself. Whether the guarantee
deed or agreement on the prescribed proforma was executed or not, the record of the case and the
endorsement on the promissory note clearly shows that the complainant was a guarantor of the
loanee Tejinder Kaur. It is also clear that Tejinder Kaur defaulted in the payment of said
loan. She requested for OTS with the Bank, but her request was declined. The basic issue then
arises whether the Bank was competent to recover the amount of default from Kusum Kalra or
not. The authority cited by the petitioner in the case of “Gurgaon Gramin Bank versus Om
Parkash” (supra), in which an order passed by the Hon’ble Apex Court has also been quoted, i.e.,
“Industrial Investment Bank of India Ltd. versus Biswanath Jhunjhunwala” (supra), makes it
very clear that the liability of a guarantor and principal debtor are co-extensive and the Bank was
justified in appropriating the amount from the account of the guarantor to satisfy the outstanding
loan. The District Forum has also placed reliance on an order, passed by the Hon’ble Supreme
Court in “Syndicate Bank versus Channaveerappa Beleri & Ors.” as reported in II (2006) SLT
518 = 2006 AIR SCW 2134.
9.
In view of position above, we do not observe any illegality, irregularity or jurisdictional
error in the orders passed by the District Forum. In fact, the order passed by the State
Commission does not reflect a correct appreciation of the facts and circumstances of the record,
because it is very clear that the complainant had stood guarantor for the loanee Tejinder Kaur
and the Bank had every right to recover their money from the guarantor.
10.
In view of position above, this revision petition is allowed, the order passed by the State
Commission is set aside and the order passed by the District Forum is upheld, and the consumer
complaint, in question, is ordered to be dismissed. 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. 970 OF 2014
(From order dated 25.10.2013 in First Appeal No. A/11/115 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai)
WITH I.A. No. 753 OF 2014 I.A. No. 754 OF 2014 I.A. No. 755 OF 2014 I.A. No. 756 OF 2014
(Exemption for filing translation documents, stay, exemption from filing the certified
copy, condonation of delay)
Essen Multipack Limited Survey No.209, Plot No.5 Industrial Area Veraval (Shapar) Rajkot,
Gujarat Through its Representative Sh. Vishal Kothari
… Petitioner
Versus
1. Bapu Chintamani Range R/o Khardi Tal Pandharpur District Solapur, Maharashtra
2. S.P.A. Flora Pvt. Ltd. Prop. Nandkisor Rajapure, Swaraj Nagaraj Near Vadgaon Fata, Chakan
Road Talegaon Dabhade, Tal – Maval Dist. Pune, Maharashtra
3. Shri Omkar Agro Prop. Nanaaheb Barku Jagtap M.Post, Mahu, Tal – Maval District Pune,
Maharashtra
… Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
For the Petitioner : Mr. Nikhilesh Kumar, Advocate
PRONOUNCED ON 11TH FEBRURARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
Both the fora have decided the case against the petitioner/ OP1. There appears to be no
question of law which needs adjudication. However, the counsel for the petitioner insists that
the facts were not rightly appreciated.
2.
The facts germane to this case are these. Bapu Chintamani Ronge, the complainant, is an
Agriculturist, who wanted to dig a water tank in his field for storing water in the said tank,
which required a multilayer polythene
sheets. The complainant purchased polythene sheets
from Essen Multipack Limited, OP1/petitioner, through its dealer, S.P.A. Flora Pvt. Ltd., which
was
arrayed as
OP2, in
Sh. Omkar Agro, OP3.
the complaint. Those polythene sheets were
laid
by
one,
3.
The said sheets were purchased
on 26.08.2007
and
kept the
same
in cold storage. Those were actually laid on 05.07.2008. It transpired that the sheets were
leaking. Consequently, the water from the
tank percolated elsewhere and
it affected other portion of his land. There could
might not be
be
two reasons,
of 500 microns thickness or they
either these
might
sheets
not have been
properly laid by OP3. A complaint was filed claiming compensation in the sum of
Rs.15,00,000/-, before the District Forum.
4.
The defence set up by OPs 1 & 2 was that they had supplied the polythene
sheets which were of 300 microns thickness. They allege that the Invoice was forged, by
writing, 500 microns thereon. It was contended that if the thickness of the material is 300
micron, then the sheet would 3.5 sq.mts. per kg by weight and if the sheet is of 500 micron
thickness, its size3 would be 2.1 mtrs per kg of weight. It was pleaded that the complainant
had paid a sum of Rs.1,92,000/- only and an amount of Rs.15,336/- was still due to
him. According to OP3, the
sheets were not kept properly and had been
folded. The
same were not fit to be laid in the field.
5.
The District Forum accepted the
complaint
and
directed
to pay a sum of Rs.2,05,013/- towards cost of polythene
the
OP
sheets and Rs.50,000/-
towards compensation. OP1 filed an appeal before the State commission, which modified the
order of the District Forum and directed the petitioner/OP1 to pay Rs.2,05,013/- minus
Rs.13,336/-, total being Rs.1,92,000/-, with costs of Rs.50,000/-, with interest @ 12% p.a.
6.
Learned counsel for the petitioner submits that 500 microns was written in hand by the
complainant, and as such, it is a forged one. The counsel was asked to produce theoriginal one,
but
he
could
not produce the
same. The forgery, if any, can
be
judged
only
if
the original and copy are compared with each other.
7.
The next submission of the counsel for the petitioner is that the price of 300
microns and 500 microns is the same and he had filed a list in this regard.
8.
We are unable to subscribe to his view. The weights are different and so the price cannot
be the same. The State Commission held :-
“Learned counsel for the appellant first submitted that the appellant
had never promised to supply polythene sheets with the thickness
of 500 micron. He submitted that what was agreed to be supplied
as per the invoice was multi-layer polythene sheets with
the product code SUNCOOL BL 3206 POND/CANAL LINING
FILM. He submitted that 14
bundles of
such sheets were supplied and the details of the bundles were also
given in the packing slip. Each bundle according to the packing slip
was 5 meter x 80 meter x 300 micron. The packing slip also gives
weight of each bundle and it ranges from 107.200 kgs to
126.300 kgs. One more bundle was supplied subsequently
and it packing slip shows that it contained 5 meter x 72 meter x
300 micron sheets weighing 108.600 kgs. The learned counsel
also referred to a paper titled as ‘Coverage’, where for various
gauges of thickness of polythene sheets its spread per kg of the
material is mentioned. For 300 micron sheets it is 3.5 sq.meter per
kg and for 500 micron it is 2.1 sq.meter per kg. The coverage
calculation also shows that there can be variation of plus minus
5%. Learned counsel submitted that since it is a product produced
by machine, this variation is bound to be there. While there can be
no doubt that there can be some variation,
stating that the variation could be plus minus 5%, it is
after
difficult to reconcile the weight given in the two
packing slips. In the first packing slip of 14 bundles, which
contained 5 meter x 80 meter x 300 micron sheets, the difference in
weight as already pointed out is from 107.200 kgs to
126.300 kgs i.e., almost 17619.100 kgs. Even if a mean is taken, the
variation would be more than plus minus 5%. The second
consignment contained only 5 meter x 72 meter x 300 micron sheets
and its weight was 108.600 kgs. Thus, though it was 40 sq. meters
less in spread, its weight was more than 80 meter sheet. Therefore,
on the appellant’s own showing, the sheets cannot be necessarily
said to be 300 microns thickness.
In any case, these packing slips would only show that
what was supplied was 300 microns thickness sheets. The price list
which shows SUNCOOL BL 3206 POND LINING FILM having
price of Rs.117/- per kg., does not give any specifications of these
sheets. It should have been perfectly possible for the appellant as
the manufacturer of the product to give specifications
of various products mentioned in the price list. Appellant could
have established that SUNCOOL BL 3206 POND LINING FILM, is
in fact a 300 micron sheet itself and not 500 micron sheet. The
appellant has not done so. Thus, when a party has best evidence
with it and does not produce it, there should be no reason why an
adverse inference should not be drawn. Therefore, we find no fault
with the conclusion of the District Forum that what complainant
sought to purchase, was sheets which were supposed to be of 500
micron thickness”.
9.
It must be borne
in
mind that
the
sheets
were
preserved
in
cold
storage. The question of their getting damaged, ordinarily, cannot arise. It is difficult to fathom
as to why did the OP3 agree to lay the said damaged sheets. The Panchnama shows that the
sheets had developed cracks but it does not mention that those were eaten by rats. Why did
it develop cracks? It clearly means that the loss caused to the complainant was attributable
to the defective material which was supplied to the complainant. This clearly goes to show
deficiency on the part of OP1. The petitioner has not approached this Commission with clean
hands. It kept the true facts under the hat. The copy of the Invoice which was given to
the complainant, should have clearly mentioned the nature of polythene sold to him. This is
a case of unfair trade practice. The petitioner has no bone to pluck with the complainant and,
therefore, the revision petition is hereby dismissed. No order as to costs.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
dd/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1824 OF 2013
(From the order dated 05.11.2011 in First Appeal No. 1860/2010 of the Madhya Pradesh State
Consumer Disputes Redressal Commission, Bhopal)
With IA/2932/2013 IA/2933/2013 IA/158/2014 (Stay, Condonation of delay)
Indore Management Institute M-4-6, Misica Tower above ICICI ATM Front of Sapna Sangita,
Main Road, Indore (M.P.)
…Petitioner/Opp. Party (OP)
1.
Versus
Prashant Kumar S/o Shri Ram Prasad R/o 25/3, L.I.G. Colony, Indore, (M.P.)
2.
Vinayaka Missions University Sankari Main Road, (NH-47), Ariyanoor Selam, Tamil
Nadu – 636308
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Ritesh Khare, Advocate
PRONOUNCED ON 11th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 05.11.2011
passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal (in short, ‘the State
Commission’) in Appeal No. 1860 of 2010 – Prashant Kumar & Anr. Vs. Vinayak Missions
University & Anr. by which, while allowing appeal, order of District Forumdismissing
complaint was set aside and complaint was allowed.
2.
Brief facts of the case are that complainant/respondent was admitted in OP No. 2/Petitioner
Institute. Complainant deposited fees, but as neither study was proper, nor Institute
got recognition, complainant prayed for refund of the fees. Alleging deficiency on the part
of OPs, complainant filed complaint before District Forum. OP resisted complaint and
submitted that no refund is payable as per undertaking given by the complainant. Learned
District Forum after hearing both the parties dismissed complaint against which, appeal filed by
the complainant was allowed by learned State Commission vide impugned order and State
Commission directed OP No. 2 to refund Rs.1,25,000/- along with 6% p.a. interest and
further awarded cost of Rs.1,000/- against which, this revision petition has been filed along with
application for condonation of delay.
3.
Heard learned Counsel for the petitioner on application for condonation of delay and
perused record.
4.
Petitioner filed application for condonation of delay of 452 days and submitted that delay
of 452 days was unintentional; hence, it may be condoned. Paragraph 4 of the application runs as
under:
“4. That the petitioner respectfully submits that there is a delay of filing
the present petition is 485 days. It is submitted that the petitioner was not
aware about the final order and thereafter, the petitioner also did not
contact with the counsel who was dealing his case in Bhopal and he was
under the impression that the appeal was still pending adjudication before
learned State Commission. Petitioner only on 6.4.2013 enquired about
the proceedings but he came to know about the impugned order and also
came to know that there are certain directions have been passed against
petitioner institute. Thereafter, petitioner applied for thecertified copy of
impugned order and on 12.4.2013, he received the same and thereafter
petitioner contacted present conducting counsel but unfortunately present
conducting counsel was on bed-rest then thereafter he again came to the
office of conducting counsel on 27.4.2013 and requested to file the present
revision petition”.
5.
Learned Counsel for the petitioner submitted that as delay was unintentional and petitioner
has good case on merit, delay in filing revision petition be condoned.
6.
Perusal of record reveals that after hearing Counsel for Petitioner and Respondent No.
1/Complainant No. 1, learned State Commission delivered judgment 3.10.2011 and in such
circumstances,
it
cannot
be
presumed
that
petitioner
remained
under
the impression upto 6.4.2013 that appeal was still pending before State Commission. Either the
petitioner should have contacted his Counsel appearing before State Commission or the Counsel
appearing before the State Commission should have apprised fate of appeal to the
petitioner. Inordinate delay of 452 days cannot be condoned simply on the ground that petitioner
was under the impression that appeal was still pending.
7.
No doubt, petitioner applied for certified copy of the impugned order on 12.4.2013 and it
was received by him on 12.4.2013 and revision petition was filed on 30.4.2013 with promptness,
but as there is no proper explanation regarding condonation of inordinate delay upto 5.4.2013,
application for condonation of delay is liable to be dismissed in the light of the following
judgments:
8.
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.”
9.
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.”
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
(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”.
12. 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.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate
delay of 452 days. In such circumstances, application for condonation of delay is dismissed.
13. As application for condonation of delay is liable to be dismissed, revision petition being
time barred is also liable to be dismissed.
14. Consequently, revision petition filed by the petitioner being barred by limitation 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
FIRST APPEAL NO. 344 OF 2007
(From the order dated 13.04.2007 in Complaint No.
State Consumer Disputes Redressal Commission, Delhi)
C-155
of
2001
of
the
1. Maruti Udyog Ltd. Palam Gurgaon Road Gurgaon – 122005 Haryana
2. Maruti Sales & Service (A Division of Maruti Udyog Ltd.) C-119, Naraina Indl. Area Phase
1, New Delhi – 110028.
…Appellants/Opp. Parties (OP)
Versus
Sh. J.S. Teja S/o Sh. B.S. Teja R/o A-17, Suvidha Apartment Sector-13, Rohini Delhi – 110085
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Appellants
:
Mr. Rakesh Agarwal Advocate, Mr. Ashish Chauhan, Advocate
Mr. Pulkit Agarwal, Advocate
For the Respondent
:
In person
PRONOUNCED ON 11th February, 2014O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the Appellants against the order dated 13.04.2007 passed by
the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in
Complaint Case No. C-155 of 2001 – J.S. Teja Vs. Maruti Sales & Service & Anr. by which,
while allowing complaint, OP was directed to refund Rs.92,818/- along with cost of litigation of
Rs.2500/-.
2.
Brief facts of the case are that complainant/Respondent purchased Car HR 26D 7409 from
Rajesh Sagar on the guarantee and assurance from OP/respondent. This car was sold by OP No.
2 to Rajesh Sagar. In March 1999, due to some technical fault, vehicle was given for repairs to
OP No. 1 and paid Rs.18,000/-, but the fault was not rectified. Again In March, 2000, due to
technical fault, vehicle was given for repairs to OP No. 1, who promised it to deliver back within
10 days, but delivered after 53 days after charging Rs.46,818/- without rectifying fault. On
follow up, the officer of OP inspected the car and apprised that it was imported car and its parts
are not available. Alleging deficiency on the part of OP, complainant claimed aforesaid amount
along with Rs.28,000/- towards denting/ painting. OP resisted complaint and submitted that OP
No. 1 carried out repairs of 5 years old used vehicle to the best of its competency without any
assurance or warranty. Car was sold by OP No. 2 in auction “as is where is basis”. There is
no privity of contract between the complainant and the respondent. It was further alleged that
Rs.28,000/- expenses incurred in denting/painting cannot be included in the repair cost. It was
further submitted that in March, 1999 the odometer shows mileage 16,131 Kms. whereas on
21st March, 2000, odometer showed mileage 19,258 Kms. It was further submitted that there
was no deficiency on the part of OPs and prayed for dismissal of complaint. Learned State
Commission after hearing both the parties, allowed complaint as mentioned above.
3.
Heard learned Counsel for the appellant and respondent in person and perused record.
4.
Learned Counsel for the appellant submitted that as the vehicle was purchased by
Rajesh Sagar in auction conducted by OP No. 2, there was no privity of contract between the
complainant and OP No. 2; even then, learned State Commission committed error in allowing
complaint against OP. It was further argued that complaint was allowed even without any
evidence and directed to refund even expenses incurred on denting/painting and cost of spare
parts and further submitted that no complaint regarding any fault in the vehicle was made after
March, 2000; even then, learned State Commission committed error in allowing complaint;
hence, appeal be allowed and impugned order be set aside. On the other hand, respondent
submitted that vehicle was not roadworthy after repair and order passed by learned State
Commission is in accordance with law; hence, appeal be dismissed.
5.
Perusal of record clearly reveals that OP No. 2 auctioned the vehicle on “as is where is
basis” and Rajesh Sagar purchased vehicle from OP No. 2. Admittedly, this vehicle was of 1997
model. Complainant purchased vehicle from Rajesh Sagar and he has not impleaded
Rajesh Sagar as a party in the complaint and as there was no privity of contract between the
complainant and OP No. 2 and no evidence to the fact that OP No. 2 was paid any amount by the
complainant towards repair of the vehicle, learned State Commission committed error in
allowing complaint against OP No. 2 / Appellant No. 1.
6.
As far as denting/painting charges are concerned, complainant has not placed bills on
record to substantiate that he paid Rs.28,000/- towards denting/painting to OP No. 1. Even if
there is any bill, complainant could not show any deficiency in service regarding
denting/painting of the vehicle and in such circumstances, complainant was not entitled to refund
of Rs.28,000/-; even then, learned State Commission committed error in allowing refund of
Rs.28,000/-.
7.
As far as first repair bill of Rs.18,000/- is concerned, vehicle was repaired in March, 1999
and after that vehicle was in running condition otherwise it would not have picked up technical
faults in March, 2000. We do not find any deficiency of service in repair of old vehicle in
March, 1999.
8. As far as repairs in March, 2000 is concerned, perusal of appeal clearly reveals that
Rs.48,133.62 has been charged for spare parts and only Rs.1300/- has been charged for labour
work. Respondent has not disputed replacement of parts and in such circumstances, no
deficiency of service can be attributed on the part of OP No. 1 in rendering service as no
evidence has been led by complainant to prove that after this repair vehicle again sustained any
technical fault.
9.
Not only this, between March, 1999 to March, 2000, vehicle had run more than 3000 Kms.
and in such circumstances, by no stretch of imagination it can be inferred that there was any
deficiency of service in repairs done by OP No. 1.
10. Perusal of record further reveals that complainant has not adduced any evidence in support
of the complaint, but has filed only rejoinder affidavit rebutting written statements that too
without any verification. Learned State Commission has committed error in allowing complaint
without any evidence on record and in such circumstances, impugned order is liable to set aside.
11. Consequently, appeal filed by the appellants is allowed and impugned order dated
13.4.2007 passed by learned State Commission in Complaint Case No. C-155/2001 –
J.S. TejaVs. Maruti Sales & Services & Anr. is set aside 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. 2441 OF 2012
(From order dated 19.03.2012 in First Appeal No. 1117 of 2010 of the A. P. State Consumer
Disputes Redressal Commission, Hyderabad)
1. India Info Line Commodities Ltd. Through its Branch Manager Mr. Rama Krishna
Branch Office at D.No.24-2-121 Chaparalavari Street Opp.Tamil Nadu Mercantile Bank
Patnam Bazar Guntur
2. India Info Line Commodities Ltd. Through its Vice President Mr.Chintan Modi II FL House,
sun Infotech Park Road No.16 V, Plot No.23 MIDC, Thane, Industrial Area Wagle Estate,
Thane – 400604 Maharashtra
… Petitioners
Versus
Jagu Srinivasa Rao S/o. Late Sambaiah R/o. D.No. 25-3-107 Adapavari Street, R.Agraharam
Guntur, Andhra Pradesh
… Respondent
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
For the Petitioner
s
: Mr. D. Bharat Kumar, Advocate
For the Respondent : Mr. B. S. Sai, Advocate
PRONOUNCED ON _12th FEBRUARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
India
Info
Line
Commodities
Ltd.,
which was
arrayed
as
OP2
in
the
complaint, transacts the business of ‘on-line’ buying and selling of commodities. India Info
Line Commodities, is having one of its branches at Guntur, which is arrayed as OP1.
2.
Sh.Jagu Srinivasa Rao, the complainant, opened an account with OP1, on 12.08.2008, for
buying and selling of gold on ‘on-line’, like share business. OP1 allotted the client ID as ‘SRI
JAGU’, after verification was made by OP2. The complainant credited the amounts by way of
Demand Drafts drawn on HDFC Bank, in his account with OPI, the total amount being,
Rs.8,50,000/-. OP1 issued receipts having received the said amount. The complainant opened
the account exclusively for the purpose of gold related commodity, online, and OP1 obtained
consent from the complainant for trade of gold commodities.
3.
It is alleged that subsequently, without written consent and advise from the complainant,
OP1 treated the other commodities like spices due to which the complainant incurred huge loss
in his business. OP1 encashed two demand drafts and misappropriated the same. Ultimately, a
complaint was filed with the District Forum wherein it was requested to pay misappropriated
amount in the sum of Rs.2,00,000/-, for misuse of trade Rs.2,00,000/-, for mental agony
Rs.50,000/-, for compensation Rs.20,000/-
and
Rs.5,000/-
towards
costs,
totalling
to
Rs.4,75,000/-.
4.
The District Forum allowed the complaint and passed the following order :“1. The opposite parties 1 & 2 are directed to refund the
misappropriated amount of Rs.2,00,000/- with interest @ 9% p.a.
from the date of deposit till the realisation.
2. The opposite parties 1 & 2 are further directed to pay sum of
Rs.5,000/- towards compensation for mental agony and pain and
Rs.1,000/- towards legal expenses.
3. The amounts ordered above shall be paid within a period of six
weeks from the date of receipt of the copy of the order, failing
which, they shall carry interest @ 9% p.a. till the date of
realisation”.
5.
Aggrieved by the said order, OPs1 & 2 filed appeal before the State Commission. The
State Commission upheld the order of the District Forum.
6.
I have heard counsel for the parties. At the very outset, it must be mentioned that the
petitioner is not a ‘consumer’. He has been dealing in trade of gold commodities. The
transaction is for commercial purposes. In para No. 3 of the complaint, it is mentioned that the
complainant is a permanent resident of Guntur. The complainant is a respectable businessman
in the business locality. In para 3(g) of the complaint, it is stated as under :“g) The complainant is a young businessman and who invested the
amount with the help of relatives out of his livelihood. Due to the
malafide and misrepresentation done by the opposite parties, the
complainant suffered severe financial hardship in his life”.
7.
Thus, it
is
clear that the complainant is
invested the amount with the
help
of
his
a
young
relatives. This
businessman
is
a
who has
case
of
investment. He entered into a commercial transaction. There is not even an iota of evidence
to reveal that the complainant entered into the said transaction for his livelihood. The use of
the word ‘livelihood’ is not enough. The word ‘consumer’, in the CP Act, clearly lays down
that the ‘consumer’ does not include
a person who obtains such goods for sale or for any commercial purpose. What
is commercial purpose, was decided by the Hon’ble Apex Court in the case of Laxmi
Engineering Works Vs. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC). The definition of
word ‘consumer’ was comprehensively explained in para 10 of the said judgment. It
was further held that in the absence of a definition, we have to go by the ordinary meaning.
‘Commercial’ denotes ‘pertaining to commerce’ (Chamber’s Twentieth Century Dictionary),; it
means ‘connected with, or engaged in commerce; mercantile; having profit as the main aim”
(Collins English Dictionary) whereas the word “commerce” means “financial transactions,
especially buying and selling of merchandise on a large scale” (Concise Oxford Dictionary).
8.
Again, in Morgan Stanley Mutual Fund Vs. Kartick Das, (1994 (4) SCC 225), the
question was, Whether, a prospective investor in the shares of a company, is a ‘consumer’, as
defined in Section 2(f). It was held that he was ‘not’ a ‘consumer’.
9.
Consequently, I am of the considered view that the
‘consumer’. The consumer fora is not armed with the power
petitioner
to
decide
is
not a
‘commercial
transactions’. The revision petition is, therefore, accepted. The orders passed by the fora below
are set aside. The complaint is, therefore, dismissed, with liberty to the complainant to seek
redressal of his grievance before the appropriate forum and also seek exclusion of limitation,
as per law laid down in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, II (1995)
CPJ 1 (SC).
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
dd/7
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3379 OF 2013
(From the order dated 23.08.2013 in First Appeal No. 104/2013 of the Rajasthan
State Consumer Disputes Redressal Commission, Jaipur)
With IA/6010/2013 (Stay)
M/s. Media
Video Ltd.
Real
Estate Division
Tower-A, Ground Floor,
27, Milinium Plaza, Sushant Lok Gurgaon (Haryana)
…Petitioner/Opp. Party (OP)
Sector
Versus
Mr. Karam Singh S/o Sh. Ram Singh Saini R/o 142, Street No. 06, Hans Enclave, Gurgaon
… 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 :
Mr. Deepak Sabharwal, Advocate Ms. Puja Shrivastava, Advocate
Mr. Madhurendra Kumar, Advocate
PRONOUNCED ON 12th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 23.08.2013
passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the
State Commission’) in Appeal No.104 of 2011 – Media Vedio Ltd. & Ors. Vs. Karam Singh by
which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/respondent booked flat with OP/petitioner and
made payment of Rs.1,86,000/- on 15.5.2006. OP assured to handover thepossession of the flat
within one and half or two years. Possession of flat has not been handed over within stipulated
period. Complainant
filed
complaint
before
District
Forum
with
a
prayer
to
refund deposited amount with interest. OP contested complaint and submitted that complainant
has not paid even a single installment except the earnest money despite several notices. So,
earnest money has been forfeited. It was further submitted that District Forum had no territorial
jurisdiction to entertain the complaint and prayed for dismissal of complaint. Learned District
Forum after hearing both the parties allowed complaint and directed OP to refund deposited
amount with 6% p.a. interest and awarded Rs.5,000/- as costs. 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 order passed by learned State
Commission is not a speaking order; hence, revision petition be allowed and impugned order be
set aside. On the other hand, learned Counsel for the respondent submitted that as District
Forum has already discussed all the facts, order passed by learned State Commission is in
accordance with law; hence, revision petition be dismissed.
5.
Perusal of impugned order reveals that this order neither contains any fact, nor law, nor any
reason for upholding order of District Forum. This order has not met with grounds raised in
memo of appeal. Petitioner has taken the ground of jurisdiction in reply filed before District
Forum and has also raised plea of forfeiting of earnest money on account of non-payment of
installments. Learned State Commission ought to have dealt with all the contentions raised by
the petitioner in the memo of 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 astandard 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.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
23.08.2013 passed by the learned State Commission is set aside and matter is remanded back to
the learned State Commission for deciding it by speaking order after giving an opportunity of
being heard to the parties.
9.
Parties are directed to appear before the learned State Commission on 12.3.2014. A copy
of this order be sent to the Rajasthan State Commission, Jaipur.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
(1)
REVISION PETITION NO. 2602 OF 2008
(Against order dated 27.2.2008 in First Appeals No.1600 to 1608 of 2005 of the State
Consumer Disputes Redressal Commission, Andhra Pradesh)
Maharashtra Hybrid Seeds Company Limited, Plot No. B-4, Industrial Estate, Jalna,
Maharashtra-431 203, through Authorized Signatory Mr. M. M Chavan.
. ....... Petitioner
Versus
1. Garapati Srinivas Rao S/o Shri Bhaskar Rao, Occ: Agriculture,
(V),Kunavaram (M) Khammam District, Andhra Pradesh
2. Venkataramana
Agricultural
Agencies,
Fertilizers
&
Road Bhadrachalam, Andhra Pradeh, Represented by its Proprietor
R/o
Pochavaram
Pesticides,
Church
... Respondents
AND Other REVISION PETITIONS NO. 2603 to 2610 OF 2008
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Manoj Swarup, Advocate with Mr. Karan Kapoor, Adv.
For the Respondents : Mr. R. Sreenivasa Rao,Advocate
Pronounced on : 12th February, 2014
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Petitioner/Opposite Party No.2 being aggrieved by common order dated 27.02.2008, passed
by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short,
‘state Commission’) have filed present revision petitions under Section 21(b) of the ‘Consumer
Protection Act, 1986(for short, ‘Act’).
2. Revision Petition (No.2602 of 2008) is taken as the lead case. Brief facts are that Respondent
No.1/Complainants are agriculturists raising crops like chilli and cotton in their fields.
Complainant purchased Hybrid Seeds- Tejaswini- MHP1, from Respondent No.2/Opposite Party
No.1 for Rs.5,775/- on 18-6-1996 vide bill No.085 and on 16-7-1996 vide bill No.047 for
Rs.1,850/-, totalling 450 grams of MAHYCO seeds. The said seeds were produced and marketed
by the petitioner. It is complainant’s case that he sowed the above seeds in his land to an extent
of Ac.4.20 guntas and used all the fertilizers and pesticides as per the norms spending nearly
Rs.60,000/-. The complainant was made to believe by the petitioner and respondent no.2, that
this variety would get nearly 25 quintals per acre. In the month of November and December
1996, the crop size was very small and growth was not proper and not in usual shape and
direction. Hence, complainant approached respondent no.2 and demanded compensation but
received no reply. Then he complained to the Mandal Agricultural Officer about the defective
and inferior quality of the seeds. Mandal Agricultural Officer inspected the complainant’s field
and found that the variety of the seeds supplied was not notified in that area. To that effect, the
Mandal Agricultural Officer gave a report and promised to take action against the petitioner and
respondent no.2. Thus, complainant suffered crop loss of 20 quintals per acre and the present
market rate is Rs.2,500/-to Rs.3,000/- per quintal. Hence, complaint seeking a direction to the
opposite parties to pay Rs.2,25,000/- i.e. Rs.2,500/- x 90 quintals and other costs towards
manuring, labour and compensation was filed before the District Consumer Forum, at
Khammam, Andhra Pradesh(for short, ‘District Forum’).
3. Petitioner in its written statement has admitted about the purchase of the seeds on two
different dates by the complainant. However, the complainant has not stated the dates of sowing
the seeds. As per agriculturists practice, the transplantation is to be done after 21 to 25 days of
showing, if there was delay in transplanting, the crop loose its growing ability at nursery stage
only. It is further stated that during that year Andhra Pradesh State was badly affected due to
heavy rain fall and cyclone, due to which fungal diseases, pest incidence and virus infection
occurred not only to the complainants’ crops but also to other crops. The seeds were not
defective as all the seeds were germinated uniformly and satisfactory, which fact has been
accepted by the complainant. Petitioner is not responsible for the damages or loss sustained by
the complainant which he suffered due to unfavourable weather conditions. Further, the required
seed rate of chilli for sowing is 200 gms. per Hectare (i.e. 80 gms. for 1 acre) as per standards.
However, complainant in its complaint had stated that he had sowed 450 gms. seed in his 4.20
acres land. As per the standard rate, the complainant can sow maximum 360 gms. of seeds in
4.20 acres.
4. Further, it was obligatory and necessary on the part of the complainant and the Mandal
Agriculture Office to have called the representative of the petitioner at the time of carrying out
the inspection of the crops. The inspection was carried out in the absence of the petitioner. Even
otherwise, report was prepared merely on the observations of the standing crops and information
given by the complainant. However, as per the Seeds Act, seeds inspection can be done through
competent person to decide as to whether the seeds are defective or not after requisite laboratory
tests. In the present case, complainant had not informed the Seeds Inspector for verification of
the seeds in question. Under these circumstances, the complaint is liable to be set aside.
5. On the other hand, respondent no. 2 in its written statement has taken the plea that he is
simply a dealer and had been selling the seeds supplied by the petitioner which are in the sealed
packet. Moreover, chilly is a sensitive crop and it depends upon the land, season, pest and
watering etc. It is denied that complainant has raised chilli crops in a proper way and had taken
all the care in raising the crop.
6. The District Forum vide its order dated 19.01.2005, dismissed all the complaints.
7. Being aggrieved, the complainants filed appeals before the State Commission.
8. All the appeals were allowed and State Commission vide impugned order, granted respective
compensation to the complainants.
9. Now petitioner has filed these revision petitions.
10. We have heard the learned counsel for the parties and gone through the record. Complainant
in support of its case has filed written arguments also.
11. It has been contended by learned counsel for the petitioner, that report dated 24.12.1996 of
the Mandal Agricultural Officer and report dated 18.11.1998 of the Advocate-Commissioner, do
not state at all about any defects in the seeds. The State Commission had erroneously given the
findings on the defective seeds, relying upon above reports. There is no evidence on record to
show that the seeds supplied by the petitioner were defective. In support, learned counsel for
petitioner has relied upon the judgments;
(i)
Haryana Seeds Development Corpn. Ltd. v. Sadhu and Anr,
(2005) 3 Supreme Court Cases 198;
(ii)
Mahyco Seeds Company Ltd. v. Basappa Channapppa Moki and Ors.
[Civil Appeal No(s). 2428 of 2008, decided on 21.07.2010 by the
Apex Court];
(iii)
Maharashtra Hybrid Seeds Co. Ltd. & Ors. v. Ajay Singh and Anr.
[RP No. 252 of 2009 decided on 15.09.2009 by this Commission];
(iv)
Mahyco Seeds Ltd. v. Kallappa and Ors. [RP No. 88 of 2006 decided
04.05.2010 by this Commission];
(v)
M/s Mahyco Vegetable Seeds Ltd. v. G. Sreenivasa Reddy and Ors.
[RP No. 4280 of 2007 decided on 20.3.2012 by this Commission];
12. On
(vi)
M/s Mahyco Vegetable Seeds v. B. Yedukondalu & Ors.
[RP No. 2272 of 2010 decided on 27.4.2011 by this Commission]
and
(vii)
Maharashtra Hybrid Seeds Co. Ltd. v. Bajrang Lal Yadav and Anr.
[II (2009) CPJ 352 (NC)].
the
other
hand,
it
has
been
argued
by the
learned
counsel
for
the
Respondents/Complainants that, petitioner did not chose to file any application for sending the
seeds to the laboratory for analysis. Petitioner has tried to shift the burden upon the complainant.
Further, there are two inspection reports in this case. The first one is of the Mandal Agricultural
Officer and second one is of the Court Commissioner. From these reports, it is manifestly clear
that the seeds manufactured by the petitioner were defective. Under these circumstances, there is
no infirmity and illegality in the impugned order passed by the State Commission. In support,
learned counsel for the respondents has relied upon the following judgments;
1. National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another,
[(2012)2 Supreme Court Cases 506] ;
2. Mahyco Vs. Alavalapati Chandra Reddy and others
[ III(1998) CPJ8 (SC)]and
3. The Malaprabha Neerwari Balakedarara(Irrigation Consumer) Co-Op. Sangh Ltd. Vs.
The State of Karnataka and Ors.
[IV-1974(I) Consumer Protection Reporter, 747(NC)]
13. It is an admitted fact that complainant had purchased the chilli seeds from respondent no.1
being manufactured by the Petitioner. The short question which arise for consideration is as to
whether the seeds supplied by the Petitioner were defective or not.
14. The Hybrid Seeds were purchased by the complainant in the month of June and July,1996.
Thereafter, the sowing was done in his field. As per complainant’s case, in the month of
November/December,1996, the size of the crop was very small and growth was not proper and
not in usual shape. Hence, he approached the petitioner and demanded compensation for which
petitioner gave evasive reply. Thereafter, complainant complained to the Mandal Agricultural
Officer about supply of defective and inferior quality of seeds by the petitioner. The Mandal
Agricultural Officer inspected the field of the complainant and found that the variety of the seeds
supplied by the petitioner was not notified in that area.
15. During pendency of the complaint before the District Forum, it appointed an Advocate
Commissioner on the insistence of the complainant for assessing the loss and damage caused to
the complainant.
16. Accordingly, District Forum appointed Sh. M. Nagesh Babu, Advocate Commissioner, who
filed his report dated 18.11.1998 before the District Forum.
17. Now let us scrutinize the above two reports so as reach at the conclusion, whether the seeds
supplied by the petitioner were defective or not.
18. First report is dated 24.12.1996, which is of the Agriculture Officer and it states;
“Rc. No.: Agril./KVM/36/96-971 Dated: 24.12.1996
Sub:- CHILLI CROP- Hubrid Chilli Tejaswani-Purity pets and diseases-Regarding.
Ref:- Lr. No: Nil, dated 18.12.1996 of
R/o Pochavaram.
Garapati Srinivasa Rao s/o Bhaskar Rao,
----Through the above reference and subject cited, I have inspected the field of
Garapati Srinivasa Rao s/o Bhaskar Rao, R/o Pochavaram Kunavaram
Mandal, Khamma District on 24.12.1996. I am herewith mentioning the
following Particulars;
1.
Verified the Bill No.:085,dt.18.6.96. Qty. 0.350 Grams.
Bill No.085,dt.16.7.96, Qty. 0.100
2.
Verified the empty packet of Lot No.
1) K95-68-15 RNJ-83050
2) K95-68-15 RNJ-83051
3. Crop : Chilli
4.
Variety: Hybrid Chilli Tejaswini (Non
5. Class of Seed: Truthfully labeled(T/L)
6. Area in Acre: 4.20 acres
notified variety)
7. Date of transplanting : 8.9.96
8. Purity:
a) No. of plants per acre: 8500
b)
5 count taken for 4½ acres(each count 500 plants)
Sl. No. Count Plants
Other than
distinguished
Variety (ODV)
-------------------------------------------1.
500 Nos.
48 Nos.
2.
500 ”
45 ”
3.
500 ”
40 ”
4.
500 ”
46 ”
5.
500 ”
54 ”
------------------------------------------Total: 2500 ”
233”
----------------------------------------
9. Pets: Thrips and mites noticed plant protection measured recommended.
10. Diseases: Yellow leaves and Fruit rot noticed plant protection measures
recommended.
11. Size of the Fruit: Average 2 CM to 4 CM.
12. Yield per acre: Approximate yield 3 to 5
quintals.
13. Condition of the Crop: Poor.
The purity of the seed was not under the Indian Seed Act, 1966.
AGRICULTURAL OFFICER”
19. Now coming to the second report that of Advocate Commissioner dated 18.11.1998, which
states;
“In compliance of the directions of the Hon’ble Forum, I had fixed my
date of inspection of Warrant Schedule property on 8.2.1997 and had given
notices to learned counsel for the Complainant and I had sent notices to the
opposite parties under certificate of posting and I had also informed the
date of inspection to the AAO Kunavaram who is concerned Asstt.
Agriculture Officer.
On 8.2.1997 when I had inspected the Warrant Schedule property, the
learned counsel for the Complainant was present and opposite parties were
also present in person. I had inspected the Warrant Schedule property and
found that there was very low yielding of Chilly crops in the Warrant
Schedule property. There were very few Chilli crops which had good yield
and most of the lands were having very less yield and there is very low yield
in Warrant Schedule property. The Assistant Agriculture Office was not
present on my date of inspection. The learned counsel for Complainant had
given my work Memo enclosed with a certificate said to have been issued by
the AAO, Kunavaram, who had inspected the Warrant Schedule property on
the request of the Cultivator on 18.12.1996 and assessed damages caused to
the crop of the Complainant. As per the Certificate given to me by the
learned counsel for the Complainant, the damage caused to the crop
approximately 9 to 10 quintals per acre.
To ascertain the genenuity of the certificate given by the learned counsel for
the Complainant, I had addressed a letter to the AAO to certify whether
certificate given to me by the counsel for the Complainant was issued by
him after inspecting the Warrant Schedule property. The Asstt. Agriculture
Officer had sent me a letter through Registered post stating that the
certificate given to me by the learned counsel for the Complainant was
issued by him on his thorough, Inspection of Warrant Schedule Property on
18.12.1996 and ascertained that damage caused to the crop of the
Complainant in the Warrant Schedule Property was approximately 9 to 10
qtls. per acre. I am herewith enclosing the certificate of the Asstt.
Agriculture Officer dated 30.4.1997 received be me through registered post.
I had found very low yielding of crop in the Warrant Schedule Property and
there was lot of damage to the Chilli which was yielded.”
20. Relevant observations made by the Agriculture Officer in its report dated 24.12.1996 states;
9. Pets : Thrips and mites noticed plant protection measured recommended.
10. Diseases: Yellow leaves and Fruit rot noticed plant protection measures
recommended.
11. Size of the Fruit: Average 2 CM to 4 CM.
12. Yield per acre: Approximate yield 3 to 5
quintals.
13. Condition of the Crop: Poor.
The purity of the seed was not under the Indian Seed Act, 1966”.
21. As per Serial No.9 and 10 of the above report, Agriculture Officer has recommended
measures for plant protection only. Further, at Serial No. 12, yield per acre is mentioned as “3 to
5 quintals”, whereas as per Serial No.13, the condition of the crop has been mentioned as
“Poor”.
22. Now coming to the Advocate Commissioner’s report, the inspection was done on 8.2.1997,
whereas report was prepared only on 18.11.1998. Why there was long delay of more than one
year and six months in preparing the report. There is no explanation for this long delay. Be that as
it may the relevant portion of this report states;
“There were very few Chilli crops which had good yield and most of the lands
were having very less yield and there is very low yield in Warrant Schedule
property”.
23. It is apparent form the contents of the above inspection reports that these reports have been
given merely on the basis of visual inspections of the field. Moreover, none of the above reports
state that the seeds sown by the complainant were defective.
24. In National Seeds Corporation Ltd. (Supra) cited by learned counsel for the complainant,
the Apex Court observed;
“The reports of the agricultural experts produced before the District Forum
unmistakably revealed that the crops had failed because of defective
seeds”.
25. In M/s. Mahyco Vegetable Seeds Ltd. Vs. G. Sreenivasa Reddy and Ors, Revision Petitiion
No.4280 of 2007 decided on 20.3.2012,a Coordinate Bench of this Commission observed;
We have heard learned Counsel for both parties and have also gone
through the evidence on record. The report of the Commissioner appointed
by the District Forum to inspect the affected fields/brinjal crops had after
visiting the spot given a finding that there were variations in the Brijnal
plants which indicated that there was a mixture of the seeds and it is because
of this that flowers as well as the plants were of differing varieties. The
report nowhere states that the variation was because of defective
seeds. Counsel for Petitioner had submitted that under these circumstances,
the Fora below erred in concluding by citing report of the Court Commission
that the findings of the Commissioner amounted to supply of defective seeds
by Petitioner/its dealers. Counsel for Petitioner also cited a number of
judgments to state that the onus to prove that the seeds supply were defective
were in fact on the Respondent. We find force in these contentions of the
Counsel for Petitioner which is in consonance with our own rulings on this
issue. In R.P.3525/2007 in which Mayhco Seeds was also the Petitioner, this
Commission had concluded as follows:
“Initial burden to prove that the seeds were defective was on the
complainants. Except for producing the report of the Asstt. Director
Agriculture reproduced above, respondents did not lead any
evidence to prove that the seeds supplied to them were defective. A
perusal of the report would show that it nowhere states that the
seeds supplied were defective. Variation in condition of the crops is
not and cannot be attributed to the quality of the seeds but to some
other factors. Inferior quality of seeds is not a factor for failure of
the crops. The report of the Agriculture Officer does not mention
that the seeds supplied were of inferior quality. There is no
evidence whatsoever on record to show that there was any genetic
impurity in the seeds supplied by the petitioner.”
Hon’ble Supreme Court in Haryana Seeds Development Corpn.Ltd. Vs. Sadhu
& Anr.–(2005) 3 SCC 198 as well as in Mahyco Seeds Co.Ltd. Vs.Basappa
Channappa Mooki & Ors.(Civil Appeal No.2428/2008) has held that variation
in condition of crops need not necessarily be attributed to quality of seeds but
to other factors unless there is specific mention in the concerned report about
the inferior quality of seeds. The Apex Court has held that the onus to prove
that there was a defect in the seeds was on the Complainant. In the instant case,
in view of the fact that the report of the Court Commissioner does not state that
the variation in the seeds was because of any genetic defect and the Respondent
on whom the onus to prove otherwise, has produced no evidence that the
Petitioner’s seeds had any genetic defect, therefore, cannot uphold the orders
of the Fora below and the same are set aside. The revision petitions are
allowed and the complaints dismissed with no order as to costs.
26. In the present case, none of the above inspection reports state even a single word that “the
seeds sold by the petitioner to the complainant were defective”. Nor there is any cogent evidence
to prove the allegations of the complainant that the seeds were defective.
27. It is well settled that crop can be affected due to various reasons viz. poor quality of seeds,
fertilizers, inadequate rainfall or irrigation, and also due to poor quality or inadequate or overdose
of pesticides/ insecticides. In the present cases, the respondents-farmers have miserably failed to
prove that due to the defective seeds their crops have failed.
28. We are of the opinion that the complainant has failed to establish that there was any defect in
the quality of the seeds or the seeds were of sub-standard quality. The crops were affected by
thrips and other diseases. However, in order to contain the same, the complainant did not take
any remedial measures as recommended by the Agriculture Officer.
29. Under these circumstances, the impugned order passed by the State Commission cannot be
sustained. Accordingly, we set aside the impugned order passed by the State Commission and
allow the above revision petitions. Consequently, all the complaints filed by the
respondents/complainants stand dismissed.
30. Parties shall bear their own cost.
........…………………J
(V.B.GUPTA)
PRESIDING MEMBER
........…………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3657 OF 2008
(From the order dated 05.08.2008 in First Appeal
State Consumer Disputes Redressal Commission, Delhi)
No.
FA-08/585
of
the
1. M/s. M.K.S. Compaq Systems Pvt. Ltd. Through its Directors, G-80, 208-209, Gupta
Complex, Main Market, Laxmi Nagar Delhi – 110092
2. Mr. Mukesh Kumar Singhal, Director M/s. M.K.S. Compaq Systems Pvt. Ltd. G-80, 208-209,
Gupta Complex, Main Market, Laxmi Nagar Delhi – 110092
3. Mr. Banke Bihari Singhal, Director M/s. M.K.S. Compaq Systems Pvt. Ltd. G-80, 208-209,
Gupta Complex, Main Market, Laxmi Nagar Delhi – 110092
4. Mr. Ashok Singhal, Director M/s. M.K.S. Compaq Systems Pvt. Ltd. G-80, 208-209, Gupta
Complex, Main Market, Laxmi Nagar Delhi – 110092
…Petitioners/Opp. Parties (OP)
Versus
Shri Surendra Nagpal S/o Late Sh. G.D. Nagpal R/o A-195, Derawal Nagar, Delhi – 110009
… 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 :
Mr. Vinay Gupta & Ms. P. Ramyakrishna, Advocates
NEMO
PRONOUNCED ON 12th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners against the order dated 5.8.2008
passed by Learned State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State
Commission’) in Appeal No. FA-08/585 – M/s. M.K.S. Compaq Systems Pvt. Ltd.
& Ors. Vs. Surendra Nagpal by
which,
while
dismissing
appeal,
order
of
District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/respondent an Advocate purchased computer
from OP/petitioner No. 1 and paid Rs.22,000/- for which, no bill was given. It was
further alleged that Pentium-IV computer
system was
ordered,
but
OP
delivered
him Celron computer and requested that within a few days this computer will be replaced by
Pentium-IV computer system, as ordered. Computer started giving problems from the inception.
Complainant requested OP to change the computer, but was not changed. Alleging deficiency on
the part of OP, complainant filed complaint before District forum. OP resisted complaint and
submitted that neither amount was paid to it, nor computer was supplied by it to the complainant
and prayed for dismissal of complaint. Learned District Forum vide order dated 18.7.2005
dismissed complaint. On appeal, learned State Commission vide order dated 22.3.2006 allowed
appeal and matter was remanded back to learned District Forum to decide it afresh
on merits. Learned District Forum vide order dated 5.4.2008 allowed complaint and directed OP
to refund Rs.22,000/- on returning back Celron computer but the appeal filed by the OP was
dismissed by learned Sate Commission vide impugned order against which, this revision petition
has been filed.
3.
Heard learned Counsel for the petitioner and perused record.
4.
Respondent appeared in person on 18.12.2013 and prayed for adjournment. On 6.2.2014
none appeared for the respondent; so, arguments were heard on behalf of the Counsel for the
petitioner.
5.
Learned Counsel for the petitioner submitted that learned State Commission decided appeal
without hearing petitioner herein and further submitted that material facts have not been
considered by learned State Commission; hence, revision petition be allowed and impugned
order be set aside.
6.
Record reveals that petitioner filed application on 20.8.2008 before learned State
Commission for restoration of appeal as inadvertently wrong date was noted by the Counsel for
the appellant as 18.8.2008 instead of 5.8.2008; so, Counsel for the appellant could not appear
before learned State Commission. Learned State Commission rightly dismissed application vide
order dated 2.9.2009 as learned State Commission had no power to review the order.
7.
It becomes clear that learned State Commission passed impugned order without hearing
petitioner on account of noting down wrong date of hearing. Impugned order reveals that State
Commission has not given any reason for dismissing appeal and has not dealt with the grounds
of attack mentioned in memo of appeal. Perusal of record reveals that on behalf of Shri Suresh
Sharma,
Advocate,
notice
was
given
on
16.6.2004
by
‘Law
Ambit’
firm
and
Mr. Surendra Nagpal was one of the Advocates in this firm. Reliance has been placed on the
affidavit of Shri Suresh Sharma filed in October, 2007. Later on, Mr. Rajesh Mishra, Advocate
served notice dated 28.10.2004 on petitioner on behalf of the complainant. Affidavits of
Mr. Amit Grover and Mr. Suresh Kumar Sharma filed in support of complaint also do not
disclose any date of cash payment. Admittedly, no bill of purchase has been filed as not issued
as per the complaint. On the other hand, petitioner has denied receipt of payment and delivery of
computer. In such circumstances, it would be appropriate to remand the matter back to the
learned State Commission for disposal of appeal after hearing petitioner.
7.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
5.8.2008 passed by learned State Commission in Appeal No. FA-08/585 – M/s. M.K.S. Compaq
System Pvt. Ltd. Vs. Surender Nagpal is set aside subject to payment of Rs.5,000/- as cost to
respondent and matter is remanded back to learned State Commission to decide it afresh after
giving an opportunity of being heard to both the parties.
8.
Petitioner is directed to appear before Learned State Commission, Delhi on 24.3.2014.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 679 OF 2013
(From the order dated 23.08.2013 in Complaint No. 65 of 2013 of the Haryana
State Consumer Disputes Redressal Commission, Panchkula)
M/s. Regain Laboratories HTM Road, Raipur Road, Hisar Through its Partner/GPA holder
Sh. Inder Sain Bhatia
…Appellant/Complainant
Versus
New India Assurance Co. Ltd. Red square Market, Hisar through its Divisional Manager
… Respondent/Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Appellant
For the Respondent
:
:
Mr. Vaibhav Tomar Advocate
Mr. J.P.N. Shahi, Advocate
PRONOUNCED ON 12th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 23.8.2013 passed by
learned State Commission, Haryana in C.C. No. 65/2013 – M/s. Regain Laboratories Vs.
New India Assurance Co. Ltd. by which, complaint was dismissed in limine as time barred.
2.
Brief facts of the cases are that the complainant firm got its machinery and stock
including raw material and packing material insured from the opposite party (insurance
company) vide two policies i.e. bearing No. 353400/11/09/00000005 valid from 24.4.2009 to
23.4.2009 for Rs.60,00,000/- covering stock of all kind of medicines, Raw material,packing
materials and another policy bearing No. 353400/11/09/11/00000067 valid from 20.9.2009 to
19.9.2010 for Rs.20,00,000/-. Unfortunately, during the subsistence of the insurance policy on
13.4.2010 a fire incident took place at the insured premises of the complainant due to which the
complainant suffered a loss of Rs.70,00,000/-. The matter was reported to the police. Necessary
intimation was given to the insurance company who appointed surveyor to assess the
loss/damage in the above said incident of fire. The complainant submitted all the documents and
completed all the formalities with respect to settlement of his claim but the opposite parties paid
only Rs.3,30,200/- and Rs.3,13,300/- to the complainant vide two cheques dated 17.4.2011. The
complainant made several requests to the opposite party to pay the balance amount but the
opposite party refused to pay the balance amount to the complainant. It was further alleged that
complainant approached the Permanent Lok Adalat and Complaint No.23 of 2012 was filed, but
that was dismissed by Permanent Lok Adalat as withdrawn with permission to file a fresh case
by order dated 7.3.2013. Alleging deficiency on the part of OP, respondent/complainant filed
complaint before State Commission. Along with complaint, complainant also filed application
u/s 5 read with Section 14 of the Limitation Act for condonation of 448 days delay. Learned
State Commission by impugned order dismissed complaint as barred by limitation against which,
this appeal has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the Appellant submitted that inspite of satisfactory explanation
for condonation of delay, learned State Commission has committed error in dismissing complaint
in limine being barred by limitation; hence, appeal be allowed and complaint may be treated in
limitation 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, appeal be dismissed.
5.
Complainant along with complaint filed application under section 5 read with Section 14 of
the Limitation Act for condonation of 448 days delay in filing the complaint. Learned State
Commission observed that there was no explanation for condonation of delay of 165 days from
7.3.2013 to 19.8.2013 when complaint was filed before the State Commission and dismissed
complaint as barred by limitation. Learned Counsel for the appellant submitted that on account
of wrong legal advice, complainant approached Permanent Lok Adalat and later on after
receiving proper legal advice, complaint was withdrawn and complaint was filed before State
Commission. In such circumstances, delay should have been condoned by learned State
Commission. In support of the contention, he has placed reliance on 1969 (2) SCC 770 –
Lala Mata Din Vs. A. Narayanan in which it was held that mistake of Counsel may in certain
circumstances be taken into account in condoning delay although there is a no general
proposition that mistake of Counsel by itself is always a sufficient ground. He has also placed
reliance on (1979) 4 SCC 365 – M/s. Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi
& Ors. in which delay of 30 days in filing appeal was condoned as delay occurred due to bona
fide mistake of legal adviser to public corporation in calculating the limitation period. It was
observed in the aforesaid case that in case of patent and gross delays or incomprehensible
indifference, extension under Section 5 of Limitation Act is not available.
6.
We agree with the law laid down by Hon’ble Apex Court in aforesaid judgments, but
aforesaid judgments are not applicable to the facts and circumstances of the present
case. Admittedly, complaint filed before Permanent Lok Adalat was withdrawn on 7.3.2013 and
immediately after that complaint should have been filed before the State Commission, but it was
filed on 19.8.2013 and there is no reasonable explanation at all for condonation of inordinate
delay of 165 days. In paragraph 6 of the application under Section 5 of the Limitation Act,
complainant has not given any explanation from 7.3.2013 to May, 2013 when the matter was
entrusted to the Counsel for filing complaint. As per paragraph 6 of the application, matter was
entrusted to the Counsel in May, 2013 and he assured to file complaint within the limitation but
in July, 2013 complainant found that engaged Counsel was busy in preparation of Higher
Judicial Services Exam and later on matter was entrusted to some other Counsel. Complainant
has not filed affidavit of the concerned Counsel to whom the matter was entrusted firstly. Not
only this, when the matter was entrusted to another Counsel in July, 2013 there was no reason for
filing complaint on 19.8.2013. Rather, complaint should have been filed immediately after
withdrawal of the complaint from Permanent Lok Adalat.
7.
Learned State Commission has rightly observed as under:
“Having taken into consideration the grounds stated in the application
for condonation of delay, we feel that the complainant has failed to
establish ‘sufficient cause’ to condone the delay. Even if we ignore the
period during which the petition remain pending before the Public Utility
Services, Hisar there is delay of 207 days in filing of the complaint. So far
as delay of pendency of case before the Public Utility Services, Hisar for
the period from 23.5.2012 to 7.3.2013 such period is not to be counted in
view of Section 14 (2) of the Limitation Act. The petition was withdrawn by
the complainant on 7.3.2013 and the present complaint was filed before
this Commission on 19.8.2013 i.e. after period a period of 165 days. The
delay of 165 days has not been sufficiently proved by setting up a plea of
sufficient cause for non-filing of the complaint on the following date of
withdrawal
of
the
petition
from
the
Public
Utility
Services, HIsar. Moreover, a valuable right has accrued to the opposite
party on account of non-filing of the complaint within the prescribed
period of limitation. By condoning this delay which is not sufficiently
explained we cannot put the opposite party to a disadvantage position. The
court has to keep the balance of justice intact while deciding such type of
application. The reasons stated in the application for condonation of delay
are general in nature and based on flimsy grounds and are not sufficient
to allow the application for condonation of delay. We are therefore, left
with no other alternative but to dismiss the application of condonation of
delay as complainant has failed to prove sufficient cause. Hence, the
application for condonation of delay is rejected.”
8.
We do not find any illegality, irregularity in the impugned order and appeal is liable to be
dismissed at admission stage.
9.
Consequently, appeal filed by the appellant 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. 3854 of 2012
(From the order dated 02.07.2012 of the Haryana State Consumer Disputes Redressal
Commission, Panchkula in First Appeal no. 325 of 2011)
Punjab National Bank Branch Mundlana Through its Branch
Grover
Manager Mr Shyam Sunder
Petitioner
Versus
Shri Ramesh Chander
Son
of Shri Dei Ram
Tehsil Gohana District Sonepat Haryana
Resident
of
Village Mundlana
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Ms Sangeeta Sondhi, Advocate
For the Respondent
Mr Dinesh Singh Mehra, Advocate
Pronounced on 12th February 2014
ORDER
REKHA GUPTA
Revision petition has been filed against the judgment and order dated 02.07.2012 passed by
the
Haryana
State
Consumer
Disputes Redressal Commission, Panchkula (‘the
State
Commission’) in First Appeal no. 325 of 2011.
The facts of the case as per the respondent/ complainant are as follows:
The respondent had an experience of the Business of Masala Chakki and had also
got training under Prime Ministers Employment Generation Programme. All the documents
regarding his experience were submitted by the respondent/ complainant in the office of
petitioner/ opposite party no. 2 and he had applied for a loan to start his business. After fulfilling
all the conditions fixed under the scheme, he was sanctioned a loan of Rs.6,28,000/- on
13.03.2009, out of which a sum of Rs.1,83,000/- was given to the respondent by petitioner –
Bank. With this amount, the respondent started his business to set up Masala Chakki. He also
spent money by way of taking loan from his relations and neighbours on interest, when the
petitioner – Bank – department delayed in issuing the total amount of the loan sanctioned in his
favour. Even after his making several visits in the office of petitioner no. 1 and even after
sanction of the loan by opposite party no. 2 still, the petitioner did not release the amount of loan
to the respondent without any basis. In this way, the respondent business was set up by him was
on the edge of end, due to non-release of the sanctioned loan amount the petitioner caused a
great loss/ damage to the respondent and amount of damage occurred due to non-releasing of
sanctioned loan amount by the petitioner is near about Rs.4,45,008/-.
On 08.03.2010, the respondent issued a legal notice upon the petitioner through their
counsel Smt Mahee Malik, Advocate, District Court, Sonepat which was received by the
petitioner, the respondent demanded the above said loan amount as per the above said scheme,
but the petitioner did not file the reply of the same and did not pay heed upon the notice of the
respondent.
The respondent/ complainant has humbly prayed that in view of the above-mentioned facts
and circumstances, the Court may kindly be pleased to summon and direct the petitioners:
(i)
To pay Rs.1,00,000/- on account of mental shock, agony, harassment,
humiliation and other financial losses in business suffered by the respondent/
complainant.
(ii)
To pay the amount of Rs.4,45,008/- as loan sanctioned by petitioner no.2 which
is to be released by petitioner – Bank.
(iii)
To pay Rs.50,000/- for deficiency in services on the part of petitioner not to
release the amount of loan mentioned above to the respondent being consumer of
the petitioner.
(iv)
To pay Rs.11,000/- the costs of present complaint along with counsel fee, along
with Rs.1,200/- for dispatching legal notice to the respondent in the interest of
justice.
The petitioner/ opposite party no. 1 in their written reply before the District Consumer
Disputes Redressal Forum, Sonepat (‘the District Forum’) stated that there has been a breach of
terms and conditions of the agreement made on behalf of the respondent and petitioner on
21.07.2009. The facts of the case as per the petitioner are as follows:
The respondent was sanctioned a cash credit hypothecation limit of Rs.5,02,000/- for
meeting out his requirements subject to the terms and conditions as stated in Annexure R 1. The
entire term loan of Rs.1,26,000/- was availed of by the respondent but in this account also the
respondent defaulted in the payment of instalments. Since the respondent made a breach of the
terms and conditions of the agreement of loaning on the basis of which the credit facilities were
granted, and as such the respondent bank is within the right to refuse further credit facilities and
the respondent bank which is a nationalised bank is to see that the amount of loan sanctioned to
the borrower is utilized as per terms and conditions of the agreement and the borrowers are
required to abide by those terms and conditions. It has already been stated in the preliminary
submissions of the written reply that the borrower has miserably failed to submit the stock
statements and to route the sale through his account with the bank and as such he is himself
responsible for violating the terms and conditions and has no right to take advantage of his own
wrongs. Whatever amount that has been deposited by the respondent has been duly reflected in
the statement of accounts which are Annexure 5 & 6.
District Forum vide their order dated 03.02.2011 observed that:
“After hearing both the learned counsel for the parties at length and after going through
the entire relevant records placed on the case file very carefully, this Forum has come to
the conclusion that the petitioner – Bank has tried to make the things justified. But has
failed to convince the Forum and at the same time, this Forum finds force in the
arguments advanced by the learned counsel for the respondent as discussed above and
has come to the conclusion that the petitioner has indulged himself in deficient service by
withholding the amount of Rs.4,45,008/- as loan which was sanctioned by the respondent
no. 2 and was to be paid by respondent no. 1 to the complainant”.
“Accordingly, finding deficiency in service on the part of the petitioner – Bank it is
directed the petitioner to release the amount of Rs.4,45,008/- as loan to the respondent
on the terms and conditions on the basis of which a sum of Rs.2,83,000/- was given to the
respondent/ complainant. The petitioner is also directed to compensate the respondent to
the tune of Rs.2,000/- for rendering deficient services for causing mental agony and
harassment and under the head of litigation expenses. However, petitioner can ask the
respondent for complete formalities, if any to safe guard the repayment/ return of their
amount of Rs.4,45,008/- with interest from the respondent. It is also directed to the
respondent to complete the formalities, if any asked by the petitioner in respect of release
of Rs.4,45,008/- in favour of the respondent ensuring its repayment with interest in favour
of petitioner by the respondent.
With these observations, findings and directions, the present complaint is allowed and the
petitioner – Bank is directed to make the compliance of this order within one month from
the date of pronouncement of this order”.
Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State
Commission.
The State Commission vide their order dated 02.07.2012 dismissed the appeal holding that:
“the controversy between the parties is with respect to the release of balance loan
amount of Rs.4,45,008/-. The plea raised by the appellant/ opposite party that the
complainant had not submitted the stock statement due to which the balance loan amount
was not released to him, is not sustainable in the eyes of law because the complainant
had yet to receive the amount for stock and for raw material and therefore, the question
of submitting stock statement does not arise at all. The appellant/ opposite party has
indulged itself in deficient services by withholding the amount of Rs.4,45,008/-. No
prejudice is going to be caused to the opposite parties from the order of the District
Forum”.
Hence, the present revision petition.
The main grounds for the revision petition are as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
The courts below have failed to take notice of the fact that there are various types of
loan/ facilities that are offered by the bank and depending on the requirement of the
borrower suitable loan/ facility is chosen by them and consequently the same is
granted by the bank on fulfilment of formalities. Term loan is taken for purchase of
term asset etc., where time is required for repayment of loan amount. However, in
cash credit facility an amount of loan is given to the borrower for his working capital
needs. The entire amount of working capital required is not funded by the bank, some
small amount is always funded by the borrower and the balance amount is funded by
a bank as loan. This is as per RBI rules. The amount so worked out is given as loan
and is called as “limit” this is because under this kind of loan the borrower may not
take up the entire amount of loan as working capital requirement every day is not the
same. The bank released loan only after ensuring using of the amount for the purpose
it was allowed. The inventory built up by bank loan is security of bank.
The courts below have failed to take note that the petitioner bank sanctioned term
loan of Rs.1,26,000/- and cash credit limit of Rs.5,02,000/- to the respondent under
the said scheme and that the respondent was required to set up his business from the
term loan sanctioned and released and use the amount sanctioned in cash credit
facility to facilitate day to day capital requirement.
The court below have failed to take note that full amount of limit as sanctioned under
cash credit facility is not released by the bank at one go and that the amount is
released in terms of the agreement entered into by the parties. The borrower has to
account for the use of loan released by submitting agreed reports/ statements. The
inventory built up by loan of bank is security of bank for repayment of loan, which
was not done by the respondent in the present case.
For that courts below have failed to take note that almost full amount of loan was
released by the petitioner bank under the terms loan facility and there was no
deficiency by the petitioner.
The court below failed to take note that the complainant has not complied with the
terms of sanctioned letter. In fact, not even a single stock statement was submitted by
the respondent.
The courts below failed to take note that the respondent failed to comply with the
terms and agreement and particularly that laid down in clause 8 of the agreement.
That the respondent never submitted reports as laid down in the said clause.
The courts below failed to take note that clause 8 of the agreement entered into
petitioner and respondent empowered the petitioner to terminate the agreement in
case respondent fails to submit monthly inventories showing use of funds released by
bank. The amount was not released by the petitioner bank as none of the conditions
as envisaged in the said clause were complied by the respondent.
The court below failed to take note that the petitioner is an independent autonomous
statutory body having its own constitution and rules to abide by and functions and
obligations to discharge. That in discharge of its function, it is free to act according
to its own rules. That the views it forms and the decision it takes are based on
information, documents, advices, calculation, situation etc. The decision of the
stopping further release of loan was based on prudent decision taken by a banker
after considering all relevant facts.
The courts below failed to appreciate that bank is the custodian of the public money
and it cannot give indulgence to people like borrower who defy the rules and
regulations of public institutions.
In light of above submissions and in the facts and circumstances of the case, the
petitioner prayed to:
Set aside /quash the impugned order dated 02.07.2012 passed by the State Commission in
Appeal no. 325 of 2011 and the order dated 03.02.2011 passed by the District
Forum,Sonepat and consequently dismiss the complaint against the petitioner.
We have heard the learned counsel for the parties and have also gone through the records
of the case carefully.
It is quite apparent from the sanction letter of the petitioner dated 13.03.2009 that the
respondent had been sanctioned term loan of Rs.1,26,000/- of which margin was 10% and the
working capital was Rs.5,02,000/- and for which margin was 25% . The terms and conditions as
per the sanctioned letter were follows:
Term loan of Rs.1,26,000/- will be disbursed and the amount of margin of Rs.14,000/will be paid to you.
CC working limit will be disbursed against the margin @25%.
The time limit will be repayable in 20 quarterly instalments of Rs.6,300/- after a
moratorium period of 4 months, i.e., with effect from June 2009.
The rate of interest will be charged as per RBI instructions and changes from time to
time.
For CC working limit, you have to submit stock report every month before 10th of
every month.
The CC working limit will be renewed every year and you have to submit necessary
documents for renewal.
You have to deposit sale proceeds in your CC working capital account.
In addition, Annexure I was an undertaking from the borrower where clauses 23, 25 & 26
reads as follows:
23. I/We further undertake to route/ credit all our transactions/ sales through account
only with your Bank.
25. We shall submit the monthly/ quarterly/ half yearly stock statements regularly in
time, as per stock register maintained, eligible for D P (Drawing Power) against the fully
paid stocks duly insured for all risks.
26. We further, undertake that we shall submit the yearly financial statements, i.e.,
Balance Sheet, Trading Account, Profit & Loss account, sales/ purchases every year to
facilitate the renewal of our limit in time under your Bank rules.
To avail of cash credit, the respondent has also signed hypothecation document which as
per clause 8, read as under:
“The borrowers shall submit daily stock report to the Bank verified by them as correct. The
Bank acts on the daily stock reports in determining the amount to be advanced or left
outstanding against the borrowers should the daily stock reports as aforesaid contain any misstatement (of which the Bank shall be the sole judge) or there be any shortage of the security the
Borrowers shall render themselves liable to legal action and the Bank shall be entitled to
terminate this agreement and take possession of the security and sell the same without any notice
to the Borrowers and realise its dues and recover the balance of its claim from them”.
It is the case of the petitioner that after taking loan, the respondent failed to submit even a
single statement for availing of the cash credit for the working capital. The District Forum had
hence erred in coming to the conclusions that the petitioner had indulged in deficiency of service
by with-holding the amount of Rs.4,45,008/- as loan which had been sanctioned by OP2 and had
to be paid by the petitioner/ OP 1.
The State Commission also erred by holding that the respondent had not submitted “the
stock statement due to which the balance loan amount was not released to him, is not sustainable
in the eyes of law because the respondent had yet to receive the amount for stock and for raw
material and therefore, the question of submitting stock statement does not arise at all”.
As per the sanction letter and as per the claim the respondent had to invest margin money
amounting to Rs.1,52,000/- towards the actual cost of the project of Rs.7,80,000/- and thereafter
he was eligible for availing the term loan and working capital – cash credit to the extent
Rs.6,28,000/-.
The District Forum and the State Commission appear to have failed to understand the basic
difference between a term loan and cash credit facility. Whereas the term loan is for a specific
amount with specific repayment schedule with pre-determined interest rate and is most often
used by a small business to purchase fixed assets such as equipments used in production process.
On the other hand, cash credit makes provisions for the lender (which is mainly, Banks,
Financial Institutions) for loan (also called as advance finance credit etc.) by depositing the
sanctioned amount which in this case Rs.5,02,000/- into a new account from which the borrower
in this case, the respondent can withdraw as per requirement within the permissible amount fixed
by the lender for a specific time period. Cash credit facilities fulfil the requirement of working
capital which is needed to run daily operation in a business concern and it is similar to a loan for
the borrower. Cash credit makes a provision by transferring the sanctioned amount into cash
credit account from the borrower can withdraw as per the requirements. In cash the credit system
interest is charged on the amounts actually withdrawn on daily basis. Further, the borrower
cannot withdraw the total sanctioned loan at a time. Banks or cash credit provides for holding
Stocks or book debt (as security) against advance sanctioned. The security or a guarantee
remains accessible by the Bank until cash credit is repaid in full. Depending on the security held,
the cash credit facility is of two types, i.e., Pledge and Hypothecation. In this case cash credit
hypothecation system was used. Further, while extending the cash credit facility, the bank does
not fund total requirement of working capital. Some portion of the working capital has to be
invested by the business entity itself as per the agreed upon percentage of margin money only the
balance is supplied by the Bank as Cash Credit.
Counsel for the petitioner has relied upon the judgment of Managing Director,
Maharashtra State Finance Corporation and Ors. vs Sanjay Shankarasa Mamarde – (2010) 7
SCC 489, wherein it was held as under:
“22.
As already stated, even the cheque in the sum of Rs.30,000/- issued by the
complainant to the corporation on 02.09.1992 towards upfront fee was returned unpaid by his
bankers. In the corporation’s letter dated 24.02.1994 it was alleged that the complainant had not
only failed to pay interest, it was also found on inspection on a couple of occasions by the
Regional Manager that during the last four months there was no further progress in
implementation of the project. It is significant that these allegations and details of interest due
from the complainant had not been seriously disputed by the complainant either before the
Commission or in the counter-affidavit filed by him in this appeal.
23.
In the background of the factual scenario as emerging from the material on
record, we are convinced that there was no shortcoming or inadequacy in the service on the part
of the Corporation in performing its duty or discharging its obligations under the loan
agreement. The corporation was constrained not to release the balance instalments and recall
the loan on account of stated defaults on the part of the complainant himself. Non-release of loan
amount was not because of any deficiency on the part of the corporation but due to the
complainant’s conduct and therefore, the failure of the corporation to render ‘service’ could not
be held to give rise to claim for recovery of any amount under the Act.
26.
Having considered the matter in the light of the correspondence exchanged
between the corporation and the complainant, we have no hesitation in holding that there has
not been any deficiency in the service the Corporation was required to provide to the
complainant. In our opinion, the Commission was not correct in coming to
the aforestatedconclusion. We are of the view that the complainant being himself a defaulter
right from the inception of his dealing with the Corporation, when his cheque in the sum of
Rs.30,000/- got dishonoured, coupled with persistent defaults in discharging his liability to the
corporation towards interest, despite repeated demands, he cannot be permitted to plead at a
later stage that he suffered on account of deficiency in service by the corporation because of
non-disbursement of balance instalments of loan by them”.
The facts of the case are applicable to the case on hand. The repondent has failed to show
that he has given the Bank even a single stock statement to support his claim for cash credit
towards working capital.
In view of the above, the revision petition is allowed and the orders of the State
Commission as well as the District Forum are set aside and the complaint is dismissed. No order
as to cost.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3631 OF 2012
(From the order dated 22.05.2012 in First Appeal No. 825/2008 of Punjab State
Consumer Disputes Redressal Commission)
Dr. Chander Rekha r/o Opposite Sandhu Sweet Shop, Barnala, Tehsil and District Barnala,
through her attorney Dr. Tarsem.
... Petitioner
Versus
1. Improvement Trust, Barnala through its Executive Officer, at Shahid Sewa Singh
Thikriwala Nagar, (22 Acre), Barnala – 148101
2.
Improvement Trust, Barnala through its Chairman/Administrator at Shahid Sewa Singh
Thikriwala Nagar, (22 Acre), Barnala – 148101.
… 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
Mr. Vineet Bhagat, Advocate
With petitioner in person
For the Respondents
Mr. Neeraj Sharma, Advocate
PRONOUNCED ON : 12th FEBRUARY 2014
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 22.05.2012, passed by the Punjab State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 825/2008, “Dr.
Chander Rekha versus Improvement Trust, Barnala & Anr.” and FA No. 841/2008, “Barnala
Improvement Trust versus Dr. Chander Rekha,” vide which appeal no. 841/2008 filed by the
Barnala Improvement Trust was accepted and FA No. 825/2008 filed by Dr. Chander Rekha was
dismissed. These two appeals have been filed against the order dated 2.07.2008 passed by the
District Consumer Disputes Redressal Forum, Sangrur, vide which the consumer complaint no.
746 filed on 22.11.2007 by the petitioner / complainant Dr. Chander Rekha had been partially
allowed.
2.
The facts of the case on record indicate that there have been two rounds
of litigation between the same parties. In the first round of litigation, the consumer complaint
no. 79/2002 was filed by Dr. Chander Rekha against the respondent/OP Improvement Trust on
20.11.2002, which was decided by the State Commission on 29.08.2005. Two appeals were filed
against this order before the National Commission which were decided vide order dated
17.03.2010 by this Commission, and the OP Improvement Trust was directed to make a payment
of ` 5,25,000/- to the complainant and also ` 25,000/- as cost of litigation. The present complaint
is second complaint no. 746 filed on 22.11.2007 before the District Forum which was decided on
2.07.2008. The impugned order has been passed by the State Commission in the second
complaint.
3.
The brief facts of the case giving rise to the consumer complaints are that the complainant
/ petitioner Dr. Chander Rekha is a Doctor by Profession and stated to be practising at Barnala,
Punjab. The OP, Improvement Trust Barnala brought out a scheme for allotment of sites
for nursing homes in their “22 Acre Scheme” on 07.05.1998. The complainant was allotted a
site measuring 686 sq. yards vide allotment letter dated 25.06.1998 in the generalcategory for a
sum of `14 lakh. As per the allotment letter, 25% of the total amount in question was
already deposited and the remaining amount was to be deposited in five equal half-yearly
instalments alongwith interest. An agreement between the parties was also executed on
28.07.2000. It has been stated that as per clause 8 of the allotment letter dated 25.06.1998,
the building was to be constructed and completed within 3 years from the date of issue of the
allotment letter, after getting demarcation of the plot on site, and after getting the building plan
approved from the OP. It was alleged by the complainant in her first complaint no. 79/2002 that
although the whole amount was deposited with the OP, the demarcation and possession of the
plot had not been given and hence, she was entitled to compensation from the OP for the same
and also the possession of the plot. The State Commission vide their order passed on 29.08.2005
allowed the complaint and directed the OP to pay a sum of `4 lakh as compensation on account
of loss of interest on her money, which was kept by the OP from 24.12.2000 to 04.09.2003, the
date on which the physical possession of the site was handed over to the complainant and on
account of loss in business, mental harassment, etc. Against this order dated 29.08.2005 passed
by the State Commission, two appeals were filed before the National Commission – one by the
complainant Dr. Chander Rekha and the other by the OP / Barnala Improvement Trust. The OP
took the stand that since the plot had been allotted for a commercial purpose, i.e., for a
construction of the nursing home, the complainant was not a consumer under section 2(1)(d) of
the Consumer Protection Act, 1986 and that the Trust had not done any deficiency in service to
the complainant. The National Commission vide their order dated 17.03.2010 dismissed the
appeal filed by the OP / Improvement Trust, Barnala, but partly allowed the appeal filed by the
complainant Dr. Chander Rekha and modified the order of the State Commission, stating that the
compensation
payable
by
the
OP
to
the
complainant
shall
be
` 5.25 lakh instead of ` 4,00,000/- allowed by the State Commission and in addition, a cost of `
25,000/- shall be paid to the complainant as litigation cost. From the material on record, it
appears that the said order dated 17.03.2010 of the National Commission has attained finality.
4.
The second consumer complaint, which is the subject matter of present petition, has been
filed by Dr. Chander Rekha before the District Forum, Sangrur vide complaint no. 746 dated
22.11.2007. It has been alleged in this complaint that the OP / Improvement Trust published a
notice dated 31.08.2007 in the newspapers that the construction on the site in question should be
completed till 31.12.2007, otherwise the said plot shall be resumed. This notice had been issued
although the basic amenities like sewerage, parking place, water supply, street light etc. had not
been provided. The complainant demanded that interest @18% p.a. should be paid on the
deposited amount with effect from 04.09.2003, the date of the delivery of the possession till the
basic amenities are provided. The complainant has also stated that the notice published in the
newspaper should be withdrawn and compensation of ` 10,000/- for the loss suffered by the
complainant due to non-provision of basic amenities should be provided. In addition, a sum of `
5 lakh as compensation for escalation in construction cost and ` 1 lakh as compensation for
mental harassment / agony etc. should be given. In reply to the complaint, the OP stated that
they had already provided basic amenities like water supply and sewerage in the year 1994 and
the roads in 1997. However, the complainant had failed to get the building plan sanctioned and
also failed to raise the construction. The OP took the plea that on the adjacent site, a nursing
home had already been constructed. The complaint had been filed just to avoid the payment of
non-construction fees. The District Forum vide their order dated 2.07.2008 directed the OP to
provide the basic amenities in the area and not to resume the site till the complainant fails to
construct the plot within 3 years after the basic amenities are provided. It was also directed that
compensation of `15,000/- for mental harassment and cost should also be given. This order of
the District Forum was challenged before the State Commission by the petitioner/complainant
vide FA No. 825/2008 and by the OP Improvement Trust FA No. 841/2008. As per the
impugned order dated 22.05.2012, the appeal filed by the petitioner/complainant Dr. Chander
Rekha was dismissed, while the appeal filed by the respondent/OP Improvement Trust was
allowed. It was held that the contention of the complainant that the basic amenities had not been
provided was not correct. It was also held by the State Commission that the
petitioner/complainant does not fall under the definition of ‘consumer’, as she had purchased the
said plot in auction and the facts of the case were similar to those in the case of “U.T.
Chandigarh Administration and anr. versus Amarjeet Singh & Ors.” decided by the Supreme
Court of India, as reported in [(2009) 2 CPC 6]. The State Commission also relied upon the
judgement of the Hon’ble Apex Court in “Haryana State Agricultural Marketing Board versus
Rajpal,” as reported in [III (2011) CPJ 20], in which it has been held that the allottees cannot
postpone payment of instalments merely on the ground that some of the amenities were not
ready. This order of the State Commission dated 22.05.2012 has been challenged by way of the
present revision petition by the petitioner/complainant Dr. Chander Rekha.
5.
At the time of hearing before us, the learned counsel for the petitioner/complainant stated
that the National Commission by the order dated 17.03.2010, in the first round of litigation
between the parties had held that the petitioner was a ‘consumer’ under the Consumer Protection
Act, 1986. The State Commission cannot, therefore, take a contradictory opinion in the
impugned order passed by them. The learned counsel stated that since the petitioner had already
made full payment for the plot long time back, it was her right to demand that all basic amenities
are provided by the OP. As per the conditions of allotment letter also, it was obligatory on their
part to provide basic amenities. Moreover, the OP had not approved the building plan submitted
by them. The learned counsel for the petitioner has further drawn our attention to the order
passed by this Commission in RP No. 729/2011, “Rajil Khod versus Haryana Urban
Development Authority,” and RP No. 2951/2009, “Haryana Urban Development Authority
versus M/s. Suneja & Sons,” pleading that even if the petitioner is auction purchaser, he comes
under the definition of ‘consumer’.
6.
In reply, learned counsel for the OP/respondent stated that the petitioner had not submitted
any building plan for approval so far. He also shown some photographs during the course of
arguments, saying that the construction on the adjoining plot had already been
completed. However, the petitioner had filed the present complaint just to avoid the payment of
non-construction fees. It had been stated in the reply filed by the OP before the District
Consumer Disputes Redressal Forum, Sangrur that the actual possession was delivered to the
petitioner alongwith all the basic amenities. It has also been stated in the said reply that the
adjoining nursing home site no. 2 had already been constructed. The orders passed by the State
Commission were, therefore, in accordance with law and should be upheld. The learned counsel
also stated that as per agreement entered between the parties, there was a clause for arbitration in
the event of any dispute between the parties, but the complainant had not taken recourse to the
said clause.
7.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The entire factual matrix of the case makes it very clear that
this Commission vide order dated 17.03.2010, had allowed a compensation of ` 5,25,000/-, as
interest @12% p.a. on the total amount of ` 15,80,000/- for the delay of 32 months in handing
over the possession. The National Commission also held vide this order that the petitioner was a
‘consumer’ under the Consumer Protection Act, 1986. In the present consumer complaint which
is the second complaint filed by the petitioner, it has been alleged that they could not carry out
construction on the allotted site as the basic amenities have not been provided on the site. This
contention of the petitioner has been denied by the OP saying that the basic amenities have
already been provided on the site and hence, it was obligatory on the part of the petitioner to
raise the construction on the site plot. In support of their contention, they have taken the plea
that construction of nursing home has already been done on the adjoining site in the same
scheme. This plea has been taken by the OP in their reply filed before the District Forum in
response to the second complaint. The petitioners have not been able to produce any proof to
rebut the contention of the opposite parties. It is very clear from record that compensation has
already been allowed by this Commission for the late delivery of the possession to the
complainant. The impugned order passed by the State Commission also observes that the water
supply and sewerage connection were provided in the year 1994 and the roads had been
constructed in 1997. The State Commission has also made a mention of letter dated 10.11.2008
issued by the Sub Divisional Engineer, Punjab Water Supply and Sewerage Board and SubDivision, Barnala, in which it has been stated that the sewerage was laid in the area on
18.12.1994. This letter also says that it is possible to give water supply and sewerage connection
to the petitioner as well, from the line already laid in the area.
8.
In view of the position explained above, it becomes clear that basic amenities have already
been provided by the OP in the area. On the adjoining site, a nursing home has already been
constructed. Moreover, a compensation of ` 5,25,000/- has already been awarded as per the
orders passed by this Commission on 17.03.2010. The petitioner, is therefore, not entitled to any
other relief. It is their duty to comply with the rules and regulations of the Trust in so far as
raising the construction on the site is concerned. We, therefore, do not find any merit in the
revision petition and the same deserves to be dismissed and we order accordingly. The second
consumer complaint, in question, is ordered to be dismissed. 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
CIRCUIT BENCH AT BANGALORE, KARNATAKA
REVISION PETITION NO. 1029 OF 2014
(Against the order dated 16.4.2013 in Appeal No.372/2013 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
K.S. Krishnamurthy
Bangalore – 560018
s/o Late K.S.Subba Rao No.68/2, 6th Cross, 5th Main Chamarajpet,
…
Petitioner
Vs.
1. The Secretary ITI Employees Housing Co-Operative Society Ltd. Dooravaninagar, Bangalore
2. The President ITI Employees Housing Co-Operative Society Ltd. Dooravaninagar, Bangalore
…
Respondents
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
: Mr. N.R.Nagraj, Advocate
Dated : 13th February, 2014
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Complainant being aggrieved of order dated 16.04.2013 of the State Commission has
preferred this revision petition. The revision petition, however, has been filed after an expiry of
period of limitation with the delay of 294 days. The petitioner, therefore, has moved the
application for condonation of delay.
2.
Before adverting to the explanation given by the petitioner for delay in filing of revision
petition, we may note that the petitioner filed a consumer complaint no. 1179/2008 before the
District Consumer Disputes Redressal Forum Bangalore (Urban) alleging deficiency in service in
respect of the allotment of the plot by the respondent opposite party in Mallathahalli project
undertaken by the respondent Society of which he was a member. The aforesaid complaint was
allowed in part vide order dated 26.07.2008 by the District Forum with following directions:
“The complaint is allowed in part. OP is directed to convey residential site
measuring 30’ x 40’ free from all encumbrances at Bethanagere village project
developed by the developer by collecting sitalvalue at Rs.500/- per square
feet and registration and other miscellaneous expenses and execute the
registered sale deed, put him in possession. It is further ordered OP to bear 50%
of the sitalcost at the above said rate as undertaken and promised in their version
and evidence as well as in G.B.M. In view of the nature of dispute no order as to
costs. This order is to be complied within two months from the date of its
communication.
If the complainant is not agreeable to pay sital value at the rate of Rs.500/- per
square feet as ordered, OP is directed to refund the sital value of Rs.58,578/together with interest at the rate of 9% p.a. from February 1998 till
realization. This order is to be complied within two months from the date of its
communication.”
3.
The petitioner applied for execution of the above noted order. During the pendency of
execution petition, the petitioner is stated to have got information that during the pendency of the
complaint, there were unalloted plots available in the said project which fact was concealed from
the District Forum. The complainant, thus, filed review petition before the District Forum,
which was dismissed. The complainant filed an appeal against the above noted order of the
District Forum with the delay of 1667 days after the expiry of period of limitation of 30 days
provided under the statute for filing an appeal. The State Commission after considering the
explanation of the petitioner for delay in filing of the revision petition declined to condone the
delay and dismissed the application of condonation of delay as also the appeal. Feeling
aggrieved of the aforesaid order, the petitioner has now approached this Commission in
revision alongwith application for condonation of delay.
4.
The only explanation given by the petitioner for 294 days delay in filing of the revision
petition is in para 12 of the affidavit filed by the petitioner alongwith his application
for condonation of delay. Relevant paragraph is reproduced thus:
“The day in preferring this appeal before this Hon’ble National Commission is
solely because I could not afford to approach the National Commission at Delhi
owing to exorbitant cost involved in preferring appeal and my inability to meet
the same. As this Hon’ble Commission has been pleased to sit at Bangalore by
virtue of Circuit Bench, I am preferring this appeal before the Circuit Benchon
the very first day of its sitting.”
5.
The above explanation given by the petitioner for delay in filing of revision petition is far
from satisfactory. Not only this, the petitioner has been grossly negligent in pursuing the
matter. The appeal before the State Commission was dismissed on the ground of inordinate
delay of 1167 days. Despite that the petitioner waited for almost 294 days from the date of
impugned order to file the revision petition. The explanation that the petitioner could not file the
revision petition because of financial constraints is not a justifiable reason for condoning the
delay particularly when the petitioner was also negligent in filing the appeal against the order of
the District Forum.
In Ram Lal and Ors. Vs. Rewa Coalfields
Ltd.,
AIR
1962 Supreme
Court
the Hon’ble Supreme Court while dealing with question of delay has observed thus:
“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
361,
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 Apex
Court
has observed thus”
“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.
Similar view has been taken by this Commission in the case of Haryana Urban
Development Authoriy Vs. Sukhbir Singh Malik 2013 (1) CPR 417 (NC) as also in the case
of Sapna Jain Vs. JaipalSingh reported in 2013 (1) CPR 322 (NC) and in the case
of Principal,
National
Pre-University
College, Basavanagudi,
Bangalore
& Anr. Vs. N.Raghunath Rao reported in 2011 (4) CPR 181 (NC).
Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development
Authority,
IV
(2011)
CPJ
63
(SC) laid
down
that;
“It is also apposite to observe that while deciding an application
filed in such cases for condonation of delay, the Court has to keep in
mind that the special period of limitation has been prescribed under
the Consumer Protection Act, 1986, for filing appeals and revisions
in Consumer matters and the object of expeditious adjudication of
the Consumer disputes will get defeated, if this Court was to
entertain highly belated petitions filed against the orders of the
Consumer Foras”.
6.
In view of the above settled position in law, we do not find any merit in the application
for condonation of delay. The petitioner throughout has been grossly negligent in the conduct of
these proceedings. Therefore, we are not inclined to condone the delay.
7.
Learned counsel for the petitioner has contended that it is well settled that if the refusal
of the judicial forum to condone the delay would amount to gross injustice, in such case the
delay should be condoned irrespective of the period of delay or non availability of a satisfactory
explanation. Learned counsel has contended that State Commission has failed to appreciate that
impugned order of the District Forum was obtained by the petitioner by practicing fraud on the
forum. Expanding on the argument, learned counsel submitted that during the pendency of the
consumer complaint, the respondent in his written statement misrepresented before the District
Forum that no plot in Mallathahalli Project was available for allotment whereas during the
pendency they executed conveyance deed in respect of two sites in the said project vide
registered Sale Deeds. In support of this contention, learned counsel has drawn our attention
to para 17 of the reply filed by the opposite party in response to the consumer complaint.
8.
In order to appreciate this contention of learned counsel for the petitioner, it would be
useful to have a look on the allegations made in para 17 of the written statement filed before the
District Forum which is reproduced thus:
“The said factum was discussed in detail in the previous General Body Meeting of
1st respondent, which was also attended by the complainant herein and was
resolved to provide alternative sites to the members, who lost the site in the
aforementioned manner. In consonance with the said decision of GBM, the
1st respondent, with a bonafide intention to accommodate its members, has issued
the circular bearing no. ITI EHCS/04-2004-05 dated 28.11.2004 proposing to
allot the sites in the Nagarur village, Dasanapura Hobli, Bangalore North Taluk,
in the layout proposed to be formed by the 1st respondent. The said circular was
also served to the complainant herein. The 1st respondent has proposed to form
layout of site at Nagarur village, Dasanapura Hobli, Bangalore NorthTaluk. For
the said purpose, it had acquired 14 Acres of land in Sy. No.92,93/3,
95,96,98/2,99,100/7,
100/10,
11/11
and
100/12
at Nagarur village, Dasanapura Hobli, Bangalore North Taluk. Upon acquiring
the aforesaid lands, the BMRDA has issued comprehensive development plan
and whereunder it has earmarked all the lands situated at Nagroor village
including the aforementioned lands as industrial zone. Subsequently, the opposite
party no.1 has entered with a development agreement with Developer for
formation of layout of sites at Bethanagere village, Dasanapura Hobli, Bangalore
North Taluk. Under the said development agreement, the developer has agreed to
provide the site at Rs.500 per square feet to the members of 1st respondent who
had applied for site inNagarur layout. The matter was discussed in detail in the
meeting of managing committee of the 1st respondent held on 19.12.2007 and it
was resolved to sell the lands acquired in Nagarur village at the market
prevailing rate and further resolved to utilize 50% of the sale proceeds to reduce
the rate in favour of those members whose sites were blocked
in Mallathalli layout and 50% of the sale proceeds to reduce the rate in favour of
those members who applied for allotment of site at Nagarur layout. Copy of the
said resolution is produced herewith and marked as Annexture R2. The said
factum was also discussed and approved in the general body meeting of
1st respondent, which was held on 24.02.2008. The said resolution of the general
body meeting is squarely applicable to the complainant herein. To that effect, the
1st respondent has also issued circular dated 28.12.2007 and notified the same to
its members. Copy of said circular is produced herewith and marked
asAnnexture R3.”
9.
On reading of the above, we do not find anything which may suggest that the respondent
made misrepresentation before the State Commission that no plot in Mallathahalli project was
available for allotment to the petitioner. Thus, we do not find any merit in the above contention
also.
10.
In view of the discussion above, we find no reason to condone the delay of 204 days in
filing of the revision petition. Application for condonation of delay is accordingly dismissed.
Consequently, revision petition is also dismissed in limine.
…..…………….…….……
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…..…………….…….……
(S.M. KANTIKAR)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 915 OF 2014
WITH (I.A. NO.616 OF 2014, FOR C/DELAY)
(Against the order dated 03.09.2013 in Complaint Case No.413/2012 of the State
Commission, Rajasthan)
1. The Superintendent Head Post Office Swaimadhopur State : Rajasthan
2. The Post Master Sub-Post Office Boli Distt.: Swai Madhopur State : Rajasthan
3. The Chief Secretary Department of Post Govt. of India New Delhi
....... Petitioners
Versus
1. Smt.Sunita Gautam W/o Shri Vijay Prakash Gautam R/o Gautam Mohalla, Boli District –
Swai Madhopur Rajasthan
2.
The Branch Manager State Bank of Bikaner & Jaipur Branch Office : Boli District –
Swai Madhopur Rajasthan
3.
The Branch Manager State Bank of India Man Town, Swai Madhopur Rajasthan
…... Respondents
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Roshan Lal Goel, Advocate
Pronounced on : 13th February, 2014
ORDER
REKHA GUPTA
Revision Petition No. 915 of 2014 has been filed against the order dated 3.9.2013, passed
by
Rajasthan
State
Consumer
Disputes Redressal Commission,
Jaipur
(short,
“State
Commission”) in First Appeal No.413 of 2012.
The brief facts of the case as per respondent no.1/complainant are that the respondent
no.1/complainant with petitioner no.2/opposite party no.2 had opened a RD account on
10.1.2000 for the payment of Rs.500/- per month and accordingly, the respondent no.1 paid 88
installments i.e. deposit Rs.44,000/-.
The respondent no.1 on 22.5.2007 submitted the requisite documents duly signed by the
respondent no.1 with the petitioner no.2 for getting refund of the aforesaid amount, which has
not been received by the respondent no.1 so far.
The respondent no.1 signed various documents and submitted the original pass-book
along with withdrawal form with the petitioner no.2 in faith, who in turn disclosed the fact
that cheque of the amount of the respondent no.1 will be prepared by the Head
Office of Swaimadhopur and further assured that on receipt of the same from Head Office, the
said cheque shall be handed over to the respondent no.1. The respondent no.1 believed open the
assurance/version of the petitioner no.2.
On not getting the payment by the respondent no.1, the respondent no.1 approached
petitioner no.2 who told the respondent no.1 that since the original document and withdrawal
form has been submitted to the opposite party no.1 has not sent the money therefore, payment is
not possible.
The respondent no.1 thereafter, approached the petitioner no.1 for getting the payment as
requested above, Officer of the petitioner no.1 disclosed the fact that on 6.5.2009,
a chequebearing No.743377 dated 26.5.2007 for a sum of Rs.64,509/- in the account
No.4087471 has been sent to the petitioner no.2 but the petitioner no.2 and respondent no.2 has
not paid the amount of the said RD to her so far.
The respondent no.1 is entitled to the amount of RD to the tune of Rs.64,509/- along with
18% interest per annum w.e.f. 26.5.2007 till its final payment.
Due to non-payment of the aforesaid amount by the petitioners, the respondent no.1 as
suffered the whole loss of mental agony physical harassment as the respondent no.1 had been
running after the petitioners for redressal of her grievances, therefore, she is entitled to getting
compensation on this account to the tune of Rs.50,000/- and a sum of Rs.5,000/- on account on
expenditure of this complaint.
In response, the petitioner no.1 while admitting that the respondent no.1 had an account
has only stated that on 28.5.2007, a cheque bearing no.743377 dated 26.5.2007 for a sum of
Rs.64,509/- has been sent to the respondent no.1 as per withdrawal form for SB Account
No.4087471. No details regarding the dispatch or receipt of the said cheque has been given by
the petitioner no.1.
District Consumer Disputes Redressal Forum, Swaimadhopur, Rajasthan, vide their order
dated 2.3.2012, dismissed the complaint.
Aggrieved by the order of the District Forum, the respondent no.1 filed an appeal before
the State Commission. Vide their order dated 3.9.2013, State Commission, allowed the appeal
and resultantly, the order of District Forum, Swaimadhopur was set aside with the following
order ;
1.
The OP No.1, 2 and 4 are directed to pay a sum of Rs.64,509/- with
interest @ 9% since 26.5.2007, till final payment.
2. For mental tension Rs.20,000/- and compensation is also awarded
to the appellant.
3.
As no deficiency of services is found against OP Nos.3 and 5
therefore, the appeal against them is dismissed.
4.
Far compliance of the orders one month time is granted.”
Hence, the revision petition.
Along with present revision petition, an application seeking condonation of delay of 54
days has also been filed. The reasons given for the delay are as follows ;
“2. That after receipt of the certified copy of the order dated 3.9.2013
passed by State Consumer Disputes Redressal Commission, the
Department/Revisionist has got the legal opinion of their counsel on
26.9.2013 to file the present petition and similarly, the Department of
Legal Affairs, Ministry of Law & Justice vide their legal opinion dated
30.12.2013 advised the petitioners to file the present revision
petition. Therefore, the present file has been moving here and there in
completing the procedural of the Govt. Department and ultimately, on
10.1.2014, the Ministry of Law & Justice nominated and
appointed Mr.Roshan Lal Goel, Advocate to file the present revision
petition”.
It is well settled that “Sufficient Cause” for condoning the delay in each case is a question of
fact.
We are of the view that the petitioners have failed to give any proper justification for the
delay of 54 days. The petitioners have failed to give day to day justification with dates as also
“Sufficient Cause” for condoning the delay of 54 days.
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”.
Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and
another (2012) 3 Supreme Court Cases 563 has held;
“24. After referring various earlier decisions, taking very lenient view in
condoning the delay, particularly, on the part of the Government and
Government Undertaking, this Court observed as under;
“29. It needs no restatement at our hands that the object for
fixing time-limit for litigation is based on public policy fixing a
lifespan for legal remedy for the purpose of general welfare.
They are meant to see that the parties do not resort to dilatory
tactics but avail their legal remedies promptly. Salmond in his
Jurisprudence states that the laws come to the assistance of the
vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount
consideration in exercising the courts' discretion wherever
conferred upon it by the relevant statutes. Pursuing stale claims
and multiplicity of proceedings in no manner subserves public
interest. Prompt and timely payment of compensation to
the landlosers facilitating their rehabilitation /resettlement is
equally an integral part of public policy. Public interest
demands that the State or the beneficiary of acquisition, as the
case may be, should not be allowed to indulge in any act to
unsettle the settled legal rights accrued in law by resorting to
avoidable litigation unless the claimants are guilty of deriving
benefit to which they are otherwise not entitled, in any
fraudulent manner. One should not forget the basic fact that
what is acquired is not the land but the livelihood of
the landlosers. These public interest parameters ought to be
kept in mind by the courts while exercising the discretion
dealing with the application filed under Section 5 of the
Limitation Act. Dragging the landlosers to courts of law years
after the termination of legal proceedings would not serve any
public interest. Settled rights cannot be lightly interfered with
by condoning inordinate delay without there being any proper
explanation of such delay on the ground of involvement of
public revenue. It serves no public interest.”
The Court further observed ;
“27. It is not in dispute that the person(s) concerned were well aware or
conversant with the issues involved including the prescribed period of
limitation for taking up the matter by way of filing a special leave petition
in this Court. They cannot claim that they have a separate period of
limitation when the Department was possessed with competent persons
familiar with court proceedings. In the absence of plausible and
acceptable explanation, we are posing a question why the delay is to be
condoned mechanically merely because the Government or a wing of the
Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of
delay when there was no gross negligence or deliberate inaction or lack
of bonafide, a liberal concession has to be adopted to advance substantial
justice, we are of the view that in the facts and circumstances, the
Department cannot take advantage of various earlier decisions. The
claim on account of impersonal machinery and inherited bureaucratic
methodology of making several notes cannot be accepted in view of the
modern technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies,
their agencies and instrumentalities that unless they have reasonable and
acceptable explanation for the delay and there was bonafide effort, there
is no need to accept the usual explanation that the file was kept pending
for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special
obligation to ensure that they perform their duties with diligence and
commitment. Condonation of delay is an exception and should not be
used as an anticipated benefit for government departments. The law
shelters everyone under the same light and should not be swirled for the
benefit of a few.
30. Considering the fact that there was no proper explanation offered by
the Department for the delay except mentioning of various dates,
according to us, the Department has miserably failed to give any
acceptable and cogent reasons sufficient to condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go into the
merits of Issues (b) and (c). The question of law raised is left open to be
decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are
dismissed on the ground of delay. No order as to costs.”
Under these circumstances, no sufficient cause is made out for condoning the delay of 54
days in filing the present petition. Accordingly, application for condonation of delay is not
maintainable. Consequently, the present revision petition being hopelessly barred by limitation is
hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only).
Cost of Rs.5,000/- to be deposited in the ‘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.
List on 21.3.2014 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
………..…………..………..
(REKHA GUPTA)
MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2867 OF 2013
(Against the order dated 24.04.2013 in Appeal No.595 /2013 of the Kerala State Consumer
Disputes Redressal Commission)
M/s. Escorts Limited Plot No.115, Sector -24 Faridabad-121005 Also at: 15/5, Mathura Road,
Faridabad
.....Petitioner
Versus
1. K.V. Jyarajan S/o Velayudhan Kizhekkekara House, Kumaranallur, Palakkad
2. M/s. Malabar Motors, VI/194, Vishal Complex, Mathura Road, Palakkad-678001
........Respondents
BEFORE
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mr. Rahul Malhotra, Advocate
For the Respondent No.1:
Mr. Rajesh Vijayenendran, Advocate
For the Respondent No.2:
Mr. Siji Malayil, Advocate
PRONOUNCED ON: 13/2/2014
ORDER
PER MR. VINAY KUMAR, MEMBER
Revision Petition No.2867of 2013 has been filed by M/s. Escorts Limited, who had been
arrayed as OP-2 in the consumer complaint before the District Forum. The consumer
disputearose
out
of
purchase
of
a
tractor
by
respondent-1/complainant
on
16.2.2007. The tractor was manufactured by the revision petitioner/OP-2 and sold by respondent
-2 /OP1 M/s. Malabar Motors. In the background of alleged frequent breakdowns and
repeated repairs, the consumer complaint was filed with a prayer seeking replacement of the
tractor with compensation.
2.
The complaint, on remand from the State Commission, was decided by the District Forum
on 31.3.2012. The District Forum allowed the complaint partly and directed the two
oppositeparties, jointly and severely to pay a compensation of Rs.50,000/- together with cost of
Rs.2000/-. The OPs did not challenge the award made by the District Forum. The appeal
filed by the complainant against the above mentioned order of the District Forum, was
decided by Kerala State Consumer Disputes Redressal Commission on 24.4.2013. The
State Commission allowed the appeal and directed the two respondents/OPs to refund the
cost of the vehicle with 9% interest together with compensation and cost.
3.
M/s. Escorts Limited, manufacturer of the tractor and OP-2 in the complaint before the
District Forum, has filed this revision petition. It has challenged the order of the State
Commission on the ground that the possession of the tractor is not with the petitioner it was
actually brought to the workshop of the dealer, M/s. Malbar Motors /respondent No.2 in the
present proceedings. As per the revision petition, the letter of 8.1.2008 advising the complainant
to collect the tractor was issued by respondent No.1/Malbar Motors and not by the revision
petitioner/manufacturer.
4.
We have heard Mr. Rahul Malhotra, Advocate on behalf of the petitioner/Escorts Limited,
Mr Rajesh Vijayendran, Advocate for R-1/Complainant and Mr Siji Malayil, Advocate, for R2/OP-1 i.e. Malabar Motors. During the course of arguments, our attention was drawn to the
following observation of the State Commission in the impugned order:“It is clear from the letter dated 08/01/2008 issued by the first opposite
party to the complainant that the vehicle was not taken back by the
appellant. Under the circumstances, the appointment of the expert Commissioner
could not be taken out by the complainant as the vehicle was in the custody of the
respondent. The adverse inference can be taken in this case as the burden of
proof and the custody of the vehicle shifted to the side of opposite party. It is a
relevant factor to be considered and only the course open to us is to take adverse
inference that the vehicle is in the custody of opposite party. Now coming to the
statement of sale of the vehicle to one Mr. Natesan has come out in the proof
affidavit filed by the opposite parties. No such contention was raised by the
opposite parties at the time of filing version. The sale agreement was photocopy. It
was deposed in evidence by DW1 that he had entered into the agreement on
3rd September whereas the agreement executed only on 23rd September. The
agreement was signed by 2 witnesses but they were not examined to prove the case
of the opposite party. It is also to be pointed out that original of the agreement was
not produced by the opposite party and this cannot be taken into evidence. The
respondent had not proved in evidence that the vehicle was returned to the
appellant nor the sale of the tractor proved properly. We are of the considered
view that the complainant was not taken delivery of the vehicle and he is to be
compensation appropriately.”
5.
In this behalf it was strongly contended by the counsel for respondent/complainant that the
tractor remains in the possession of the dealer/ OP-1. The certificate of registration of this tractor
also continues in the name of the complainant.
6.
At
this
stage,
our
attention
was
drawn
by
learned
counsel
for
the
manufacturer/present revision petitioner, that on this issue a finding has already been
reached by the National Commission in Revision Petition No.2741 of 2013 filed by OP-1
/M/s. Malabar Motors. On perusal of the same we find that the same impugned order, passed
by the Karnataka State Commission in FA No. 595/2012, was under challenge before the
National Commission. The revision petition was dismissed by National Commission on
5th September, 2013 holding that the impugned order does not suffer from any illegality or
material irregularity which could justify intervention of this Commission in exercise of power
under Section 21 (b). While doing so this Commission has also observed that:
“16. Petitioner has nowhere taken such plea in its written statement that
respondent no.1 has sold the tractor in question to third party. This plea of the
petitioner at revision stage cannot be looked into at all. It is not in dispute that
tractor in question was sent for repairs for a number of times to the petitioner, as
defects were there. Moreover, after alleged repairs the tractor in question is lying
with the petitioner.”
7.
Learned counsel for the petitioner/Escorts Limited argued that qua M/s. Malabar Motors,
i.e. OP-1, the matter has already acquired finality in terms of the above decision of this
Commission in Revision Petition No.2741 of 2013 filed by Respondent-2/OP-1, Malabar
Motors. This Commission has categorically held that the tractor was sent to OP-1 / Malabar
Motors for repairs and was thereafter lying with it. He further argued that for the same reason,
no liability would lie on M/s. Escorts Ltd. i.e, OP-2.
In the above background, we are of the view that the question of joint and several liability
being fixed on the present revision petitioner, M/s. Escorts Ltd. does not arise. Consequently,
this Revision Petition No.2867 of 2013 is allowed. The impugned order is set aside to the extent
of the liability fixed on the petitioner, Escorts Motors. No orders as to cost.
…..……………Sd/-.…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………Sd/-….…….……
(VINAY KUMAR)
MEMBER
S./-1
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.171 OF 2011
(Against the order dated 25.11.2010 in Appeal No. 3881/2009 of the Karnataka State Consumer
Disputes Redressal Commission)
Mallikarjun Sakri S/o Sangappa Sakri R/o Vijaya Transport Baba Complex Lingasugur Dist.
Raichur
...... Petitioner
Vs.
1. Branch Manager Oriental Insurance Co. Ltd. Dwaraka Floor, 79, Uttamar Gandhi, Salai
Chennai Tamil Nadu-600034
2. Branch Manager Oriental Insurance Co. Ltd. Branch Raichur City Talkies Road Raichur
Karnataka-584101
.....Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Showri H.R., Advocate
For the Respondents : Mr. S. Srishaila, Advocate
Pronounced on 13th February, 2014
ORDER
PER VINEETA RAI, PRESIDING MEMBER
1.
This revision petition has been filed by Mallikarjun Sakri, Petitioner herein and Original
Complainant before the Raichur District Consumer Disputes Redressal Forum (for short the
District Forum), being aggrieved by the order of the Karnataka State Consumer Disputes
Redressal Commission (for short the State Commission), which had allowed the appeal of
Oriental Insurance Co. Ltd., Respondent herein and Opposite Party before the District Forum, by
setting aside the order of the District Forum.
2.
In his complaint before the District Forum under Section 12 of the Consumer
Protection Act, 1986 the Petitioner/Complainant had contended that he was the registered owner
of vehicle Mini Lorry TATA-709 which was insured with the Respondent/Insurance Company
from 02.04.2007 to 01.04.2008. During the subsistence of the said policy on 09.10.2007 at night
the
said vehicle which
was
carrying
goods
from Raichur to Lingasugur met
with
an accident while trying to avoid dashing against a bullock cart as a result of which the vehicle
fell 15 ft. into a canal, causing extensive damage to the vehicle. Intimation about the accident
was given to the police as also the Respondent/Insurance Company. Subsequently, the vehicle
was inspected by a Surveyor appointed by the Respondent/Insurance Company. The
Petitioner/Complainant thereafter got the vehicle repaired and sent a bill amounting to
Rs.85,234/- alongwith necessary police records and other documents and sought settlement of
the
claim
on
23.10.2007. In
the
month
of
November,
2007
the
Respondent/Insurance Company sought further documents which were also provided but despite
cooperating with the Surveyor and Insurance Company in submitting all the required documents,
the Respondent/Insurance Company failed to settle the claim. Being aggrieved by the
Respondent/Insurance Company in not settling the claim and also not responding to various
reminders sent to it, Petitioner/Complainant filed a complaint before the District Forum on
grounds of deficiency in service and requested that Respondent/Insurance Company be directed
to pay him an amount of Rs.85,234/- being the cost incurred on repairs of the vehicle following
the accident with interest at 18% per annum from 23.10.2007 till realization and Rs.25,000/as litigation costs.
3.
Respondent/Insurance Company on being served denied that there was any deficiency in
service on its part. It was stated in the first instance that the driver of the vehicle did not have the
requiredlicense to drive the vehicle. Further, the claim made by the Petitioner/Complainant was
highly exaggerated and excessive and was also without any basis. In any case, the
Petitioner/Complainant was not entitled to compensation more than what was assessed by
the Surveyor. It was stated that the Surveyor had assessed the loss at Rs.30,000/- and Rs.2500/towards spot repairs and towing charges.
4.
The District Forum after hearing the parties and on the basis of evidence produced before
it allowed the complaint by concluding that the driver of the vehicle did have a valid license to
drive the vehicle and further the Respondent/Insurance Company had not produced any
documents to show that the Petitioner/Complainant was carrying more than the permitted weight
of goods. Further, in the driving license issued by the Transport Authority an endorsement had
been made permitting the Petitioner/Complainant to drive both a Heavy Transport Vehicle
(goods vehicle) as also a Light Motor Vehicle as per the Exhibit P-4. The District Forum also
stated that although the Surveyor had assessed the total net loss towards damage of
Petitioner/Complainant’s vehicle at Rs.30,000/- with Rs.2500/- towards spot repairs and towing
charges, there was credible evidence filed by the Petitioner/Complainant who had produced the
bills (Exhibits P-9 and P-10) in respect of the repairs of the vehicle clearly indicating that he had
spent Rs.75,000/- (i.e. Rs.55,000/- being the repairs from M.D. Shaikhhusain, Lorry Body
Builder & Labour Works, Raichur and Rs.20,000/- being the labour charges of Ramesh
Automobiles, Raichur), apart from additional charges due to spot repairs and towing charges
amounting to Rs.10,000/-. The Petitioner/Complainant filed an affidavit of the mechanic who
had repaired the vehicle as proof. On the other hand, the Surveyor’s affidavit in support of his
findings was not filed. The District Forum, therefore, held that the Petitioner/Complainant was
entitled to recover the amount of Rs.90,235/- which was rounded off to Rs.90,200/- as also
interest @ 9% per annum from the date of that order till realization of the amount. The
Respondent/Insurance Company was given six weeks time to comply with the order of the
District Forum.
5.
Being aggrieved, the Respondent/Insurance Company filed an appeal before the State
Commission, which allowed the same on the ground that at the time of the accident the driver of
the vehicle possessed a driving license only to drive Light Motor Vehicle whereas the vehicle
involved in the accident was a goods vehicle for which the necessary endorsement to drive a
Heavy Transport Vehicle was not there. The State Commission further concluded that the
Petitioner/Complainant had failed to produce some important documents, which were required to
settle the claim. It was under these circumstances that the claim could not be settled and,
therefore, this does not amount to any deficiency in service on the part of the Insurance
Company.
6.
Hence, the present revision petition.
7.
Learned Counsel for both parties made oral submissions.
8.
Counsel for the Petitioner/Complainant contended that the State Commission erred in
concluding that the Petitioner/Complainant did not have a driving license whereas the driving
license permitting the Petitioner/Complainant to drive both Light Motor Vehicle as also Heavy
Transport Vehicle had been placed before the District Forum, which as a first court of fact had
duly noted the same. It was further contended that there was clearly deficiency in service in
not settling the insurance claim. In fact all the necessary documents had been produced and the
Surveyor had also inspected the vehicle and had concluded that the loss was Rs.30,000/-. The
Respondent/Insurance Company did not attempt to settle the claim even after receipt of the
report of the Surveyor and kept the claim pending which itself is a clear deficiency in service.
9.
Learned Counsel for the Respondent/Insurance Company essentially reiterated the
submissions made by him before the Fora below and concluded that the State Commission as a
court of fact as also appeal had rightly allowed its appeal. It was specifically stated that the
Surveyor after carefully inspecting the report had concluded that the loss was Rs.30,000/besides Rs.2500/- towards spot repairs and towing charges and the bills produced by the
Petitioner/Complainant had grossly inflated the repairs and other labour charges.
10.
We have considered the submissions made by learned Counsel for the parties and have
also examined the evidence on record. We are unable to agree with the finding of the State
Commission that at the time of the accident the Petitioner/Complainant did not have a valid
driving license to drive a goods vehicle and that he only had a driving license for a Light Motor
Vehicle. We note from the evidence on record that there is a clear endorsement on the
Petitioner/Complainant’s driving license permitting him to also drive a Heavy Transport Vehicle
which was valid for the period from 24.11.2006 to 23.11.2009 apart from a license to drive Light
Motor Vehicle which was valid from 22.11.2000 to 21.11.2020. Thus, both licenses were valid
at the time of the accident which occurred on 09.10.2007. We have also gone through the report
of the Surveyor and we note from the same that the following damages were noted in his report
in respect of the vehicle:
“01. Cabin crushed, Wind Screen Glass and Cabin side glass broken, Dash board dent
02. Chassis long members bend, and first Cross members racked,
03. Radiator Core damaged, Radiators mountings cut, Engine beds,
cut Bolhousing crack.
04. Body side planks, Body MS vertical angles, Chassis Wooden Cross Bearers broken,
Rear Body Door damaged,
05. Main axle bend check, it has hit the road side RCC guards and Bridge
Culvert, Tierod bend, Push rod bend,
06. Battery acid rained/battery case to check for possible cracks,
15. Electrical wiring to check for possible cut/shot circuit.”
Even in the loss assessment report of the Surveyor it was stated that the repairs included
dismantling and thereafter reconstructing the damaged cabin and replacing a number of
important items. However, in its report, the Surveyor has substantially reduced the repair costs
as projected by the Petitioner/Complainant purportedly on the grounds that it was in consonance
with current market price. The costs have been further reduced by 50% on grounds of
depreciation which is not plausible since the vehicle had been insured just about a year prior to
the accident. Similarly, in respect of the labour charges without any plausible reason the amount
has been reduced to Rs.3500/-. Further, the report of the Surveyor has not been backed by any
affidavit. On the other hand, we have also gone through the repair documents filed by the
Petitioner/Complainant in support of his contention that the cost of repairs was Rs.55,000/-. We
note that in this document the repair cost of each damaged items has been listed out. The details
have also been given in respect of labour charges of Rs.20,200/-. This statement has been
backed by an affidavit of the concerned mechanic.
11.
No doubt, it is a settled principle of law that the report of a Surveyor being an important
document has substantial evidentiary value unless it is displaced by more credible evidence to
the contrary. In the instant case, we note that the documents submitted by the
Petitioner/Complainant, namely, the bill indicating the repairs done carries more credibility than
the Surveyor’s report because it clearly indicates item-wise damage caused to the vehicle as also
the cost of repairs. It is also supported by an affidavit of the mechanic whereas we note and as
also observed by the District Forum no affidavit has been filed by the Surveyor to support its
report. Further, it is difficult to accept that the vehicle, which had suffered such extensive
damage as noted by the Surveyor in his report, could be repaired for a relatively small amount of
Rs.32,500/-. It has to be kept in mind that it was a major accident in which the vehicle had
collided with a culvert and fallen 15 ft. into a canal. Such type of accidents would undoubtedly
cause extensive damage to the vehicle involved in the accident.
11.
We had also specifically asked Counsel for the Respondent/Insurance Company to explain
why despite the report of the Surveyor the Respondent/Insurance Company did not offer to settle
the claim on the basis of the Surveyor’s assessment and instead kept the claim pending for so
long. No satisfactory response was forthcoming, which clearly indicates that there was
deficiency in service on the part of the Respondent/Insurance Company in keeping the claim
pending without any reasonable explanation, for such a long time.
12.
In view of the above facts, we have no option but to set aside the order of the State
Commission and restore the order of the District Forum. The revision petition is allowed and the
complaint filed by the Petitioner/Complainant is accepted in terms of the order of the District
Forum. The Respondent/Insurance Company is directed to comply with the order of the District
Forum and pay the amount of Rs.90,200/- alongwith 9% interest per annum from 14.08.2009 till
realization within a period of two months.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2730 OF 2008
(From the order dated 14.02.2008 in First Appeal No. 222/2004 of the U.P.
State Consumer Disputes Redressal Commission, Lucknow)
United India Insurance Co. Ltd. Through its Assistant Manager Regional Office, Arif Chambers,
Kapoorthala Complex, Aligang, Lucknow.
…Petitioner/Opp. Party (OP)
Versus
Balrampur Chinik Mills Ltd. Unit Bhabuan, District-Gonda Through its Factory Manager, Sri
Sajan Lal Srivastava
… 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 :
Mr. A.K. De, Advocate Mr. Rajesh Dwedi, Advocate
Mr. K.V. Balakrishnan, Advocate
PRONOUNCED ON 13th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 14.2.2008
passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the
State Commission’) in Appeal No. 222 of 2004 – United India Insurance Co. Ltd. Vs. Balrampur
Chini Mills Ltd. by which, while partly allowing appeal, order of District Forumallowing
complaint with 16% p.a. interest was modified.
2. Brief facts of the case are that complainant/respondent obtained insurance policies from
OP/petitioner for various years from 1993 to 2000 and paid excess premium. Inspite of repeated
requests, OP refunded premium after a long delay. Complainant claimed Rs.4,70,607/- as
interest at the rate of 18% p.a. on the late refund of excess premium and filed complaint before
District Forum for grant of this relief. OP contested complaint and submitted that claim is time
barred and interest on interest is not payable and prayed for dismissal of complaint. Learned
District Forum after hearing both the parties, allowed complaint and directed OP to pay
Rs.4,47,823/- along with 16% p.a. interest and further allowed Rs.3,000/- as costs. Appeal filed
by the petitioner was partly allowed and learned State Commission reduced interest from 16%
p.a. to 9% p.a. 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 claim was time barred in respect of
interest claimed for first 3 policies and further submitted that learned District Forum
committed error in allowing 18% interest on the delayed refund of premium and further
submitted that interest @ 9% p.a. on interest upheld by State Commission is not permissible;
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 insurance policy from OP for various years
and charged excess premium which was returned by OP after a long delay. Complainant has
claimed interest @ 18% p.a. on the delayed refund of premium.
6. As far time barred claim is concerned, learned Counsel for the respondent submitted
that complaint has been filed on 13.1.2001 and claim for interest on delayed refund of excess
premium of first 3 policies from 18.2.1993 to 17.2.1996 which was refunded upto 18.11.1997 is
clearly time barred. As per complainant himself, excess premium for the first 3 years was
refunded upto 18.11.1997, but complaint has been filed on 13.2.2001 meaning thereby after more
than 3 years and 3 months and no application has been filed under Section 24A for condonation
of delay and claim for interest on delayed refund of premium is apparently time barred. Learned
Counsel for the respondent submitted that OP refused to pay interest on 10.1.2001, though; in the
complaint 10.1.2000 has been mentioned. No such letter has been placed on record by the
complainant regarding refusal to pay interest on delayed refund of premium. OP in its written
statement has denied the contents of paragraph 7 of the complaint in which it was alleged that
OP refused to make payment of interest on 10.1.2000. Learned Counsel for the respondent
apprised to the Bench on 21.1.2014 that he does not possess letter dated 10.1.2001 regarding
repudiation of the claim.
7.
Learned Counsel for the respondent submitted that petitioner was required to prove that he
has not refused to make payment of interest on 10.1.2001. This argument is devoid of force as
respondent was to prove the fact that claim of interest was refused by the petitioner on
10.1.2001. It was obligatory on the part of respondent to place on record letter of refusal for
payment of interest. Learned Counsel for the respondent placed reliance on II (2012) CPJ 312
(NC) – Chambal Fertilizers and Chemicals Ltd. Vs. Iffco-Toko General Insurance Co. Ltd.
& Ors. in which it was held that date of repudiation of the insurance claim, which may also be
treated as the date of accrual of the cause of action and period of limitation of two years
prescribed under Section 24A of the Act may be reckoned from the date of such repudiation. We
agree with the proposition of law laid down in the aforesaid judgment, but in the present case,
respondent failed to prove the fact that claim was refused on 10.1.2000 or 10.1.2001 and in such
circumstances, claim for interest Rs.53,256/-, 1,44,960/- and Rs.8,878/- regarding first 3 policies
premium refund which was made upto 18.11.1997 is time barred and learned District Forum
committed error in allowing claim in toto.
8. Complainant claimed interest @ 18% p.a. and learned Counsel for the petitioner submitted
that there was no justification to grant interest @ 18%; hence, it should be reduced. Learned
Counsel for the respondent submitted that as respondent was paying interest @ 18% p.a. on
borrowing he was entitled to get interest @ 18% p.a. Respondent has not placed any material on
record to substantiate that respondent was taking loan @ 18% p.a. and in such circumstances, it
would be appropriate to allow interest @ 12% p.a. instead of 18% p.a. as claimed by the
complainant in the complaint.
9.
Learned Counsel for the petitioner further submitted that respondent is not entitled to get
any interest on interest. We do not agree with this contention. Decretal amount whether it was
in the form of interest or principal, the decree holder is entitled to get interest on that amount also
and learned State Commission has not committed any error in allowing 9% p.a. interest on the
aforesaid amount.
10. Consequently, revision petition filed by the petitioner is to be allowed partly and
complainant/respondent is entitled to get Rs.1,75,856/- as interest on the delayed refund of
premium and further interest @ 9% p.a. from 13.2.2001 till realization on this amount as allowed
by the State Commission with cost of Rs.3,000/- as allowed by District Forum.
11. Consequently, revision petition filed by the petitioner is partly allowed and impugned
order dated 14.2.2008 passed by learned State Commission in Appeal No. 222 of 2004 and order
of District Forum dated 23.12.2003 are modified and it is ordered that respondent is entitled to
get Rs.1,75,856/- from the petitioner with 9% p.a. interest from 13.2.2001 till realization on the
amount along with cost of Rs.3,000/-.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL
CONSUMER
DISPUTES
REDRESSAL
DELHI
CIRCUIT BENCH AT BANGALORE, KARNATAKA
COMMISSION
NEW
REVISION PETITION NO. 4093 OF 2011
(Against the order dated 30.8.2011 in Appeal No.1224/2010 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
1. Life Insurance Corporation of India Through Manager ( L & HPF) Koppal Branch, Near Bus
Stand Sri P.N.Nagaraju Divisional Office, Bangalore
2. Life Insurance Corporation of India Through Secretary, Legal Cell H-39, New Asiatic
Building 2nd Floor, Back Side Above UCO Bank, Connaught Circus New Delhi
…
Petitioners
Vs.
Sri Hari s/o Shantharam Rao Sapathika r/o Nandinagar Rukmani Nilaya Post : Koppal – 583231
… Respondent
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioners
For the Respondent
:
:
Mr. G. Nataraj, Advocate
Mr. Manju Mudgal, Advocate
Dated : 14th February, 2014
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1.
This
revision
is
directed
against
the
order
of
the
State
Consumer
Disputes Redressal Commission Bangalore ( in short, ‘the State Commission’) dated 30.08.2011
in appeal no. 1224 of 2010 whereby the State Commission dismissed the appeal preferred by the
petitioner insurance company against the order of the District Forum Koppal directing thus:
“1.
That the opposite party is directed to pay the accident benefit of the
endowment assurance policy No. i) 660621613 and ii) 660926503 to the
complainant within 30 days from this order failing which the said amount carries
interest 6% p.a. from the date of filing the complaint till realization.
2.
Further the opposite party is directed to pay Rs.2000/- as costs of the
proceedings.”
2.
Briefly put, the facts relevant for the disposal of the revision petition are that the
respondent Sri Hari, a tailor by profession, obtained two Endowment Assurance Policy (Accident
Benefit) for Rs.25000/- and Rs.50,000/- respectively on 25.11.1999 and 10.03.2002. The
policies were to expire on 28.11.2014 and 15.02.2017 respectively. The respondent complainant
paid the monthly premium regularly. On 26.08.2008 at about 7.00 a.m., the respondent
complainant was hit by a motorcycle. Consequently, the complainant sustained grievous
injuries. He was shifted to private hospital where he was given first aid and from there the
complainant was shifted for treatment to Dr. Shirol’s Nursing Home at Gadag. The complainant
had suffered fracture of left thigh bone i.e. neck of femur was crushed into pieces. The
complainant was subjected to surgery and a steel rod was inserted in his left thigh
bone. The complainant incurred expenditure for the surgery to the tune of Rs.75000/-. It is the
case of the petitioner that treating doctor advised him to avoid heavy work and also told him that
he would not be able to work on foot pedal tailoring machine because of insertion of the steel rod
and because it was dangerous to his well being. It is claimed by the complainant that because of
the aforesaid accidental injury, the complainant has suffered permanent disability as a result of
which he cannot carry on his profession. The complainant thus filed insurance claims under
accident benefit clause of the aforesaid two policies. The claims, however, were repudiated. This
led to filing of the consumer complaint.
3.
The petitioner opposite party on being served with the notice resisted the claim under the
complaint. In the written statement, petitioner admitted having issued above noted
two Endowment insurance policy (with accident benefit) to the complainant. It was, however,
denied that complainant had suffered fracture of his left thigh bone i.e. neck of the femur or that
because of the aforesaid injury, he has suffered permanent disability. The petitioner also claimed
that even if the allegations in the complaint are taken to be true, then also,
the complainant has not suffered permanent disability as contemplated under the terms and
conditions of the insurance contract. It is also alleged that respondent complainant has failed to
produce any document to establish permanent disability and that he has not got himself examined
by a specialist doctor appointed by the petitioner – Corporation. Thus, it is claimed that the
petitioner is not entitled to pay accident benefit to the complainant.
4.
Learned District Forum on consideration of the evidence and pleadings of the parties
accepted the version of the complainant and concluded that as a result of the injury suffered in
the accident, the respondent complainant has suffered permanent disability of 49% which has
rendered him unfit for tailoring work with the use of foot pedal tailoring machine. Thus, the
complaint was allowed and the above noted directions were passed.
5.
Being aggrieved of the order of the District Forum, the petitioner preferred an appeal
before the State Commission and the State Commission, however, agreed with the findings of the
District
Forum and dismissed the
appeal. It
is
against
the
aforesaid
order,
the petitioner has preferred the revision petition.
6.
Learned Shri G. Nataraj, Advocate for the petitioner has submitted that the impugned
orders of the foras below are not sustainable for the reason that the orders have been passed
ignoring the terms and conditions of the insurance contract. Learned counsel contended that as
per the terms and conditions of the insurance contract, in order to avail disability benefit of the
accident, the insured is required to show that he satisfies the following conditions which are pre
requisites for disbursing the benefit under the insurance policy:
“i.
The disability should be total and permanent;
ii.
It should be as a result of accident;
iii.
Disability should be such that, there is neither then nor at any time thereafter any
work, occupation or profession that, the life assured can ever sufficiently do or follow to
earn any wages, compensation or profits;
iv.
Loss of entire sight of both eyes or amputation of both hands above the wrists or
amputation of both the feet above ankles or amputation of one hand above the wrist or
one foot above the ankle are deemed to constitute such disability;
v.
Proof of disability to the satisfaction of the Corporation must be given;
vi.
Any medical examiner nominated by the Corporation must be given;
vii.
Any medical examiner nominated by the Corporation shall be allowed to examine
the Corporation shall be allowed to examine the disabled person;
viii.
If admitted, the amount equal to sum assured will be paid in monthly installments
spread over 10 years and future premiums will be waived.”
7.
It is contended by learned counsel for the petitioner that the respondent complainant
admittedly has not suffered the permanent disability in terms of the above conditions and he has
also not been able to establish that his disability is such which has rendered him unable to carry
on his occupation and profession as a tailor. Learned counsel further submitted that
the foras below have failed to appreciate that even if because of his leg injury, the respondent
cannot work on foot pedal sewing machine, he can always engage in some other profession to
earn wages and compensation. Therefore, in view of clause III of the above noted conditions,
the respondent is not entitled to the accident benefit. In support of his claim, learned counsel for
the petitioner has relied upon the judgment of Coordinate Bench of this Commission in RP No.
1511 of 2005 Ajay Kumar Vs. Life Insurance Corporation of India decided on 08.01.2007.
8.
On the contrary, learned Ms. Manju Mudgal, Advocate has argued in support of the
impugned order. Learned counsel for the respondent has contended that both the foras below
have returned a concurrent findings that because of the accident, the respondent complainant has
suffered 49% permanent disability, a rod has been inserted in his left leg to set right the fracture
in bone and because of insertion of the rod, the complainant now cannot carry on his profession
as a tailor because he cannot work on foot pedal sewing machine. Therefore, respondent is
covered under the above noted condition on the ground of accident benefit and that
the foras below have rightly allowed the complaint.
9.
We have considered the rival contentions. Only question which needs determination in
this matter is whether or not, the petitioner satisfies the pre requisite conditions for grant of the
accident benefit to him?
10.
It is undisputed that the petitioner has obtained two insurance policies with accident
benefit. It is also not disputed that during the currency of those insurance policies, the
complainant met with an accident and suffered fracture of his left thigh bone i.e. neck of the
femur bone and that the aforesaid fracture was set right by orthopedic surgery and implanting of
a rod to support the bone. Case of the complainant is that because of the aforesaid surgery and
implant of the rod, he has been advised not to work on foot pedal tailoring machine. Both
the foras below have returned a concurrent finding that complainant is a tailor by profession and
also that because of accident, he has suffered fracture which required implant of a rod and as a
consequence of that, he has been medically advised not to work on foot pedal tailoring machine
because it can endanger the bone of his left leg. We find no reason to interfere in the aforesaid
finding of fact given by the foras below returned after analysing the evidence produced by the
parties.
11.
The complainant has placed on record the Disability Certificate dated 19.08.2009 issued
by Doctor Vishwesh C Shirol, M.S. Ortho. The relevant paragraph is reproduced thus:
“As the deformity is permanent, even after the physiotherapy treatment, I have
issued a permanent disability on 19th Aug 09. I am of the opinion that the above
injuries are grievous in nature and arecaused by vehicular accident.
The above said injuries causes 49% of permanent disability of the part and they
are assessed on the basis of severe pain, limping, wasting of muscles G2
deformity of Lt Hip i.e. functionality – walking without support and inability to
squat on the floor and working capability of the Lt. lower limb, as per the
Kessler’s method.”
12.
From reading of the above, it is clear that because of the injury suffered in the accident,
the petitioner has suffered 49% permanent disability as a result of which his functionality has
impaired so far as walking without support, inability to squat on the floor and working capability
of the left lower limb is concerned. From this, it is evident that because of the accidental injury,
the petitioner has suffered the disability which has rendered him unable to work on the foot pedal
tailoring machine. The complainant is a tailor by profession. Therefore, this incapability
has effected his earning capacity.
13.
The petitioner is trying to justify the repudiation of insurance claim in view of
clause III of Disability Benefit clause which is reproduced thus:
“iii.
Disability should be such that, there is neither then nor at any time thereafter
any work, occupation or profession that, the life assured can ever sufficiently do or
follow to earn any wages, compensation or profits.”
On reading of the above, it is evident that insured can take advantage of Disability
Certificate only if he has suffered disability which renders him incapable of any work,
occupation or profession he could ever sufficiently do to earn wages, compensation or
profits. The words “life assured can ever sufficiently do or follow to earn wages, compensation
or profits” are significant. In our considered view, the user of the aforesaid words clearly
indicate the intention that the work should be of such a nature for which the insured has
necessary proficiency. The insured admittedly was a tailor and had sufficient working
knowledge of that profession. Due to the injury suffered by him, he cannot work on foot pedal
tailor machine. He cannot be expected to work as a labour or house keeper etc. If such an
interpretation is given to this provision, then nobody would be able to get benefit of the accident
benefit clause because the insurer would always come up with the plea that a person can do some
cleaning work job or other menial job. Therefore, it can be safely concluded that because of the
injury sustained, the insured cannot sufficiently follow his occupation to earn wages,
compensation or profit. Thus, in our view the complainant who has suffered 49% permanent
disability fulfills a pre condition to avail of the accident clause. As such, we do not find fault
with the orders of the foras below allowing the complaint and awarding the compensation to the
complainant.
14.
In view of the discussion above, we do not find any jurisdictional error or material
irregularity in the impugned orders of the foras below which may call for interference by this
Commission in exercise ofrevisional jurisdiction. Revision petition is, therefore, dismissed.
…..…………Sd/-….…….……
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…..……Sd/-……….…….……
(S.M. KANTIKAR)
MEMBER
Am
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CIRCUIT BENCH AT BANGALORE, KARNATAKA
REVISION PETITION NO. 2540 OF 2009
(Against the order dated 20.3.2009 in Appeal No.2457/2008 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
United India Insurance Co. Ltd. Divisional Office, B.H. Road, Shimoga Through its Deputy
Manager Regional Office No.1, 8th Floor, Kanchan Junga Building, 18th Barakhamba Road, New
Delhi
…
Petitioner
Vs.
1.
P.M. Nagesh Nayak S/o Late Madhav Nayak R/o Mahalakshmi 8th Cross, 2nd Stage,
Krushinagara, Shimoga
2.
The Manager Canara Bank, Main Branch, Nehru Road, Shimoga
…
Respondents
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
For the Respondent-1
For the Respondent-2
:
:
Mr. B.C. Seetharama Rao, Advocate
Mr. P.N. Harish, Advocate
Mr. Y. Haridas Bhat, Advocate
PRONOUNCED ON 14TH FEBRUARY, 2014
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore (hereinafter referred to as “the State Commission”)
dated 20.3.2009 in appeal No.2457/2008 whereby the State Commission dismissed the appeal of
the petitioner- Insurance Company against the order of the District Forum, Shimoga dated
9thSeptember, 2008 whereby it was directed thus: “The complaint filed by the complainant against the opponents is
allowed.
The opponents 1 and 2 are hereby directed to discharge
the loan accounts of Smt. Jayanthi Bai due, as on the date of filing
of this complaint i.e. Rs.3,40,514/- in Account No.HL 6294 and
HL 11415 Rs.1,66,870/- of 3rd opponent Bank together with
interest at 11% p.a. from the date of filing of this complaint, till
realization or till discharging of entire loan taken
by Jayanthi Bai.
The opponents 1 and 2 are hereby directed to pay a sum of
Rs.5,000/- for deficiency of service and mental agony and
Rs.2,000/- towards litigation expenses to the complainant.
Further, the 3rd opponent is hereby directed to refund
the excess amount to the complainant, after adjusting the amount
paid by opponents 1 and 2 to the loan accounts of
deceased Jayanthi Bai.
Further, the opponents are hereby directed to comply with this
order, within 30 days from the date of commencement of this
order.”
2.
Briefly put, the facts relevant for the disposal of this revision petition are that Jayanthi Bai,
wife of the complainant/respondent No.1, obtained a UNI Home Care policy from the petitioner
valid w.e.f. 29th August, 2006. The policy covered the risk of accidental death. Jayanthi Bai, as
per the allegations in the complaint is stated to have died due to accidental fall from staircase on
25th February, 2007. Respondent No.1 being husband of the deceased submitted the
insurance claim, which was repudiated by the petitioner insurer on the ground that the death
of Jayanthi Baiwas not accidental. This led to filing of the consumer complaint which is resisted
by the petitioner.
3.
Learned District Forum on consideration of pleadings of the parties and the evidence
adduced came to the conclusion that the death of Jayanthi Bai occurred because of head
injurysuffered due to accidental fall and as such the petitioner has committed deficiency in
service by repudiating the claim. The District Forum therefore allowed the complaint with the
above directions.
4.
The petitioner being aggrieved of the order of the District Forum preferred an appeal
before the State Commission. State Commission agreeing with the finding of the District Forum
dismissed the appeal and affirmed the order of the District Forum. It is against the said order the
petitioner has come in revision.
5.
Learned counsel for the petitioner has assailed the impugned orders of the fora below
alleging that the orders of the fora below are based on incorrect appreciation of facts and law.
Learned counsel has contended that in order to succeed in his claim respondent No.1 was
supposed to establish that Jayanthi Bai died because of the accidental injuries due to fall whereas
the record would show that cause of death of Jayanthi Bai was not the head injury but heart
problem. In support of this contention learned counsel for the petitioner has drawn our attention
to the LIC claims filed by the petitioner in respect of his wife Jayanthi Bai. Said LIC claims are
in respect of insurance claim No.623791382 for Rs.20,000/- and 622715947 for Rs.50,000/-. In
the claim statement the immediate cause of death of Jayanthi Bai is declared as “heart pain” by
respondent No.1. Similarly in the certificate of identity and burial or cremation, cause of death is
shown as “heart pain.” Learned counsel for the petitioner states that from the aforesaid it is clear
that the wife of respondent No.1 has died because of heart problem and not due to the accidental
death. Thus, he has urged us to set aside the impugned orders which are against the facts.
6.
Learned counsel for respondent No.1 on the contrary has argued in support of the
impugned
order.
He
has
contended
that
the fora below
have
rightly
concluded
that Jayanthi Bai (insured) died because of the accidental injury. In support of this contention he
has drawn our attention to copy of certificate issued by Dr. M.B. Ravi wherein he has certified
that on 25.2.2007 at about 12.55 in the afternoon he examined Jayanthi Bai for severe head
injury i.e. Cerebral Concussion and advised them to admit her in Subaiah Hospital, Shimoga for
further treatment.
7.
We have considered rival contentions. The short question which requires consideration in
this case is whether the insured Jayanthi Bai died because of accidental injury or she died a
natural death because of heart problem?
8.
Though this is a case of unnatural death, post-mortem of the insured was not conducted. In
absence of the post-mortem report which could have determined the cause of death, we have no
option but to revert to the evidence produced on record to find out answer to the above question.
9.
Admittedly, Jayanthi Bai had also two life insurance policies. Petitioner has placed on
record copies of the claim statement, certificate of identity and burial or cremation and
requisition letter for claim forms for consideration of death claims submitted to LIC. In all three
documents respondent No.1- claimant has stated that Jayanthi Bai died on 25.2.2007 at 1.15 p.m.
and he has disclosed the immediate cause of death as “heart pain.” If we go by this information,
the cause of death of Jayanthi Bai obviously is the heart problem and not the accident as claimed
by respondent No.1.
10.
Respondent No.1 is relying upon the certificate issued by Dr. B.M. Ravi which reads thus:
“This is to certify that Smt. D. Jayanthi Bai, Aged 44 yrs.
W/o Nagesh Nayak P.M. is known to me since 17 yrs. and I
examined her on 25.02.07 at 12.55 afternoon for severe HeadInjuries i.e. Cerebral Concussion and I advised them to admit
to Subaiah Hospital Shimoga for further Treatment.”
11.
If the facts narrated in the certificate are correct, then Dr. M.B. Ravi examined the insured
on 25.2.2007 at 12.55 p.m. for Cerebral Concussion and he advised the patient Jayanthi Bai to be
shifted to Subaiah Hospital for further treatment. This version in the certificate is in conflict with
the averment of respondent No.1 in his affidavit filed before the District Forum. Relevant portion
of the averment made in the affidavit is reproduced thus: “I submit that, about the accidental death I would like to
state that on 25.2.2007 at about 12.45 P.M. when
Smt. Jayanthi Bai was alighting from steps of I floor at the office of
her employment, due to slip of her step she fell rolling down
through the steps. Because of this fall, she got injured seriously
over her head, nose and other injuries over her body. Bleeding
was found in her nose and ears. As she was found unconscious,
immediate arrangements were made to call a doctor who attended
the supposed injured person at 12.55 P.M. at the spot. Even
though, the doctor who attended at the spot said about the death of
the injured. I alongwithother colleagues of the deceased with
a fond hope that she may be rescued or any other thing is possible
taken the injured to Subhaiah Hospital, Shimoga but in vain.”
12.
On reading of the above, it is clear that as per respondent No.1 Dr. M.B. Ravi who
attended to the insured at the spot declared her dead. This version of respondent No.1 is in
conflict with the certificate given by Dr. B.M. Ravi wherein he has certified that after examining
the insured he advised her to be taken to Subaiah Hospital, Shimoga for further treatment. The
aforesaid certificate does not even have the date. In view of the aforesaid contradictions in the
medical certificate relied upon by respondent No.1 and the evidence of respondent No.1 as also
the information given in the claim form etc. submitted to LIC, we are not inclined to accept the
version of respondent No.1 that the insured died because of accidental head injury. It is well
settled principle of appreciation of evidence that the person may lie but circumstances do not.
Mere fact that in the LIC claim form respondent No.1 has declared the cause of death as heart
pain is clear indication that the story regarding the death of the insured due to accidental head
injury is concocted on an afterthought. Our conclusion is further fortified by the fact that
respondent No.1 has failed to produce any record from Subaiah Hospital to show that she was
brought with the history of head injury due to fall and was declared brought dead.
13.
Both the fora below have failed to take note of the abovesaid important factual aspect of
the matter. Therefore the impugned orders of the fora below, based on incorrect appreciation of
fact, cannot be sustained.
14.
In view of the above, we allow the revision petition, set aside the orders of the fora below
and dismiss the complaint.
…..………Sd/-…….…….……
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…..…Sd/-………….…….……
(S.M. KANTIKAR)
MEMBER
Raj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CIRCUIT BENCH AT BANGALORE, KARNATAKA
REVISION PETITION NO. 2719 OF 2009
(Against the order dated 25.2.2009 in Appeal No.2544/2008 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
Karnataka Vikas Grameena Bank (Formerly Malaprabha Grameena Bank) Chikkanshi Hosur
Branch Hangal Taluk, Haveri District Karnataka State Represented by its Branch Manager,
Sri Subramanya Manohar Mahale
…
Petitioner
Vs.
1. Sri Mallapa Ningappa Parappanavar S/o Sri Ningappa Prappanavar R/O Shiragoda, Hangal
Taluk, Haveri District.
2. The Deputy Commissioner, Haveri, District Haveri.
…
Respondents
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
Mr. P.S. Raghunathan, Advocate
For the Respondents
:
R1 in person
Dr. Nagendra Honnalli, Tehsildar, Hangal for R2
Dated : 14th February, 2014
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1.
The petitioner, Karnataka Vikas Grameena Bank, being aggrieved of the concurrent
findings of the foras below against them has preferred this revision petition.
2.
Briefly put, the facts relevant for the disposal of this revision petition are that respondent
no.1 filed a consumer complaint under section 12 of the Consumer Protection Act, 1986, against
the petitioner claiming himself to be a small farmer. It is alleged that complainant took a short
term crop loan of Rs.20,000/- from the petitioner bank on 14.07.2005. Unfortunately, due to
heavy rains the corn crop of the respondent was damaged. The petitioner bank issued notice
dated 10.02.2007 to the respondent no.1 calling upon him to pay the loan amount and the
interest. The complainant on 15.10.2007 paid interest amount of Rs.4640/- only and requested
the petitioner to extend the time of payment of his loan. It is alleged that bank officials accepted
the payment of interest and obtained signatures of the complainant on various blank forms which
has been to mis-utilized to show discharge of debt of Rs.20,000/- on 15.10.2007 and sanction
of new loan of Rs.20,000/- in favour of the respondent. According to the complainant, the
petitioner bank has indulged in this exercise with a view to deprive the respondent of benefit of
“Agricultural DebtWaiver and Relief Scheme” announced by the Government of Karnataka in
the year 2008. It is alleged that since respondent no.1 had taken a loan of Rs.20,000/- on
14.07.2005 which remainedunpaid, the respondent no.1 is entitled to waiver of his debt under the
scheme announced by the Government. Claiming the aforesaid conduct of the petitioner to be
deficiency in service, respondent no.1 filed a complaint.
3.
The petitioner in the written submissions version took the plea that on 15.10.2007,
respondent no.1 cleared his loan alongwith interest and obtained fresh loan of Rs.20,000/- which
wassanctioned on 15.10.2007. It is the case of the petitioner that since respondent no.1 had taken
a new loan on 15.10.2007, he is not covered the debt waiver policy / scheme of the Government.
4.
Learned District Forum on consideration of the pleadings and evidence on record allowed
the complaint vide order dated 06.10.2008 and ordered the petitioner to recommend to the
Central Government that the complainant is a defaulter. The reasoning given by the District
forum for the aforesaid finding is reproduced thus:
“The Opposite Party in his objections stated that the complainant is not a
defaulter. The opposite Party stated in para no.7 of their objections that the loan
obtained for the period from 01.04.2007 to 31.12.2007 does not come under the
Agricultural Debt Waiver and Relief Scheme. The complainant even though
obtained a loan on 14.07.2005, he has cleared the loan on 15.10.2007 on the
same date he has obtained a fresh loan of Rs.20,000/-. Hence, he is not a
defaulter. The Respondent has produced Xerox copies ofchallan for the
repayment made by the complainant. The complainant has repaid the loan
amount of Rs.20,000/- and interest of Rs.4640/- to the respondent bank. On the
same day the complainant has availed a fresh loan of Rs.20,000/-.
The respondent bank has produced the statement of account regarding the
principal amount and interest paid by the complainant on 15.10.2007. Hence, the
complainant is not a defaulter.
The complainant has stated that he has paid only interest amount and he has not
paid the principal amount and further states that the respondent has created the
concocted documents to show that the loan amount of Rs.20,000/- made by the
complainant but the respondent bank states that they have not obtained signature
of the complainant on the blank papers.
The opposite party has produced all the Xerox copies of the documents including
three Xerox challans. If at all the complainant on that day paid the principal
amount and interest he would have paid the amount of Rs.24,460/- in
one challan but there is no necessity to pay the principal amount and interest in
separate challans. The complainant is a customer of the respondent bank and
there is a special relationship within the parties whereas the complainant is a
borrower and the respondent bank has sufficient funds to lend a loan. Hence, the
respondent bank can exercise its power over the borrower and the borrower has a
circumstances to bow to the Respondent bank’s power. Hence for the reasons
stated above, we agreed with the complainant.
The Government of Karnataka has been waived the farmer’s debt in Co-operative
Societies like wise pressurized the Central Government to waive the farmers debt
in Nationalized Banks. As stated by the Complainant in October 2007, he has
paid the loan amount and there was a circumstances that the Central Government
waive the farmers debt in Nationalized Banks. In these circumstances, the farmer
will not repay the loan amount and he wishes to remain as a defaulter. In many
cases there is a circumstancesthat who is willing to repay the interest the
remaining principal amount has waived. In this case the complainant has paid
only interest portion. The Consumer Forum has to protect the Consumer. Hence,
we answered finding in favour of the Complainant.”
5.
Being aggrieved of the impugned order, the petitioner preferred an appeal before the State
Commission and the State Commission after consideration of record, dismissed the appeal with
following observations:
“Admittedly the money borrowed by the complainant is on 14.07.2005 that is
earlier to 31.03.2007. The OP bank has advanced the loan of Rs.20,000/- on
15.10.2007 and collected the sum of Rs.20,000/- towards the principal payable by
the complainant in addition to the interest. On the same day the OP Bank has
granted loan of Rs.20,000/- to the complainant. There is no need to sanction loan
of Rs.20,000/- on the very date the complainant discharged the loan. If really the
Bank interested in recovery of the money, it could have renewed the loan by
collecting interest instead of granting fresh loan. This appears to be in order to
deny the benefit which he is entitled as per the Government
notification. Therefore, in our view the DF is right in directing the OP bank to
issue a certificate to the effect that he is a defaulter.
6.
Learned Shri P.S.Raghunathan, Advocate for the petitioner has contended that the orders
of the foras below are not sustainable for the reason that orders have been passed against law and
facts. He has drawn our attention to the Agricultural Debt Waiver and Debt Relief Scheme,
2008, wherein it is recorded that debt accounts eligible for waiver are those short term
production loans (Crop loans) which are disbursed upto 31.03.2007 and over due as on
31.12.2007 and unpaid until 29.02.2008. He has contended that in the instant case, admittedly
earlier loan taken by the respondent no.1 was discharged on payment of principal amount as well
as interest on 15.10.2007 and thereafter, respondent no.1 obtained fresh loan of Rs.20,000/- on
the same day. Thus, the existing loan being beyond the period mentioned for the eligible
accounts, respondent no.1 is not covered under the debt waiver scheme of the Karnataka
Government. It is contended that both the foras below have exceeded their jurisdiction in
assuming that earlier loan was not settled and actually the bank has indulged in paper work just
to deprive the respondent no.1 of benefit of debt waiver scheme.
7.
Respondent no.1 who appeared in person on the contrary has argued in support of the
impugned orders. He has contended that on 15.10.2007, he had paid the interest amount of
Rs.4640/- and asked for extension of payment of his loan. At that time, the bank officials
obtained his signatures on blank forms and coverted those blank forms into the transaction of
payment of the earlier loan and creation of new loan with a view to deprive him from the benefit
of debt waiver scheme.
8.
We have considered the rival contentions and perused the record. On careful consideration
of record, we find force in contention of learned counsel for the petitioner. On perusal of the
record, we find that respondent no.1 is seeking waiver of his debt on the strength of “Agricultural
Debt Waiver and Debt Relief Scheme, 2008”. On perusal of the said scheme, it is clear that this
scheme was introduced vide circular no. 31/08/2008/ADV dated 06.06.2008. The relevant
portions of the circular are reproduced thus:
“Attention of Branches / Offices is invited to our Circular No.31/08/2008/ADV
dated 08.03.2008. Now GOI/NABARD has issued detailed guidelines of the
above scheme, the contents of which are detailed here below.
Nothing contained in this Scheme shall apply to any loan disbursed prior to
March 31, 1997
Scope:
The Scheme will cover direct agricultural loans extended to ‘marginal and small
farmers’ and ‘other famers’ as indicated in the Guidelines.
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX.”
Eligible Accounts:
i.
Short-term production loans (Crop loans / VKCC) disbursed upto 31.03.2007
and overdue as on 31.12.2007 and remaining unpaid until 29.02.2008;
ii.
Restructured and rescheduled (ARTL) by Banks in 2004 and in 2006
through the special packages announced by the Central Government, whether
overdue or not; and
iii. Restructured and rescheduled in the normal course upto 31.03.2007 as per
applicable RBI guidelines on account of natural calamities, whether overdue or
not.
iv. Investment credit for Agri. Allied activities where the principal loan amount
does not exceed Rs.50,000/- should be classified under ‘small and marginal
farmer’ irrespective of the size of the land holding, if any.
v.
In case of restructured and rescheduled loans the date of restructuring or
rescheduling will be the date of disbursement.”
9.
On reading of the above, it is clear that benefit of debt waiver scheme is available to only
those short term production loans which were disbursed upto 31.03.2007 and were over due as
on 31.12.2007 and had remained unpaid till 29.02.2008. In the instant case, admittedly as per the
record of the bank, earlier loan of the respondent dated 14.07.2005 was settled on 15.10.2007
and respondent no.1 had taken a fresh loan of Rs.20,000/- on the same day. Plea of the
respondent no.1 is that actually earlier loan was not settled and only interest was paid.
But the bank officials after obtaining his signatures on blank papers have created documents
regarding discharge of the earlier loan and creation of new loan on 15.10.2007. It is the
contention of the respondent no.1 that this has been done by the petitioner bank to deprive him of
benefit of waiver of loan under the policy announced by the Government.
10.
Both the foras below being impressed by the above contention of respondent no.1 have
allowed the complaint. The foras below have failed to appreciate that the above noted debt
waiver scheme was notified vide circular dated 06.06.2008. There is a mention of earlier circular
issued to the banks vide which guidelines of the notified schemes were circulated. Even that
circular is dated 08.03.2008. When the scheme came into being in the year 2008, by no stretch of
imagination it can be said that on 15.10.2007, the petitioner bank in order to avoid extending
debit relief benefit to the respondent no.1 indulged in fabrication of record to give an impression
that loan taken by the respondent no.1 on 14.07.2005 was discharged on 15.10.2007 and
thereafter a fresh loan of Rs.20,000/- was sanctioned in favour of the respondent. Otherwise also,
we find no explanation why a bank manager would indulge in such exercise with a view to
deprive the respondent no.1 of the benefit particularly when, there is no evidence of any enmity
against respondent no.1 or motive on the part of the bank manager to indulge in such
exercise. Further, the petitioner bank has placed on record photocopies of the deposit slips dated
15.10.2007 from which it transpires that on 15.10.2007, by way of two deposit slips, the
respondent deposited sum of Rs.4640/- and Rs.20,000/- in cash for discharge of his loan account
dated 14.07.2005. Petitioner has also placed on record photocopy of ledger account pertaining
to the loan of respondent no.1 wherein there exist entries regarding payment by cash to discharge
the loan payment on 14.07.2005. Therefore, we are of the considered view that loan dated
14.07.2005 which the respondent is seeking to be waived was not due as on 31.12.2007.
Therefore, respondent no.1 in our considered view is not covered under eligible criteria for
waiver of loan.
11.
In view of the discussion above, we are of the opinion that foras below have passed the
impugned orders ignoring the basic facts on assumptions and presumptions. Aforesaid orders,
therefore, cannot be sustained. Accordingly, revision petition is allowed, impugned orders are
set aside and complaint is dismissed. No order as to costs.
…..…………Sd/-….…….……
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…..…………Sd/-….…….……
(S.M. KANTIKAR)
MEMBER
Am
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO.409 of 2012
(From the order dated 10.05.2012 in Complaint
Consumer Disputes Redressal Commission UT Chandigarh)
No.46/2011
of
the
State
1. Santa Banta.Com Limited, SCO 317-318, Ist Floor, Sector 35-B, Chandigarh through
Jiwandeep Singh Ghai, Director.
2. Jiwandeep Singh Ghai, Director, Santa Banta.Com Limited, SCO 317-318, 1st Floor, Sector
35-B, Chandigarh.
…..Appellants
Vs.
1. M/s Porsche Cars, its Managing Director, Mr. Rod Wallace, # 3, District Centre, Jasola,
3rd Floor, Splendor Forum Building, South Delhi, New Delhi – 110044. Second Address:
(Porsche Centre Chandigarh), Plot No. 27/9, Industrial Area, Phase-II, Chandigarh –
160002.
2. Mr. Rod Wallace, #3, District Centre, Jasola, 3rd Floor, Splendor Forum Building, South
Delhi, New Delhi – 110044. Second Address: (Porsche Centre Chandigarh), Plot No. 27/9,
Industrial Area, Phase-II, Chandigarh – 160002.
3. M/s Shreyans Motors Pvt. Ltd. Through its Managing Director, A-31, Mohan
Cooperative Industrial Estate, Mathura Road, New Delhi – 110044. Second Address(Porsche
Centre Chandigarh), Plot No. 27/9, Industrial Area, Phase-II, Chandigarh – 160002.
4. Mr. Maneesh Raseen, Sales Manager, M/s Shreyans Motors Pvt. Ltd., (Prosche Centre,
New Delhi) A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi – 110044.
5. Mr. Stanley Evans, Brand Manager, (Porsche Centre, New Delhi), M/s Shreyans Motors
Pvt. Ltd. through its Managing Director, A-31, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhij – 110044. Second Address: (Porsche Centre Chandigarh), Plot
No. 27/9, Industrial Area, Phase-II, Chandigarh – 160002.
6. M/s Precision Cars India Private Ltd., through its Managing Director, 401, Poonam
Chambers, Worli Mumbai, Maharastra – 400018. Second Address: (Porsche Centre
Chandigarh), Plot No. 27/9, Industrial Area, Phase-II, Chandigarh – 160002.
7. Ashish Kumar Chordia, Director, M/s Shreyans Motors Pvt. Ltd. and also M/s Precision
Cars India Pvt. Ltd., r/o 22 Ferozshah Road, # 302, New Delhi – 110001. Second Address: c/o
M/s Precision Cars India Pvt. Ltd., Plot No. 27/9, Industrial Area, Phase-II, Chandigarh –
160002.
8. Ms. Ujwal Kumari, Director, M/s Shreyans Motors Pvt. Ltd. and also M/s Precision Cars
India Pvt. Ltd., r/o B/406, Shirpal Nagar, # 12, Harkness Road, Mumbai -400006,
Maharashtra. Second Address: c/o M/s Precision Cars India Pvt. Ltd., Plot No. 27/9,
Industrial Area, Phase-II, Chandigarh – 160002.
..Respondents
BEFORE: HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellants
:
Mr. Satinder S. Gulati,
Advocate.
For the Respondents No.
3, 4, 6, 7 & 8.
:
Mr. Ashok Kashyap &
Mr. Rajat Bhalla, Advocates.
For the remaining
Respondents
:
NEMO.
ORDER
(Pronounced on 14th day of February, 2014)
D.K. JAIN, J., PRESIDENT
This Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short “the
Act”) has been filed by the Complainant Company and one of its Directors, questioning the
correctness of order dated 10.05.2012 passed by the State Consumer Disputes Redressal
Commission (for short “the State Commission”). By the impugned order, the State Commission,
without entering into merits of the complaint filed by the Appellants, has dismissed it only on the
ground that it did not have territorial jurisdiction to entertain the complaint as no cause of action
had arisen in the Union Territory of Chandigarh.
2.
Briefly stated, the case of the Appellants, as pleaded in the complaint, is that on being
approached by the General Manager (Respondent No. 4) of one M/s Stanley Motors Pvt. Ltd.
(Respondent No. 3), dealers of M/s Porsche cars (Respondent No. 1) they decided to purchase a
Porsche Cayenne V-6 vehicle. The price of the vehicle was settled at `68.93 lacs. The
Appellants were required to pay 60% of the price of the car, in advance. The remaining 40% of
the price was to be paid on delivery of the car. The Appellants were also told that they will have
to pay `5.35 lacs and the balance amount of `34,81,880/-, towards advance, would be arranged
through a finance company. Accordingly, the Appellants handed over a cheque in the sum
of `5.35 lac dated 30.07.2008 to Respondent No. 3 at Chandigarh. The sales contract dated
31.07.2008 was executed at Chandigarh. A sum of `34,81,880/-, after deducting one installment
against a total loan of `36 lac, was directly paid by the finance company, Tata Capital Ltd.,
Chandigarh, to Respondent No. 3 on 31.07.2008 at Chandigarh. However, for some reason the
car was not delivered to the Appellants. Nevertheless, they continued to pay 13 monthly
installments of `1,15,020/- to the finance company at Chandigarh. Having failed to receive the
car, the Appellants served a legal notice dated 25.12.2009, requiring the said Respondents as
also the importer (Respondent No. 6) to pay to them a sum of `40,16,800/- paid as advance,
interest and damages, etc. There being no response to the legal notice, alleging deficiency in
service, resulting in humiliation, harassment and the mental agony, the Appellants filed a
complaint under Section 17 of the Act against the Respondents praying for a direction to pay to
them a sum of `67,80,293/- along with interest and compensation for harassment.
3.
The complaint was resisted by Respondents No. 3, 4 and 6. One of the preliminary
objections raised in their common written version was that the State Commission, Chandigarh
had no jurisdiction to entertain the complaint because no cause of action had arisen at
Chandigarh as the car was booked by Respondent No. 4 at Delhi, for which, a cheque in the sum
of `5.35 lacs was handed over to him. Accepting the preliminary objection, the State
Commission has concluded that since none of the payments were received at Chandigarh, no part
of
the
cause
of
action
could
be
said
to
have arisen within the territorial jurisdiction of the Chandigarh State
Commission. Relying on the decision of the Supreme Court in M/s Sonic Surgical Vs. National
Insurance Company Ltd. – IV (2009) CPJ 40 (SC), as noted above, the Complaint has been
dismissed in limine. Hence, the present Appeal.
4.
We have heard Learned Counsel for the parties.
5.
Mr. S.S. Gulati, Learned Counsel appearing for the Appellants, strenuously urged that since
the sales contract for purchase of the car was entered into at Chandigarh, a cheque in the sum
of `5.35 lacs was handed over to Respondent No. 4 at Chandigarh and monthly
installments (`1,15,020/-) were paid in the office of the finance company at Chandigarh, the
State Commission committed an error of law in holding that no part of cause of action in respect
of the subject transaction had arisen at Chandigarh. To buttress his argument that for
determining the objection regarding lack of territorial jurisdiction only the facts pleaded in the
Complaint in support of the cause of action are to be taken into consideration and the correctness
or otherwise of the said facts or the defence which may be set up by the opposite party is
irrelevant, Learned Counsel placed reliance on a decision of the Supreme Court in A.B.C.
Laminart Pvt. Ltd. & Another Vs. A.P. Agencies, Salem (1989) 2 SCC 163.
6.
Mr. Rajat Bhalla, Ld. Counsel appearing on behalf of the Respondents, on the other hand,
supported the decision of the State Commission. It was submitted that neither Respondent No.3
(dealer) nor Respondent No. 6 (importer) had any Branch Office at Chandigarh and all the
documents having been executed at New Delhi, the State Commission at Chandigarh was
justified in dismissing the complaint for want of territorial jurisdiction. Additionally, it was also
urged that apart from the fact that there was no privity of contract between the Appellants and
Respondent No. 6 (importer) the sales contract also contains an undertaking that there would be
no privity of contract between Respondent No. 6 and any other party at Chandigarh or elsewhere.
7.
Having examined the issue in light of the material on record, we are of the opinion that the
order of the State Commission, dismissing the complaint in limine, on the ground of territorial
jurisdiction, is unsustainable.
8.
Section 17 of the Act defines the jurisdiction of a State Commission. Sub-Section 2 of
Section 17 of the Act, inserted by Act 62 of 2002, with effect from March 15, 2003, relevant for
our purpose, reads as follows:“[(2) A complaint shall be instituted in a State Commission within the
limits of whose jurisdiction, (a) the opposite party or each of the opposite parties, where there are
more than one, at the time of the institution of the complaint,
actually and voluntarily resides or carries on business or has a
branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the
time of the institution of the complaint, actually and voluntarily
resides, or carries on business or has a branch office or personally
works for gain, provided that in such case either the permission of
the State Commission is given or the opposite parties who do not
reside 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.]”
9.
The sole question for consideration therefore, is as to whether on the basis of assertions
made in the complaint, the “cause of action”, wholly or in part, arose at Chandigarh?
10.
The expression “cause of action” is neither defined in the Act nor in the Code of Civil
Procedure, 1908. However, in a catena of decisions of the Supreme Court, the said expression is
described as a bundle of essential facts necessary for the plaintiff to prove and obtain a decree
but does not comprise evidence necessary to prove such facts. Failure to prove such facts would
give the defendant a right to judgment in his favour. “Cause of action” thus gives occasion for
and forms the foundation of the suit. (See Kandimalla Raghavaiah & Co. Vs. National
Insurance Co. Ltd. – (2009) 7 SCC 768).
11.
In Oil & Natural Gas Commission Vs. Utpal Kumar Basu & Ors., - 1994 (4) SCC 711,
a bench of three Learned Judges of the Supreme Court, while interpreting the expression “cause
of action, wholly or in part, arises” as appearing in Article 226(2) of the Constitution of India
(similar expression is used in Section 17(2)(c) of the Act) observed, thus:“It is well settled that the expression “cause of action” means that
bundle of facts which the petitioner must prove, if traversed, to
entitle him to a judgment in his favour by the Court. In Chand
Kour Vs. Partab Singh [ILR (1889) 16 Cal 98, 102:15 IA 156]
Lord Watson said:
“…the cause of action has no relation whatever to the defence
which may be set up by the defendant, nor does it depend
upon the character of the relief prayed for by the plaintiff. It
refers entirely to the ground set forth in the plaint as the
cause of action, or, in other words, to the media upon which
the plaintiff asks the Court to arrive at a conclusion in his
favour.”
Therefore, in determining the objection of lack of territorial
jurisdiction the court must take all the facts pleaded in support of
cause of action into consideration albeit without embarking upon
an enquiry as to the correctness or otherwise of the said facts. In
other words the question whether a High Court has territorial
jurisdiction to entertain a writ petition must be answered on the
basis of the averments made in the petition, the truth or otherwise
whereof being immaterial. To put it differently, the question of
territorial jurisdiction must be decided on the facts pleaded in the
petition.”
12.
Again, in Navinchandra N. Majithia Vs. State of Maharashtra & Ors., - (2000) 7 SCC
640, explaining the import of the said expression, in his concurring judgment, K.T. Thomas J.
observed as under:
“The collocation of the words “cause of action, wholly or in part,
arises” seems to have been lifted from Section 20 of the Code of
Civil Procedure, which section also deals with the jurisdictional
aspects of the courts. As per that section the suit could be instituted
in a court within the legal limits of whose jurisdiction the “cause of
action wholly or in part arises”. Judicial pronouncements have
accorded almost a uniform interpretation to the said compendious
expression even prior to Fifteenth Amendment of the Constitution
as to mean “the bundle of facts which would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the
judgment of the court”.
In Read V. Brown Lord Esher, M.R.[(1888) 22 QBD 128:58 LJQB
120:60LT 250 (CA)], adopted the definition for the phrase “cause
of action” that it meant
“every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the
judgment of the court. It does not comprise every piece of
evidence which is necessary to prove each fact, but every
fact which is necessary to be proved”.”
13.
In Alchemist Ltd. & Anr. Vs. State Bank of Sikkim and Ors. - (2007) 11 SCC 335,
explaining the meaning of the expression “cause of action”, the Supreme Court opined thus:“37. From the aforesaid discussion and keeping in view the
ratio laid down in a catena of decisions by this Court, it is clear that
for the purpose of deciding whether facts averred by the appellantpetitioner would or would not constitute a part of cause of action,
one has to consider whether such facts constitutes a material,
essential, or integral part of the cause of action. It is no doubt true
that even if a small fraction of the cause of action arises within the
jurisdiction of the court, the court would have territorial
jurisdiction to entertain the suit/petition. Nevertheless, it must be a
“part of cause of action” nothing less than that.”
14.
Having considered the matter in the light of the afore-said principle, we are unable to hold
that in the present case not even a part of cause of action had arisen at Chandigarh. Although the
sales contract does not mention the place where the same was executed but other
contemporaneous circumstances like confirmation of payment by the branch of the finance
company at Chandigarh, issue of cheques towards
monthly installments in favour of the finance company at Chandigarh do tend to support the
averments that a part of the cause of action had arisen at Chandigarh. At this stage, there is no
reason to disbelieve the version of the Appellants that cheque dated 30.07.2008 of `5.35 lacs,
towards
initial
payment,
drawn
on
Citi
Bank
N.A.
Sector
9,
Chandigarh
in
favour of Respondent No. 3 (the dealer) at the time of signing of the sales contract was not
issued at Chandigarh. In our view, in the light of the facts pleaded in the Complaint, a part of
cause of action did arise at Chandigarh conferring jurisdiction on the State Commission at
Chandigarh.
15.
As regards the decision of the Supreme Court in Sonic Surgical (supra), on which reliance
has been placed in the impugned order, it is clearly distinguishable on facts. In that case,
insurance policy had been taken at Ambala; the fire broke out in godown at Ambala and claim
for compensation was also made at Ambala, which, as noted above, is not the case here. In the
light of those facts it was held that no “cause of action” arose at Chandigarh, where the
complaint under the Act was filed.
16.
For the foregoing reasons, the appeal succeeds and is hereby allowed with no order as to
costs. The impugned order is set aside and the complaint is restored before the State
Commission, UT, Chandigarh for being decided on merits. The State Commission is requested to
dispose of the complaint as early as possible.
17.
Before parting with the case, we deem it necessary to clarify that we have come to the
afore-noted conclusion on the basis of the averments in the complaint. It would, however, be still
open to the respondents to rebut the evidence, which may be led by the Complainant in support
of the averments in the Complaint and if they succeed in showing that the averments are not true
and correct, the complaint, though entertained in terms of this order, may be rejected for want of
jurisdiction.
18.
The
parties/their
counsel
are
directed
Commission on 24th March, 2014 for further proceedings.
………………….
(D.K. JAIN, J.) PRESIDENT
……………………
(VINEETA RAI) MEMBER
……………………
(VINAY KUMAR) MEMBER
AR/YD
to
appear
before
the
State
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1240 OF 2012
(From the order dated 14.12.2011 in First Appeal No. 4584/2010 of the Karnataka
State Consumer Disputes Redressal Commission, Bangalore)
Smt. Kavitha W/o Mallikarjun Sharanappa Kante, R/o Nirmanahalli, Tq. Bhalki, District Bidar,
Karnataka
…Petitioner/Complainant
Versus
1.
Reliance Life Insurance Co. Ltd. Having its Corporate office at, 10th Floor, R-Tech Park,
Nirlon Compound, Next to Hub Mall, Goregaon (East) Mumbai – 400063
2.
The Branch Manager M/s. Reliance Life Insurance Co. Ltd. Anil Dhirubhai
Ambani Groups Reliance Capital Company, Ground Floor, 9-9-12/27, 28, 29, Rishikesh
Complex, Udgir Road, Bidar.
3.
Regional Manager M/s. Reliance Life Insurance Co. Ltd. Opposite to Lahoti Petrol Bunk,
Near mini Vidhansoudha, Gulbarga
…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. Mahaling Pandarge, Advocate
For the Respondents :
Mr. Ramesh Gopinathan, Advocate
PRONOUNCED ON 17th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 14.12.2011
passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the
State Commission’) in Appeal No. 4584/2010 – M/s. Reliance Life Insurance Co. Ltd. & Ors.
Vs. Smt. Kavitha by which, while allowing appeal, order of District Forumallowing complaint
was set aside and complaint was dismissed.
2.
Brief facts of the case are that complainant/Petitioner’s husband deceased Mallikarjun
Kante got his life assured for a sum of Rs.1,00,000/- from OP/respondent and policy commenced
from 21.10.2008. Mallikarjun Kante died on 25.12.2008. Complainant/petitioner submitted
claim before OP. OP vide letter dated 14.2.2009 sent cheque for a sum of Rs.579.20 and
repudiated claim on the ground of suppression of material fact. Alleging deficiency on the part
of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted
that deceased Mallikarjun Kante was diagnosed by ‘Cirrhosis of liver’, but suppressed this fact
in his proposal form. Deceased was advised for admission in Prayavi Hospital, but he refused;
so, claim was rightly repudiated and as there was no deficiency in service and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint
and directed OP to pay assured amount of Rs.1,00,000/- along with Rs.5,000/- as cost. Appeal
filed by 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 and perused record.
4.
Learned Counsel for the petitioner submitted that petitioner never went to Prayavi Hospital
for checkup and requested District Forum to summon original record as photocopiespertaining
to hospital record were forged one and learned District Forum rightly allowed complaint; even
then, learned State Commission committed error in allowing appeal and 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.
It is not disputed that complainant’s husband obtained insurance policy from OP and
within 65 days insured died. The core question to be decided in this revision petition is whether
insured suppressed material fact regarding his health condition in the proposal form.
6.
OP has placed reliance on the Prayavi Hospital outpatient record dated 12.6.2008, whereas
learned Counsel for the complainant has disputed this record and submitted that this is a forged
document and also moved application on 11.8.2010 for calling original record from the Prayavi
Hospital. Learned District forum has not decided this application and did not call for original
record, but allowed complaint and observed as under:
“Herein the instant case there is no convincing evidence to show that the deceased
6 months prior to the date of submitting proposal either he has admitted in the
hospital or operated for any serious ailment. The respondents in the instant case
repudiated the claim solely on the basis of outpatient slip. Absolutely, there is no
evidence to show that deceased was found suffering any serious ailment or he was
operated mere proximity of taking policy. It is highly impossible to accept the
respondents contentions that the deceased was suffering from liver cirrhosis on
the basis of outpatient slip that too in the absence of producing any diagnostic
report particularly in respect of Liver cirrhosis”.
Thus, District Forum did not believe on photocopy of record of the Prayavi Hospital, but learned
State Commission relied on Prayavi Hospital as outpatient record and held that material facts
regarding health have been suppressed by the insured and on that basis complaint was dismissed.
7.
As there was dispute regarding genuineness of record of Prayavi Hospital and complainant
had already moved application before District Forum for calling original record of Prayavi
Hospital it would have been appropriate for District Forum to allow this application and call
record and decide complaint, but learned District Forum holding that there was no convincing
evidence to prove this outpatient slip allowed complaint. In such circumstances, it would be
appropriate to set aside the impugned order as well as order of District Forum and remand the
matter back to the District Forum to first decide the application of complainant filed for
summoning original record and then decide the complaint after hearing both the parties.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
14.12.2011 passed by learned State Commission in Appeal No. 4584/2010 – M/s. Reliance Life
Insurance Co. Ltd. & Ors. Vs. Smt. Kavitha and order of District Forum dated 20.09.2010 passed
in Complaint No. 170/09 – Smt. Kavitha Vs. The Branch Manager, Reliance Life Insurance Co.
Ltd. & Anr. is set aside and matter is remanded back to learned District Forum to decide the
application dated 11.8.2010 filed by complainant and decide the complaint afresh after giving an
opportunity of being heard to both the parties.
9.
Parties are directed to appear before District Forum on 25.3.2014.
……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2355 OF 2012
(From the order dated 30.03.2012 in First Appeal No. 1538 of 2007 of the Punjab State
Consumer Disputes Redressal Commission, Chandigarh)
Sandeep Gupta S/o Sh. Krishan Lala R/o Dana Mandi, Phillaur, District Jalandhar
… Petitioner
Versus
1. United India Insurance Co. Ltd. Having its Regional Office at: SCO 123-124, Sector 17-B,
Chandigarh Through Sh. Raj Pal Manager, Duly Constituted Attorney
2. Sh. Jit Singh S/o Sh. Kartar Singh R/o- Village Chak Dara, Tehsil and District Nawanshahr
… Respondents
BEFORE:
HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B C. GUPTA, MEMBER
For the Petitioner
For the Respondent No. 1
: Mr. R. K. Dhawan, Advocate
: Ms. Suman Bagga, Advocate
For the Respondent No. 2
: NEMO
PRONOUNCED ON :
ORDER
14th FEBRUARY 2014
PER HON’BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
This Revision Petition has been filed by the petitioner against the impugned order dated
30.03.2012, passed by the State Commission in First Appeal No. 1538/2007, United India Insurance
Company Ltd. vs. Jit Singh & Anr., 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-respondent no. 2 Jit Singh alongwith Prem Singh
were owner of truck PB-32A-4797 and got it insured from opposite party-respondent no. 1 for a
period of one year commencing from 09.11.2005 to 08.11.2006. Jit Singh and Prem Singh sold their
truck to complainant-petitioner, Sandeep Gupta on 13.11.2005. On 13.04.2006, vehicle
was stolen and report was lodged on the very day and intimation was also given to the opposite
party and submitted claim papers, but claim was repudiated by opposite party. Alleging deficiency
on the part of the opposite party, complainant filed complaint before the District Forum. Opposite
party resisted complaint and submitted that as vehicle was sold by registered owner, Jit Singh to
complainant, Sandeep Gupta on 13.11.2005, but insurance policy was not got transferred in his
name and no intimation was given to the opposite party about the transfer of vehicle, therefore,
complainant, Sandeep Gupta had no insurable interest and complainant Jit Singh was not owner of
the truck, so claim was repudiated rightly, hence complaint may be dismissed.
3.
Learned District Forum, after hearing both the parties allowed complaint and directed the
opposite party to pay insurance claim alongwith interest and further awarded Rs. 3,000/- as
costs. Appeal filed by the opposite party was allowed by the State Commission vide impugned
order, against which this revision petition has been filed.
4.
None appeared for respondent no. 2 even after service.
5.
Heard learned counsel for the parties finally at admission stage and perused record.
6.
Learned counsel for the petitioner submitted that as per section 157 of the Motor Vehicle Act,
policy automatically stands transferred in the name of subsequent registered owner of the vehicle
and learned District Forum rightly allowed the complaint, but learned State Commission committed
error in allowing the appeal, hence revision petition be allowed and impugned order be set aside.
7.
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.
8.
It is not disputed that previous registered owner of the truck were Jit Singh and Prem Singh,
who obtained insurance of the truck from opposite party and during continuity of insurance policy,
Jit Singh and Prem Singh sold truck to complainant, Sandeep Gupta on 13.11.2005 and vehicle was
stolen on 13.04.2006.
9.
The core question to be decided in this revision petition is whether insurance company is liable
to make payment to the subsequent registered owner without transfer of insurance policy in his
name. Learned State Commission, after discussing all the authorities reported in I (1996) CPJ 1
(S.C.) Complete Insulations (P) Ltd. vs. New India Assurance Company Ltd., III (2007) CPJ 411
(NC) United India Insurance Company vs. Harinder Kaur, 2008 (1) CLT 46 (NC) Narayan Singh vs.
New India Assurance Company Ltd., I (2009) CPJ 183 (NC) Oriental Insurance Co. Ltd. vs. Om
Prakash Gupta & Anr., I (2009) CPJ 158 (NC) Madan Singh vs. United India Insurance Co. Ltd. &
Anr. and GR.17. effective from 01.07.2002. came to the conclusion that subsequent transferee of
vehicle is not entitled to get compensation for loss to the vehicle in the absence of transfer of
Insurance policy in his name and further observed that as vehicle has already been sold by Jit Singh
and Prem Singh to Sandeep Gupta, they were also not entitled to any insurance claim.
10. Learned counsel for the petitioner submitted that as per provision of Section 157 (I),
Insurance policy automatically stands transferred in the name of subsequent registered owner and
Section 157 (2), Motor Vehicle Act is only procedural provision, so complaint can not be
deprived of benefits of policy merely because Insurance policy has not been transferred in his
name. In support of his contentions, he has placed reliance on I (1997) ACC 276 (Karnataka
High Court) National Insurance Co. Ltd. vs. Lakshmi & Ors., 1998 (1) T.A.C. 858 (Karnatak)
Govindaraju vs. Laxminarasaiah & Ors., 1998 (1) T.A.C. 861 (M.P.) Nagindas & Anr. vs. Nasir
Ali & Ors. and 1999 (2), T.A.C. 479 (AII) New India Insurance Co. Ltd. vs. Smt. Sita Sharma &
Ors., in which it was held that absence of intimation of transfer by the transferee to the insurer
shall not enable the insurer to deny the liability.
11. Respectfully, we do not agree with the view taken by Hon’ble Karnataka High Court,
Madhya Pradesh High Court and Allahabad High Court in the light of judgment of Hon’ble
Apex Court in Complete Insulation (P) Ltd. case (supra) in which it was clearly held in para 12
as under:-
““If the policy of insurance covers other risks as well, e.g., damage caused to the
vehicle of the insured himself, that would be a matter falling outside Chapter XI
of the New Act and in the realm of contract for which there must be an agreement
between the insurer and transferee, the former undertaking to cover the risk or
damage to the vehicle. In the present case since there was no such agreement and
since the insurer had not transferred the policy of insurance in relation thereto to
the transferee, the insurer was not liable to make good the damage to the vehicle.
The view taken by the National Commission
is therefore, correct.”
12. This Commission in Revision Petition No. 1528/2007, New India Assurance Co. Ltd. vs.
Dalip Kumar decided on 18.10.2011, has rightly observed as under:“Similarly, in Rikhi Ram & Anr. vs. Sukhrania & Ors. - (2003) 3 SCC 97, the
Supreme Court while interpreting the provisions of Section 157 held that although
with the transfer of vehicle the Insurance Company remains liable towards third
party claims but the transferee cannot get any personal benefit under the policy
unless there is a compliance of the provisions of the Act. It was
further held that the Insurance Company would remain liable to third parties,
but it would be open to the Insurance Company to recover the said amount either
from the insured or from the transferee of the vehicle. It was observed:
“6. On an analysis of Sections 94 and 95, we further find that there are two third
parties when a vehicle is transferred by the owner to a purchase. The purchase is
one of the third parties to the contract and other third party is for whose benefit
the vehicle was insured. So far, the transferee who is the third party in the
contract, cannot get any personal benefit under the policy unless there is a
compliance of the provisions of the Act. However, so far as third party injured or
victim is concerned, he can enforce liability undertaken by the insurer.
7.
…………………….
8.
For the aforesaid reasons, the appeal, is allowed. We set aside the order
and judgment under challenge. It is hereby directed that the insurer shall pay
compensation to the victims within eight weeks along with the interest @ 11% p.a.
from the date of incident and it will be open to the insurer to recover the said
amount either from the insured or from the transferee of the vehicle. However,
there shall be no order as to the costs.”
In view of the provisions of the Motor Vehicles Act and the Tariff
Regulations and the decisions of the Supreme Court, if the transferee fails to
inform the Insurance Company about transfer of the Registration Certificate in
his name and the policy is not transferred in the name of the transferee, then the
Insurance Company cannot be held liable to pay the claim in the case of own
damage of vehicle. Petitioner Insurance Company was justified in repudiating
the claim.”
13. In the light of aforesaid judgments of Hon’ble Apex Court and National Commission, we
are of the view that if the transferee fails to inform the Insurance company about the transfer of
Registration certificate in his name, and the policy is not transferred in the name of transferee,
then the Insurance company can not be held liable to pay the claim in case of own damage of the
vehicle.
14. We do not find any illegality, irregularity or jurisdictional error in the impugned order and
the revision petition is liable to be dismissed at admission stage.
15. 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. 2770 of 2008
(From the order dated 18.03.2008 of the Karnataka State Consumer Disputes Redressal
Commission, Bangalore in Appeal no. 2308 of 2007)
Life Insurance Corporation of India Branch Office, V B Road Near KSRTC Bus Stand Kadur –
577548 Chickmagalur District Karnataka
The Division Manager Life Insurance Corporation of India Divisional Office, Jeevan Krishna
Udupi – 567101 Karnataka
Both through Mr V K Sharma Secretary (L & HPF) Northern Zonal Office Jeevan Bharti 124
Connaught Circus New Delhi – 110001
Petitioners
Versus
Smt S S Jamuna W/of Late Shri V M Praveen D/o Shri Shivanna Resident of
Ranganathaswamy Temple Road Sakrepatna, Kadur Taluk Chickmagalur District Karnataka
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Mohinder Singh, Advocate
For the Respondent
NEMO
Pronounced on 17th February 2014
ORDER
REKHA GUPTA
Revision Petition no. 2770 of 2008 has been filed under section 21 (B) of
the Consumer Protection Act, 1986 against the order dated 18.03.2008 passed by the Karnataka
State Consumer Disputes Redressal Commission, Bangalore (‘the State Commission’) in appeal
no. 2308 of 2007.
2.
The facts of the case as per the respondent/ complainant are that the husband of the
respondent had obtained a policy of insurance bearing Policy no. 622663818, date of issue of the
said policy was 10.03.2005 for a sum of Rs.50,000/-.
3.
The late husband of the respondent/ complainant had obtained the afore said policy of
insurance through the agent of the petitioner bearing agent’s code no. 7669626 and the said
policy of insurance bond was issued through petitioner no. 1 by the petitioner no. 2.
After obtaining of policy of insurance, the late husband of the respondent had paid three
instalments of the premium of a sum of Rs.1,673/- each half yearly.
4.
The late husband of the respondent died on 29.03.2006 accidently. Thereafter, the
respondent
approached
the
petitioner
with
all
the
original
documents
seeking payment ofinsurance policy bond and the original documents pertaining to said
insurance policy are still in the custody of the petitioner.
5.
Surprisingly, the respondent received a letter dated 15.02.2007 bearing no. Claims/ D/ Rep.
17/2006-2007, stating that the petitioner was not liable for any payment under the above policy.
6.
The petitioner have no right to repudiate the claim of the respondent under the policy of
Insurance stated above, as the agent of the petitioner brought the husband of the respondent
under the said policy of insurance. Further the insurance policy bond was also issued in favour
of late husband of the respondent by the petitioner, and later the petitioner received the
instalments of premium payable by the late husband of the respondent, as the late husband of the
respondent had paid three half yearly instalment with respect to the said policy of insurance.
7.
The late husband of the respondent was running a hotel business, and was healthy at the
time of entering into policy by insurance till his death.
8.
The written reply was filed by opposite party no. 2 before the District Forum. It was
admitted that the complainant is the wife of the deceased life assured Shri V M Praveen and she
is the nominee of the policy obtained by the assured bearing no. 622663818 and the status of the
policy is as follows:
Policy No.
Sum Assured
Rupees.)
622663818
50,000/-
(in Date
of First
Commencement unpaid
premium
10.03.205
9/06
Duration of death
1 year
0month
19 days
9.
Further averments made by the respondent in her complaint that when she submitted her
claim application for settlement of the benefits under the said policy the petitioner corporation
has rejected her claim application by repudiating the same for the reasons that the assured has
suppressed the real facts while giving personal statement at the time of obtaining the policy were
also not disputed.
10.
The said policy commenced on 10.03.2005. The assured died on 29.03.2006. The
respondent being the nominee and wife of the deceased assured, submitted claim statement
requesting to settle the benefits under the said policy. Since, the said claim being an early claim
and as the said policy had run only for a period of 1 year and 19 days from the date of
commencement, the petitioner as per their norms took up the matter for investigation with regard
to the health conditions and positions of the assured at the time of obtaining the policy.
11.
At the time of investigation it was traced that the life assured had consulted the doctor
Mallikarjuna H at Sanjeevini Speciality Centre, Chikmagalur on 23.02.2005 for pain in abdomen
+ heart burn and was diagnosed to have acid peptic disease. Later on the same day he was
admitted to Holy Cross hospital, Chikmagalur with the same complaint of Heart Burn and pain in
abdomen since two months and pain while passing urine Epigastric tenderness. As the diagnosis
made was acid peptic disease, the life assured underwent gastroscopy on 24.02.2005 the result of
which showed Mucosal Erosion at the O G junction of Esophagus and Hyperemic Mucosa over
first part of Duodenum. The final diagnosis was Distal Oesophagitis + AC Duodenitis for which
life assured was given treatment in the hospital regularly till 03.09.2005 and was referred to a
higher centre. These facts have been traced out during the investigation after submission of claim
form. In spite of this, these facts were not disclosed at the time of taking the proposal. It is,
therefore, evident that the life assured made deliberate incorrect statement and with-held the real
and correct information from the opponent corporation regarding the health at the time of
effecting the assurance and obtaining the policy. Even the respondent – nominee that is the wife
– being close associate of the assured ridiculously in the complaint has stated that her husband
died accidentally. By this, it is evident that the respondent also successfully suppressed the real
facts knowingly well aware of all the health status of her husband and the treatment obtained by
him earlier to the commencement of the policy till the date of his death. It is very latent that both
assured as well as respondent have intentionally suppressed the real facts and succeeded in
assuring the policy. Under these circumstances the decision arrived and taken by the petitioner in
repudiating the policy is quite correct and appropriate decision. Apart from the above facts even
if you look into the information furnished by the assured at the time of assuring the policy it may
be observed that the personal statement regarding the health made by the deceased, discloses that
the assured at the time of assuring the policy was well aware of the real facts about his sufferings
and his ailment and yet by suppressing all those facts he had answered the following questions as
below:
11
(a)
(d)
(i)
During the last five years did you consult a medical
No
Practioner for any ailment requiring treatment for
more than a week?
Are you suffering from or have you ever suffered
No
from ailments pertaining to lever, stomach, heart,
lungs, kidney, brain or nervous system?
What has been your usual state of health?
Good
12.
Hence based on the information furnished by the assured, the Corporation believing that
the assured had furnished the details fairly with true facts, on trust proceeded to issue the policy
in question effecting from 10.03.2005.
13.
It is the fundamental principles of insurance law that utmost good faith must be observed
by the contracting parties and good faith forbids either party from non-disclosure of the facts
which the parties known. Hence, considering all these facts supported by the Hospital records,
and after coming to the conclusions that the assured did not act promptly and intentionally
suppressed the real facts and had violated the terms of the policy, the competent authority on
valid grounds came to the conclusion and repudiated the policy and held that the claimant was
not entitled for any benefits under the policy. The fact of repudiation was immediately
communicated to the respondent vide letter Claims/D/Rep. no. 17/ 2006-2007 dated 15.02.2007.
Hence, the corporation had rightly repudiated the claim for non-disclosure of material facts and
justified in its act. There was no deficiency of service on the part of the corporation. It is well
settled law that life insured contract is based on principle of utmost good faith “Uberrima fides”.
14.
District Consumer Disputes Redressal Forum at Chikmagalur (‘the District Forum’) vide
their order dated 24.08.2007 dismissed the complaint against opposite party no. 1 and 2. Further,
the District Forum observed that:
12. “Learned counsel for opponents submitted in his arguments that there is no
deficiency of service on the part of the opponent. Further, in view of the proposition of
law laid down in the decision cited above, it is clear that, the life insurance contract is
based on fundamental principles of insurance law that utmost good faith “uberrima
fides”. The complainant has filed her affidavit evidence reiterating the averments made
in the complaint in her affidavit evidence. In cross examination she has stated she does
not know how he died or reason for his death. She has stated in cross examination that,
she herself and her husband were living Channarayapattana and her husband died at
Channarayapattana itself and her parental house in Sakharayapattana and the policy
was taken by her husband at Kadur. She has stated in cross examination that her
husband had gone to Holy Cross Hospital by saying that he is not keeping well. She is
unable to say definitely as to whether her husband had been to hospital prior to or after
the insurance of policy submitting of proposal for issue of policy. She was unaware of the
policy taken by her husband. The agent filled the proposal form at Sakharayapattana and
at the time she was present. She has stated that she had not been Sanjeevini Hospital at
Chikmagalur and the statement recorded in respect of her husband in Sanjeevini
Hospital. She has denied that, her husband was suffering from some disease and was
taking treatment by going to hospital. She has denied that her husband suppressed the
said material information and submitted proposal for issuance of policy”.
20. There is no dispute with regard to the proposition of law laid down in the decision
cited above. We have already stated above that the insurance contract are, “uberrima
fides” that founded upon utmost good faith. In the instant case, though the husband of the
complainant deceased was suffering from the above said disease prior to submitting of
proposal still he suppressed the said material facts about his health in proposal form and
suppressing the said facts obtained policy. Though the complainant the wife of the
deceased is well aware of taking of treatment prior to issuance of policy still she has not
disclosed the said diseases in her claim form after his death. Under the above said facts
and circumstances, there is no deficiency in service on the part of the opponents. The
opponents rightly repudiated the claim of the complainant on the ground that the
deceased suppressed the material facts regarding his health in proposal form and while
obtained policy. In view of the same the complainant is not entitled to any policy amount.
Accordingly, we answer point no. 1 in Negative. Point no. 2 as not entitled.
21. Point no. 3 : In view of our findings on points no. 1 and 2, the complaint filed
by the complainant has to be dismissed. In the result we pass the following:
The complaint filed by the complainant against the opponents no.1 and 2 is hereby
dismissed.
Having regard to the facts and circumstances of the case, there is no order as to
costs.”
15.
Aggrieved by the order of the District Forum, the respondent filed an appeal before the
State Commission. The State Commission vide their order dated 18.03.2008 while allowing the
complaint held that:
“The case of the OPs is that the insured had taken treatment for stomach pain in several
hospitals prior to the filing of the proposal form but the insured suppressed the said fact
at the time of filing the proposal form and, therefore, the OPs were justified in
repudiating the claim on the ground of ‘suppression of fact’. No doubt there is some
evidence to show that the insured had gone to hospitals. But no one has stated that the
insured had gone to the hospitals for treatment in respect of stomach pain. Therefore, no
reliance could be placed on the said evidence. The case of the OPs is that the insured had
taken treatment in Holy Cross Hospital at Chickmagalur. But the OPs have not filed the
affidavit of any of the doctors to the effect that they have treated the insured for stomach
pain prior to the filing of the proposal form. In the absence of such evidence, in our view,
the OPs were not right in repudiating the claim of the complainant. Hence, the District
Forum is also not right in accepting the defect putforth by the OPs. Therefore, we are of
the view that direction is to be issued to the OPs to pay the assured sum to the
complainant with interest.
Accordingly, we pass the following order:
(i)
(ii)
(iii)
The appeal is allowed. The impugned order is set aside.
The complaint filed by the complainant before the District Forum is
allowed with a direction to the OPs to pay the assured sum of
Rs.50,000/- to the complainant with other benefits along with interest
at 6% per annum from the date of the complaint filed before the
District Forum till realisation.
Parties to bear their own costs”.
16.
Hence, the present revision petition.
17.
The main grounds for the revision petition are that :
The State Commission wrongly and illegally held that the petitioner corporation
is liable to pay a sum of Rs.50,000/- with interest to the respondent.
The State Commission did not apply its judicious mind and also overlook the fact
that even otherwise, the respondent is not entitled to any amount as the life assured
had even at the time of submitting the proposal suppressed the condition of his health
by filing wrong declaration in the proposal form.
The State Commission did not appreciate the fact that the life assured was
suffering from serious disease and had also died due to the same and he had not
disclosed the same at the time of filing the proposal form.
The State Commission inspite of holding that the life assured had gone to some
hospitals wrongly held that there is no one who has stated that the life assured has
gone to the hospitals for treatment in respect of stomach pain.
The State Commission also erred in holding that the petitioner corporation should
have filed affidavit of a doctor to show that he has been treated in Holy Cross
Hospital inspite of the fact the petitioner corporation has clearly established by way
of documents and evidence that life assured was suffering from serious disease and it
was also proved on record that the life assured was a chain smoker and alcoholic and
has been advised to leave smoking and drinking by the doctors treating him in the
hospital before his death.
The State Commission also wrongly held that the petitioners were not right in
repudiating the claim of the respondent.
The State Commission did not even discuss the evidence produced by the
petitioner corporation while passing the impugned order.
The State Commission also failed to observe that it is mandatory on the part of
the life assured to give correct information in the proposal form and it is clear from
the answers given by the life assured in his proposal form that he had not been
suffering from any disease is incorrect.
The State Commission on the ground of suppression of facts and the plea of fraud
taken by the petitioner herein should have dismissed the complaint. The State
Commission seriously erred in setting aside the order of the District Forum.
18.
We have heard the learned counsel for the petitioner. As no one was appearing on behalf of
the respondent till date, i.e., 12.02.2014, respondent was proceeded ex parte. We have also gone
through the records of the case carefully.
19.
It is not understood that on what ground the State Commission in their order have stated
that “no doubt there is some evidence to show that the insured had gone to hospitals. But no one
has stated that the insured had gone to the hospitals for treatment in respect of stomach pain”.
The medical records placed on file support the grounds given for repudiation in the petitioner’s
letter dated 15.02.2007, which reads as under:
“We may, however, state that all these answers were false as we have evidence and
reasons to believe that he had consulted a doctor in a hospital on 23.02.2005, i.e., about
a month before proposing for the above policy for complaints of Heart Burn and pain in
abdomen with duration of 2 months and Epigastric tenderness. The impression was Acid
Peptic Disease. He underwent Gastroscopy on 24.02.2005 the result of which showed
Mucosal Erosion at OG Junction of Esophagus at Hyperemic Mucosa over first part of
Duodenum. The diagnosis was Distal Oesophagitis + Ac Duodenitis. He was given
treatment for the same in the hospital and advised to stop smoking and to take diabetic
diet. He was also advised to come for further review. He did not however disclose these
facts in his proposal. Instead he gave false answers therein as stated above.
It is therefore, evident that he made deliberate incorrect statements and withheld correct
information from us regarding his health at the time of effecting the assurance and hence,
in terms of the policy contract and the declaration contained in the form of proposal for
assurance, we hereby repudiate the claim and accordingly, we are not liable for any
payment under the above policy and also moneys that have been paid in consequence
thereof belong to us”.
20
It is apparent from the medical records that he was taking treatment prior to the date of
taking of the policy which was 10.03.2005. On 03.02.2005 he had visited Holy Cross Hospital,
Chickmalagur for heart burn in the abdomen for the last two months as also pain while passing
urine. He was also a smoker. He was advised to quit smoking. Based on the Gastroscopy on
24.02.2005 he was diagnosed as suffering from Distal Oesophagitis and AC Duodenitis.
Thereafter, from the medical records on file it is quite apparent that he was suffering from pain in
the abdomen, back ache, heart burn, fatigue and vomiting and epigastric tenderness and
continued to take treatment for the same till his death on 29.08.2006. As per the medical records
filed he had also undergone a surgery at a Bangalore Hospital.
21.
In view of the above facts, it is evident that he had withheld the information from the
petitioner with regard to his true state of his health prior to his death. It is also evident that he had
not died accidentally as given in the complaint by the respondent. Hence, as per clause 6 of the
conditions and privilege of the insurance policy, the petitioner has rightly repudiated the claim of
the complainant.
22.
Hence, the order dated 18.03.2008 passed by the State Commission in Appeal no. 2308 of
2007 is set aside and the order dated 24.08.2007 passed by the District Forum in complaint no.
16 of 2004 is upheld and the complaint is dismissed.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 80 of 2008
(From the order dated 11.12.2007 in Complaint
Consumer Disputes Redressal Commission, Lucknow)
No.
91/1998
of
U.P.
State
Agra Development Authority Through its Vice Chairman Agra U.P. (Uttar Pradesh)
….. Appellant.
Vs.
Army Welfare Housing Organization A society registered under the Societies Registration Act,
1860 Having its Registered office at South Hutments Kashmir House Rajaji Marg, New
Delhi – 110001 Through its Managing Director Maj. Gen. M.M.L. Sharma
…..Respondent
BEFORE: HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT
For the Appellant:
For the Respondent
ORDER
(Pronounced on
:
Mr. Sudhir Kulshrestha, Advocate with Ms. Sushma Singh, Advocate.
Mr. A.K. Tewari, Advocate.
18th day of February, 2014)
D.K. JAIN, J., PRESIDENT
This appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”),
is directed against order dated 11.12.2007 passed by the State Consumer Disputes Redressal
Commission,
Uttar
Pradesh at Lucknow (for short “the State Commission”) in Complaint No. 91 of 1998. By the
impugned order, the State Commission has allowed the complaint filed by the Army Welfare
Housing
Organization,(for
short
“the
Complainant”) directing the
Agra Development
Authority, (for short “the Authority”) to pay to the Complainant, interest @ 14% p.a. on the
amount deposited by them for purchase of land from the date of deposit of the said amount till
the date of actual payment, after adjusting the amount of interest already paid @ 6% p.a.; in the
event of non-payment of the balance amount within two months from the date of the order, it
has been ordered that the interest payable would be @ 15% p.a.
2.
The Complainant is a Housing Society, registered under the Societies Registration Act,
1860. The object of the Society is to make available to the serving as well as retired
Army personnel houses on no profit no loss basis. In January, 1991 the Complainant applied to
the Authority for allotment of five acres of land in Taj City – Phase-II Part-I. 20% of the total
cost of the land was deposited as registration amount. Since the land was not allotted for over
two years, the Complainant requested the Authority to refund the amount deposited along with
interest at the bank rate of interest. There being no response, the Complainant sent a legal
notice to the Authority. On receipt of the notice, the Authority refunded an amount
of `26,52,247.20p along with interest @ 6% on the principal amount, vide a cheque dated
18.12.1993, which was duly received by the Complainant. However, on 10.08.1998, the
Complainant filed a complaint against the Authority before the State Commission, in which, it
claimed interest @ 18% p.a. on the aforesaid amount from January 1991 till December 1993,
when the principal amount along with interest @ 6% was refunded to them.
3.
The complaint was resisted by the Authority, inter alia, on the grounds that it was not
maintainable as the Complainant was not a “Consumer” under the Act; having accepted the
amount of refund, which included interest at the rate prescribed in the scheme, without demur,
the Complainant was estopped from claiming interest at a rate more than 6% p.a.; since the
scheme itself had been cancelled by the State Government the land was not acquired by the
Authority and resultantly, it could not be allotted and therefore, there was no deficiency in
service on the part of the Authority.
4.
None of the objections raised by the Authority found favour with the State
Commission. Accordingly, partly accepting the claim in the complaint, by the impugned order,
the State Commission has issued the aforenoted directions. Hence the present appeal.
5.
I have heard Ld. Counsel for the parties.
6.
Sh. Sudhir Kulshrestha, Learned Counsel appearing for the Authority strenuously urged
that the State Commission had erred in law in entertaining the complaint without specifically
condoning the delay of over five years in filing the complaint, a statutory mandate under
Section 24-A of the Act. To buttress the argument, Ld. Counsel placed reliance on the
decisions of the Supreme Court in Haryana Urban Development Authority Vs. B.K.
Sood (2006) 1 SCC 164 and State Bank of India Vs. B.S. Agriculture Industries(I) (2009) 5
SCC 121. It was asserted that in their application, filed sometime in May 1999, seeking
condonation of delay in filing the complaint, the stated reasons for delay did not constitute a
sufficient cause and, therefore, the delay of over five years in filing the complaint could not be
condoned.
7.
Mr. A.K. Tewari, Ld. Counsel appearing for the Respondent, on the other hand,
supported the decision of the State Commission. It was submitted that having failed to raise
any objection with regard to limitation in its written version, the Authority could not be
permitted to make oral submission in this behalf. It was argued that if the scheme had been
shelved and the land was not acquired, the Authority was obliged to refund the same with
interest amount without waiting for a legal notice from the Complainant. It was pleaded that in
view of such a conduct of the Authority, the State Commission was fully justified in awarding
interest at the said rate which, in the light of the decisions of the Supreme Court wherein
interest even @ 14%, had been awarded, could not be said to be very high.
8.
The first question for consideration is as to whether in the absence of any objection by the
Opposite Party in its written version to the maintainability of the complaint under the Act on
the ground of limitation, such an objection could be entertained by the State Commission by
way of oral submissions?
9.
Section 24-A of the Act prescribes the limitation period for admission of complaint by the
Consumer Fora. It reads as follows:“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 sub-section (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.”
10.
A bare reading of the provision shows that it is pre-emptory in nature and mandates
that no Consumer Fora, set up under the Act, shall admit a complaint unless it has been filed
within two years from the date of accrual of cause of action. It is well settled that the Section
casts a duty on a Consumer Fora to dismiss a belated complaint unless it is satisfied that the
Complainant had sufficient cause in not preferring the same within the prescribed time.
11.
In B.S. Agriculture Industries(supra), wherein while explaining the scope of Section 24-A
of the Act, the Supreme Court observed thus:“The expression, “shall not admit a complaint” occurring in Section 24-A is sort of a
legislative command to the consumer forum to examine on its own whether the complaint
has been filed within the limitation period prescribed there under.
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, the 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 24-A and give effect to it. If the complaint is
barred by time and yet, the consumer forum decides the complaint no merits, the forum
would be committing an illegality and, therefore, the aggrieved party would be entitled to
have such order set aside.” (Emphasis supplied)
12.
For coming to the above-extracted conclusion, the Supreme Court referred to its earlier
decision in Gannmani Anasuya & others Vs. Parvatini Amareanra Chwdhary & others(2007) 10
SCC 296 wherein, with reference to Section 3 of the Limitation Act, it was emphasized that it is
the duty of the Court to determine whether the suit is barred by limitation or not, regardless of
the fact whether such a plea has been raised by the parties. Such jurisdictional fact need not be
even pleaded.
13.
It is thus, trite law that before admitting a complaint under the Act, it is incumbent upon a
Consumer Forum to examine whether the complaint has been filed within a period of two years
from the date on which, the cause of action had arisen, regardless of the fact whether such an
objection has been raised by the Opposite Party or not. If the complaint is filed beyond the said
period of limitation, the Forum must record its satisfaction that the Complainant had sufficient
cause for not filing the complaint within time. Failure to do so would vitiate its decision on
merits of the complaint.
14.
In the instant case, it is evident from the impugned order that though the State
Commission has held that there has been no delay, in filing the complaint, it has not dealt with
the question of limitation in its correct perspective. For the sake of ready reference, its
observations on the issue are extracted below:
“There has been no delay. Demands to refund the aforesaid deposited sum of money had
continuously been made vide letters dated 27.07.92, 31.12.92, 3.2.93,14.05.93 and
9th June, 93 and when the organization did not succeed in any manner whatsoever, then
this complaint was filed by the complainant/organization against the insensitive authority.
Hence, there is no question of causing any delay and until a sum of money belonging to
the complainant organization remains due to be paid by army organization or persons, the
cause for receiving the said sum of money back exists, and as has been observed in the
ruling contained in the decision reported in 2006 Apex court judgment 310 (SC) that “
the procedural law is not mandatory” and as has been held in the ruling contained in the
decision reported in (1987) 11 SCC 107 (tilted as “Collector, Land Acquisition Anantnag
and other Vs. Mustmat Kateeji and others) by the Hon’ble Supreme Court that the respect
of the officers, dispensing justice, is for the doing away of unjustice, and not for
legalizing the injustice, and so far as there is contradiction between the material law and
the procedural law, the material law will prevails. In such a circumstance, the
organization, which is a welfare one and is meant for helping the army men and their
widows, ought to get material justice: there is no doubt about it.”
14.
It is manifest that the observations are too general in nature and do not satisfy the mandate
of Section 24-A of the Act. The State Commission has failed to address itself on the question as
to when the cause of action for filing the complaint had arisen; whether the complaint had been
filed within two years of that date and if not, whether the Complainant had made out a sufficient
cause for not filing the complaint within the said time.
15.
of
Having come to the conclusion that the order of the State Commission suffers from the vice
non
application
of
mind
on
the
question
of
limitation
and
is,
therefore,
unsustainable, the necessary consequence would be to set aside the same and remit the matter
back to the State Commission for adjudication on the application filed by the Complainant for
condondation of delay in filing the complaint. However, bearing in mind the fact that the
complaint was filed as far back as in the year 1998, I feel that in order to cut short the life of
litigation, on facts at hand, it would be appropriate and expedient if the said question is dealt
with at this stage itself, more so when for deciding the question no further evidence is required.
16.
It is true that the law of limitation founded on public policy, is not enacted with the object
of destroying the rights of the parties but to ensure that a party approaches the Court for
vindication of his rights without unnecessary delay to avoid an unending uncertainty. It is also
well settled that the expression “sufficient cause” used in Section 5 of the Limitation Act, 1963
and other Statutes, like in Section 24 A of the Act, is to be construed in a meaningful manner,
which subserves the ends of justice and not strictly, which may result in a meritorious matter
being thrown out at the very threshold, defeating the cause of justice. Nevertheless, while
interpreting the expression “sufficient cause” the spirit and the philosophy of the
legislatively fixed lifespan for a legal remedy for redressal of the legal injury suffered has to be
borne in mind.
17.
In N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123, while laying down broad
guidelines for condonation of delay, with reference to Section 5 of the Limitation Act, 1963, the
Hon’ble Supreme Court has observed as under:
“9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section
5 of the Limitation Act does not say that such discretion can be exercised only if the
delay is within a certain limit. Length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation whereas in certain other cases,
delay of a very long range can be condoned as the explanation thereof is
satisfactory. Once the court accepts the explanation as sufficient, it is the result of
positive exercise of discretion and normally the superior court should not disturb such
finding, much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or arbitrary or perverse. But it is a different matter when the
first court refuses to condone the delay. In such cases, the superior court would be free to
consider the cause shown for the delay afresh and it is open to such superior court to
come to its own finding even untrammelled by the conclusion of the lower court.
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to
see that parties do not resort to dilatory tactics, but seek their remedy promptly. The
object of providing a legal remedy is to repair the damage caused by reason of legal
injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the
legal injury so suffered. Time is precious and wasted time would never revisit. During
the efflux of time, newer causes would sprout up necessitating newer persons to seek
legal remedy by approaching the courts. So a lifespan must be fixed for each
remedy. Unending period for launching the remedy may lead to unending uncertainty and
consequential anarchy. The law of limitation is thus founded on public policy. It is
enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare
that a period be put to litigation). Rules of limitation are not meant to destroy the rights of
the parties. They are meant to see that parties do not resort to dilatory tactics but seek
their remedy promptly. The idea is that every legal remedy must be kept alive for a
legislatively fixed period of time.
13. It must be remembered that in every case of delay, there can be some lapse on the part
of the litigant concerned. That alone is not enough to turn down his plea and to shut the
door against him. If the explanation does not smack of mala fides or it is not put forth as
part of a dilatory strategy, the court must show utmost consideration to the suitor. But
when there is reasonable ground to think that the delay was occasioned by the party
deliberately to gain time, then the court should lean against acceptance of the
explanation. While condoning the delay, the court should not forget the opposite party
altogether. It must be borne in mind that he is a loser and he too would have incurred
quite large litigation expenses. It would be a salutary guideline that when courts condone
the delay due to laches on the part of the applicant, the court shall compensate the
opposite party for his loss.” (Emphasis supplied)
18.
Recently in Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011)
14 SCC 579, while declining to condone delay of 233 days in filing appeal against an order of
this Commission, the Supreme Court has observed thus:“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.”
19.
Bearing in mind the aforenoted broad principle, I may advert to the fact of the present
case. The explanation furnished in the application praying for condonation of delay, filed after
nine months of the filing of the complaint reads as follows:“2. That the complainant’s management in Mar 1995 had taken the decision for filing the
complaint against Agra Development Authority (ADA). Accordingly the draft complaint
against the opposite party was prepared by the Advocate of the complainant at Delhi on
15 May 95. However, due to an oversight the verification of the complaint could not be
done for the reason that the officer who was handling this case i.e. Col J Natarajan was
posted out of AWHO in the month of Dec 95.
3. That on account of the transfer of the aforesaid officer the files concerning this case
were untraceable and were discovered by the successor of Col J Natarajan in Jul 97 and
case was thereafter prepared and filed in Jul 98.
4. That for the reasons above the delay in filing of the aforesaid complaint is not
deliberate but due to the bonafide reasons as explained above.”
20.
The explanation is wholly unsatisfactory. It is evident from the afore-extracted paragraphs
that the Complainant was fully conscious of the fact that the complaint under the Act was to be
filed within a period of two years of the date of tender of cheque by the Authority and its
acceptance by the Complainant on 18.12.1993, when their prayer for payment of interest @ 18%
was deemed to have been turned down by the Authority and interest @ 6% p.a. was paid along
with the principal amount. It is pertinent to note that the cheque for the amount refunded was
accepted and proceeds were realized by the Complainant immediately thereafter without any
protest. Thus, the cause of action in respect of claim for higher rate of interest arose on
18.12.1993. The complaint having been filed on 10.08.1998 was barred by limitation. The plea
that the management of the Complainant society took decision to file complaint in the month of
March 1995, the complaint was drafted by the Counsel on 15.5.1995 but the same was not
verified by the authorised officer till December 1995, when he is stated to have been posted out
of the office of the Complainant, in my view, is no explanation for the delay in filing the
complaint. Moreover, even thereafter for almost two years neither the management nor the
successor authorised officer bothered to trace the file and even if the stand of the Complainant
was to be believed, still the complaint was filed after a lapse of one year of the tracing of the
file. I am constrained to observe that the explanation furnished is not only vague, it is not
bonafide as well. I have, therefore, no hesitation in holding that the Complainant has failed to
show sufficient cause for condonation of an inordinate delay of over five years in filing the
complaint. The complaint was miserably barred by limitation and was liable to be dismissed on
that ground alone.
21.
For the view I have taken above, it is unnecessary to examine the claim made in the
complaint on merits.
22.
Resultantly, the appeal is allowed; the impugned order is set aside and the complaint is
dismissed on the ground of limitation, leaving the parties to bear their own costs.
…….…………………
(D.K. JAIN, J.)
PRESIDENT
ar.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3437 OF 2012
(From the order dated 20.07.2012 in First Appeal No. 259/2011 of State Consumer Disputes
Redressal Commission, HIMACHAL PRADESH )
N.D. Sharma, S/o. Late Sh. Dev Dutt Sharma R/o House NO.214/13, Near ITI Hostel Paddal,
Mandi Town, District Mandi, H.P.
…Petitioner
Versus
1. Union of India Department of Posts & Telegraphs New Delhi Through its Secretary
2. Head Post Master, Head Post Office Mandi District, Mandi, Himachal Pradesh
…Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner : Mr.Rajesh Kumar Sharma, Advocate
For the Respondents : Mr. Baldev Malik, Advocate
PRONOUNCED ON_18TH FEBRUARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
Shri N.D. Sharma, the petitioner, who is an Advocate, and his wife, Late Smt. Narindra
Sharma, had a joint account with Head Post Master, Head Post Office, Mandi, District Mandi,
Himachal Pradesh, OP2. OPs had floated Monthly Income Scheme. As per the Scheme, OP2
was to pay Rs.4,000/- p.m. as interest, for the period of six years and Rs.6,60,000/- was to be
paid on the date of maturity, on 11.09.2010. Moreover, bonus on the original account of
both the account holders was to be paid.
2.
Unfortunately, Smt. Narindra Sharma, died on 11.03.2010. This fact was brought to the
notice of the Agent, through whom the account had been opened in the presence of
Sh.N. Deepak Sharma, Advocate. The complainant was advised to disclose the matter to
OP2. The complainant went to the Post Master, who informed him that Survivor can operate
joint account in case of death of one of the joint holders.
3.
After the maturity on 17.09.2010, the complainant was paid only a sum of Rs.5,55,750/-,
instead of maturity amount of Rs.6,60,000/-. On enquiry, it transpired that after the death of
one of the joint holders, the joint account will be treated as a ‘single account’, in the
name of the Surviving
Depositor. The
complainant is that the deduction of
plea
raised
Rs.1,04,250/-,
by
on the
the
part
of OP2 is illegal, which amounts to deficiency in service on
the part of OPs.
4.
A complaint was filed before the District Forum which allowed the complaint and the OPs
were directed to pay to the complainant, Rs.1,04,250/-, along with interest @ 9% p.a., from the
date of maturity to the complainant, till realization. Compensation and litigation costs in the
sum of Rs.1,000/- each, was allowed to the complainant.
5.
Aggrieved by that order, the OPs filed a First Appeal before the State Commission. The
State Commission accepted the appeal and dismissed the consumer complaint, filed by the
complainant. Aggrieved by that order, the present revision petition has been filed.
6.
We have heard the counsel for the petitioner, and have gone through his written
submissions. It is alleged that the State Commission has not appreciated the facts and its order
is
based
upon
non-appreciation
of
the
evidence
placed
on
record by
the
petitioner. Again, the State Commission has wrongly interpreted the facts. It is contended
that his case is supported by Ratanchand Sondhiya Vs. Sub-Post Master Garkhota, 2008 NCJ
86 (NC). It was further prayed that the complaint should be accepted with
costs
of Rs.1,00,000/- on account of compensation and Rs.50,000/- be awarded for dragging the
petitioner to ‘uncalled for litigation’.
7.
These arguments leave no impression upon us. Notification DG No.110-23/2001-SAB,
dated 07.01.2003, provides that, in the event of death of one of the Depositors of the joint
account holders, the said joint account will be treated as ‘single deposit account’ and the
surviving depositor will not be entitled for further interest, immediately, after the death of one
of the joint account holders. The single account will stand closed and no interest will be
levied on this account. The OPs case is also supported by Rule 9(2).
8.
The State Commission has placed reliance on Postmaster, Dargamitta H.P.O., Nellore Vs.
Raja Prameelamma, 1995 STPL (LE) 20881 SC and judgment of this Commission inRP
No.1020 of 2002, titled K.M.Singh Vs. Sr. Postmaster, Ramesh Nagar, New Delhi, decided on
15.11.2002. We have gone through these authorities. These authorities neatly dovetail with the
facts of this case.
9.
The State Commission has, held :-
“Mr.Arora, in view of the aforesaid directions had drawn our
attention to the compilation or book of A.N.Dureja, Assistant Director
General (Retd.), P & T Accounts & Finance Service on the
Post Office Small Savings Schemes, page-159, Edition-2008, which
contain important orders, viz., order-15, in Chapter-13, under
Heading, Post Office (Monthly Income Account) Rules, 1987, which
relates to the status of Joint MIS account on the death of note of the
depositors which had been dealt herein above and he had also
drawn our attention to the Post Office Savings Bank Manual, VolumeI, issued under the Authority of Director General of Posts, India and
Secretary to Government of India, Department of Posts. Para-168
(8) of the said Manual, contained in Chapter-5, under the Heading,
“Monthly Income Account Scheme,
1987”,
salient
features
thereof is at page – 214 of the said Manual, which may kindly be
perused from pages 18 to 28 of the appeal file. They are on the
point that in case of death of one of the joint
account holders, MIS account is to be treated as ‘single
account’ and no interest is to be paid on the said amount after the
death of joint account holder”.
10.
The State Commission, also, placed reliance on Rule 168(8) contained in Chapter – 5,
under the Heading, “Monthly Income Account Scheme, 1987”.
11.
Moreover, the complainant has failed to prove the fact that he had informed the
OP2 that his wife had expired. Mere affidavits filed during the pendency of the
case, carry exiguous value. The complainant is an educated person, who is an Advocate and
well versed in legal complexities. He should be aware of what is the difference between the
oral evidence and documentary
evidence. It
is
rudimentary
principle of jurisprudence that documentary evidence
will always get preponderance over the oral evidence because this is well known maxim
of law, that “men may
tell
lies,
documents cannot”. The perfect proof is, giving the information, in
name of the Agent of the Post
but
the
writing. The
Office was also not disclosed. His affidavit also
did not see the light of the day. The name of the Post Master was also withheld. We see no
merit in the revision petition and the same is, therefore, dismissed. No order as to costs.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
..……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Dd/11
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1964 OF 2013
(Against the order dated 14.01.2013 in Appeal No. 497/2012 of the State Commission
Chhattisgarh, Raipur)
WITH IA NO. 3241 OF 2013 (Condonation of Delay)
Ramprasad s/o Shri Ramdulare r/o village Kathautiya Post Kathautiya Thana-Manendragarh,
District Koria ( C.G.)
........ Petitioner
Vs.
1. Bajaj Allianz General Insurance Co. Ltd. Branch Office-Shiv Mohan Bhawan Vidhan Sabha
Road, Pandri Raipur (C.G.)
2. Branch Manager Shastri Tractors Authorised Dealer-Mahendra Tractors Implements and
Spares Talwapara Charcha Road Baikunthpur District Koriya (C.G.)
......... Respondents
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
:
Mr.Vikrant Singh Bais, Advocate
For the Respondent
:
Ms. Manjusha Wadhwa, Advocate
Dated : 18th February, 2014
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1.
This revision is directed against the order of the State Commission dated 14.01.2013
whereby the State Commission set aside the order passed by the District Forum and dismissed
the complaint filed by the petitioner.
2.
Briefly stated, the facts giving rise to this revision petition are that the petitioner had
obtained an insurance policy in respect of his tractor having chasis no. N.G.N.L.-1465 and chasis
no. N.G.N.L-1465 for a period of one year commencing from 19.11.2010. The tractor is stated
to have been stolen on the night intervening 22nd & 23rd September, 2011 while parked in front
of the house of his elder son at village and P.O. Kathautiya P.S. Manendergarh District
Koria, Madhya Pradesh. The petitioner claim to have reported the theft orally at PS
Manendragarh on 23.09.2011 whereupon the complainant was asked to search for the
tractor. The complainant then went till District Rewa in search of the tractor and thereafter
written information was given at PS Gohparu, District Sahdol, Madhya Pradesh on
23.09.2011. Another written complaint was submitted at PS Jaitpur District Sahdol on
2409.2011. Thereafter on returning back to his village, complainant lodged FIR on
26.09.2011. The intimation of theft is claimed to have been given to the respondent opposite
party by fax on 05.10.2011 and by a registered letter dated 07.10.2011. Claim of the petitioner
was repudiated which led to the filing of the consumer complaint.
3.
Respondent opposite party in its written statement claimed that the insurance claim was
repudiated on the ground of breach of policy condition.
4.
The District Forum on consideration of record did not find merit in the repudiation of
claim by the opposite party and allowed the claim with direction as under:
“Therefore, accordingly this complaint is allowed and opposite party no.1
insurance company is directed to pay amount of Rs.4,28,702/- (price of the vehicle in
question) to the complainant within 45 days of this order and are also liable to pay
interest @ 9% per annum on this amount from the date of claim till the date of
payment. This amount is to be deposited in office of this Forum for making paymentsto
the complainant. Opposite party no.1 insurance company is also liable to pay costs of
Rs.2000/- to the complainant which is also to be deposited in the office of this
Forum. Opposite party no.1 to bear its own costs. On above said amount alongwith
interest being deposited the same shall be paid to the complainant by account payee
cheque. Complainant has unnecessarily made opposite party no.2 a party therefore he
is liable to pay costs of Rs.2000/- for being paid to the complainant which is to be
deposited in this forum within 45 days for being paid to opposite party no.2.”
5.
Being aggrieved of the order of the District Forum, the respondent opposite party
preferred an appeal. The State Commission relying upon the judgment of this Commission in the
matter of New India Assurance Company Limited Vs. Trilochan Jane in First Appeal No.
321/2005 decided on 09.12.2009 allowed the appeal and dismissed the complaint. Relevant
observations of the State Commission are reproduced thus:
“The appellant/Insurance Company sent letter Annexure A‐7(1) to the respondent
No.1/complainant on 16.01.2012. In this letter under the head reference, it has been
mentioned that the date of loss was 22nd September, 2011 and the intimation was given
on 30th November, 2011, whereas the copy of the postal receipt of the registered post
by which intimation was sent to the Insurance Company by the respondent
no.1/complainant (Annexure A‐5) shows that the registered post was sent on
07.10.2011, which was containing letter dated 05.10.2011 (Annexure A‐4). Thus, it
appears that respondent no.1/complainant informed the Insurance Company regarding
the incident of theft by letter dated 05.10.2011, which was posted on 07.10.2011 and
was received in the office of the Insurance Company on some later date. The incident of
theft was happened during night intervening between 22.09.2011 to 23.09.2011 and
thereafter after 14 or 15 days, the post was sent containing intimation to the Insurance
Company, which was received by the Insurance Company after a further gap of a month
or so. Thus, there was a great delay in giving intimation to the Insurance Company and
there appears no satisfactory explanation for this delay. When Police was immediately
informed by the respondent no.1/complainant orally, then intimation to the Insurance
Company was also required to be sent at the earliest as per terms of the insurance
policy. The Insurance Policy has been brought on record by the O.P./Insurance
Company as document Annexure OP‐6. Condition No.1 of the Insurance Policy reads as
under :‐
“1. Notice shall be given in writing to the Company immediately upon the occurrence of
any accidental loss or damage and in the event of any claim and thereafter the insured
shall give all such information and assistance as the Company shall require. Every
letter claim writ summons and/or process or copy thereof shall be forwarded to the
Company immediately on receipt by the insured. Notice shall also be given in writing to
the Company immediately the insured shall have knowledge of any impending
prosecution Inquest or Fatal Inquiry in respect of any occurrence which may give rise
to a claim under this policy. In case of theft or criminal act which may be the subject of
a claim under this policy the insured shall give immediate notice to the police and
co‐operate with the company in securing the conviction of the offender.”
Thus under this condition notice to the Insurance Company was required to be given in
writing immediately upon the occurrence of any accidental loss or damage and in the
event of any claim. It has further been provided that in case of theft or criminal act
which may be the subject of claim under this policy the insured shall give immediate
notice to the police and co‐operate with the company in securing the conviction of the
offender. Thus, it was necessary for the respondent no.1/complainant to act promptly
and immediately in this regard and to inform the Insurance Company immediately. In
the case of New India Assurance Company Limited Vs. Trilochan Jane, in First Appeal
No.321 of 2005, decided on 09.12.2009, the meaning of word “immediately” has been
taken into consideration in detail by Hon’ble National Commission and it has been
opined that “the delay in lodging the F.I.R. after 2 days of the coming to know of the
theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car
could have travelled a long distance or may have been dismantled by that time and sold
to kabaadi (scrap dealer).”After taking into consideration the meaning of the word
“immediately”, Hon’ble National Commission in the aforesaid reported case, has
opined that the word “immediately” means “within a reasonable time” having due
regard to nature and circumstances of the case.
In the nature and circumstances of the case in hand, it appears that insured vehicle was
stolen between the night intervening 22.09.2011 to 23.09.2011. The Police was also
intimated orally and the searches were made hear and there. Ultimately when no effort
could work out and it was found that vehicle was not traceable, then First Information
Report was lodged to the Police on 30.09.2011 and thereafter there remains no reason
for not intimating the Insurance Company immediately. The complainant did not act
immediately thereafter for drafting letter of intimation. He took around four days for the
same and then three further days for dropping the envelope in the post box and getting
the letter registered. These all shows that respondent no.1/complainant was not
intending to inform the Insurance Company immediately that is why immediately after
occurrence of theft, the Insurance Company was not informed. We find that in the facts
of the present case, the delay in informing to the Insurance Company was fatal to the
complainant and as held by Hon’ble National Commission in the aforesaid case of New
India Assurance Company Limited Vs. Trilochan Jane (Supra) the complainant is
non‐suited on this ground.
6.
Learned counsel for the petitioner has contended that order of the State Commission is
not sustainable because it is based upon incorrect reading of condition no.1 of the insurance
policy. Learned counsel has taken us through condition no.1 of the policy and contended that so
far as the case of theft of insured vehicle is concerned, the petitioner was under obligation to give
immediate information of theft to the police and cooperate with the insurance company in
securing the conviction of the offender. It is argued that aforesaid condition does not stipulate
about giving of immediate information of theft to the insurance company. Therefore, it cannot
be said that petitioner has violated the condition no.1 of the insurance policy.
7.
Learned counsel for the respondent on the contrary has argued in support of the
impugned order. She has contended that State Commission has correctly construed condition
no.1 of the insurance policy. Learned counsel has further contended that even the intimation of
theft of tractor was not given to the police immediately. In this regard she has drawn our
attention to the allegations in the complaint stating that the FIR pertaining to the theft of the
tractor was registered at PS Manendragarh, three days later on 26.09.2011.
8.
We have considered the rival contentions and perused the record. The question which
needs determination is whether or not the delay in giving intimation of theft to the insurance
company is fatal to the claim of the respondent. This question came up before the Supreme
Court in the matter of Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chadha in Civil
Appeal No. 6739 of 2010 arising out of SLP (C ) No. 12741 of 2010 decided on 17.08.2010,
where the Hon’ble Supreme Court held thus:
“Admittedly, the respondent had not informed the appellant about the alleged theft of
the insured vehicle till he sent letter dated 22.05.1995 to the Branch Manager. In the
complaint filed by him, the respondent did not give any explanation for this unusual
delay in informing the appellant about the incident which gave rise to cause for
claiming compensation. Before the District Forum, the respondent did not state that he
had given copy of the first information report to Rajender Singh Pawar through whom
he had insured the car and untraced report prepared by police on 19.09.1995 was given
to the said Shri Rajender Singh Pawar, but his explanation was worthless because in
terms of the policy, the respondent was required to inform the appellant about the theft
of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the
respondent, who is said to have lodged First Information Report on 20.01.1995 about
the theft of car did not inform the insurance company about the incident. In terms of the
policy issued by the appellant, the respondent was duty bound to inform it about the
theft of the vehicle immediately after the incident. On account of delayed intimation, the
appellant was deprived of its legitimate right to get an inquiry conducted into the
alleged theft of vehicle and make an endeavour to recover the same. Unfortunately, all
the consumer foras omitted to consider this grave lapse on the part of the respondent
and directed the appellant to settle his claim on non-standard basis. In our view the
appellant cannot be saddled with the liability to pay compensation to the respondent
despite the fact that he had not complied with the terms of the policy.”
10.
In this case also, admittedly the theft took place on the night intervening 22nd &
23rd September, 2011 and the intimation of theft was given by the petitioner to the respondent
much later by fax on 05.10.2011 and by registered post vide letter dated 07.10.2011. Thus in
view of the law down by the Supreme Court, the respondent insurance company cannot be
saddled with the liability to pay compensation to the petitioner who himself has not complied
with the terms of the insurance policy.
11.
Even otherwise, the story of the complainant regarding immediate information of theft
given to the police is highly suspect. As per allegations in the complaint, the theft took place in
front of house of elder son of the petitioner situated at village Kathautia, main road Tiraha within
the jurisdiction of P.S. Manendragarh. FIR pertaining to the theft was admittedly registered at
P.S. Manendragarh three days after the theft on 26.09.2011. Case of the petitioner is that theft
was orally reported to the Police Station Manendragarh and the complainant was told to search
the tractor himself. Thereafter, the complainant made efforts to search the tractor and when the
tractor was not found, information regarding theft was given in writing at PS Gohparu District
Sahdol, M.P. on 23.09.2011. Thereafter, another complaint dated 24.09.2011 was given at PS
Jaitpur. Ultimately on coming back, FIR was registered at PS Manendragarh. We are not
inclined to believe story of the petitioner particularly when no one from the PS Manendragarh
has been examined to corroborate the version of the petitioner regarding oral intimation of theft
to the police. Further, there is no explanation as to why the complainant instead of submitting
written information of theft at the concerned PS Manendragarh, approached PS Gohparu as also
PS Jaitpur who had no jurisdiction to investigate the theft which took place within the
jurisdiction of Manendragarh Police Station. Further, on perusal of letter dated 23.09.2011 as
also letter dated 24.09.2011 respectively addressed to SHO PS Gohparu Sahdol and the SHO PS
Jaitpur, it transpires that in these letters, there is no mention of the petitioner earlier having
approached PS Manendragarh with intimation of theft and that he was told by officials of those
Police Station to search for the tractor himself. Under these circumstances, we are not inclined
to believe the story put forth by the petitioner. Thus, it is also not established that the theft was
immediately reported to the police.
12.
In view of the discussion above, this is a clear case of violation of terms of insurance
policy. As such, we do not find any fault in concurrent finding of the fora below which may call
for interference by this Commission in exercise of its revisional jurisdiction. Revision petition
is, therefore, dismissed.
………………………….Sd/(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
…………………………Sd/(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1058 OF 2014
(Against the order dated 9.12.2013 passed in M.A. No.13/53 in Complaint No.212 of
2013 by the State Commission, Maharashtra)
1. Ravi Developments, Builder and Developers A Partnership firm, having Corporate
Office at Laxmi Palace, 76, Mathuradas Road, Kandivalli (West) Mumbai – 400067
2. Mr. Tokarshi Shah
3. Mr. Ketan Shah
4. Mr. Jayesh Shah Partners of Appellant No.1 Having
76, Mathuradas Road, Kandivalli (West) Mumbai – 400067
address
at Laxmi Palace,
…Petitioners
Versus
1. Mr. Jayantibhai V. Ranka, Residing at 15, Savita Sadan Dubhash Lane, V.P. Road, Mumbai
– 400004.
2. Mrs. Arunaben K Kapadia, Residing at A.K. Jewellers, Thakurdwar Girgaon Road, Opp.
Golden Will Restaurant, Mumbai – 400004.
…Respondents
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Ms. Vandana Sehgal, Advocate with Ms. Kriti Singh Gahlout, Advocate
Pronounced on: 18th February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being
aggrieved
by
order
dated
9.12.2013
passed
by
State
Consumer
Disputes Redresal Commission, Maharashtra, Mumbai (for short, ‘State Commission’),
Petitioners/OP Nos.1 to 4 have filed the present revision petition under Section 21(b)
of Consumer Protection Act, 1986 (for short, ‘Act’).
2. Respondent No.1/Complainant filed a consumer complaint against the petitioners before the
State Commission. Alongwith it, an application seeking condonation of delay of 16.6 years
(6019 days) was also filed.
3. Petitioners opposed the application for condonation of delay by filing reply to the same.
4. Respondents no.1 and 2 jointly booked a bungalow in the project launched by the petitioners.
As per allotment letter dated 20.1.1995, respondents were allotted Bungalow No.18 in the
proposed site by the petitioners. It is stated that respondent no.1 alongwith respondent no.2
paid total consideration
of
Rs.3,32,000/-
jointly,
being
part
consideration.
It
is
alleged that till date, petitioners had not executed regular agreement for sale. Respondent no.1
had been asking the petitioners about status of the bungalow. It is also alleged that petitioners
never informed him that local authorities have raised certain technical objections. In the
meanwhile, respondent no.2 without the knowledge of respondent no.1, had accepted the amount
of
Rs.1,00,000/-
from
the
petitioners
in
the
year
2002.
Thereafter,
respondent no.1 served a legal notice on 17.9.20012. In reply, the petitioners stated for the first
time that allotment of respondent no.1 has been cancelled and terminated in 1996. It is stated that
respondents have not received any alleged termination letter dated 23.3.1996. It is further stated
even after the alleged termination, petitioners had received a sum of Rs.75,000/- from respondent
no.1. 5.
Hence, a consumer complaint was filed by respondent no.1 seeking directions
to the petitioners to handover vacantpossession of the bungalow or to provide any other suitable
bungalow/flat in the same area. In the alternative to pay the principal amount alongwith 24% p.a.
interest.
6. The complaint was contested by the petitioners, who in their written statement has taken the
plea that since respondent no.1 has not made the balance payment, allotment of the bungalow
was cancelled, vide letter dated 23.3.1996. Thus, the complaint filed by respondent no.1 in the
year 2013 is hopelessly barred by limitation.
7. The State Commission, while deciding the question of condonation of delay held;
“Heard both the parties on the point of delay condonation application. It
appears that bungalow no.18 in the project known as Gaurav Enclave was
allotted to the complainant by an allotment letter dated 28/01/1995. From time
to time, instalments were accepted from the complainant by the opponent no.1
to 4. The complainant filed the complaint for claiming possession of the
bungalow as per the allotment. Claiming possession of the allotted bungalow is
continuous cause of action. Therefore, there is no question of delay on the part
of complainant. Hence, application for condonation of delay disposed off with
these observations.”
8. We have heard the learned counsel for the petitioners and gone through the record.
9. Relevant terms of allotment letter dated January 20, 1995 state as under;
“We are pleased to inform you that we have allotted Bungalow No.18 in Plot 1 as
requested by you in our proposed project known as “GAURAV ENCLAVE” under
consideration of the Plot bearing Survey No.73 to 76, 79 Near Green Court Club
Village Ghodbunder, Taluka & District Thane, in your favour. The area of the
said Bungalow is 1250 Sq. ft. at the rate of Rs.901/-. The total value of the said
Bungalow is Rs.11,26,250/- (Rupees Eleven Lakh Twenty Six Thousand Two
Hundred Fifty only)
We further confirm that we have received a sum of Rs.31,000/- (Rupees Thirty one
Thousand only) by two cheques against the said Bungalow as follows:
Amount Cheque No. Dated Bank & Branch
Rs.15,500/- 888958 19/01/95 B.O.I,Bullion Exchange
Rs.15,500/- 269541 21/01/95 Janta Sahkari Bank
Ltd., Girgam
Immediately after the execution of regular Agreement for Sale between the Parties
herewith, this allotment letter shall have no effect and it will be treated as null and
void subsequently. And the amount on paid hereinabove will be adjusted in the
Agreement value.”
10. There is nothing on record to show that petitioners till date, have executed any regular
agreement for sale as per above allotment letter. Be that as it may, it is an admitted fact that the
petitioners had received a sum of Rs.3,32,000/- from respondent no.1 as well as respondent no.2,
though in the year 2002, a sum of Rs.1,00,000/- was refunded to respondent no.2 by the
petitioners. However, no explanation been given by the petitioners as to why the bungalow in
question in view of allotment letter dated 20.1.1995 has not been allotted to respondent no.1 and
why regular agreement for sale has not been executed so far. Another aspect is that the
petitioners after alleged termination of the allotment, have accepted Rs.1,00,000/- from
respondent no.1 and 2 jointly on 1.8.1996. Thereafter, again petitioners had received a further
sum of Rs.25,000/- jointly from respondents no.1 and 2, on 18.11.1996. We fail to understand
when as per petitioners’ case, the allotment stood cancelled in March, 1996, then where was the
occasion for them to accept further payment in the month of August and November, 1996. This
shows mala fide act on the part of the petitioners. Further, petitioners have not handed over the
possession of the bungalow in question so far nor have refunded the amount paid by respondent
no.1. Certainly there is a continuous cause of action in favour of respondent no.1.
11. This Commission in “Juliet Vs. Quadros Vs. M/s. Mrs. Malthi Kumar, IV (2005) CPJ 51
(NC)” has held that ‘Cause of action remains continuous till allotment of site or refusal.’
12. Same
view
was
taken
in Lata Construction
&
others
Vs.
Dr. Rameshchandra Ramniklal Shah and Another, III (1999) CPJ 46 (State Commission).
13. Under these circumstances, it cannot be said that the complaint filed by respondent no.1 is
barred by limitation. The order passed by the State Commission do not suffer from any infirmity,
illegality or jurisdictional error from any angle. Therefore, the impugned order hereby is
confirmed and revision petition is ordered to be dismissed, with no order as to costs.
…………………………………….J
(V.B. GUPTA)
PRESIDING MEMBER
……………………………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.895 OF 2013
With I.A. No.1620 of 2013 (For Stay)
(Against the order dated 15.1.2013 Appeal No.705 of 2010 of the State Commission, Delhi)
Delhi Development Authority, Through its Vice Chairman Vikas Sadan, I.N.A. Market, New
Delhi – 110023
… Petitioner
Versus
D.C. Sharma S/o Late Shri N.P. Sharma R/o C-7/69-A, Lawrance Road, Delhi – 35.
…Respondent
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Ms. Arti Bansal, Advocate
Pronounced on: 18th February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/Opposite Party has
filed
the
present
revision petition under Section
21(b) Consumer Protection Act, 1986 (for short, ‘Act) against impugned
order dated 15.1.2013 passed by State Consumer Disputes Redressal Commission, Delhi (for
short, ‘State Commission’) in First Appeal No.705 of 2010.
2. Brief facts are that Respondent/Complainant in response to an advertisement published by
the Petitioner/Opposite Party under the name of “EXPANDABLE HOUSING SCHEME, 1996”
applied for allotment of a flat, vide Application No.014269 dated 8.10.1996. As per terms and
conditions of the scheme, respondent deposited a sum of Rs.15,000/- as earnest
money alongwith application. In the draw of lots held on 21.3.1997, respondent was allotted a
flat bearing No.440, Type-A, Sector B-4, Pocket-6, Group-2, Narela, Delhi as communicated by
the petitioner vide its letter dated 12.1.2000/20.1.2000. As per allotment letter, cost of the
allotted flat was shown as Rs.5,16,300/- and respondent was called to deposit initial amount of
Rs.37,946.09 by 18.7.2000. Respondent deposited a sum of Rs.15,000/- as confirmation money
with
the
petitioner,
videChallan No.088115
dated
10.2.2000.
Therefore, respondent vide letter dated 15.2.2001 communicated to the petitioner, that he has
shifted from old residence to new address and requested that any official communication
pertaining to the allotted flat be entertained at new residential address.
3. It is further stated that as respondent was/is a Government servant, he wanted to avail
the loan facility from his office for the purpose of securing necessary balance payment in
respect of the above mentioned flat. In this connection, he made a written request dated
13.3.2000 to the petitioner for grant of necessary mortgage permission. However, no response
was received from the petitioner. Thereafter, respondent had been visiting the concerned
officials of the petitioner on public hearing days and repeating his request. On all these
occasions, he was assured that the permission shall be granted in due course of time. Since,
respondent could not get any response from the petitioner, vide application dated 16.11.2006 he
sought information under the Right to Information Act (RTI Act) from the petitioner.
Thereafter, respondent for the first time came to know from petitioner’s letter dated 13.12.2006
in response to his application under RTI Act, that the flat allotted to him on the basis of draw of
lots held on 21.3.1997, had already been allotted in favour of Smt. Santosh Minhasthrough
draw of lots held on 28.3.1995 vide allotment file No. 505(740)/95/EHS/NA. Thereafter,
respondent served a legal notice upon the petitioner. However, petitioner instead of taking
corrective measures in the case of “Double Allotment” tried to justify and cover up its
deliberate and intentional mistake in reply dated 30.7.1997. Due to gross negligence, ineptitude
and inefficiency on the part of petitioner, respondent has suffered loss and expenditure.
4. Accordingly, respondent made following prayers in his complaint;
“Respondent/DDA be directed to give allotment of an alternative flat to
the complainant at the premium/price prevalent in the year 1997-98, as
indicated in the allotment letter dated 12/1/2000-20/1/2000 and an interest @
18% per annum be awarded in favour of the complainant on the amount of
Rs.30,000/- lying deposited with the respondent/DDA, since 1996 & onward.
It is further prayed that the respondent/DDA be directed to pay a sum of
Rs.1,00,000/- to the complainant by way of compensation for causing
unnecessary physical and mental hardships and agony to the complainant and
another sum of Rs.10,000/- be also awarded to the complainant on account of
expenses incurred in course of travelling to the office of the respondent/DDA on
various occasions from his residence as well as from his office, for making
personal request to the concerned officers/staffs of the respondent/DDA for
getting needful done.
Any other order/relief which this Hon'ble Forum may deem just and proper
including cost of the present proceedings be also awarded in favour of the
complainant, in facts and circumstances of the case and in the interest
of justice.”
5. In its written statement petitioner has taken certain preliminary objections stating that the
complaint is false and frivolous and therefore liable for outright rejection with cost in terms
of Section 26 of the Act.It is further stated that the respondent has neither proved any deficiency
in service nor proved any negligence on the part of the petitioner. Moreover, the complaint is
barred under Section 24 of the Act.(Emphasis supplied)
6. On merits, it has been admitted by the petitioner that respondent was declared successful for
the allotment of the flat in question through the computerized draw held on 21.3.1997 for which
he had already deposited Rs.15,000/- towards registration money. Demand-cum-allotment letter
was issued to the respondent on 12.1.2000/20.1.2000 to deposit the cost of the flat as per
schedule and last date of making payment (with interest) was 18.6.2000.
7. It is further stated that as per record, it was found that flat No.440, Sector-B-4, Pocket-6,
Type-A, GR-2, Narela was allotted to Smt. Santosh Minhas through the computerized draw held
on 28.3.1995 and the demand-cum-allotment letter was issued vide allotment file
No. F.505(740)/95/EHS/NA and after issuance of the demand-cum-allotment letter, she made
the total required payment against the flat No.440.
8. The case was therefore, examined for the allotment of another flat to the respondent but he
was not found entitled for allotment of flat as he had deposited only the confirmation amount of
Rs.15,000/- and failed to deposit the cost of flat. Thus, the allotment stood cancelled
automatically on account of non-payment of the demanded amount. Intimation in this regard
was sent vide letter dated 12.12.06.
9. Petitioner has admitted that application for change of address was received in its office from
the respondent only on 15.2.2004. Further, letter dated 13.3.2000 was received in Public
Hearing but thereafter no further correspondence was made by the respondent till 16.11.06.
Under these circumstances, complaint is liable to be dismissed with exemplary cost.
10. District Consumer Disputes Redressal Forum-II, Delhi (for short, ‘District Forum’) vide
order dated 7.8.2010, dismissed the consumer complaint.
11. Aggrieved by the order of District Forum, respondent filed an appeal before the State
Commission, which allowed the same and passed the following order;
“Appeal is therefore allowed. Respondent will return back all
the amount of Rs.30 ,000/- hitherto received by it, and will
provide the complainant another flat of the same description, on
the same condition in the same locality or nearby. In case no
flat is available, the respondent DDA will pay, the appellant
Rs.30,00,000/ - (Rs. Thirty Lac) because of sky rocketing prices,
and since the flat was booked for Rs.5,03,348/ - in the year
1996-1997, Rs.24,96,652/ -(Rs. Twenty Four Lac Ninety Six
Thousand, Six Hundred and Fifty Two only) as the escalated
amount will be payable. Flat is to be allotted within 30 days,
and if no flat is available, payment is also to be made within
thirty days from the date of receipt of this order.”
12. Hence, the present revision.
13. We have heard the learned counsel for the petitioner and gone through the
record.
14. It has been argued by learned counsel that respondent deposited onl y
Rs.30,000/- out of the total amount of Rs.5,03,348/ -. Since, respondent failed to
make the payment of instalments as per the allotment -cum-demand letter, it
resulted in the cancellation of allotment and respondent is not entitled to any
relief. Further, intimation in this regard was sent to the petitioner vide letter
dated 12.12.2006. Under these circum stances, impugned order passed by the
State Commission is liable to be set aside.
15. Petitioner in its written statement admits that ;
“DDA had floated a scheme called Expendable Housing Scheme,
1996 where applications were invited for allotment of abo ut 3500
Expendable
Houses.
In
this
scheme
the
complainant/Shri Dinesh Chander Sharma
vide
application
No.014269 dated 5.10.96 applied for allotment of flat by
depositing
Rs.15,000/towards
registration
money.
The
complainant was declared successful for th e allotment of flat
No.440, Sector -B-4, Pocket -6, Type-A, GR-2, Narela through the
computerized draw held on 21.3.1997. The demand -cum-allotment
letter was issued to the complainant on 12.1.2000 -20.1.2000 with
request to deposit the cost of flat as per sch edule mentioned
therein and the last date of making the payment (with interest) was
18.6.2000.”
16. However,
in
the
same
breath
in
the
very
next para of
its
statement, petitioner take a somersault and states;
“As per record it was found that the flat No.440 Sector -B-4,
Pocket-6,
Type-A,
GR-2, Narela was
allotted
to
Smt. Santosh Minhas through the computerized draw held on
28.3.95 and the demand -cum-allotment letter was issued vide
allotment file No. F.505(740)/95/EHS/NA and after issuance of the demandcum-allotment letter, she made the total required payment against the flat
No.440.”
17. Then in the next para of its written statement, petitioner’s defence is;
written
“The case was therefore examined for the allotment of another flat to
the complainant but he was not found entitled for allotment of flat as he had
deposited only the confirmation amount of Rs.15,000/- and failed to deposit
the cost of flat. Thus the allotment stood cancelled automatically on
account of non-payment of the demanded amount. Intimation in this regard
was sent vide letter dated 12.12.2006.”
18. The above defence taken by the petitioner is an apt example of famous Hindi
saying “Ulta Chor Kotwal Ko Dhante”. Admittedly, respondent was declared successful for
allotment of the flat in the draw held on 21.3.1997. On the other hand, it is petitioner’s own case
that the same very flat already stood allotted to one Smt. Santosh Minhas in the draw held on
28.3.1995. No explanation about this goof up has been furnished by the petitioner nor it has
stated as to what action petitioner took against the delinquent officials who were involved in this
mischief which led to the allotment of a flat in 1997, which already stood allotted in 1995 as
also fully paid for by Smt. Santosh Minhas. Be that as it may, there is nothing on record to show
that when such glaring mistake came to its knowledge, petitioner ever took any step to apprise
the respondent about such mistake, who was the affected person.(Emphasis supplied)
19. On the other hand, defence of the petitioner is that as the respondent had not deposited the
balance amount, the allotment made in his favour stood cancelled automatically.
20. We fail to understand the logic of the above defence taken by the petitioner, when as per
petitioner’s own case, the flat in question stood allotted to one Smt. Santosh Minhas in 1995,
then how the respondent couldbe expected to deposit the cost for a non-existent flat as per
schedule, by the last date on 18.6.2000. Further, instead of owning up to their mistake the
petitioner even today brazenly take the plea that as the respondent had not deposited the balance
amount, they cancelled the allotment for a flat which the petitioner could not have or rather
should not have allotted in the first place.
21. From the above contents of the written statement, it is manifestly clear that petitioner had
filed its written statement before the District Forum in a mechanical manner and without going
through its contents properly, otherwise it would not have taken this plea that the complaint filed
by the respondent is false and frivolous. By no stretch of imagination, it can be said that the
complaint filed by the respondent is false and frivolous. In fact it is the defence that is false and
careless. The defence of petitioner is based on falsehood and the same has been taken just
to save and protect
its delinquent
officials,
who in
order
to
cover
up their
own
negligence and deliberate act shifted the entire blame on the respondent. It is inconceivable that
for even ten years
the
petitioner
necessary corrective action.
failed
to
realize
its
own
mistake
and
take
22. In this context it would be fruitful to quote the observations made by Hon’ble Supreme
Court in Dalip Singh Vs. State of U.P (2010) 2 SCC 114, where it held;
“1. For many centuries Indian Society cherished two basic values of
life
i.e.
“satya”
(truth)
and
“ahinsa”
(nonviolence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the
people to ingrain these values in their daily life. Truth constituted an
integral part of the justice-delivery system which was in vague in the
pre-Independence era and the people used to feel proud to tell truth in
the courts irrespective of the consequences. However, postindependence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos and the quest
for personal gain has become so intense that those involved in
litigation do not hesitate to take shelter of falsehood,
misrepresentation and suppression of falsehood, misrepresentation
and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth. They
shamelessly resort to falsehood and unethical means for achieving
their goals. In order to meet the challenge posed by this new creed of
litigants, the courts have, from time to time, evolved new rules and it is
now well established that a litigant, who attempts to pollute the stream
of justice or who touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or final.”
23. Now, coming to the impugned order of the State Commission, where it
observed;
“7. The
Forum
dismissed
the
complaint
of
the
appellant/complainant on the ground that since he did not
deposit the residual consideration amount of Rs.5 ,03,348/he violated the contract, and he is not entitled, to any
relief. We do not know how and why the District Forum
failed to realize, that the flat for which demand, for
confirmation amount had been made, was already sold out
to another person by the OP/DDA, which fact is not
disputed, by the DDA, and which is in the form of reply to
RTI application by the respondent/DDA which is available
on record.
8. The demand by the DDA for confirmation amount was therefore
false and fictitious, because the demand related to a flat which
was non-existent, then the question of appellant/complainant not
complying with the demand does not therefore arise! There as
such has been default in the performance of the contract by the
respondent/DDA and they are therefore liable to pay all
the amount received from the appellant/complainant, and to
provide another flat to him, or to pay him compensation.”
24. We are in full agreement with the above reasoning given by the State Commission. Further,
we must express our deep anguish over the manner in which petitioner being the biggest land
owning agency of the capital city of this country, is bent upon depriving the respondent who was
a successful allottee of the flat. Moreover, for the last about 18 years, the petitioner has made the
respondent run from pillar to post, whose only fault is that he had been fighting for his legal and
rightful claim.
25. It is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very
limited. Under Section 21 of the Act, this Commission can interfere with the order of the State
Commission where such State Commission has exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction
illegally or with material irregularity.
26. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance
Company, 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 that 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 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 finding of two fora.”
27. Thus, findings recorded by the State Commission that petitioner was deficient in rendering
service is a finding of fact which cannot be interfered with in exercise of
the revisional jurisdiction.
28. Hence, we find no error/irregularity in the exercise of jurisdiction by the State Commission
in the impugned order passed by it.
29. It is well settled that every litigation has to come to an end ultimately. It is not that every
order passed by the judicial foras are to be challenged even if the same are based on the
sound reasonings.
30. It is a well-known fact that Judicial Forums across the country are saddled with large
number of cases. Public/Statutory Bodies indulgences further burden them. Time and again,
Courts have been expressing their displeasure at the Government/Public Bodies compulsive
litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now
imposing costs upon Government/Public Bodies not only when it pursuecases which can be
avoided but also when it forces the public to do so.
31. Public/Statutory Bodies 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 Bodies are possibly an apt example of being penny wise poundfoolish. Rise in frivolous litigation is also due to the fact that these Government Bodies though
having large number of legal personnel under their employment, do not examine the cases
properly and force poor litigants to approach the Court.(Emphasis supplied)
32. Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121
(Supreme Court) (CP) has made significant observations which have material bearing, namely,
4. “It is a matter of concern that such frivolous and unjust litigation by
Governments and statutory authorities are on the increase. Statutory
Authorities exist to discharge statutory functions in public interest. They
should be responsible litigants. They cannot raise frivolous and unjust
objections, nor act in a callous and highhanded manner. They cannot behave
like some private litigants with profiteering motives. Nor can they resort to
unjust enrichment. They are expected to show remorse or regret when their
officers act negligently or in an overbearing manner. When glaring wrong
acts by their officers is brought to their notice, for which there is no
explanation or excuse, the least that is expected is restitution/restoration to
the extent possible with appropriate compensation. Their harsh attitude in
regard to genuine grievances of the public and their indulgence in
unwarranted litigation requires to the corrected.
5. This Court has repeatedly expressed the view that the Governments and
statutory authorities should be model or ideal litigants and should not put
forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct
the path of justice. We may refer to some of the decisions in this behalf.
5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this
Court extracted with approval, the following statement (from an earlier
decision of the Kerala High Court.):
“The State, under our Constitution, undertakes economic activities in a vast
and widening public sector and inevitably gets involved in disputes with
private individuals. But it must be remembered that the State is no ordinary
party trying to win a case against one of its own citizens by hook or by crook;
for the State’s interest is to meet honest claims, vindicate a
substantialdefence and never to score a technical point or overreach a
weaker party to avoid a just liability or secure an unfair advantage, simply
because legal devices provide such an opportunity. The State is a virtuous
litigant and looks with unconcern on immoral forensic successes so that if on
the merits the case is weak. Government shows a willingness to settle the
dispute regardless of prestige and other lesser motivations, which move
private parties to fight in Court. The lay-out on litigation costs and execution
time by the State and its agencies is so staggering these days because of the
large amount of litigation in which it is involved that a positive and
wholesome policy of cutting back on the volume of law suits by the twin
methods of not being tempted into forensic showdowns where a reasonable
adjustment is feasible and ever offering to extinguish a pending proceeding
on just terms, giving the legal mentors of Government some initiative and
authority in this behalf. I am not indulging in any judicial homily but only
echoing the dynamic national policy on State litigation evolved at a
Conference of Law Ministers of India way back in 1957.”
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor
V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
“2. It is high time that Governments and public authorities adopt the
practice of not relying upon technical pleas for the purpose of
defeating legitimate claims of citizens and do what is fair and just to
the citizens. Of course, if a Government or a public authority takes up
a technical plea, the Court has to decide it and if the plea is well
founded, it has to be upheld by the Court, but what we feel is that such
a plea should not ordinarily be taken up by a Government or a public
authority, unless of course the claim is not well founded and by
reason of delay in filing it, the evidence for the purpose of resisting
such a claim has become unavailable.”
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors. v. Union
Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC
737.
“3. The State Government must do what is fair and just to the citizen
and should not, as far as possible, except in cases where tax or
revenue is received or recovered without protest or where the State
Government would otherwise be irretrievably be prejudiced, take up a
technical plea to defeat the legitimate and just claim of the citizen.”
6. Unwarranted litigation by Governments and statutory authorities
basically stem from the two general baseless assumptions by their
officers. They are:
(i)
All claims against the Government/statutory authorities
should be viewed as illegal and should be resisted and
fought up to the highest Court of the land.
(ii)
If taking a decision on an issued could be avoided, then it is
prudent not to decide the issue and let the aggrieved
party approach the Court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders
against them, is not the policy of the Governments or statutory authorities, but is
attributable to some officers who are responsible for taking decisions and/or
officers-in-charge of litigation. Their reluctance arises from an instinctive
tendency to protect themselves against any future accusations of wrong decision
making, or worse, of improper motives for any decision-making. Unless their
insecurity and fear is addressed, officers will continue to pass on the
responsibility of decision making to Courts and Tribunals. The Central
Government is now attempting to deal with this issue by formulating realistic
and practical norms for defending cases filed against the Government and for
filing appeals and revisions against adverse decisions, thereby, eliminating
unnecessary litigation. But, it is not sufficient if the Central Government alone
undertakes such an exercise. The State Governments and the statutory
authorities, who have more litigations than the Central Government, should also
make genuine efforts to eliminate unnecessary litigation. Vexatious and
unnecessary litigation have been clogging the wheels of justice, for too long
making it difficult for courts and Tribunals to provide easy and speedy access to
justice to bonafide and needy litigants.
7. In this case, what is granted by the State Commission is the minimum relief
in the facts and circumstances, that is to direct allotment of an alternative plot
with a nominal compensation of Rs.5,000/- . But instead of remedying the
wrong, by complying with the decision of the Consumer Fora, the Improvement
Trust is trying to brazen out its illegal act by contending that theallottee should
have protested when it illegally laid the road in his plot. It has persisted with
its unreasonable and unjust stand by indulging in unnecessary litigation by
approaching the National Commission and then this Court. The Trust should
sensitize its officers to serve the public rather than justify their dictatorial acts.
It should avoid such an unnecessary litigation.”
33. In Ravinder Kaur Vs Ashok Kumar, AIR 2004 SC 904, the Apex Court has made the
following observations:
“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.”
34. Further, 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 ;
“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.
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 hardly 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.
It is a typical example how a litigation proceeds and continues and in the
end there is a profit for the wrongdoers.
Learned Amicus articulated common man’s general impression about
litigation in following words ;
“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 him and the probability
of the court ordering prosecution for perjury is less than that
of meeting with an accident while crossing the road.”
While imposing costs we have to take into consideration pragmatic
realities and be realistic what the defendants or the respondents had to
actually incur in contesting the litigation before different courts. We have
to also broadly take into consideration the prevalent fee structure of the
lawyers and other miscellaneous expenses which have to be incurred
towards drafting and filing of the counter affidavit, miscellaneous charges
towards typing, photocopying, court fee etc.
The other factor which should not be forgotten while imposing costs is for
how long the defendants or respondents were compelled to contest and
defend the litigation in various courts. The appellants in the instant case
have harassed the respondents to the hilt for four decades in a totally
frivolous and dishonest litigation in various courts. The appellants have
also wasted judicial time of the various courts for the last 40 years.
On consideration of totality of the facts and circumstances of this case,
we do not find any infirmity in the well-reasoned impugned
order/judgment. These appeals are consequently dismissed with costs,
which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are
imposing the costs not out of anguish but by following the fundamental
principle that wrongdoers should not get benefit out of frivolous
litigation.”
35. Recently, Supreme Court in an appeal filed by Chennai Port Trust against an order of the
Madras High Court observed ;
“For decades, courts across the country witness appeals on frivolous
grounds, resulting in wastage of public money and consuming valuable
time of the Courts. This happens because officers involved in these
frivolous appeals are not personally responsible and don’t pay from their
pockets.
36. It is also well settled that no leniency should be shown to such type of litigants who in order
to cover up their own fault and negligence, go on filing meritless petitions in different Fora.
Time and again courts have held that if any litigant approaches the court of equity with unclean
hands, suppress the material facts, make false averments in the petition and tries to mislead and
hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity
demand that such unscrupulous litigant whose only aim and object is to deprive the opposite
party of the fruits of the decree must be dealt with heavy hands.
37. Now, the question for consideration is as to what should be the quantum of punitive damages
to be imposed upon the petitioner, for harassing the respondent for last more than 18 years
without any justification.
38. Keeping in view the principle of law laid down by Hon'ble Apex Court in Bikaner Urban
Improvement Trust (Supra) and in Ramrameshwari Devi (Supra), we hereby impose punitive
damages amounting to Rs.5,00,000/- (Rupees Five Lac only) upon the petitioner for indulging in
unfair trade practice and for causing undue harassment to the respondent. Out of the above
amount, Rs.2.5 lakhs (Rupees two lakhs and fifty thousand only) be paid to the
Respondent/complainant by way of demand draft in his name. Balance amount of Rs.2.5 lakhs
(Rupees two lakhs and fifty thousand only) be deposited by way of demand draft in the name of
“Consumer Legal Aid Account” of this Commission, within eight weeks. In case, petitioner fails
to deposit the aforesaid damages within the prescribed period, then it shall also be liable to pay
interest @ 9% p.a., till realization.
39. Further, petitioner should recover the damages amount from the salaries of the delinquent
officials who had been pursuing this meritless litigation with the sole aim of wasting the public
ex-chequer. An affidavit, duly sworn by the Vice-Chairman of Petitioner-Authority giving
details of the officials from whose salaries the damages have been recovered, be also filed within
eight weeks. However, the damages awarded in favour of the respondent shall be paid to him,
only after expiry of period of appeal/revision preferred, if any.
40. List for compliance on 25.4.2014.
…………………………………….J
(V.B. GUPTA)
PRESIDING MEMBER
…………………………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4289 OF 2012
(From the order dated 09.07.2012 in Appeal No.
State Consumer Disputes Redressal Commission, Bangalore)
40/2011of
the
Karnataka
1. Smt. Bharti W/o Ramappa Dalawai R/o- 548, Doorshan Nagar, Belgaum
2. Miss Geeta D/o Ramappa Dalwai R/o 548, Doorshan Nagar, Belgaum
3. Miss Pushpa D/o Ramappa Dalwai R/o 548, Doorshan Nagar, Belgaum
4. Kumar Anand S/o Ramappa Dalwai R/o 548, Doorshan Nagar, Belgaum
5. Miss Priyanka D/o Ramappa Dalwai R/o 548, Doorshan Nagar, Belgaum
6. Kumar Anil S/o Ramappa Dalwai R/o 548, Doorshan Nagar, Belgaum
... Petitioners
Versus
1. The Manager, Bajaj Allianz Life Insurance Company Ltd. Opposite State Bank of India
Ashok Nagar, Nipani Tal: Chikodi, Dist: Belgaum
2. The Authorized Signatory Bajaj
Airport Road Yerwada, Pune 411006
Allianz Life
Insurance Company
Ltd.
GE Plaza
… Respondents
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
Mr. Kashi Vishweshwar, Advocate
For Respondents
Mr. Pankul Nagpal, Advocate
PRONOUNCED ON : 18th
ORDER
FEBRUARY 2014
PER JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 09.07.2012,
passed by the State Commission in Appeal no. 40/2011 Smt. Bharti & Ors. vs. The Manager,
Bajaj Allianz Life Insurance Company Ltd., by which while dismissing the appeal, order of
District Forum dismissing complaint was affirmed.
2.
Brief facts of the case are that complainant no. 1 husband and complainant no. 2 to 6
father Ramappa took insurance policy from opposite party-respondent on 13.06.2008 for a sum
of
Rs. 9,45,000/- and paid premium of Rs. 35,000/-. Due to cardiac attack Ramappa died on
12.09.2008. Complainant submitted claim before the opposite party which was repudiated on
the ground of misrepresentation of age and fake documents. Alleging deficiency on the part of
the opposite party, complainant-petitioner filed complaint before the District Forum. Opposite
party resisted complaint and submitted that insured furnished fake certificate of his age and
suppressed material facts and further submitted that in the proposal form, he had shown only two
children, whereas there were five children. As policy was obtained on fraudulent and false
documents, policy became void and prayed for dismissal of the complaint. The District Forum,
after hearing both the parties, dismissed the complaint. Appeal filed by the complainant was
dismissed by the State Commission, 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 there was no allegation of suppression of
disease. Even, the State Commission has committed error in dismissing the appeal on the ground
of suppression of pre-existing disease, hence, revision petition be allowed. 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 District Forum after elaborate conclusion, rightly came to the conclusion
that certificate submitted by the insured was fake, as per statement obtained from the school
authority. As complainant disclosed his age as 35 years at the time of taking policy, whereas he
was 46 years old and further mentioned in the proposal form that he was having only two
children, whereas in the complaint, five children have been impleaded as sons and daughters of
deceased, it becomes clear that insured obtained insurance policy by misrepresentation of age
and family members and in such circumstances, policy becomes null and void and the District
Forum has not committed any error in dismissing the complaint.
6.
It appears that the State Commission inadvertently mentioned suppression of pre-existing
disease, whereas suppression of number of children was to be mentioned, but order passed by the
State Commission is in accordance with law. We do not find any irregularity, illegality or
jurisdictional error in the impugned order and revision petition is liable to be dismissed.
7.
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 REDESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 933 OF 2008
(From the order dated 08.01.2008 in First Appeal No. 248/07 of the Chhattisgarh
State Consumer Disputes Redressal Commission, Raipur)
Commissioner, Nagar Nigam, Durg. (C.G.)
…Petitioner/Opp. Party (OP)
Versus
P.S. Chauhan S/o Late Shri D.S. Chauhan Smriti Bhawan, Near Green Chowk,
Road, Durg (C.G.)
Station
… Respondent/Complainant
REVISION PETITION NO. 1026 OF 2008
(From the order dated 08.01.2008 in First Appeal No. 248/07 of the Chhattisgarh State
Consumer Disputes Redressal Commission, Raipur)
P.S. Chauhan S/o Late Shri D.S. Chauhan Smriti Bhawan, Near Green Chowk, Station
Road, Durg (C.G.)
…Petitioner/Complainant
Versus
Commissioner, Nagar Nigam, Durg. (C.G.)
… Respondent/ Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
In R.P. No. 933/2008:
For the Petitioner
:
NEMO
For the Respondent :
Mr. Vikas Mehta, Amicus Curiae
In R.P. No. 1026/2008:
For the Petitioner
:
Mr. Vikas Mehta, Amicus Curiae
For the Respondent :
NEMO
PRONOUNCED ON 18th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Both these revision petitions arise out of the single order of learned State Commission;
hence, decided by common order.
These revision petitions have been filed by the petitioners against the order dated
08.1.2008 passed by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur
(in short, ‘the State Commission’) in Appeal No. 248 of 2007 – P.S. Chauhan. Vs.
Commissioner,
Nagar
Nigam
by
which,
while
allowing
appeal,
order
of
District Forum dismissing complaint was set aside and OP was directed to pay Rs.35,000/- along
with Rs.2,000/- as cost of litigation.
2.
Brief facts of the case are that the complainant has a house at Smriti Bhawan, Ward no.
25, Gayatri Mandir ward, Durg which is in the name of his wife and the complainant had paid
‘Property Tax’, ‘Education Tax’, ‘Samekit Kar’ for the year 2006-07. As per the averments
made in the complaint, in view of payment of Samekit Kar, the complainant is entitled to light,
power, drinking water and similar other facilities from the Municipal Corporation. It was further
stated in the complaint that near the house of the complainant, there was a vacant plot
of Sohanlal Patni which was being used as dumping ground for trash and garbage and was also
used by the hut dwellers for private purposes. The complainant made repeated requests to the OP
for cleaning of the said plot as it was causing nuisance to the nearby residents but the OP –
Corporation paid no heed to the complaints made by the complainant. It was further alleged in
the complaint that the unhygienic conditions were leading to spread of various diseases. The
complainant himself was suffering from allergic bronchitis and fever and had to spend lots of
money towards his treatment. It was further stated that due to lack of clearing of garbage at the
aforesaid plot, various persons including the tenants of the complainants as well as his wife had
to suffer infection during the period from August, 2006 to October 2006 and all of them had to
spend money towards treatment. It was stated in the complaint that since the complainant has
paid Samekit Kar to the OP, he was entitled to various services and facilities towards which
the Samekit Kar was charged under the MunicipalCorporation Act and by not providing the
same, the OP was liable for deficiency in service. OP resisted complaint and submitted that the
house was in the name of the wife of the complainant and no amount has been charged as
consideration, hence, the complainant was not the consumer of the OP. It was stated in the
written version that the corporation undertakes the work of cleaning through various contractors
but the plot in question was a private property and the corporation was not obliged to undertake
cleaning of the said plot. It was further stated that the allegation of complainant suffering from
Chronic Recurrent, Allergic, Bronchitis and fever and his wife suffering from Malaria were false.
The OP has not committed any deficiency in service and the complaint was not maintainable
before the District Forum.
3.
Learned District Forum after hearing both the parties dismissed complaint on the ground
that complainant does not fall within purview of consumer. Appeal filed by the complainant was
allowed by learned State Commission vide impugned order against which, these revision
petitions have been filed.
4.
None appeared for the Petitioner-Commissioner Nagar Nigam.
5.
Heard learned Amicus Curiae appointed for complainant and perused record.
6.
Perusal of record reveals that learned State Commission allowed complaint holding
‘cess’ in the nature of fee charged towards providing the service under Section 132 (1) of M.P.
Municipal Corporation Act, 1956. Section 132 (1) (c) runs as under:
“132. Taxes to be imposed under this Act.(1) For the purpose of this Act, the Corporation shall, subject to any general or
special order which the State Government may make in this behalf, impose in the
whole or in any part of the Municipal Area, the following taxes namely.(a) a tax payable by the owners of buildings or lands situated within the city with
reference to the gross annual letting value of the buildings or lands, called the
property tax, subject to the provisions of Sections 135,136 and 138.
(b) a water tax, in respect of lands and building to which a water supply is
furnished from or which are connected by means of pipe with municipal water
works.
(c) a general sanitary cess, for the construction and maintenance of public
latrines and for removal and disposal of refuse and general cleanliness of the city.
(d) a general lighting tax, where the lighting of public streets and places is
undertaken by the corporation.
(e) a general fire tax, for the conduct and management of the fire service and for
the protection of life and property in the case of fire”.
This provision clearly reveals that OP imposed tax & cess on the owners of the buildings for the
purposes mentioned in Clause (b) to Clause (e) of Section 132. Learned Amicus Curiae for the
complainant frankly admitted that tax cannot be equated with fees and merely by paying tax
complainant does not obtain any service from the OP and complainant does not fall with the
purview of consumer. We agree with the submissions made by learned Amicus Curiae and hold
that tax cannot be equated with fees and as OP has not charged any fees for providing any
service as such, complainant does not fall within the purview of consumer and learned State
Commission has committed error in holding that complainant falls within the purview of
consumer under the C.P. Act.
7. Complainant himself mentioned in the complaint that house is in the name of his wife and
OP has also mentioned in the written statement that no amount has been charged as consideration
from the complaint, complaint filed by the complainant is not maintainable. Only the owner of
the property could have filed complaint and respondent/complainant had no locus standi to file
complaint and on this count also the complaint was liable to be dismissed.
8. As complaint is liable to be dismissed and Revision Petition No. 933/08 filed by OP is to
be allowed, Revision Petition No. 1026/08 filed by the complainant is liable to be dismissed.
9. Consequently, Revision Petition No. 933 of 2008 filed by the petitioner/OP is allowed and
impugned order dated 8.1.2008 passed by learned State Commission in Appeal No. 248 of 2007
– P.S. Chauhan. Vs. Commissioner, Nagar Nigam is set aside and order of District Forum is
affirmed. Revision Petition No. 1026 of 2008 filed by the complainant 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. 12 OF 2008
(From the order dated 28.09.2007 in First Appeal No. 2256 of 2006 of the Uttar Pradesh State
Consumer Disputes Redressal Commission, Lucknow)
1. Tata Motors Ltd. (Formerly known as Tata Engineering Locomotives Company)
Bombay House, 24, Homi MOdi Street, Fort, Mumbai – 400001 Through its Vice-President
2. Tata Motors Ltd. (Northern Region Sales Head) Jeewan Tara Building 5, Sansad Marg, New
Delhi
3. Tata Motors Ltd. Saran Chambers – 1st & 2nd Floor, 5, Park Road, Haznathganj, Lucknow
…Petitioners/Opp. Parties (OP)
Versus
1. Ashish Aggarwal S/o Sh. S.D. Agarwal R/o Agarwal House, 277/38-39
Road, P.S., Naka Hindola, Lucknow
2. Goldrush Sales & Services Ltd. 6-A, Sapru Marg, Lucknow
Balram Pur Quarters
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners : Mr. Aditya Narain, Advocate Mr. Davesh Bhatia, Advocate Mr.
Jasmeet Singh, Advocate Mr. Shashank Bhushan, Advocate Ms. Anushree Narain, Advocate
For the Res. No. 1 :
Mr. Bharat Sood, Proxy Counsel
For the Res. No. 2 :
NEMO
PRONOUNCED ON 18th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners against the order dated 28.09.2007
passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the
State Commission’) in Appeal No. 2256 of 2006 – Tata Motors Ltd. & Ors. Vs. Ashish
Aggarwal & Anr. by which, while allowing appeal partly, order of District Forum allowing
complaint was modified.
2.
Brief facts of the case are that complainant/Respondent No. 1 filed complaint before
District Forum with an allegation that Tata Indigo Car purchased by him from OP and
manufactured by OP/petitioners was having manufacturing defect. OP resisted complaint on the
ground that there was no manufacturing defect. During proceedings before the District Forum,
OP moved an application for obtaining expert opinion to find out whether there was any
manufacturing defect in the vehicle or not, but the application was dismissed by District Forum
and allowed complaint and directed OP to replace the car by a new car of the same model or in
the alternative, to pay Rs.5,47,472.76 along with 9% p.a. interest and further allowed Rs.20,000/for harassment and Rs.2,000/- as cost of the suit. Appeal filed by the OPs was partly allowed by
learned State Commission vide impugned order deleted interest, cost and compensation of Rs.
20,000/- allowed by District Forum against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record. This Commission vide order
dated 17.4.2008 observed as under:-
“Learned counsel for the Petitioner has submitted that the Petitioner
company is a renowned manufacturer of motor vehicles for a very long
period and takes all possible care to ensure that the vehicle so
manufactured by it are defect-free. She submits that the question as to
whether there was or was not any manufacturing defect in the vehicle in
question could not have been decided by the allegations and counter
allegations and could only be decided effectively and conclusively after
obtaining expert opinion in that behalf. This is objected to by the counsel
appearing for the Respondent primarily on the ground that the order
passed by the District Forum declining the application of the Petitioner
was not challenged by way of appeal, etc., though an opportunity was
available to the Petitioner to do so and secondly, that no useful purpose
would be served at this stage by obtaining an expert opinion on this
car. In our opinion, both the submissions hold no water and are liable to
be rejected because in the appeal filed by the Petitioner before the State
Commission the aspect of rejection of its application was highlighted as
one of the main grounds for challenging the order passed by the District
Forum. Further, in our opinion, the State Commission, having regard to
the facts and circumstances, ought to have accepted the prayer made on
behalf of the Petitioner to obtain expert opinion in the matter. We feel that
it
would
be
in
the interest
of justice if expert opinion is obtained in regard to the existence
or otherwise in manufacturing defect in the vehicle, in question, so that the
matter can be decided conclusively and more effectively. Accordingly,
parties may give names of two recognised Bodies/Institutions which are
equipped with such expertise and would be in a position to give report in
the matter.”
In compliance of this direction, report of Transport Commissioner was received as mentioned in
order dated 19.11.2008. This Commission vide order dated 11.04.2012 observed as under:
“We have perused the report wherein presence of only the respondents
has been recorded. The report does not say that notices were issued to the
parties. As per directions issued by this Commission on 8.5.2008,
inspection was to be carried out after notice to both the parties. Since the
vehicle was inspected in the absence of the petitioner without serving any
notice on it, the same cannot be accepted. The Transport Commissioner,
U.P., Tehri Kothi, Lucknow is directed to appoint a new technical expert
having technical expertise to judge the motor vehicle in question
regarding the manufacturing defects. Officers so appointed shall inspect
the vehicle in question, which is admittedly lying with the respondent, after
giving due notice to both the parties and submit the report within 12 weeks
from today”.
In compliance of this order, Additional Transport Commissioner, U.P. sent report observed in
order dated 17.12.2013. Petitioner filed objections to this report and learned Counsel for the
Respondent No. 1 submitted that he does not want to file any reply to the objections.
4.
This Commission vide order dated 17.4.2008 rightly observed that the question as to
whether there was or was not any manufacturing defect in the vehicle in question could not have
been decided by the allegations and counter allegations by the District Forum and could have
been decided effectively and successfully only after obtaining expert opinion in that behalf. It
was further observed that learned State Commission ought to have accepted prayer made on
behalf of the petitioner to obtain expert opinion in the matter and ultimately this Commission
obtained expert opinion.
5.
As expert opinion has been received by this Commission, we deem it appropriate to remand
the matter back to the learned District Forum to decide the complaint after considering the expert
opinion and objections filed by the parties.
6.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
28.9.2007 passed by learned State Commission in Appeal No. 2256 of 2006 – Tata Motors Ltd.
& Ors. Vs. Ashish Aggarwal & Anr. and order of District Forum passed in Complaint No. 212 of
2005 dated 28.8.2006 – Aseesh Agarwal Vs. M/s. Tata Motors Ltd. & Ors. is set aside and
matter is remanded back to the learned District Forum for deciding the matter in accordance with
law after considering expert opinion and objections filed by the parties after giving an
opportunity of being heard.
7.
Registry is directed to send photocopies of both the expert opinions along with objections
to the District Forum.
8.
Parties are directed to appear before the District Forum-1, Lucknow on 28.3.2014.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL
DELHI
COMMISSION
NEW
REVISION PETITION NO.3365 OF 2010
(Against the order dated 30.06.2010 in Appeal No.3602/2009 of the Karnataka State Consumer
Disputes Redressal Commission)
Birla Sun Life Insurance Co. Ltd. 6th Floor, Vaman Centre Makhwana Road Off. Andheri-Kurla
Road Near Marol Naka Andheri East Mumbai-400059
...... Petitioner
Vs.
1. Smt. Lalitha W/o Shri Arvind Hurukadlii Aged 45 years, Housewife Sindagi Building Shroff
Katta Hubli-580020
2. Manager Syndicate Bank Durgadbail (Main) Hubli-580020
.....Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Petitioner
For Respondent No.1
For Respondent No.2
: Ms. Meenakshi Midha, Advocate
: Mr. L.M. Sheelvant, Advocate
: Mr. M.R. Shashidhar, Advocate
Pronounced on 18th February, 2014
ORDER
PER VINEETA RAI, PRESIDING MEMBER
1.
This revision petition has been filed by Birla Sun Life Insurance Company Ltd.,
Petitioner herein and OP-2 before the District Consumer Disputes Redressal Forum at Dharwad
(for short the District Forum) being aggrieved by the order of the Karnataka State Consumer
Disputes Redressal Commission (for short the State Commission) which had dismissed its appeal
and confirmed the order of the District Forum, directing it to pay Respondent No.1, Complainant
before the District Forum, the insured amount of Rs.4,79,659/- besides Rs.500/- as costs of
litigation. Syndicate Bank, which was also OP-1 before the District Forum and Respondent No.2
herein, had been directed to pay Rs.5000/- for deficiency in service, which order had been
confirmed by the State Commission. However, the present revision petition has only been filed
by the Petitioner/Insurance Company.
2.
The facts of the case are that one Smt. Ratnavva (hereinafter referred to as the
life assured) had taken a life insurance policy on 23.07.2007 from the Petitioner/Insurance
Company/OP-2 for a sum of Rs.4,99,180/-. The premium under the policy was payable once in a
quarter i.e. Rs.23,140/- for the first quarter and also additional sum of Rs.1631/- which was to be
kept in the suspense account. Subsequently the second and third quarterly premiums which
became due on 23.10.2007 and 23.01.2008 were not paid and therefore the policy lapsed.
However, when the life assured paid an amount of Rs.44,649/- on 23.06.2008 in respect of the
above two quarterly installments after deducting the amount in suspense account, the policy was
revived. Again in the quarter where the premium was due on 23.04.2008 onwards, it
remained unpaid and therefore the policy again lapsed. To revive the same, the life assured
sent cheque no. 627669 dated 26.08.2008 for Rs.69,420/- in respect of two quarterly premiums
which were due from 23.04.2008 and the said cheque was received by the Petitioner/Insurance
Company/OP-2 on 30.09.2008. The Petitioner/Insurance Company/OP-2 issued a receipt on that
date subject to “realization of the cheque”. It also sent a computer generated letter on
06.10.2008
stating
that
the
policy
stood
revived
w.e.f.
05.10.2008
and
asked
for continued payment of the premium. The said letter was issued on the presumption that the
payment would be made through cheque and no problems would be faced with its
realization. However, later on the same date i.e. 06.10.2008 the Syndicate Bank/OP-1 informed
the Petitioner/Insurance Company/OP-2 that the said cheque had been dishonoured due to
insufficient funds. The Petitioner/Insurance Company/OP-2 was informed that the life assured
had passed away on 06.10.2008 and, therefore, when the claim was made on 05.12.2008 for the
settlement of the policy amount, since the cheque had been dishonoured and therefore premium
was not paid as per the terms and conditions of the policy, the Petitioner/Insurance
Company/OP-2 did not indemnify the claim and treated the policy as having lapsed. Being
aggrieved by this action, a complaint was filed by the Respondent No.1 (daughter of the life
assured as nominee in the insurance policy) holding both Syndicate Bank/OP-1 and
Petitioner/Insurance Company/OP-2 guilty of deficiency in service. It was contended that the
action of the Bank in wrongly informing the Insurance Company that the cheque was
dishonoured for want of sufficient funds when admittedly there were adequate funds in the
account of the life assured amounted not only to deficiency in service but also gross negligence
and it was this misinformation that led to the repudiation and non-payment of the insurance
policy without any basis whatsoever. The Petitioner/Insurance Company/OP-2 also committed
deficiency in service by first sending a computer generated letter on 06.10.2008 informing the
life assured that the policy had been revived and thereafter even though it received information
about the dishonouring of the cheque from the Syndicate Bank/OP-1 on 03.10.2008, it did not
inform the life assured about the same till several weeks later i.e. 07.01.2009. If the information
had been intimated to the life assured even over telephone on 03.10.2008 on which date she was
alive, she could have sorted out the matter with the Syndicate Bank/OP-1.
3.
The District Forum after hearing the parties and on the basis of evidence produced before
it allowed the complaint and directed the Petitioner/Insurance Company/OP-2 to pay Respondent
No.1/Complainant the insured amount of Rs.4,79,659/- after deducting the money already paid
with costs of Rs.500/-. Syndicate Bank/OP-1 was directed to pay Rs.5000/- as compensation for
deficiency in service within one month from the date of receipt of copy of that order, failing
which the amount would carry interest @ 6% per annum from the date of that order till its
realization.
4.
While the Syndicate Bank/OP-1 accepted the order of the District forum, the
Petitioner/Insurance Company/OP-2 filed an appeal before the State Commission, which
dismissed the same by observing as follows :“OP No.2 has produced a letter dated 27.09.2008 addressed to Smt.
Rathnavva stating that her policy has ceased to be in force. When the policy was
reviewed, it is to be deemed that it relates back to the date of expiry and that;
policy was in force. When Smt. Rathnavva died, consequently the complainant
will be entitled to the assured sum under the policy. If the cheque was
dishonoured for insufficient funds even though there was a sufficient balance in
the SB account of Smt. Rathnavva the insured the OP No.1 and 2 was negligent in
performing their duties. Therefore the DF has rightly come to the conclusion in
allowing the complaint of the complainant directing the appellant /OP No.2 to
pay a sum of Rs.4,79,659/- with cost of Rs.500/- and OP No.1 Bank to pay a sum
of Rs.5,000/- as compensation to the complainant for deficiency in
service. Viewed from any angle, we do not find any good grounds to entertain
this appeal.”
Hence the present revision petition.
5.
Ms. Meenakshi Midha, Counsel for the Petitioner/Insurance Company/OP-2, Mr. L.M.
Sheelvant, Counsel for Respondent No.1/Complainant, and Mr. M.R. Shridhar, Counsel for
Bank/OP-1 were present and made submissions.
6.
Counsel for the Petitioner/Insurance Company/OP-2 contended that the Fora below erred
in holding it guilty of deficiency in service whereas it was the Syndicate Bank/OP-1 which was
responsible for giving misinformation because of which the claim was repudiated. Regarding the
allegation of Respondent No.1/Complainant that the Petitioner/Insurance Company/OP-2 could
have informed about the dishonouring of the cheque on 03.10.2008 itself, Counsel for the
Petitioner/Insurance Company/OP-2 stated that this information was received from the Syndicate
Bank/OP-1 late in the evening of 03.10.2008 and it came to notice only on the next working day
i.e. on 06.10.2008 just a few hours after the routine computer generated letter accepting the
premium amount had issued. Unfortunately, the life assured also died on the same date. It was
further contended that sending a routine letter of acceptance of the claim on 06.10.2008 was only
a bonafide lapse and did not amount to deficiency in service. Counsel for the
Petitioner/Insurance Company/OP-2 cited a judgment of the Hon’ble Supreme Court in National
Insurance Co. Ltd. Vs. Seema Malhotra And Ors. [(2001) 3 SCC 151] in support of
Petitioner’s case that if an insuree fails to pay premium or when the cheque issued by him on the
policy towards the premium is returned dishonoured by the Bank, the insurer need not perform
his part of the promise. The corollary is that the insured cannot claim performance from the
insurer in such a situation. In the instant case, the facts are squarely covered by the above
judgment of the Hon’ble Supreme Court.
7.
Counsel for Syndicate Bank/OP-1 on a query from us fairly conceded that the Bank
without properly verifying the account of the life assured had indeed wrongly informed the
Petitioner/Insurance Company/OP-2 that the cheque was dishonoured because of insufficient
funds whereas the actual fact is that there were adequate funds available in the account of the life
assured to honour the cheque towards premium.
8.
We have considered the submissions made by learned Counsel for both parties and have
also gone through the evidence on record, including the orders of the Fora below. It is not in
dispute and in fact has been admitted by the Syndicate Bank (OP-1 before the State Commission)
that without properly verifying the account of the life assured it had supplied wrong information
to the Petitioner/Insurance Company/OP-2 that the premium cheque had to be dishonoured
because of insufficient funds. It was this misinformation emanating from the Syndicate
Bank/OP-1 that was solely the cause for repudiation of the claim by the Petitioner/Insurance
Company/OP-2. In our view, the State Commission should have taken this fact into
consideration while determining the liability of the two opposite parties, qua each other.
9.
We, therefore, remand the case to the State Commission to consider the matter afresh in
the light of the above admitted facts. The parties are directed to appear before the State
Commission on 17.04.2014.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 360 OF 2013
WITH IA/7002/2013 (For stay)
IA/781/2014 (For amendment of complaint)
IA/266/2014
(For directing personal appearance of GM of Opp.Party) & IA/148/2014
(For permission to file additional documents)
M/s. Heights Trade (P) Ltd. A-104, Samanvay Apartments Sector 60, Gurgaon – 122003
… Complainant
Versus
UCO Bank, Through General Manager Delhi Zone, Parliament Street, New Delhi
… Opposite Party
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
For the Complainant : Mr. S. Mukherjee, Advocate With Ms. Shreya Mukherjee & Mr.
K.K. Chocchar, Advocates
For Opp. Party
: Ms. Arti Singh, Advocate With M. N. Padhi, AGM of UCO Bank
PRONOUNCED ON 19th FEBRUARY, 2014
ORDER
JUSTICE J.M. MALIK
1.
The main question which falls for consideration is, “Whether this ‘complaint’ is
maintainable, before this Commission?”. M/s. Heights Trade (P) Ltd., the complainant in this
case, in May-June, 2013, obtained orders from abroad for export of rice IR 36 quality, for
a total consideration of USD 10 Million, (INR 55 crores). Copy of the contract is placed on
record, as Annexure-1. The complainant booked forward contracts with UCO Bank, OP1, to
secure exchange rate of amount, equivalent to export orders at the time of signing export
contracts at the hedging rate as available and applicable on that particular day, which varies
from USD 1, equivalent of INR 55.07 to Rs.61.76. The complainant had ensured that whatever
was the exchange rate applicable on the date of establishing of foreign contract, would be the
rate ensured by the Bank, on the date of receiving the remittanceof price of exported goods. It
is averred that to explain the norms regarding such forward contracts for exchange value, it may
be considered as an example that if any exporter is expecting to receive USD
2,00,000 during the month of August, 2013, then he enters into a contract with the Bank
to sell to the Bank, the said amount of USD 2,00,000, at an agreed exchange rate,
on the agreed future scheduled date of receiving the price of exported goods whole or in
part. The remittance could come at any time during the forward contract period, i.e., up to
the specified date and credit would be given at the agreed forward contract rate.
2.
The forward contract could be terminated freely at any time, in advance of the expiry of
the contract, subject only to the condition that where the contract is reduced in writing,
providing for payment of difference, either way, viz., if the exchange value has gone up,
then the bank will debit the difference between the assured rate and the current value
on the date of cancellation, and in case, the rupee gains against the dollar, then, even in the
event of pre-cancellation, the exporter will get credit of the difference.
3.
However, no contract document was ever signed between the complainant and the
OP. There was simply an e-mail from the Bank’s side which also does not, either recite or
even refer to general terms and conditions. In the absence of any contract, in writing, it is
for the OP Bank to justify under what general principles of law, it is entitled to charge from
the complainant, the difference in the rate of USD, as agreed at the time of forward contract and
as prevailing on the scheduled date of receipt of price from abroad. The forward contracts were
booked not only upon complainant’s request but to increase the revenue generation of the
Gurgaon Branch of OP Bank. On coming to know of complainant’s huge turn-over from
exports,
the
Gurgaon
Branch,
offered hedging
facility
in
relation
to the anticipated receivables from the export business, even though complainant was an
absolutely new company and new business which was less than one year old, with no track
record of three years’, as required by RBI. Copies of e-mails have been placed on record as
Annexure 2.
4.
It is explained that Banks, like the OP, did not have any back to back arrangements with
foreign institution regarding individual hedging contracts,
complainant. The
Banks
carry
on
day-to-day
such as entered with
assessment
of
their
the
foreign
exchange holdings due to remittances to be made and to be received. In other words, the
treasury departments of the Bank carry out this commercial activity in such a manner that the
Bank should earn profit by way of fees, bank charges and difference in currency conversion
rates.
5.
On 09.07.2013, the foreign buyer cancelled all the orders on account of fluctuation
of currency, problem of heavy monsoon,
09.07.2013 has been placed
on
etc.
record
True copy of e-mail dated
as Annexure
3. The
State
Government
of Chhattisgarh banned the export of rice. All the contracted rice of the complainant was to be
procured from Chhattisgarh. The ban resulted in cancellation of above mentioned export
contracts. The change in Government policy amounts to ‘force majeure’ clause which operates to
relieve the complainant of the forward contract with UCO Bank regarding the receivables in
USD, since the change in government policy had the effect of rendering the receivables to be,
no longer receivable at all. Simultaneously, with the above developments, the complainant’s
contractual arrangements with the foreign party was experiencing difficulty due to high
volatility in the currency market, uncertainity in the price of the rice because of heavy rainfall
and accumulated water at fields and because of logistic problems at that point of time making it
difficult to export obligations, resulting in cancellation of contract by the foreign buyers.
6.
The complainant has requested the OP Bank to cancel the forward contracts vide
communication dated 25.07.2013. The prevailing exchange rate on 25.07.2013 was USD 1 =
INR 58.80 ps. As per prescribed practice, the complainant submitted the cancellation letter at
the
local
branch
which
forwarded
UCO Bank Headquarters, at Parliament Street, New
the
same
Delhi. The
Bank
to
the
was
asked
to cancel all the 15 forward contracts due to cancellation of the foreign buyer. Till
08.08.2013, it cancelled only one of theabove said contracts at the agreed rate of Rs.58.80 ps,
on 26.08.2013. They did not cancel 14 forward contracts. In the meantime, two Members of the
family of the complainant expired and an amount of Rs.38,98,207/- was debited despite clear
request for cancellation. A complaint for deficiency was made to the DGM of UCO Bank on
20.08.2013, which went unresponded. A
true
copy
of
the
complaint of deficiency has
been placed on record as Annexure 7. Reminder dated 20.08.2013 was also sent. On the
contrary, the OP
Bank
called
upon
the
complainant to
deposit further amount
of Rs.32,28,162.75 in
relation to
other
10
contracts. Copy
of
the
Bank’s
letter dated 21.08.2013 has been placed on record as Annexure 9.
7.
In the meantime, the complainant preferred a Writ Petition before the Hon’ble High Court
of Delhi on 22.08.2013. The Hon’ble High Court on 17.09.2013, passed the following order
:“After some arguments, Mr.Shameet Mukherjee, learned counsel for
petitioner wishes to withdraw the present petition with liberty to
approach the Reserve Bank of India (RBI) for redressal of his
grievances”.
“Consequently, present writ petition is dismissed as withdrawn with
liberty to petitioner to approach
the RBI for redressal of its grievances. All rights and contentions of
all the parties are left open. Petitioner is also granted liberty to
approach this Court in the event it is aggrieved by the decision of the
RBI”.
8.
A meeting was convened by UCO Bank higher officials and requested the complainant to
withdraw the complaint dated 04.09.2013 and gave the following assurances :“a. UCO Bank will convert into term loan for the total wrongly debited
amounts against all cancellations, with interest free 6 months gap;
b. In the meantime, the value of the Dollar will come down and Heights
Trade Pvt. Ltd., will be helped to recover its losses by being providing
with ongoing forward contracts facility;
c. Emotional blackmail was also done that due to negligence, a number
of UCO Bank staff may lose their jobs”.
The complainant withdrew the complaint on 12.09.2013. It is alleged that the UCO Bank
waddled out of their commitments and assurances and it is alleged that it appeared that they are
trying to gain time.
9.
The negotiations between the parties did not ring the bell. Under these circumstances, the
present complaint was filed before this Commission, on 08.11.2013, wherein the following
prayers were made:
a) Hold the Respondent Bank liable for deficiency of banking
services as detailed hereinabove in this complaint and direct the
Respondent Bank to pay to the complainant company,
compensation to the tune of Rs.2,89,55,290.16;
b) In the event of any further debits/overdrafts being raised by
the Respondent Bank in relation to same cause of action, to hold
the same to be also and equally vitiated, bad in law and of no
effect and to amount to deficiency of banking services on the part
of Respondent Bank; and
c)
Grant
such
other
or
further
order(s)
as
this Hon’ble Commission may deem fit and proper in the facts
and circumstances of the present matter”.
10.
Learned counsel for the complainant has invited my attention towards the following
authorities. In M/s. Harsolia Motors Vs. National Insurance Co. Ltd., in First Appeal Nos.
159, 160 & 161 of 2004, decided on 03.12.2004, this Commission has held, as under:“13. Further, hiring of services of the Insurance Company by
taking insurance policy by Complainants who are carrying on
commercial activities cannotbe held to be a commercial
purpose. The policy is taken for reimbursement or for indemnity
for the loss which may be suffered due to various perils.
There is no question of trading or carrying on commerce in
insurance policies by the insured. May be that insurance
coverage
is
taken
for
commercial
activity
carried out by the insured.
23. Further, from the aforesaid discussion, it is apparent that
even taking wide meaning of the words ‘for any commercial
purpose’, it would mean thatgoods purchased or services hired
should be used in any activity directly intended to generate
profit. Profit is the main aim of commercial purpose. But, in a
case where goods purchased or services hired in an activity
which is not directly intended to generate profit, it would not be
commercial purpose.
24. In this view of the matter, a person who
takes insurance policy to cover the envisaged risk does not take
the
policy
for
commercial purpose. Policy is only for indemnification
and
actual loss. It is not intended to generate profit”.
11.
In Standard Chartered Bank Ltd. Vs. Dr.B.N. Raman, 2006 Vol. III CPJ 1 (SC), it was
held, as under :“Banking is a commercial function. ‘Banking’ means,
acceptance, for the purposes of lending or investment of deposit
of money from the public, repayable on demand or
otherwise. [See Section 5(b) of Banking Regulation Act,
1949]. The intention of the 1986 Act is to protect consumers of
such services rendered by the banks. Banks provide or render
service/facility to its customers or even non-customers. They
render facilities/services such as remittances, accepting deposits,
providing for lockers, facility for discounting of cheques,
collection of cheques, collection of cheques, issue of bank drafts,
etc. In Vimal Chandra Grover Vs. Bank of India, AIR 2000 SC
2181, this Court has held that banking is business transaction
between bank and customers. Such customers are consumers
within the meaning of Section 2(1)(d)(ii) of the Act”.
12.
In Victory Electricals Ltd. Vs. IDBI Bank Ltd. & Ors., I (2012) CPJ 55 (NC), in Para 6
of the judgment, it was held, as under:-
“Having considered the matter in its entirety and going by the
nature of the transactions which the complainant had with the
opposite party-Bank, there cannot be any escape from the
conclusion that complainant had availed the services of the
opposite party-Bank for purely commercial purpose. We are,
therefore, of the view that complainant is not a ‘consumer’,
within the meaning of Section 2(1)(d) of the Act, and, is not
entitled to invoke the jurisdiction of this Commission for
the redressal of its grievance. That apart, we may notice that
gamut of controversy raised in the present case cannot be
decided by a Consumer Forum established under the Act, in its
summary jurisdiction”.
However, the aforesaid judgment goes against the complainant, in this case.
13.
In support of her case, counsel for the complainant also cited
the judgment reported in Kishore Lal Vs. Chairman Employees’ State Insurance Corporation,
2007 (4) SCC 579.
14.
In Trans Mediterranean Airways Vs. Universal Exports & Anr., JT 2001 (10) SC 624, it
was held as under :“7. The definition of “consumer” in the CP Act, is apparently
wide enough and encompasses within its fold, not
only the goods but also
the services,
bought
or
hired, for consideration. Such consideration may be paid or
promised or partly paid or partly promised, under any system
of deferred payment and includes any beneficiary of such
person
other than
the
person
who
hires the service for consideration. The Act being a
beneficial legislation, aims to protect the interests of a consumer
as understood in the business parlance. The important
characteristics of goods and services under the Act are that they
are supplied at a price to cover the costs and generate profit or
income for the seller of goods or provider of services. The
comprehensive definition aims at covering every man who pays
money as the price or cost of goods and services. However, by
virtue of the definition, the person who obtains goods for resale
or for any commercial purpose is excluded, but the services hired
for consideration even for commercial purposes are not
excluded. The term “service” unambiguously indicates in the
definition that the definition is not restrictive and includes within
its ambit such services as well which are specified
therein. However, a service hired or availed, which does not cost
anything or can be said free of charge, or under a contract of
personal service, is not included within the meaning of “service”
for the purposes of the CP Act”.
15.
It must be
borne in
mind
that
instead
of
touching
the
heart
of
the problem, the learned counsel for the complainant, just skirted it. It must be borne in mind
that the definition “consumer”, has been amended, from time to time. The main question
is, when the cause of action was arisen?. The definition “consumer”, was amended by Act 50 of
1993, w.e.f. 18.06.1993. Again, it was amended in the year 2003 by Act 62 of 2002, w.e.f.
15.03.2003. Earlier expression was inserted by Act 50 of 1993. It was further substituted w.e.f.
15.03.2003. The complaint was filed on 08.11.2013. On that day,
as today, the word “consumer”, reads as follows:-
d) ‘Consumer’ means any person, who :(i) buys any goods for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred payment
and includes any user of such goods other than the person who buys such
goods for consideration paid or promised or partly paid or partly promised,
or under any system of deferred payment, when such use is made with the
approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) “hires or avails of any services for a consideration which has been paid
or promised or partly paid and partly promised, or under any system of
deferred payment and includes any beneficiary of such services other than
the person who hires or avails of the services for consideration paid or
promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the
approval of the first mentioned person but does not include a person who
avails of such services for any commercial purpose”.
[Explanation.—For the purposes of this clause, “commercial purpose”
does not include use by a person of goods bought and used by him and
services availed by him exclusively for the purposes of earning his
livelihood by means of self-employment;].
16.
the
Most of the authorities referred by the counsel for the complainant are not germane to
present controversy. The
latest authorities made the
distinction between the
“consumer”, under the Old Act and the “consumer”, under the New Act. The Hon’ble Apex
Court in the celebrated authority, in Laxmi Engineering Works Vs. PSG Industrial Institute,
1995 (3) SCC 583, has held, as under:“11. Now coming back to the definition of the expression ‘consumer’
in Section 2(d), a consumer means in so far as is relevant for the
purpose of this appeal, (i) a person who buys any goods for
consideration; it is immaterial whether the consideration is paid or
promises, or partly paid and partly promised, or whether the payment
of consideration is deferred; (ii) a person who uses such goods with
the approval of the person who buys such goods for consideration (iii)
but does not include a person who buys such goods for resale or for
any commercial purpose. The expression “resale” is clear
enough. Controversy has, however, arisen with respect to meaning of
the expression “commercial purpose”. It is also not defined in the
Act. In the absence of a definition, we have to go by its ordinary
meaning. “Commercial”
denotes
“pertaining
to
commerce” (Chamber’s Twentieth Century Dictionary); it means
“connected with, or engaged in commerce; mercantile; having profit
as the main aim” (Collins English Dictionary) whereas the word
‘commerce’
means “financial transactions especially buying and selling of
merchandise, on a large scale” (Concise Oxford Dictionary). The
National Commission appears to have been taking a consistent view
that where a person purchases goods “with a view to using such goods
for carrying on any activity on a large scale for the purpose of earning
profit” he will not be a ‘consumer’, within the meaning of Section
2(1)(d)(i) of the Act. Broadly affirming the said view and more
particularly with a view to obviate any confusion – the expression
“large scale” is not a very precise expression – Parliament stepped in
and added the explanation to Section 2(d)(i) by Ordinance/
Amendment Act, 1993. The explanation excludes certain purposes
from the purview of the expression “commercial purpose” – a case of
exception to an exception.
17. Reliance was also placed on Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4
SCC 383.
18.
It must be borne in
mind
that
the
complainant
complaint
that
has
no
legs
to
stand. It has never averred
in
it is
a ‘consumer’ and
‘how’?. That column is
conspicuously missing. In New India
Assurance Co.
the
Ltd. Vs. G.N.Sainani, (1997) 6 SCC 383, it has been held, as under :“The Act is not a general law for all remedies. It is for the protection
of the ‘consumer’ as defined in the Act. To succeed in the present case,
the complainant must show that he is a ‘consumer’ and that there has
been deficiency in service by the insurer. This, he has been unable to
show. He, therefore, could not maintain complaint under the Act”.
19. The present case is covered under Foreign Exchange Management Act. Counsel for
the Opposite party has cited the following authorities. Raj Kumar Shivhare Vs. Assistant
Director, Directoate of Enforcement & Anr., 2010 (4) SCC 772. In respect of
FEMA, UT Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors., (2009) 4SCC
660, it was held that public auction of existing land sites, purchaser/lessee were held to be
not a “consumer” and ‘owner’ is not a Trader or ‘service provider’. In
Union Bank of
India Vs. Seppo Rally Oy & Anr., (1998) 8 SCC 357, it was observed, as under :“we would, however, like to point out that when it is a question
of remittances of foreign exchange and permission of RBI is
required and there is a query raised by RBI, it would be more
appropriate to discuss the matter with the officials concerned of
RBI than to have a prolonged correspondence”. [Seepara 9 of
the judgment).
20. Opposite Party has also cited Bank of India Finance Ltd. Vs. Custodian & Ors.,
(1997) 10 SCC 488 and para 2 of Topline Shoes Ltd. & Anr. Vs. Corporation Bank
& Anr.,(2002) 10 SCC 358
21.
I
was
also
able
to
.
locate
a
few
authorities. In Monstera Estate
Pvt.
Ltd.
Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC), this Commission has held that:“Housing – Purchase of space for commercial purpose - There was
delay in possession. Complainant was a private limited company.
Complainant was nominated for allotment of showroom. Possession
not given. Sale deed was not executed. Deficiency in service was
alleged. It was held that even if private limited company was treated
as ‘person’, purchase of space could not be for earning its livelihood.
Purchase of ‘space’ was for commercial purpose”.
22.
In Consumer Complaint No.112 of 2012 - M/s. Purusharath Builders Pvt. Ltd. Vs.
M/s. Uppal Housing Ltd & Anr., decided by this Commission, comprising Justice J.M. Malik,
Presiding Member and Sh.Vinay Kumar, Hon’ble Member, on 05.07.2012, held as under :
“M/s. Purusharath Builders had purchased flats for the use of its
officers. Learned counsel for the complainant argued that these flats
will be used for the officers of the company. Learned counsel for the
complainant could not deny that those officers would transact the
commercial activity. A bare-look on this Resolution clearly goes to
show that these flats would be meant for commercial
purposes”.
Aggrieved by that order, SLP was filed by the complainant, before the Hon’ble Supreme Court.
The Hon’ble Supreme
Court
in Civil
Appeal
Nos.8990-8991
of
2012, vide order
dated07.01.2013, held :“We have heard learned counsel for the appellants, and perused the
record. We do not see any cogent reason to entertain the appeals. The
judgment impugned does not warrant any interference. The Civil
Appeals are dismissed”.
23. Last, but not the least, intricate and complicated questions swirl around this case. It
would be difficult to decide the case on mere documents. The evidence of Experts and Record of
RBI will have to be looked into. This is the case of entailing accounts which
require proper investigation and full probe. It will be too early to speak my piece
on this knottymatter. These questions must be discussed by an appropriate forum or civil
court. The Consumer Commission must refrain from arrogating those powers which it does
not possess.
24.
Consequently,
I
find
that
this
complaint
is
not
maintainable,
therefore,
I
dismiss the same. No order as to costs. However, the complainant can seek redressal of its
grievances from any other forum, Civil Court, High Court, etc. The complainant may take
advantage of the ruling of the Supreme Court in Laxmi Engineering Works Vs. PSG
Industrial Institute, (1995) 3 SCC 583 to seek exclusion of the time spent in prosecuting this
complaint, before this Commission.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
dd/17
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 60 OF 2014
(From the order dated 22.07.2011 in
Consumer Disputes Redressal Commission)
CC
No.
CC/08/72
of West Bengal
State
Mr. Chandan Banik s/o Late Chandranath Banik r/o 26, Hindusthan Park, P.S. – Gariahat,
Kolkata – 700029.
... Appellant
Versus
1. Sumona Bagchi (Bhattacharya) w/o Monodeep Bhattacharya r/o Flat Nos. 5A, 5B & 5C,
5th Floor, Orchid Towers, 26A, Hindusthan Park, P.S. Gariahat, Kolkata – 700029.
2. Suparna Ganguly Bagchi w/o Saibal Ganguly r/o Flat Nos. 5A, 5B & 5C, 5th Floor, Orchid
Towers, 26A, Hindusthan Park, P.S. Gariahat, Kolkata – 700029.
3.
M/s Ratnakar Properties Pvt. Ltd. through its Director, having its regd. office at 26A,
Hindusthan Park, P.S. Gariahat, Kolkata – 700029.
4.
Sri Ashim Banik, s/o Late Chandranath Banik 26A, Hindusthan Park, P.S. Gariahat,
Kolkata – 700029
5.
Sri Ashis Banik s/o Late Chandranath Banik 26A, Hindusthan Park, P.S. Gariahat, Kolkata
– 700029.
… 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 Appellant(s)
Ms. Anjani Aiyagari, Advocate
PRONOUNCED ON : 19th FEBRUARY 2014
ORDER
PER DR. B.C. GUPTA, MEMBER
This appeal has been filed under section 19 of the Consumer Protection Act, 1986 against
the impugned order dated 22.07.2011, passed by the West Bengal State Consumer Disputes
Redressal Commission (for short ‘the State Commission’) in Consumer Complaint No.
CC/08/72, “Sumona Bagachi (Bhattacharya) & ors. versus M/s Ratnakar Properties Pvt. Ltd. &
ors.,” vide which the complaint filed by the present respondents 1 & 2 was allowed.
2.
Brief facts of the case are that the complainants / respondents 1&2 filed the consumer
complaint in question, alleging deficiency in service on the part of the OPs in respect of nonexecution of registration of conveyance deed in respect of three flats in question. The OP 1 and
present respondent 3, M/s Ratnakar Properties Pvt. Ltd., is the builder / developer. The OP 2,
Smt. Nirmala Banik was the sole owner of municipal premises – 26 A, Hindustan Park,Police
Station Gariahat, Kolkata, comprising land and building. After the death of the said Nirmala
Banik, OP 2, the present petitioner, Chandan Banik and respondents 4 & 5, Ashim Banik and
Ashis Banik were impleaded as legal representatives of Smt. Nirmala Banik. The petition has
been filed by Mr. Chandan Banik only and his other two siblings have been made respondents 4
& 5.
3.
The said Nirmala Banik, OP 2 entered into some arrangement with OP 1/respondent 3 for
developing her property. The complainants booked three flats in the new building complex,
being built and erected in the name of “Orchid Towers”. They entered into agreement with the
OPs and made payments for the flats. It has been alleged in the complaint, however, that the
OPs failed to execute and register the conveyance deeds in their favour despite the request made
to them. They sought directions from the State Commission to the OPs for execution of these
deeds, to hand over all relevant documents and to pay compensation of ` 3 lakhs for
mental harassment and ` 60,000/- as cost oflitigation and 24% interest on the awarded
amount. The State Commission vide impugned order allowed the complaint and directed the
OPs to execute and register conveyance deed in favour of the complainants. They also directed
them to pay a compensation of ` 1,50,000/- to all the complainants saying that the cost of
registration had been increased in the meantime. They were also allowed a sum of ` 30,000/- as
litigation cost. It is against this order that the present appeal has been filed.
4.
An examination of the papers on record reveals that the present appeal has been filed on
22.01.2014, whereas the impugned order is dated 22.07.2011. It has been stated that there is a
delay of 732 days in filing the appeal. An application for condonation of delay has been
filed. At the time of admission hearing before us, the learned counsel for the appellant was
asked to explain the inordinate delay in filing the appeal before the merits could be gone
into. The learned counsel stated that the impugned order dated 22.07.2011 is an exparte order,
passed at their back. The complainant had provided wrong address of the appellant, as a result of
which summons could not be served upon him. The learned counsel has drawn our attention to
the application for condonation of delay, in which it has been stated that the appellant received a
sealed envelope under registered cover on 22.12.2011 from the complainants. The appellant was
in Thailand at that time. The notice of execution case no. 10/2011, a copy of the petition of the
execution case and copy of order dated 22.07.2011 of the State Commission were placed in that
envelope. The petitioner engaged an Advocate and gathered the relevant documents through
him. The petitioner came to India on 17.02.2012 and filed Miscellaneous Application No.
53/2012 which was dismissed by order dated 12.03.2012 of the State Commission. A copy of
the order was made available to them on 26.04.2012. Thereafter the petitioner filed C.O. No.
2086/2012 under Article 227 of the Constitution before the Hon’ble High Court at Kolkata. The
Hon’ble High Court dismissed the same by order dated 21.08.2013, but gave them liberty to
challenge the order of the State Commission under Article 19 of the Act. A certified copy of the
order of the High Court was obtained on 18.09.2013 thereafter, after making contact with the
Advocate and after obtaining copies of orders / documents etc., the present petition was filed on
22.01.2014.
5.
The above narration of events made in the application for condonation of delay and the
arguments led by the learned counsel for the appellant bring out that sufficient reasons have not
been given to explain the delay in filing the present appeal. Even if the version of the appellants
that they were unaware of the order dated 22.07.2011 and they received an envelope containing
the copy of order on 22.12.2011 is believed, still there is no explanation as to why the appeal was
not filed as per the provisions of the Consumer Protection Act, 1986, under which a time of 30
days is permissible for filing the said appeal. The appellants have themselves stated that they
first filed the miscellaneous application before the State Commission and then challenged the
impugned order in the Hon’ble High Court. The Hon’ble High Court gave them the liberty to
challenge the impugned order before this Commission and this order was made on 21.08.2013
and according to the appellant, a copy was received on 18.09.2013. It is not clear even then, why
the appellants took four more months to file the present appeal. They have not been able to give
any explanation for the delay made after the receipt of the copy of the High Court’s order on
18.09.2013.
6.
As recorded by the State Commission in their impugned order, OPs were properly served
and the acknowledgement due (A.D.) card in respect of OP 2 was also received back, showing
completion of service on OP 2. The appellant is one of the LRs of OP2 only as stated in the
earlier part of this order. It is made out, therefore, that the State Commission ensured proper
service on the predecessor-in-interest of the appellant.
7.
It has been held in a number of recent judgements made by the Hon’ble Supreme Court
that unless there is cogent and convincing explanation for the delay in filing a case before the
Courts, the same should not be condoned. Hon’ble Apex Court in the case, R.B. Ramlingam Vs.
R.B. Bhavaneshwari, 2009 (2) Scale 108, 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.”
8.
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.”
9.
Further, the 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.
10.
Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla Industrial
Development Authority also 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”.
11.
From the above judgements, it has been made abundantly clear that the delay in filing the
case cannot be condoned unless there are sufficient, convincing and cogent reasons for the
same. In the present case, the facts stated by the appellant do not provide such an explanation
and hence there is no valid ground for condonation of delay in the present case.
12.
Based on the discussion above, this appeal is ordered to be dismissed on grounds of
limitation and the order of the State Commission is confirmed 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. 1901 OF 2012
(From the order dated 02.04.2012 in First Appeal No. 156/2012 of Rajasthan State
Consumer Disputes Redressal Commission)
The Regional Provident Fund Commissioner (Jaipur) through Shri S.S. Bhati Asst. Provident
Fund Commissioner (Legal) 28-Bhavishya Nidhi Bhawan Wazirpur Industrial Area Delhi –
110052.
... Petitioner
Versus
Sayed Sakhawat Hussain s/o Sayed Rajak Hussain r/o Khadim Dargah Miran Sahib Taragarh,
Ajmer, 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. Shivanth Mahanta, Advocate
For the Respondent(s)
Mr. Ritesh Khare, Advocate
PRONOUNCED ON : 19TH FEBRUARY 2014
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 02.04.2012, passed by the Rajasthan State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 156/2012, “The
Regional Provident Fund Commissioner versus Sayed Sakhawat Hussain,” vide which, while
dismissing appeal, the order dated 01.11.2011 passed by the District Consumer Disputes
Redressal Forum, Ajmer, allowing the consumer complaint in question, was upheld.
2.
Brief facts of the case are that the complainant/respondent Sayed Sakhawat Hussain used
to work at Sehkari Upbhokta Bhandar at Ajmer from where he took voluntary retirement on
31.07.2000. According to the complainant, regular deductions were made by his Organisation
from his salary for his provident fund contribution which was deposited in account no. RJ
1244/15 with the petitioner/OP. The complainant alleged that he was not being paid his pension
although he had approached the petitioner/OP many times and also sent a legal notice to
them. The complainant/respondent was, therefore, suffering financial loss which caused him lot
of mental harassment and agony. In reply before the District Forum, the petitioner stated that
the complainant became a Member of the Employees Provident Fund Scheme 1952 on 1.06.1967
and at that time, he disclosed his age as 35 years. According to this version he completed the age
of 60 years in June 1992. However, in accordance with the Employees Pension Scheme 1995,
implemented with effect from 16.11.95, he could get the pension only if he was below 58 years
of age on 16.11.1995. It has further been stated that the complainant was a member of Family
Pension Scheme 1971, according to which pension is only payable to the family in the case of
death of a member. A sum of `44,016/- had already been paid to the complainant on 11.03.2002
and he was not entitled to receive any pension. The District Forum vide their order dated
1.11.2011 allowed the complaint saying that the petitioner/OP should pay the amount due to him
since hisvoluntary retirement on 21.07.2000 with interest @9% p.a. within two months and also
to pay `1,000/- as litigation cost. An appeal was filed against this order before the State
Commission, which was dismissed vide impugned order dated 2.04.2012. It is against this order
that the present revision petition has been filed.
3.
At the time of hearing before us, learned counsel for the petitioner assailed the impugned
order on the ground that the said order was a non-speaking and sketchy order and the merits of
the case had not been discussed at all, while coming to conclusion. Learned counsel has further
drawn our attention to the grounds of the revision petition saying that no option was admissible
to the EPF organisation for payment of pension after attainment of 58 years of age or withdrawal
of provident fund accumulation. The learned counsel for the respondent stated that the State
Commission order was in accordance with law.
4.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The complainant vide his consumer complaint dated
25.08.2010 claimed that he should be given his due pension, since the date he took voluntary
retirement. The District Forum allowed his complaint and ordered to pay the amount due since
his voluntary retirement with interest @9% p.a. within a period of two months and also to pay
`1,000/- as litigation cost. An appeal against this order has been dismissed by the State
Commission vide impugned order dated 2.04.2012. A copy of the English translation of the
complete order passed by the State Commission reads as under:“Appellant’s lawyer was heard and the file was studied deeply.
All the facts and evidence of the lower court were analyzed and order
was issued. Therefore there is no need to review the facts and
evidences again.
After seeing the facts and the condition there is no deficiency found
in the order given by the lower court on 01.11.2011, appeal no.
348/10 as the district court has wisely taken decision on the case as
per the facts presented in which it would be baseless to
interfere. Advantage and disadvantage has no relation with the
appeal.
Hence the state commission stands by the decision of the district
court order no. 348/10. Appellant’s appeal is dismissed on the
merit.”
5.
It is very clear from a plain reading of the above order that the State Commission has not
cared to go into the merits of the case at all and have not carried out any detailed analysis of the
facts and circumstances of the case before coming to their conclusion. The petitioner has taken
the stand that since a total sum of `44,016/- has been transferred to the account of the
complainant and since he was not eligible under the 1995 Scheme to get the pension, the same
was not paid. It shall, therefore, be in the fitness of things that the merits of the case are
discussed by the State Commission after hearing both the parties and a clear-cut finding given on
each issue. It is an established legal proposition that the parties to the litigation are well within
their rights to file appeal against the orders of a public authority and it is the duty of the appellate
authority to hear the same and take decision on merits. We are supported in this contention by
the order passed by the Hon’ble Supreme Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir,
in which it was 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.
In the light of the discussion above, this revision petition is allowed, order of the State
Commission is set aside, case is remanded back to the State Commission with a direction to call
the parties, hear them again and then pass a detailed speaking order giving their verdict, on the
issues contained in the complaint.
8.
The parties are directed to appear before the State Commission again on 05.05.2014.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
SD/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2689-2690 OF 2013
(From the order dated 07.03.2013 in First Appeal Nos. 435/2012 & 03/2013 of the State
Consumer Disputes Redressal Commission, U.T., Chandigarh)
1. M/S. ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. ICICI PRU LIFE TOWER, 1089,
APPA SAHEB MARATHA MARG, PRABHA DEVI, MUMBAI – 400025 MAHARASTRA
2. ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. ALSO AT:- FIRST FLOOR, SCO NO9-10-11, SECTOR-9-C CHANDIGARH – 160017
3. ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. ALSO AT:- FIRST FLOOR,SCO
NO.70, TOP FLOOR, PHASE-9 MOHALI PUNJAB
...........Petitioners/O.P.s
Versus
PROF. ARUN K. LALL R/O NO-653, PUNJAB ENGINEERING COLLEGE CAMPUS,
SECTOR-12 CHANDIGARH – 160012
...........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
: Mr. Avanish Kumar, Advocate
: In person
PRONOUNCED ON
February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
These revision petitions have been filed by the petitioner against impugned order dated
07-03-2013 passed by the learned State Consumer Disputes Redressal Commission, UT
Chandigarh (in short, ‘the State Commission’) in Appeal Nos. 435/2012 & 03/2013 –
Prof. Arun K. Lall vs. Financial/Insurance Advisor, ICICI Prudential Life Insurance Co. Ltd.
&Anr. & Prof. Arun K. Lall vs. M/s ICICI Prudential Life Insurance Co. Ltd. & Ors., by which
both the appeals were partly allowed and order of learned District Forum allowing complaint
was modified.
2.
Brief facts of the case are that the complainant, in the year 2007, had subscribed for three
different policies by filling up the proposal forms. On the advice of the agents of the Opposite
Parties, Mr. Atul Vij and Mr. Amit Rai, who were having the company I.D. Cards to prove their
identity and status in the organization, complainant/respondent preferred to invest Rs. 3 lacs by
subscribing for three insurance policies in the name Life State RP (2 Nos) and one Life State
Pension. Complainant/respondent paid an amount of Rs. 3,00,000/-, in total, and the policies
were issued in his name on 04/09/2007, 22/09/2007 and 31/12/2007 respectively. As per the
assurances of the Opposite parties, the said insurance policies were to fetch 20-25%
returns. When the complainant did not find anything concrete, he contacted the agents, and
enquired about the status of the policies. Complainant/respondent received an e-mail dated
13/01/08, whereby a brief detail of the high returns to the tune of 20-25%, on the fund was
provided to him. Complainant thereafter continuously remained in touch with the Agents,
reminding them, about the commitment and also registering his grievance. It was further stated
that on not getting a proper response, from that end, and finally feeling disgusted, the
complainant once again mentioned that no complete information was forthcoming as mentioned
in Appendix-VII dated 10/08/2009. It was further stated that the complainant was advised that in
order to maintain the quantum of profit, he must pay the premium amount due against him, as the
policies were nearing renewal for the 2nd premium and was also advised to cancel one of the
policies, so as to meet the requirements of fresh policy, as he had expressed difficulty in
arranging money. It was further stated that the complainant did not wish to continue with the
different policies, to which he had subscribed, on the advice of the Opposite Parties, but under
compelling circumstances, he preferred to revive the same. It was further stated that even after
completing all the formalities for reviving these policies, no response was forthcoming from the
Opposite Parties. Alleging deficiency on the part of the opposite party, complainant filed
complaint before District Forum. Opposite party resisted complaint and submitted that first
policy was in force whereas policy no. 06174600 was foreclosed and policy no. 07219597 was in
a paid up status. It was further submitted that the policy certificate along with policy documents,
in original, were dispatched to the complainant and the same was duly received by him. It was
further stated that the investments in the units were subject to market and other risks and, thus,
there could not be any assurance, with regard to the objective of any of the funds that they might
achieve. It was further stated that the document (Appendix-IV) of the complaint was not an
authorized communication issued by the Company, as it did not bear the company’s seal or name
of an authorized signatory. It was further submitted that allegations in the complaint were
required to be tried by Civil Court and prayed for dismissal of complaint. Learned District
Forum after hearing both the parties allowed complaint and directed opposite party to release Rs.
2 lakh illegally retained, with interest @ 9% p.a. and further allowed Rs. 1 lakh as compensation
on account of deficiency in service. Both the parties filed appeal before State Commission and
learned State Commission vide impugned order allowed both the appeals partly and enhanced
quantum and modified order and directed Opposite Party to pay Rs.3 lakhs and Rs.25,000/- for
deficiency in service and kept intact order of the District Forum allowing Rs.2 lakh to be
returned by the Opposite Party to the complainant, against which these revision petitions have
been filed.
3.
Petitioner filed application for condonation of delay of 37 days along with revision petition.
As there is delay of only 37 days in filing revision petition, application is allowed for the
reasons mentioned in the application and delay of 37 days in filing revision petition stands
condoned.
4.
Heard learned counsel for the petitioner and respondent in person and perused record.
5.
Learned counsel for the petitioner submitted that learned State Commission committed
error in dismissing the application for taking additional documents on record, hence revision
petitions be allowed and impugned order be set aside and matter may be remanded back for
decision after considering aforesaid documents. Learned respondent submitted that learned State
Commission rightly dismissed application and order passed by learned State Commission is in
accordance with law, hence revision petitions be dismissed.
6.
Perusal of written statement filed by opposite party before District Forum clearly reveals
that opposite party mentioned in the written statement that company has received Standard
Benefit Illustration (SBI) signed by the complainant wherein it demonstrates returns under the
policy. At the end of Para 2, it was further mentioned that complainant took 8-10 switch over
forms from the complainant and the complainant himself wanted a fund switch.
7.
Opposite party/petitioner filed application before State Commission for adducing additional
documents and submitted that due to misunderstanding of the appellant company with its
counsel, documents which have been referred in the written statement could not be placed on
record, so those documents may be taken on record. Learned State Commission dismissed this
application vide impugned order and observed in Para 10, which run as under:-“From the perusal of these documents, it is apparent that the same were in
possession of the applicants/ appellants/Opposite Parties, during the pendency of
the complaint, before the District Forum. However, the counsel for the
applicants/appellants/Opposite Parties has not been able to show any plausible
cause, as to why, these documents, were not placed before the District
Forum. Therefore, the same cannot be admitted into evidence, now at the appellate
stage. Accordingly, the application, for additional evidence, is dismissed.”
8.
No doubt these documents should have been filed by opposite party before District Forum
but as these documents have been referred in the written statement filed before District Forum
and there genuineness has not been assailed by respondent, for proper decision of the case,
learned State Commission should have allowed the application and should have taken these
documents on record. In the application before State Commission, opposite party has
specifically mentioned that due to misunderstanding of the appellant company with its counsel,
documents could not be placed before District Forum, which is necessary for deciding the real
controversy between the parties.
9.
We deem it appropriate to allow application for taking additional documents on record and
as application is being allowed, matter is to be remanded back to learned State Commission to
decide afresh after considering all these documents.
10.
Consequently, revision petitions filed by the petitioner are allowed and impugned order
dated 09-03-2013 passed by learned State Commission in Appeal Nos. 435/2012 & 03/2013 –
Prof. Arun K. Lall vs. Financial/Insurance Advisor, ICICI Prudential Life Insurance Co. Ltd.
& Anr. & Prof. Arun K. Lall vs. M/s ICICI Prudential Life Insurance Co. Ltd. & Ors. is set
aside and application filed by the petitioner before State Commission for taking additional
documents on record is allowed subject to payment of cost of Rs.5,000/- to the respondent with
an opportunity to the respondent to file additional documents in rebuttal. Leaned State
Commission is directed to decide the appeal afresh after considering documents taken on record
vide this application and documents, if any, filed by the respondent in rebuttal.
11.
Parties are directed to appear before State Commission on 31.03.2014.
..…………………..………J
(K. S. CHAUDHARI) PRESIDING MEMBER
……………….……………
(DR. B. C. GUPTA) MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4738 OF 2012
(From order dated 05.09.2012 in First Appeal No. 1022 of 2012 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
NCR Vehicles Pvt. Ltd. Through its Authorised Representative Gurminder Singh, Office at 14/5,
Mathura Road, Faridabad
… Petitioner
Versus
1. Rais Ahmed S/o Sh. Shabbir Ahmed R/o House No. 407 (27A), Sanjay Colony Sector 22,
Faridabad
2. M/s Ford India (P) Limited Block-1 B, Ist Floor, RMZ Millenia, Business Park, 143, Dr.
MGR Road North Veeranam Salai, Perungudi, Chennai 600096
… Respondent
REVISION PETITION NO. 47 OF 2012
(From order dated 31.10.2012 in First Appeal No. 1196 of 2012 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
M/s Ford India Private Limited S.P. Koil Post Maraimalainager Chengalpattu – 603204
Chennai Tamilnadu
… Petitioner
Versus
1. Rais Ahmed S/o Sh. Shabbir Ahmed R/o House No. 407 (27A), Sanjay Colony Sector 22,
Faridabad Haryana
2. NCR Vehicles 14/5, Mathura Road, Faridabad, Haryana
… Respondent
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For Rias Ahmed
: Mr. H. S. Bhati, Advocate
For NCR Vehicles Pvt. Ltd.
: Mr. Sushil Kumar Pandey, Advocate
For Ford India Pvt. Ltd.
: Mr. Dhruv Wahi, Advocate with
Mr. Brijesh Chaudary, Advocate
Pronounced on 20th February, 2014
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
This order shall decide two revision petitions, detailed above, which arise out of the
same complaint.
2.
party
Shri Rais Ahmed, the complainant, had filed the complaint against NCR Vehicles/opposite
No.
1
and
M/s
Ford
India Private
Limited/opposite
party
No.
2. The
DistrictForum vide its order held:
“6. So the respondents are directed to return car No. HR29U-7866 to the
complaint by replacing the engine with new one or carrying out the
necessary repairs to the satisfaction of the complainant without asking for
any amount from him failing which they will be liable to pay an amount of
Rs.3,99,371/- to the complainant, which was the insured value of the car in
the relevant year as per insurance policy. The respondents are
also directed to pay an amount of Rs.5,000/- to the complainant
towards litigation expenses and mental harassment. A copy of this order
be sent to the partiesconcerned free of costs. File be consigned to the
record room.”
3.
Both the petitoners/opposite parties filed separate appeals before the State Commission. In
the appeal filed by the manufacturer/M/s Ford India Private Limited, there was delay of 257 days
before the State Commission and in the appeal filed by the dealer/opposite party No. 1, there was
delay of 196 days.
4.
In the appeal filed by the manufacturer/M/s Ford India Private Limited, the petitioner
explained the delay as per the impugned order:“As regards the reason as mentioned in the application, totally
false and vague reason has been mentioned. It has been pleaded in
the application that on account of ex parte order passed by the
District Forum, appellant was unaware about the decision of the
complaint. It has been further averred that notice of complaint was
sent by the District Forum at some other address.”
5.
In the appeal filed by the dealer/NCR Vehicles (P) Ltd, the petitioner explained the delay
which in the order of the State Commission runs as follows:
“As regards the ground taken in the first application it would
transpire that totally vague and ambiguous assertion has been
made. The only reason stated in the application for condonation of
delay is that appellant was not aware about ex parte decision,
which came to the knowledge of the appellant only during the
pendency of the execution petition before the District Forum. But
this plea of the appellant is not acceptable.”
6.
Learned counsel for the petitioners vehemently argued that their case is very strong on
merits and they should be given liberty of being heard.
7.
At the request of the petitioners, we summoned the file from the District Forum. It clearly
goes to show that the both the petitioners were served. Learned counsel for NCR Vehicles (P)
Ltd./opposite party No. 1 clearly admitted that the petitioners were served in this case.
Consequently, they were proceeded against ex parte. It is difficult to find any flaw in the orders
of the District Forum or the State Commission.
8.
Now, we advert to revision petition No. 47 of 2013 filed by M/s Ford India Private
Limited. A.D. card clearly goes to show that Ford India Pvt. Ltd. was served at the address
given in the complaint. Learned counsel for the petitioners submitted that this is not proper
service because this building belongs to Ford India Pvt. Ltd. However, the seal appearing in the
sheet is that of Ford Business Service Private Limited. Learned counsel for the petitioners
submits that it is not the manufacturer of the vehicle.
9.
All these arguments are not convincing. It is very easy to ditch the law. You can have the
same address where a number of offices belonging to you are working. The letter was sent at the
same address, which is mentioned in the complaint. There is no difference at all. It was for the
recipient to put these papers before the concerned authority. It is difficult to fathom why did
they sit over the papers. Legally, the service is complete. Even if the seal is of a different
company, the law cannot be ducked like this. The petitioners are aware of this fact since long
more than one year and they have not taken any action against the recipient of this letter. Under
the circumstances, the possibility of hanky-panky cannot be ruled out. The service stands
proved. The only purpose of the petitioners is to procrastinate the proceedings. The order
passed by the District Forum is legal and just.
10.
This
view
neatly
dovetails
with
the
following
authorities
which
are
reported
in in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC),
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”.
11.
Similar view was also taken in R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188
(SC)= I (2009) SLT 701=2009 (2) Scale 108 and Ram Lal and Others v. RewaCoalfields Ltd.,
AIR 1962 Supreme Court 361, Bikram Dass Vs. Financial Commissioner and others AIR 1977
Supreme Court 1221, Office of the Chief Post Master General &Ors. Vs. Living Media India
Ltd. & Anr. 2012 STPL(Web) 132 (SC).
12.
The parties are directed to comply with the order of the District Forum within one month of
the receipt of this order, failing which they will be liable to pay penalty of Rs.500/- per day till
its compliance jointly and severally.
13.
Both the revision petitions are hereby dismissed.
.…..……………Sd/-……………
(J. M. MALIK, J)
PRESIDING MEMBER
.…..……………Sd/-……………
(S. M. KANTIKAR)
MEMBER
Naresh/reserved.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 222 OF 2008
(From the order dated 10.01.2008 in S.C. Case No. 75/O/2000 of the West Bengal
State Consumer Disputes Redressal Commission, Kolkatta)
Dr. Shivaji Basu Residing at 122/1/1/4, Manohar Pukur Road Kolkatta – 700026
…Appellant/Opp. Party (OP)
Versus
1. Devapriya Ghosh S/o Late Shri S. Chandra Ghosh R/o Flat No. 9, Hemasri,
2, Kalibari Lane, Jadavpur, Kolkatta – 700032
…Respondents/Complainants
2.
Indian Medical Association
Bengal State
11/3. Dr. Biresh Ghuha Street, Kolkatta – 700017
Branch
through
its
Secretary
…Respondent
FIRST APPEAL NO. 509 OF 2008
(From the order dated 10.01.2008 in S.C. Case No. 75/O/2000 of the West Bengal State
Consumer Disputes Redressal Commission, Kolkatta)
Devapriya Ghosh S/o
Late Shri S. Chandra Ghosh
2, Kalibari Lane, Jadavpur, Kolkatta – 700032
R/o
Flat
No.
9, Hemasri,
…Appellant/Complainant
1.
2.
Versus
Dr. Shivaji Basu Residing at 122/1/1/4, Manohar Pukur Road Kolkatta – 700026
Indian Medical Association Bengal State Branch through its Secretary
11/3. Dr. Biresh Ghuha Street, Kolkatta – 700017
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
In R.P. No. 222/2008
For the Appellant
For the Res. No. 1
For the Res. No. 2
:
:
Mr. Srijan Nayak Advocate and Mr. Amitava Poddar, Advocate
Mr. Jitender Mehta, Advocate
:
NEMO
For the Appellant
:
Mr. Jitender Mehta, Advocate
For the Res. No. 1
:
In R.P. No. 509/2008
Mr. Srijan Nayak, Advocate and Mr. Amitava Poddar, Advocate
For the Res. No. 2
:
NEMO
PRONOUNCED ON 20th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Both these appeals arise out of common order of learned State Commission; hence,
decided by common order.
2.
OP/appellant filed appeal No. 222/08 against order dated 10.1.2008 passed by the West
Bengal
State Consumer Disputes Redressal Commission, Kolkatta (in short, ‘the State
Commission’) in S.C. Case No. 75/0/2000 by which, complaint was partly allowed and
complainant filed appeal No. 509/08 against the same order for enhancement of compensation.
3.
Brief facts of the case are that complainant was Dy. Director General, Geological
Survey of India, Govt. of India, 58 years old suffered Urinary Tract Infection and approached
OP for treatment on 18.5.1998. OP No. 1 advised for certain tests and charged Rs.200/- as
fees. The OP No. 1 prescribed him Mikacin 500 mg injection daily for 4 days along with other
medicines. He further advised to carry out certain other pathological tests, X-ray and ECG
reports. Accordingly, the complainant met him at his chamber on 27.5.1998. The OP No. 1 also
advised him Trance Urethral Resection (TUR) of Prostate. He also advised surgical operation at
Samaritan Clinic, 10/4D Elgin Road, Kolkata. An amount of Rs.20,000/- was paid to
WOCKHARDT Medical Centre for the above purpose and operation was conducted on 10.6.98
at Samaritan Clinic. He was in the nursing home from 9.6.98 to 16.6.98 and was discharged
thereafter. The complainant also paid Rs.5,923/- to meet the nursing home bill. The OP No. 1
gave him medical advice and he also asked him to report to him for further examination after 4
weeks. The complainant had prepared the pathological/USG reports as advised by OP No. 1 and
met him in his chamber on 17.7.98. The OP No. 1 after examining the Complainant contended
that while prescribing Martidox the OP No. 1 failed to consult the relevant test report which
corroborated that the patient was resisted to Martidox. When pointed out the OP No. 1
changed Martidox to Mikacin Injection 500 mg @ 2 ampoules daily for 5 days. The complainant
stated that Mikacin is aminoglycoside Antibiotics. The complainant was administered 10
ampoules of Mikacin 500 mg. The complainant contended that he started feeling some audibility
problem thereafter. He contended that injectionMikasin is harmful to patients having
serum creatinine level 3.5 mg/100 ml and above which is the tested level in case of the
complainant. He further contended that the actual recommended doses for a patient having the
said creatinine level should be 250 mg daily whereas he was administered 500 mg
injection Mikacine for 4 days initially and again twice daily for 5 days which was overdose. He
also contended that he had renal ailments and so OP No. 1 had to be specially careful
while prescribing Mikacine 500 mg injection. He stated that this was done without considering
the drug sensivity test report. He also contended that while he prescribed Mikacine injection
500 mg for the complainant OP No. 1 who had cautioned him regarding the chance of impairing
the audiosensivity of the patient, but no such caution was sounded ever by OP No. 1. The
complainant also contended that from the prescription of OP No. 1 dated 10.6.98 it would be
evident
that
he
prescribed
6
vials
of Gentamycine injection
of
the
same
Group
(Aminoglyicoside) for the complainant. He further stated that he reported to the OP No. 1 on
17.7.98 with prescribed test reports. His serum creatinine level was 2.1 mg/100 ml. This was an
overdose and a careless action on the part of the OP No. 1 as he is a known patient of renal
ailment which was also treated by OP No. 1. The complainant further contended that due to such
careless prescription of Aminoglycoside Antibiotic successively, his Audiosensivity was
seriously impaired. It was further alleged that he consulted Dr. S.P. Ghosh and Dr. S.P. De who
confirmed that hearing capacity had been impaired and advised some medicines. He further
alleged that he was earning Rs.15,000/- per month by participating in various seminars and
workshops as a specialist and on account of impairment of his audibility, he stands to lose about
Rs.12,00,000/- for the remaining years of his life. Alleging deficiency on the part of OPs filed
complaint before State Commission.
4.
OP No. 1 resisted complaint and submitted that dispute filed before the Commission was
complicated in nature involving medical negligence of highly technical nature and was not
desirable for the Commission to adjudicate the matter in a summary trial process. It was further
submitted that complaint was bad for non-joinder of necessary parties, other doctors who treated
the complainant. He further contended that on examination of the complaint he found no adverse
symptom and no sign of infection when he first consulted him and accordingly, he
prescribed Martidox which was considered to be a safe medicine. The cultural sensitivity report
of the complainant dated 11.7.98 indicated that the complainant was highly sensitive
to Amicacin and resistant to all other antibiotic. He denied that he had neglected to examine the
test reports. He prescribed Mikacine considering the sign of infection and to prevent the life
threatening situation. He strongly denied that he had prescribed Mikacine in overdose. The said
injection in fact, improved the condition of the patient permitting the operation performed on the
complainant thereafter. The blood urea came down from 66 to 50 and creatinine from 3.5 to 2.7
mg percent. He emphasized that the said medicine was applied to save life of the patient and he
had to overlook the adverse effect of the medicine on the complainant regarding
prescribing Gentamycine injection. He stated that it was merely a requisition and the actual dose
was indicated in the bed head ticket of the complainant. He strongly denied that he had caused
permanent damage to the complainant hearing and prayed for dismissal of complaint.
5.
Complainant filed rejoinder and submitted that OP had full knowledge of the infection as it
would be evident from the pathological report dated 11.7.98. He strongly denied that the OP had
asked for another urine test report on 17.7.98 after examination of the test report dated 11.7.98 as
the prescription of the OP does not contain any such advice. He contended that the OP was
negligent in prescribing Mekacine in overdose without cautioning the complainant. As
prescribing Doctor he was duty bound to advise the complainant about its adverse effects. He
further denied that there was life threatening situation at any point of time, during the period he
remained under treatment of OP No. 1.
6.
Learned State Commission after hearing both the parties allowed complaint partly against
OP No. 1 and directed him to pay Rs.2,00,000/- as compensation and further awarded Rs.3,000/as litigation cost.
7.
Heard learned Counsel for the parties and perused record.
8.
Learned Counsel for the OP submitted that learned State Commission rightly arrived to the
conclusion that there was no deficiency in regard to the medicine administered to the
complainant, but committed error in granting compensation without any report to the fact that
permanent injury to the auditory system of complainant has been caused; hence, appeal be
allowed and impugned order be set aside. On the other hand, learned Counsel for the
complainant/petitioner submitted that learned State Commission has committed error in allowing
meagre compensation, whereas claimed compensation should have been allowed; hence, revision
petition be allowed and compensation be enhanced.
9.
It is not disputed that OP No. 1 treated complainant and prescribed dose, as mentioned in
the complaint.
10.
Perusal of record clearly reveals that complainant has not adduced any expert evidence
except his own statement and OP has adduced evidence of two experts. Both the experts have
held that it could not be said that Mikacine prescribed by OP was an overdose as a consequence
of which audibility of the complainant had been impaired.
11.
Learned State Commission after elaborate discussion rightly observed in paragraph 16 as
under:
“We are inclined to observe that while application of Mikacine has been
recommended as a lifesaving drug caution has been sounded by almost
each and every author of repute of the various Medical Titles as cited
above regarding its post application damage to the human audiology
system unless carefully monitored and with a view to arresting such
damage regular monitoring and test of audiotoxicity has been strongly
advised in all medical titles. So far as the dose is concerned we find
that Dr. Ghosh of AIIMS in the above quoted judgment stated that daily
dose of 1.5 mg per day may be prescribed to an adult patient. However,
he did not say anywhere as to whether this dose was applicable in all
cases irrespective of the difference in creatinine level and also for aging
patients having renal problems. There is no denying the fact that in the
present case there is no expert evidence filed by the complainant to show
that the medicine Mikacin has caused damage to the auditory system of the
complainant though the autotoxicity was noticed almost immediately
(about one month) after the 10 Mikacininjections were administered. The
ENT experts who were consulted by the complainant diagnosed that his
hearing problem had been impaired beyond recovery and they advised for
using hearing aid. This was in the aftermath of administration
of Mikacin injection. In view of the expert opinion adduced before
the Hon’bleNational Commission in I (2003) CPJ 116 (NC) and the
excerpts adduced from various medical text books we are of the view that
we have not found any unanimity of opinion even among the experts as to
whether the dose advised by the OP No. 1 for the complainant
(Mikacin 500) was an overdose (the expert opinion of Dr. Ghosh of AIIMS
and also that of Dr. Shareen may be recalled). Accordingly, we are of
view that the complainant has failed to prove that the OP No. 1 had
prescribed Mikacin 500 in overdose and as such, allegation regarding
negligence so far as the dose is concerned remains unsubstantiated”.
12.
Learned Counsel for the complainant has drawn our attention to cross-examination
of Dr. Santanu Banerjee in which he replied that 750 mgm/day should be daily dose
ofAmikacin of a patient of 60 kgs without renal impairment. Learned Counsel for the
complainant submitted that as complainant was having renal impairment, dose of 500 mgm twice
for 4-5 days was certainly an excessive dose. We do not agree with the submission of learned
Counsel for the complainant because nowhere OP No. 1 admitted that complainant was having
renal impairment. In paragraph 17 of the complaint, complainant mentioned about the fact that
OP No. 1 was knowing fully well about renal ailment of the complainant, but OP No. 1 in his
written statement denied this fact. Complainant has not adduced any evidence in support of his
contention that OP No. 1 was aware about the renal ailment of the complainant and in such
circumstances, doses of Amikacin prescribed by OP No. 1 cannot be said to be overdose and we
agree with the view taken by learned State Commission.
13.
Even if it is presumed that dose prescribed by OP No. 1 was overdose, whether it had any
impact of hearing on the complainant, learned Counsel for the OP No. 1 submitted that
complainant has not filed any expert opinion or report to prove the fact that so called overdose
of Amikacin affected hearing of complainant. To prove this fact complainant ought to have
produced earlier audiography report and after treatment latest audiography report to arrive at a
conclusion that due to impact of Amikacin, complainant’s hearing was impaired. Complainant
mentioned in the complaint that he consulted Dr. S.P. Ghosh and Dr. S.P. De who confirmed that
hearing capacity had been impaired due to the treatment but neither the witnesses have been
examined by the complainant before State Commission, nor their report has been placed on
record. In the absence of any material on record and auditory report before or after treatment, it
cannot be concluded that complainant’s treatment by Amikacin impaired his hearing.
14.
Learned State Commission rightly observed that OP No. 1 failed to caution complainant
regarding the damaging effect of medicine in its post application period and awarded
compensation only on this count. As observed by us, there was neither any deficiency on the
part of OP No. 1 in prescribing medicine, nor there was any report to conclude that hearing of
complainant was affected due to dose prescribed by OP No. 1 merely because OP No. 1 had not
cautioned the complainant regarding impact of Amikacin dose, no deficiency can be attributed
on the part of OP No. 1 and learned State Commission has committed error in granting
compensation of Rs.2,00,000/- and in such circumstances, Appeal No. 222/08 filed by the OP
No. 1 is to be allowed.
15.
As Appeal No. 222/08 has been allowed and impugned order is to be set aside, Appeal No.
509/08 filed by the complainant for enhancement of compensation stands dismissed.
16.
Consequently, Appeal No. 222/08 filed by the Appellant/OP No. 1 is allowed and
impugned order dated 10.1.2008 passed by learned State Commission in Complaint Case
No.75/O/2000 is set aside and complaint stands dismissed. Appeal No. 509/08 filed by the
complainant for enhancement of compensation stands dismissed.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4114 OF 2013
(From the order dated 30.04.2008 in S.C. Case No. 165/A/2007 of the West Bengal State
Consumer Disputes Redressal Commission, Kolkata)
Mr. Swapan Bera S/o Late Amulya Charan Bera 61/1A, Jubilee Park, P.S. Jadavpur, Kolkata –
700033 Dist. 24 Parganas (South)
…Petitioner/Complainant
Versus
1. Mr. Shyamal Sengupta S/o Sri Debabrata Sengupta Partner of M/s. S.B. Enterprises 150A,
Regent Colony, P.S. Jadavpur, Kolkata – 700040. Dist. 24 Parganas (South)
2. Mr. Shib Shankar Brahma S/o Mr. Santi Ranjan Brahma Partner of M/s. S.B. Enterprises
98/2, Regent Colony, P.S. Jadavpur, Kolkata – 700040 Dist. 24 Parganas (South)
… 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. Prabir Basu, Advocate Mr. Sanjoy Kumar Ghosh, Advocate
For the Respondents :
Ex-parte
PRONOUNCED ON 20th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 30.4.2008
passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata – 700 027
(in
short,
‘the
State
Commission’)
in
S.C.
Case
No.
165/A/2007
–
Swapan Bera Vs. Shyamal Sengupta & Anr. by which, while dismissing appeal, order of
District Forumdismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner’s father entered into a joint-venture
agreement dated 22.7.2002 with OP/respondents for construction of a multi-storeyedbuilding on
the said piece of land purchased by complainant’s father. OP agreed to handover 5 flats in
the new building to be constructed by OP on complainant’s father’s land. Father of the
complainant before his death gifted two flats out of the said five flats to the
complainant. Complainant’s father died on 25.2.2006. Complainant alleged in the complaint
that floor of the two flats became discoloured and due to leakage of pipeline and fittings of bath-
room walls were damaged. Cracks developed in the ceilings. It was further alleged that certain
works were also unfinished as per details given in the complaint. Alleging deficiency on the part
of OP,
complainant filed complaint
and claimed
Rs.3,00,000/- for repairs of two
flats. OP contested complaint and submitted that father of the complainant was fully satisfied
with the standard of construction and material used for construction and objections have been
raised after 1½ years from the delivery of possession only for harassing and prayed for dismissal
of
complaint. Learned
District
Forum
after
hearing
both
the
parties
dismissed
complaint. Appeal filed by the complainant was also dismissed on the ground that complainant
does not fall within the purview of consumer under the C.P. Act.
3.
None appeared for the respondents even after service and they were proceeded ex-parte.
4.
Learned Counsel for the petitioner submitted that complainant falls within the purview of
consumer as held by Apex Court, but learned State Commission has committed error in
dismissing appeal on this ground; hence, revision petition be allowed and matter may be
remanded back.
5.
Learned State Commission while dismissing appeal observed as under in paragraph 6:
“6.
xxx It is henceforth evident that the project of construction of
building was undertaken for commercial purpose. The present
complaint and for that matter the Appeal is not a consumer
dispute. In this context we are inclined to refer to the decision in
2006 CTJ 42 (CP) (NCDRC) wherein the Hon’ble National
Commission had clearly decided that a transaction relating to the
property by the owner of a land with another person for the
purpose of commercial exploit shall not be the subject matter of
dispute before the Consumer Forum. The said decision was again
followed in 2008 CTJ 264 (CP) (NCDRC). The Hon’ble National
Commission observed here that “….before getting into the purview
of Section 3 of the Consumer Protection Act, 1986 one has to
qualify himself to fall within the definition of the ‘Consumer’ as
defined in the Consumer Protection Act, 1986. When we go
through the agreement, it is clearly stated in para 1 of the
Agreement that it was the respondent who was to build four floors
on the stilt ‘at his own cost’. In view of this, we are of the view
that in no way, the Appellant/Complainant could be said to have
hired the services of the respondent developer/builder, as per
definition of ‘Consumer’ laid down under Section 2(1)(d) of the
CPA. The Appellant had not hired the services of the Respondent
for construction of a building in the ordinary sense. In fact the
arrangement was sharing the number of flats constructed on the
said land”.
whereas Hon’ble Apex Court in 2008 (3) CPR 76 (SC) – Faqir Chand Gulati Vs. Uppal Agencies
Pvt. Ltd. & Anr. held in paragraph 19 as under:
“19. What then is the nature of the agreement between the
appellant and the first respondent? Appellant is the owner of the
land. He wants a new house, but is not able to construct a new
house for himself either on account of paucity of funds or lack of
expertise or resources. He, therefore, enters into an agreement
with the builder. He asks the builder to construct a house and give
it to him. He says that as he does not have the money to pay for the
construction and will therefore permit the builder to construct and
own additional floor/s as consideration. He also agrees to transfer
an undivided share in the land corresponding to the additional
floor/s which falls to the share of the builder. As a result, instead of
being the full owner of the land with an old building, he becomes a
co-owner of the land with a one-third share in the land and
absolute owner of the ground floor of the newly constructed
building and agrees that the builder will become the owner of the
upper floors with corresponding two-third share in the land. As the
cost of the undivided two-third share in the land which the land
owner agrees to transfer to the builder, is more than the cost of
construction of the ground floor by the builder for the landowner,
it is also mutually agreed that the builder will pay the landowner
an additional cash consideration of Rs.8 lakhs. The basic
underlying purpose of the agreement is the construction of a house
or an apartment (ground floor) in accordance with the
specifications, by the builder for the owner, the consideration for
such construction being the transfer of undivided share in land to
the builder and grant of permission to the builder to construct two
floors. Such agreement whether called as a `collaboration
agreement' or a `joint-venture agreement', is not however a `jointventure'. There is a contract for construction of an apartment or
house for the appellant, in accordance with the specifications and
in terms of the contract. There is a consideration for such
construction, flowing from the landowner to the builder (in the
form of sale of an undivided share in the land and permission to
construct and own the upper floors). To adjust the value of the
extent of land to be transferred, there is also payment of cash
consideration by the builder. But the important aspect is
the availment of services of the builder by the land-owner for a
house construction (construction of owner's share of the building)
for a consideration. To that extent, the land-owner is a consumer,
the builder is a service-provider and if there is deficiency in
service in regard to construction, the dispute raised by the land
owner will be a consumer dispute. We may mention that it makes
no difference for this purpose whether the collaboration agreement
is for construction and delivery of one apartment or one floor to
the owner or whether it is for construction and delivery of multiple
apartments or more than one floor to the owner. The principle
would be the same and the contract will be considered as one for
house construction for consideration. The deciding factor is not the
number of apartments deliverable to the land owner, but whether
the agreement is in the nature of a joint-venture or whether the
agreement is basically for construction of certain area for the
land-owner.
Thus, it becomes clear that Hon’ble Apex Court has held that availment of the services of the
builder for a house construction falls within the purview of C.P. Act and learned State
Commission has committed error in dismissing appeal on this ground. In such circumstances,
impugned judgment is liable to be set aside and matter is to be remanded back to learned State
Commission to decide it afresh on merits.
6.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
30.4.2008 passed by learned State Commission in S.C. Case No. 165/A/2007 –
Swapan Bera Vs. Shyamal Sengupta & Anr. is set aside and matter is remanded back to learned
State Commission to decide it afresh on merits after giving an opportunity of being heard to the
parties.
7.
Parties are directed to appear before the State Commission on 2.4.2014
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 63 OF 2014
(From the order dated 24.04.2013 in S.C. Case No. CC/38/2011 of the West Bengal
State Consumer Disputes Redressal Commission, Kolkata)
With IA/504/2014 (Condonation of delay)
Dr. Shib Kumar Mukherjee S/o Late Sudhir Kumar Mukherjee Residing at Street No. 59,
Quarter no. 11/B, Post Office: Chittaranjan, District: Burdwan West Bengal – 713331
…Appellant/Complainant
Versus
H.D.F.C. Bank Stephen House 40, B.B.D. Bag (East)Kolkata – 700001
… Respondent/ Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: Mr. Sukesh Ghosh, Advocate
PRONOUNCED ON 20th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 24.04.2013 passed by
the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State
Commission’) in S.C. Case No. CC/38/2011 – Shib Kumar Mukherjee Vs. HDFC Bank by
which, complaint was dismissed.
2.
Brief facts of the case are that Complainant/appellant had two fixed deposit
account facilities with OP/respondent for Rs.5,00,000/- and 3,00,000/-, respectively and was also
having saving account with a balance of Rs.1,00,000/-. Complainant was regular investor in
shares and in December, 2001, his account was frozen. One criminal case was registered against
him and he was under Police custody from 2.6.2003 to 11.6.2003 and in judicial
custody upto 25.8.2003. During Police custody, complainant was compelled to write a letter to
the bank with a request to pay Rs.5,00,000/- in favour of the Mr. Rama Sircar. Alleging
deficiency on the part of OP, complainant filed complaint before State Commission. OP resisted
complaint and submitted that amount was released as per the request of the complainant and
there was no deficiency in service and prayed for dismissal of complaint. Learned State
Commission after hearing both the parties observed that complainant’s case does not fall under
the purview of C.P. Act and he should approach to other appropriateForum against which, this
appeal has been filed along with application for condonation of delay.
3.
Heard learned Counsel for the appellant on application for condonation of delay.
4.
Learned Counsel for the appellant submitted that as there was delay of 129 days in filing
appeal, delay may be condoned.
5.
As per office report, there was delay of 227 days in filing appeal. In application
for condonation of delay, appellant mentioned that there was delay of 129 days as on 30.9.2013
meaning thereby appeal was ready for filing on 30.9.2013, but the same has been filed on
22.1.2014 and no explanation has been given by the appellant in application for condonationof
delay from 1.10.2013 to 22.1.2014. Not only this, appellant submitted in the application that on
receiving copy of the order, he contacted Advocate and made part payment of fees, but later on
Advocate demanded more money for filing appeal. Complainant lodged complaint before Bar
Counsel. It was further submitted that bank was willing to solve the dispute but as this was
not solved, complainant decided to file appeal.
6.
Advocate who was entrusted with the matter for filing appeal was not under an obligation
to file appeal unless payment of requisite fees was made to him by the appellant. Appellant has
not mentioned in the application when his Advocate refused to file the appeal and when he
contacted another Advocate for filing appeal. Apparently, there is no explanation at all for
condoning of inordinate delay of 227 days for filing appeal and application is liable to be
dismissed in the light of the following judgment of Hon’ble Apex Court.
7.
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.”
8.
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.”
9.
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.”
10.
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.
11.
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”.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate
delay of 227 days. In such circumstances, application for condonation of delay is dismissed. As
application for condonation of delay has been dismissed, revision petition being barred by
limitation is also liable to be dismissed.
13.
Learned State Commission has observed that complainant should seek remedy from any
appropriate Forum which makes it clear that complainant is still free to seek redressal of his
grievance from appropriate authority.
15.
Consequently, appeal filed by the appellant is dismissed as barred by limitation 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.919 OF 2009
(Against the order dated 02.01.2009 in Appeals No. 1883 and 2596/2008 of the Karnataka State
Consumer Disputes Redressal Commission)
M/s Manikbag Automobiles Rep. by its Partner A.S. Mirji Vidyanagar, Hubli-580031
...... Petitioner
Vs.
1. Hitech Structures Pvt. Ltd. Rep. by its Managing Director No.2, Blue Cross Chambers, No.11
Infantry Road Cross, Bangalore-560001 Karnataka
2. Ramco Industries Ltd. Rep. by its Manager Sabari Complex, III Floor, 24, Residency Road,
Bangalore-25 Karnataka
.....Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Krishna Hegde, Advocate
For the Respondents : NEMO
Pronounced on 20th February, 2014
ORDER
PER VINEETA RAI, PRESIDING MEMBER
1.
This revision petition has been filed by M/s Manikbag Automobiles, Petitioner herein and
Complainant before the District Consumer Disputes Redressal Forum, Dharwad (for short the
District Forum), being aggrieved by the order of the Karnataka State Consumer Disputes
Redressal Commission, Bangalore (for short the State Commission), which had allowed the
appeal of M/s Hitech Structures Pvt. Ltd., Respondent No.1 herein and OP-1 before the District
Forum, and set aside the order of the District Forum.
2.
At the outset, it is noticed that even after service of notice on the Respondents/OPs on
earlier occasions, when they did not enter their appearance before this Commission, vide order
dated 19.11.2009 the service on them was deemed valid. Hence, we propose to hear and decide
the present revision petition ex parte against the Respondents/OPs.
3.
In his complaint before the District Forum, Petitioner/Complainant had contended that he
had engaged the services of Respondent/OP-1 for construction of a well-equipped service
station-cum-garage for Tata trucks for a consideration of Rs.18,99,826/-. This work also
included designing, fabrication supply erection, transpiration of complete steel structure gable
and walls etc. Soon after Petitioner/Complainant took possession of the above service station, he
noticed that cracks had developed on its roof wherever the sheets were joined and fixed. He,
therefore, informed the Respondent/OP-1, who stated that it would not cause any
problem. However, with the onset of pre-monsoon winds and showers many pieces were blown
off causing severedamage to the AC sheets, glasses, NL curves etc. Some of the blown off
pieces fell on employees causing grievous injuries to them and because of the cracks and holes
which had developed in the roof, water poured heavily into the service station-cum-garage
causing damage to valuable spare parts and machinery making it almost impossible to work in
the garage. These facts were brought to the notice of Respondent/OP-1 and a Surveyor was
deputed for an on the spot inspection, who also noted the various cracks that had developed as
also the blown off pieces of NL curved, broken AC sheets etc. However, Respondent/OP-1
while acknowledging that the above problems existed stated that these occurred because of
manufacturing defects in the raw material and sheets and only offered to undertake the repair
work. It further suggested that trees of 25 feet height be planted all over the boundary to act as
wind barriers. The offer was totally unacceptable since it was clear that the problems had arisen
because of the defective planning and design and poor implementation and execution of
work. Petitioner/Complainant, therefore, informed the Respondent/OP-1 of the above facts and
asked it to rectify the defects and the designing mistakes. It was also pointed out that the
manufacturer of the AC sheets as also the architect appointed by the Petitioner/Complainant after
thorough inspection informed that there is no manufacturing defect in the sheets and the entire
problem arose because during construction Respondent/OP-1 had not left sufficient gap between
the vertical glass and the curved ends and hence air pressure from garage could not move out
causing the damage suffered. Also the curves were without any solid and proper support and,
therefore, as a result of this and due to heavy wind pressure the entire curves vibrated
continuously causing damage. Respondent/OP-1, however, refused to acknowledge the
mistakes, being aggrieved by which Petitioner/Complainant filed a complaint before the District
Forum requesting that Respondents/OPs be directed to rectify the mistake by making necessary
alterations in the design and construction of garage and replace the damaged parts as per the
report of the architect and pay compensation of Rs.2,00,000/- towards problems and loss caused
in the period of last 1½ years besides Rs.85,000/- for mental agony caused to the
Petitioner/Complainant.
4.
The District Forum partly allowed the complaint by concluding that no credible evidence
was produced by the Respondents/OPs in support of their argument that the problems occurred
because of manufacturing defects in the AC sheets and other materials. On the other hand, the
report and affidavit of a well-qualified architect Shri R.D. Shanbhag which could not be
displaced or disproved by Respondents/OPs, clearly indicated that the problems occurred
because of defects in designing the structure during construction of the service station by the
Respondents/OPs. The District Forum, therefore, directed Respondent/OP-1 to pay the
Petitioner/Complainant Rs.2,03,710/- with 6% interest per annum from the date of complaint till
its realization apart from Rs.1000/- as litigation expenses.
5.
Being aggrieved, both the Petitioner/Complainant and Respondent/OP-1 filed their
separate appeals before the State Commission, which vide its order dated 02.01.2009 dismissed
the appeal of the Petitioner/Complainant as barred by limitation but allowed the appeal filed by
Respondent/OP-1 and set aside the order of the District Forum by observing as follows:
“It is not the case of the complainant that the material used by the OP is
of substandard one. Further it is also not the case of the complainant that no
architect was appointed so as to supervise the work. The complainant appointed
the architect to supervise the construction work. If the construction work is done
as per the direction issued by the architect and ultimately if some damage is
caused then in all probability nothing can be attributed to the contractor because
if at all there are any defects it is because of the negligence in issuing direction by
the architect.
One of the reasons given by the OP in respect of the damage caused to the
building is due to the heavy rain and wind. This fact is also not
disputed. Therefore, if there is any damage caused due to the natural calamity,
contractor cannot be blamed. Therefore, in our view the DF was not right in
allowing the complaint of the complainant.”
Hence, this revision petition.
6.
Counsel for the Petitioner/Complainant made submissions before us.
7.
Counsel for the Petitioner/Complainant contended that the State Commission erred in
setting aside the order of the District Forum and allowing the appeal of Respondent/OP-1 by
concluding that since the construction work by Respondent/OP-1 had been done as per directions
issued by the Petitioner/Complainant’s architect and under his supervision, it could not be held
guilty of any deficiency as a contractor, who merely carried out the necessary directions issued
by the architect. Apart from this, the damage was caused due to heavy rain and wind and being a
natural calamity here also the contractor cannot be blamed.
In support of its case, Petitioner/Complainant stated that in fact the entire design,
fabrication, supply and transport of the complete steel was given to the Respondents/OPs who
had projected themselves as a highly qualified concern with well-trained engineers and other
technical support. In fact, the architect was appointed by the Petitioner/Complainant only after
the problems arose to assess the reasons for the same so that it could approach the
Respondents/OPs for taking remedial action and rectifying the various defects. Further, the
architect (R.D. Shanbhag Associates), who had been requested to visit the site by the
Petitioner/Complainant, had confirmed in its detailed report as well as through illustrations that it
was the structural design and execution problems which caused the damage to the roof and other
parts, which was further aggravated by adverse winds since it was not duly protected. It is, thus,
not factually correct that the Respondents/OPs were merely contractors who conducted the work
under the supervision of Petitioner/Complainant’s architect.
8.
We have heard submissions made by Counsel for the Petitioner/Complainant and have also
gone through the evidence on record. We are unable to agree with the finding of the State
Commission that the Respondents/OPs could not be held guilty of deficiency in service because
they were merely contractors who carried out the necessary construction including the planning
and execution as also design under the supervision of an architect appointed by the
Petitioner/Complainant to supervise the work from the beginning. In fact, from a perusal of
Annexure P-4, which is an invoice for carrying out the work, we find that in the same it has been
clearly stated under ‘Particulars’ that the design, fabrication, supply, erection and transport of
complete steel structure would be undertaken by Respondent/OP-1. A further perusal of this
document indicates that this involved design, fabrication, supply, erection and transport of the
complete steel structure, gable walls, including supply of AC sheets, erection of steel column,
typo shed for washing bay, fixing of NL curves, NL glasses etc. for which, the
Petitioner/Complainant paid amount of Rs.18,99,826/-. It is further on record that soon after
completion of the work and taking possession of the structure, Petitioner/Complainant noticed
cracks all over the roof wherever the sheets were joined and fixed. He immediately informed
Respondent/OP-1, who sent its technical representative to examine the situation. Mr. Mohan
Ranjan, who had also been deputed by Respondent/OP-1, had observed that the problem
occurred because while fixing the J-bolts instead of drilling they were punched and the
corrugation design of AC sheets and bent NL curves sheets did not match properly and there was
mismatching gap when the J-bolts were tightened because of which big cracks developed. There
is no evidence that the entire work, including the designing and execution, was done under the
supervision of an architect appointed by the Petitioner/Complainant from the beginning. In fact,
Petitioner/Complainant appointed an architect to survey the structure only after the various
damages and defects came to light following development of cracks etc. on the roof. It is,
therefore, not clear from the evidence on record how the State Commission concluded that
supervision of the work by Petitioner/Complainant’s architect was an admitted fact since there is
no evidence to this effect. Thus, the cracks in the roof and various other problems occurred, as
stated above, because of the defects and deficiencies in service on the part of Respondent/OP-1,
who was entrusted with the entire task of constructing the structure, including its design and
execution.
9.
Keeping in view these facts, we are unable to uphold the order of the State Commission
and set aside the same. The revision petition is accordingly allowed. The order of the District
Forum is maintained. Respondent/OP-1 is directed to pay the Petitioner/Complainant
Rs.2,03,210/- with 6% interest per annum from the date of the complaint till its realization
besides Rs.1000/- as litigation expenses within a period of two months.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 613 of 2007
(Against the order dated 13.09.2007 in OP No.54 /2002 of the Tamil Nadu State Consumer
Disputes Redressal Commission)
Export Credit Guarantee Corporation of India Ltd. Express Towers, 10th Floor, Nariman Point,
Mumbai- 400021 Through its Regional Manager
2. The Branch Manager Export Credit Guarantee Corporation of India Ltd. Spencer Towers,
7th Floor, 770-A Anna Salai, Chennai- 600002 Through is Regional Manager
.....Appellants
Versus
M/s. B.K. Office Needs (P) Ltd. Bombay Flats, III Floor, 109, Nungambakkam High Road,
Chennai- 600034 Through its Director (Marketing)
........Respondent
BEFORE
HON’BLE MR. JUSTICE D. K. JAIN, PRESIDENT
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant
For the Respondent
:
:
Mr. K. K. Bhat , Advocate & Ms. Savita Singh, Advocate
Mr. P.V. Raghavan, Advocate
PRONOUNCED ON: 21st February 2014
ORDER
PER MR. VINAY KUMAR, MEMBER
Complainant, B.K. Office Needs Private Limited had entered into a contract for export of
granite to Singapore. The supply was made in 11 shipments. Payments in respect of six were
received without any problem. These were sent on DP (delivery on payment) basis. But
allegedly, there was considerable delay in receipt of payments on the other four shipments which
were made on DA (delivery on acceptance and payment within 90 days) basis. The
importer/consignee alleged supply of defective material as the reason for non-payment. The
Complainant and hisinspecting agent visited the project site of foreign buyer in Singapore. Their
assessment was that the importer had ordered excess quantity and was therefore, avoiding
payment on the pretext of poor quality. Eventually, the foreign buyer paid only US $ 55,388.02
as against full cost of US $ 75,309.02. For the balance amount of US $ 19,921, the complainant
made a claim under the policy with the ECGC.
2.
The claim was repudiated by ECGC. The State Consumer Disputes Redressal
Commission, Chennai allowed the complaint directing the OP/ECGC to pay Rs.7,63,054/- with
9% interest and costs. It has held that the claim is covered by the terms of the policy issued by
the OPs. The order of the State Commission has been challenged by the OP/ECGC in the present
appeal.
3.
We have carefully considered the pleadings, evidence and other record submitted by the
two sides before the State Commission. We have also heard at length, Mr K K Bhat Advocate for
the
appellant/ECGC
and
respondent/complainant.
Mr
P
V
Raghawan,
Advocate
for
the
The main question, as observed by the State
Commission, is whether it was a case of ‘credit risk’ as contended on behalf of the
Complainant or a case of ‘trade risk’, as claimed by the opposite party.
4.
The claim was repudiated on the ground that—
“It is concluded from the given documents that the short payment was on a
mutually agreed basis due to the damage of goods sent to them.
As informed earlier, loss of this nature is considered as trade loss which is outside
the purview of the Policy.”
5.
Evidently therefore, the case of the OP/ECGC before the State Commission was that it was
a case of ‘trade loss’ which allegedly, was the result of acceptance of short payment, mutually
agreed with the foreign buyer, due to damage to the goods and therefore, not covered under the
policy. On this issue, the State Commission has made a detailed assessment of the evidence
before it. It has observed that—
“Indeed, under Ex. B1 dated 02/12/1998, the complainant had written to the foreign
buyer stating as follows;- “the shipments against this Project order was executed on the basis of
50% D/P and 50% D/A 90 days payment terms. As we have been having good relationship till
this incident, the undersigned accepted to give a discount in respect of the following items so that
not only the balance payment could be realized but also our bankers who were pressurizing us to
realise the payments without any further delay.” The total amount under various items is given
as USD 19602. The letter further says that “after this discussion, we were forced to issue a
credit note for the above items, which we did, on the spot. Now we need to get these items back
from you, in order to submit it to our customs authorities and regularise the accounts. We,
therefore, request you to ship the above mentioned items, immediately on receipt of this letter by
fax to enable our bankers also to regularise the issue of the credit note”. The letter also makes a
claim for reimbursement of the cost of air tickets and boarding/lodging expenses, in a total sum
of USD 2,902. This letter has been produced by the opposite parties. We have already noted
that this letter had been sent by the complainant to the foreign buyer. From this letter, it would
be clear that the foreign buyer had to return the goods worth US 19602. Admittedly this had not
been done. We have already referred to the communication (Ex. A4 dated 16/04/99 from State
Bank of India, mentioning about Reserve Bank of India accepting the credit note on the
assurance given by the complainant that the foreign buyer would be returning certain materials
rejected by them. There is confirmation of this aspect in Ex.A17, which is the Facsimile
Transmission Sheet from the foreign bank to the State Bank of India, Nungambakkam Branch.
The foreign bank had contacted the buyer regarding unreturned materials and the buyer advised
them that they would liaise direct with the drawer regarding the unreturned goods. The goods
had not been returned. According to the opposite parties, when once the complainant gave a
credit note, he must be deemed to have closed the transaction and it was a trade risk or trade
loss and the same is not covered by the terms of the policy. If the matter had stopped with the
issuance of credit note by the complainant, we can very well understand the position. It had not
stopped with that. There was a clear arrangement that the opposite parties would return certain
materials. It is not disputed that the materials had not been returned by the foreign buyer. The
terms of the policy in this regard are quite clear and we also accept the contentions on behalf of
the complainant that the complainant agreed to pass a credit note for the amount claimed from
the opposite parties to prevent/ minimise the loss. The policy does not contemplate that for
taking such an action by the complainant, he had to take any express permission from the
opposite parties. It could not be said that it was an unilateral decision. The decision had been
taken as per the terms of the policy. We had already referred the clause 3 (iii) of the policy,
which provides for taking suitable action to prevent/minimise the loss including such action as
might be suggested by the Corporation and that action to prevent/minimise a loss would depend
on the facts and circumstances of each case. We have also referred to clause 4 of the
communication dated 25/05/98 which provides that the maximum liability would be the limit up
to which the Corporation will entertain the claims irrespective of the cause of loss. Inasmuch as
the complainant had not received back the alleged rejected goods, it would clearly amount to
credit loss and covered by the policy.”
6.
Learned Counsel for the appellant argued that if the goods were defective, the foreign
buyer would have returned them, as allegedly agreed with the exporter/complainant. He argued
that the fact that the goods were eventually not returned, would mean that it was a case of mere
trade discount. The Appeal Memorandum also repeatedly calls it as a case of ‘unconditional and
full discharge’ on reduced price, in violation of the policy. But, it does not refer to any evidence
in support. Learned counsel also conceded that there was no evidence to show that it was a case
of discount simpliciter. In the letter of 2.12.1998 itself, admittedly received in the ECGC, the
complainant had informed that the credit note was given against return of stocks. In our
view, it would not become a ‘trade discount’ in retrospect merely due to non return of
goods by the foreign buyer. We therefore, find ourselves in agreement with the State
Commission that the credit note was against return of stocks and not as a price discount.
7.
Further, the ECGC has pleaded before the State Commission that the Complainant had no
business to enter into unilateral negotiation with the foreign buyer resulting in agreement to
accept return of goods and to issue credit note for the same. In the Written Submission before
the State Commission, ECGC has categorically denied having advised the Complainant in this
behalf. It was alleged that the Complainant had of its own volition given full discharge to the
buyer in respect of outstanding liabilities covered under the insured shipments. On this point, the
State Commission has considered at length the correspondence in Exhibits A-9, 19 and 27,
between the two. It has concluded that the OPs had been duly consulted by the complainant and
the latter had made attempts to salvage the situation only on the advice of the OPs.
8.
We may mention here that the complainant had informed full details to the ECGC in the
copy of its letter of 2.12.1998. The seal on the first page of this letter shows that it was received
in the ECGC only on 19.2.1999. But, well before 19.2.1999, ECGC had sent two
communications to the complainant, with clear advice on these four shipments. They are dated
7.12.1998 and 9.12.1998. Clearly, the complainant had taken up the matter with the OP
sufficiently in time for such response to be generated. In these letters ECGC had even advised
the complainant to make maximum effort, in view of the reported non-payment for the four
consignments. These would show that the complainant was right in his claim that it was in touch
with the OPs on this issue. We therefore, reject the contention of the appellant that it was a case
of unilateral decision on the part of the complainant.
9.
Learned counsel for the OP/ECGC has sought to rely upon the decision of Hon’ble
Supreme Court of India In Suraj Mal Ram Niwas Oil Mills Vs. United India Insurance Co.
Ltd. (2010) 10 SCC 567. In that case the appellant had despatched a consignment of oil on
14.8.1992, from Jaipur to Agartala. The railway wagon met with an accident on 28.9.1992,
resulting in extensive damage to the consignment. Surveyor appointed by the Insurance
company reported that between 1.4.1992 and 14.8.1992, the appellant/complainant had
despatched oil worth Rs 143.59 lakh while it had declared despatches worth Rs 91.22 lakh only.
The insurance company repudiated the claim under the policy on the ground that all despatches
were not declared, which was violation of an express term of the policy. The Apex Court upheld
the repudiation, observing that—
“24. Thus, it needs little emphasis that in construing the terms of a contract of
insurance, the words used therein must be given paramount importance, and it is
not open for the Court to add, delete or substitute any words. It is also well settled
that since upon issuance of an insurance policy, the insurer undertakes to indemnify
the loss suffered by the insured on account of risks covered by the policy, its terms
have to be strictly construed to determine the extent of liability of the
insurer. Therefore, the endeavour of the court should always be to interpret the
words in which the contract is expressed by the parties.”
In our view, the claim of the respondent/complainant does not involve violation of any specific
term of the policy. Therefore, the appellant/OP can derive no support from the above decision of
Hon’ble Apex Court.
10. We therefore hold that the decision of the State Commission to allow the complaint is
based on proper appreciation of the evidence before it. The appeal is held to be devoid of merit
and is dismissed as such. Consequently, the order of Tamilnadu State Consumer Disputes
Redressal Commission in OP No. 54 of 2002 is confirmed.
…..…………….Sd/-…….……
(D.K. JAIN, J.)
PRESIDENT
…..…………….Sd/-…….……
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3098 OF 2013
WITH (I.A. No. 5428 of 2013 for Stay)
(Against order dated 29.05.2013 in First Appeal No. 1063 of 2011 of the State
Consumer Disputes Redressal Commission, Karnataka)
Ramesh Kumar, S/o Shri Chuddappa Salian Aged about 54 years, Aged about 54 years,
Managing Partner, M/s Deepa Construction Company, 1st Floor, Mahendra Arcade,
Karangalpady, Mangalore Karnataka-575003.
.... Petitioner
Versus
Mrs. Prasanna Bhandary, W/o Mr. Manjunath Bhandary, Aged about 39 years, R/o “ Bhandary
House”, George Martis Road, Kadri, Mangalore, Karnataka-575002.
..... Respondent
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. D.P.Chaturvedi, Advocate Mr. Dasharath T. M, Advocate
Pronounced on : 21st February,2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 29.5.2013 passed by Karnataka State Consumer Disputes
Redressal Commission, Bangalore (for short, ‘State Commission’) Petitioner/Opposite party
has filed the present revision petition under Section 21(b) of the Consumer Protection Act,
1986 (for short, ‘Act’)
2. Respondent/Complainant’s
case
is
that
petitioner promoted
a residential apartment/building under the name and style of ‘MAURISHKA TOWERS’ in
the apartment situated in Kadri “A” Village of Bendoor Ward of Mangalore City within
Mangalore City. Respondent purchased one apartment situated at ground floor numbered as
G-01 in the said building along with car parks number G-01 and G-01A on the basement
floorwith 2.37% undivided rights in the land and also common areas and facilities. It is
alleged that at the time of negotiation, petitioner has promised to provide many amenities
and facilities in the said apartment.
3. Apart from the above, petitioner has undertaken to use quality materials, construction and
workmanship in the said apartment building. On believing the petitioner, respondent agreed
to purchase the apartment and entered into a written agreement dated 22.09.2007. As per the
terms of the agreement, petitioner had undertaken to convey the apartment to the respondent
with a clear marketable title from all encumbrances. Further, petitioner has agreed and
undertaken to deliver the apartment on or before 31.03.2009 and to give copy of
the completion certificate in respect of the apartment building issued by Mangalore City
Corporation. Respondent has been insisting the Petitioner to complete the apartment as per
the terms of the agreement but petitioner has not completed the construction of the
apartment. Therefore, respondent made delay in payment of the installment amount to the
petitioner. It is further alleged that petitioner had issued various letters to repay the
installment amount and also threatened the respondent that if the amount is not paid, he will
cancel the agreement for sale and forfeit the advance amount and dispose the schedule ‘B’
apartment to 3rd party.
4. It is further stated that in first week of February, 2009, respondent met petitioner and
requested to complete the construction work. Petitioner demanded a sum of Rs.3,00,000/- as
the penal interest for the delay payment of the amount and again threatened the respondent
that
he
will
cancel
the
agreement.
Thereafter,
respondent approached
Vijaya Bank, Mangalore and availed a sum of Rs.16,82,500/-as housing loan and paid the
aforesaid penal interest of Rs.3,00,000/- to the petitioner and also paid the entire sale
consideration of Rs.27,07,500/- and got the sale deed registered on 21.02.2009 in the office
of the Sub-Registrar, Mangalore.
5. It is further alleged that inspite of paying the entire sale consideration and penal interest,
petitioner has failed to adhere to the various terms of the aforesaid agreement. Petitioner
failed to complete the construction of the schedule ‘B’ apartment and deliver the possession
and give the completion certificate. Petitioner has also not obtained door number to the
apartment and not marked the parking area and failed to mark revenue entries in respect of
the properties in the name of Association and failed to form an Association and submit the
original documents and other connected documents pertaining to the properties to the
building owner’s association. It has also failed to handover the custody of said documents in
favour of the association and not furnished necessary guarantee card and documents in
respect of material facility provided to the apartment building. Petitioner has also failed to
complete the construction of the apartment and handover the possession of the same to the
respondent. Hence, he is liable to pay the damages and loss suffered by the respondent to the
tune of Rs.25,000/- per month from 31.03.2009 i.e., the date fixed for completion and
delivery of the apartment along with interest at the rate of 20% p.a. on the above said
amount. Apart from the sale consideration, petitioner also collected a sum of Rs.17,591/- as
additional amount from the respondent in the name of service tax, VAT, price escalation and
recreation hall etc, the same be refunded along with interest at 20%. Accordingly, respondent
filed a complaint under Section 12 of the Act, praying for following directions;
a) Deliver the possession of the apartment and also get the completion certificate and also
the door number to the complainant’s apartment.
b) Provide all the amenities as agreed by him under agreement to apartment of the
complainant.
c) Mark the parking area to the apartment of the complainant.
d) Refund the extra amount of Rs.17,591/- along with interest at the rate of 20% p.a. from
the date of payment till the date of realization.
e) Pay Rs.5,00,000/-towards loss, damage, inconvenience and mental agony
f) Pay a sum of Rs.25,000/- damages per month from 31.3.2009 till the delivery of the
possession of the apartment.
g) Refund a sum of Rs.3,00,000/- interest collected by him.
h) Pay cost of the notice and complaint and such other and further reliefs.
6. Petitioner in its reply has admitted the execution of the written agreement between the
parties. Regarding sale consideration or amounts to be paid by the respondent, the same is
clearly mentioned in the agreement. Respondent after being fully satisfied with the terms of the
agreement has executed the same. As per Clause No.3 and No.13 of the agreement, wherein
Clause No.3 makes clear that possession has to be delivered on or before 31.03.2009. However,
there is exclusion to the said stipulation to the effect that if there is any delay on account of any
valid reason or ground, the Vendor, i.e., the petitioner will not incur any liability for the
delays. Clause No.13 of the agreement makes a stipulation that purchaser has to pay the amounts
as per the payment schedule stipulated in the agreement.
7. It is stated, that after introduction of the new N.B.C. rules with the new F.S.I and various
other rules changing from time to time, petitioner had to re-design the project and implementing
the same as per the new rules of fire and safety and drainage connection, caused the extension of
the time for completion of the project. So also, approval from the Electricity Department and
Water supply from the Corporation etc. also delayed the matter. These are the permissions or
requirements which are beyond the control of the Petitioner and which took time even though
petitioner had completed all the works on its part in the scheduled time.
8. It is further stated, that respondent is a defaulter and had delayed the payments. Being a
defaulter, she is not entitled for insisting any of the clauses of the agreement. Respondent had
paid Rs.25,000/- as advance booking amount on 22.09.2007. Thereafter, it had not paid many of
the installments even though agreement stipulates that the same had to be paid in accordance
with the terms of the contract. Petitioner had written several letters to the respondent demanding
payment. Inspite of those letters, respondent had not cleared or paid the amount of installments
in time. As many as six installments kept in arrears. The installment letters were sent to the
respondent after completion of the work of each slab. It is further stated, that respondent who has
committed default in payment, has no right to make any claim. Further, respondent paid the
major portion of the pending amount on 21.02.2009, only a month before the complaint.
Petitioner has already applied to the Mangalore City Corporation for completion certificate and
door numbers. As soon as the same are given or delivered, the same will be handed over to the
flat owners including the respondent. The association of the flat owners has been formed as per
the deed of declaration. The handing over of the matters to the Association will be made after
collecting the society deposit and after electing the office bearers and the documents of the
property and all other materials will be handed over to the Association. So far as car parks are
concerned, the same have already been marked for the relevant apartments. Since, petitioner had
collected the interest for the default from the respondent, hence as a counterblast out of
vengeance, respondent has come up with all these allegations and false complaint. There is no
shortcoming on the part of the petitioner. The application for completion certificate has already
been made and all matters related thereto have been complied.
9. Further, the service tax is to be collected by the flat takers and same has been paid to the tax
authorities periodically as per the rules. The sum of Rs.17,591/- required to be paid as per the
direction of the Service Tax Department, has not been paid by the respondent. However,
respondent has assumed that she has paid it and has mistaken it for VAT. The tax whatever has
been collected has been paid to the concerned department. If there is any refund by the tax
authorities, it will be returned to the respective flat owners. Petitioner has never collected any
VAT from any of the parties for any of their projects. The society formation fee of Rs.1,00,000/is collected at the time of handing over the key but respondent has paid the same in advance. The
amount so collected from the apartment owners will be handed over to the Association, once it is
formed.
10. It is further stated that out of 38 flats, about 32 flats including flat No.G-01 of the
respondent, have gone for additional works like removal of the walls already constructed, repositioning of the walls, partition of the rooms, shifting of the doors/windows etc. It has been
made clear that any such modifications or additional works will cause delay to the respective
flats and also the project. The additional works register was duly signed by the respondent
regarding wall demolition, re-positioning and window shifting etc. On account of such
additional works not only for the apartment of respondent but also for the various other
apartments resulted in little extension of time. These are the matters clearly dealt by the terms of
the agreement and there is no deficiency on the part of the Petitioner.
11. It is further stated that delivery of the possession of the apartment will be given
immediately. So far as completion certificate and door number is concerned, the same has been
applied and awaited. The service tax of Rs.86,262/- has been paid by the party and if the same
is reimbursed by the tax authority, the amount will be refunded to the respective flat
owners. Respondent is not entitled for any interest on the above said amount. It is denied that
petitioner is liable to pay any damages, as there is no such loss or damages or mental agony or
inconvenience. The claim made by the respondent is nothing but false and there is no deficiency
and prayed for dismissal of the complaint.
12. The Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore (for short,
‘District Forum’)vide order dated 31.1.2011, allowed the complaint.
13. Aggrieved by the order of the District forum, petitioner filed an appeal before the State
Commission, which dismissed the same.
14.
Hence, this petition.
15.
We have heard the learned counsel for the petitioner and gone through the record.
16. It is contended by learned counsel that construction work of the building including the
flat of the respondent had been completed as per terms of the agreement between the parties.
It was the respondent who had assigned some additional work to be carried out in her flat and
only in the process of carrying out the additional works, some negligible delay had occurred.
Moreover, respondent had defaulted in payment of the installments, in accordance with terms
of the agreement and for the delayed payment, she had to pay the interest.
17. Other contention is, that respondent herself had asked for appointment of Independent
Commissioner who in its report dated 22.3.2010, had stated that the construction work was
completed by the petitioner. Further, as per evidence on record other flat owners have already
taken the possession of their respective flats. But respondent could not get the possession of
the flat due to arrears of the installments.
18. Lastly, it is contended that since respondent had sought modification/alternation in her
flat and as per terms of the agreement, if any modification was required, then the time-frame
or time limit cannot be adhered to.
19. District Forum, while allowing the complaint of respondent held;
“On scrutiny of the oral as well as documentary evidence available on
record, we find that, admittedly the Complainant purchased the above said
apartment from the Opposite Party for a total sale consideration of
Rs.27,07,500/- and the Opposite Party entered into a written agreement with
the Complainant on 22.09.2007 (as per Ex C1). As per the said agreement,
the Opposite Party has agreed and undertaken to deliver the apartment to the
Complainant on or before 31.03.2009. But in the instant case, the Opposite
Party failed to deliver the apartment on or before 31.03.2009 and also failed
to furnish the completion certificate, door number, mark the parking area,
failed to form an Association and also collected extra amount as service
tax. The reason stated by the Opposite Party in their version as well as in
their affidavit that there is an exclusion clause to the aforesaid stipulation to
the effect that if there is any delay on account of any valid reason or ground,
the Opposite Party will not incur any liability for the delay. It is stated that,
there is no delay, no shortcomings of any nature on the part of the Opposite
Party and produced Ex R1 to R34 as stated supra.
However, our attention was drawn towards the agreement for sale of
residential apartment dated 22.09.2007 executed by the Opposite Party in
favour of the Complainant. The above said document is not disputed by the
Opposite Party. In the said agreement at page No.5 in para 3, the Opposite
Party undertaken that possession of the apartment shall be delivered by the
owner to the purchaser on or before 31.03.2009. As per the agreement, the
Opposite Party has executed the sale deed on 21.02.2009 i.e., Ex C2 also
admitted document. Even in the said sale deed at page No.9 discloses that
‘building under construction’. That means, the building was under
construction at the time of executing a sale deed. It is seen on record that, the
various correspondences as well as the documents produced by the Opposite
Party i.e., Ex R1 to R34 reveals that, the Opposite Party not delivered the
possession of the apartment on or before 31.03.2009.
However, the Opposite Party has completed the work of the apartment
during the pendency of the proceeding of this complaint and he has obtained
door number, completion certificate and other amenities like gas system,
drainage connection etc. etc. The above said facts have been proved by
Opposite Party’s document i.e., Ex R21, R22, R23, R24, R26 and R27. But, it
is significant to note that, the catena of Landmark Judgments held that, when
the possession of the completed flat was not handed over by agreed date, it
amounts to deficiency in service of the builder.
It is seen on record that, one of the contention raised by the Opposite
Party in this case is that, there was a delay in payment of installment amount
for the constructions of the building from the Complainant. But we have
noticed that, the Opposite Party has received the entire sale consideration
under the registered sale deed dated 21.02.2009 along with penal interest of
Rs.3,00,000/- for the delay payment made by the Complainant i.e., before
31.03.2009 which is the date agreed for delivery of the apartment to the
Complainant. When the Opposite Party executed a sale deed by receiving
entire sale consideration along with penal interest, it is the bounden duty of
the Opposite Party/builder to deliver the apartment to the
Complainant/purchasers as agreed date. The Opposite Party cannot contend
that, the time stipulation in the agreement is not binding upon him. It is well
settled that, the document entered between the parties is determinative, the
nature and true purpose of a document has to be determined with reference to
the terms of the document, which express the intention of the
parties. Similarly, in the instant case, as per the agreement, it is the bounden
duty of the Opposite Party/builder to deliver the possession of the apartment
to the Complainant/ purchasers as agreed date. Since the Opposite Party
received a penal interest that also Rs.3,00,000/- for the delay payment made
by the Complainant, the Opposite Party cannot take shelter under the default
clause. Further it is pertinent to note here that, the Complainant not paid the
amount after the agreed date but it was paid before the agreed date
i.e.,31.03.2009 that too with penal interest as stated supra. The Opposite
Party despite of receiving the penal interest of Rs.3,00,000/-apart from the
sale consideration not delivered the possession on the said date. Hence, the
above defense raised by the Opposite Party cannot be considered in this
case.
The another contention of the Opposite Party is that, after introduction of
the new NBC rules with the new FSI and various other rules changing from
time to time, the Opposite Party had to re-design the project and
implementing the same as per the new rules of fire and safety and drainage
connection caused the extension time for the completion project. But failed to
produce any cogent/material evidence before this authority to show that he
has constructed the building in time, there was a dearth of steel, cement etc,
the delay is on account of non-availability of electricity and Corporation
water supply or on account of change of NBC rule etc. etc and also failed to
show that he applied the same in time. The Opposite Party at least should
have intimated to the Complainant by issuing a written intimation for the
delay. No such attempt has been made by the Opposite Party in this case. If
there is a delay with valid reasons, the Opposite Party should have intimated
to the Complainant in writing, and then definitely, we should have
appreciated the Opposite Party in this case. In the absence of any written
notice/ intimation to the Complainant, the Opposite Party cannot take shelter
under the exclusion clause by stating that with valid reason the possession
was delayed. If at all there is a delay on the part of the Opposite Party, then
he should not have received the penal interest from the Complainant. The
agreement is reciprocal. When the Opposite Party expects penal interest from
the purchasers/Complainant for the delay payment, at the same time the
purchasers/ Complainant too expects their apartment should be completed on
the agreed date.
Further, we observed that, as per the agreement, the builder is required to
construct the apartment in accordance with the sanctioned plan and
specification and the terms in the agreement and deliver the same to the
purchaser/Complainant. The construction is part of a building which in Law
requires a completion certificate and other required documents; the builder is
bound to provide the same. He is also bound to provide amenities and
facilities like water, electricity and drainage in terms of the agreement. In
case, the above permissions are not issued/granted by the concerned
department, the builder may not complied the requirements in accordance
with law. It is the duty of the builder to rectify or comply the requirements
and secure the documents/ permissions in time. The builder cannot say that,
he has constructed the apartment and therefore his obligations are
over. Builder cannot contend that, he is not bound to obtain/ produce the
documents or he cannot say that, he is not concerned and he applied for the
same. There is a obligation on the part of the builder to secure a sanctioned
plans in accordance with the rules and construct a building, carries with it an
implied obligation to comply with the requirements of municipal/corporation
and building Laws and secure the mandatory permissions/certificates.It is
known fact that, the completion certificate will not be issued if the building
constructed is contrary to the Bye Laws and sanctioned plan or if the
deviations are beyond the permissible compoundable limits or contraventions
of any law time being in force. But in the instant case, the Opposite Party
obtained the completion certificate on 24.04.2010. Since the apartment was
not completed the documents were not issued by the concerned department.
But in the instant case, the Opposite Party not placed a record before this
authority to show that when he has come to the knowledge of the new rules
and when he has applied for the same, whether it was in time etc. etc. not
forthcoming in this case. It is seen that, the Opposite Party received the entire
sale consideration at the time of registration of sale deed itself and also
collected penal interest. Hence, it is the bounden duty of the Opposite Party
to deliver the apartment as agreed date. If at all the completion certificate or
any other sanctions not issued, the builder owes a duty to make necessary
application and obtain it in time. If it is wrongly withheld, he may have to
approach the appropriate Court or other Forum to secure it. If it is
justifiable withheld or refused necessarily the builder will have to do
whatever required to be done to bring the building in consonance with the
new rules/sanctioned plan so that, the concerned authorities can issue the
necessary sanctions.If the builder failed to do so in time, he will be liable to
compensate the purchasers /Complainant for loss/damage. Hence it is the
bounden duty of the Opposite Party to deliver the apartment as agreed date
atleast within the reasonable time.However, the Opposite Party failed to
prove that because of the valid reasons the delivery of the apartment was not
given and he is not liable to compensate the Complainant.It at all there is a
delay for valid reasons, the Opposite Party is bound to intimate to the
Complainant in order to avoid the damages. But in the instant case, no such
attempt was made by the Opposite Party. However, the Opposite Party
examined two witnesses i.e., RW2 and RW3. Their oral statement has no
weight because when there is documentary evidence available on record, the
oral evidence has no weight.
We further observed that, on 01.06.2010 i.e., during the pendency of the
proceedings the Opposite Party has informed the Complainant that, he has
completed the work of the apartment and ready for occupation as per Ex R20
i.e., the reminder letter issued by the Opposite Party to the Complainant. But
in the said document nowhere shows that the date of complete construction of
the building.
Apart from the above, the Complainant took an expert opinion by
appointing a Commissioner in order to show that the possession of the
apartment was not handed over to the Complainant. The one Civil Engineer
Sri.H.M. Mahendra, Department of Civil Engineering, Karnataka
Government Polytechnic Mangalore appointed as an expert Commissioner
and submitted his report dated 22.03.2010 i.e., Ex C11,the Commissioner
stated that the apartment is in the possession of the Opposite Party. That
means, even as on 11.03.2010 i.e., the date of inspection of the commissioner
the apartment was in the possession of the Opposite Party and it was under
construction.
Further, the Opposite Party took another contention that, because of the
additional works sought by the Complainant like removal of the walls,
repossession of the walls, partition of the rooms, shifting of the
doors/windows etc. also resulted in little extension of time and produced
register maintained by them i.e., Ex R32 and R33. Even if there is an
additional works sought by the Complainant, the Opposite Party should have
taken one or two months not a year. In the instant case, the Opposite Party
suppose to deliver the possession of the apartment on or before
31.03.2009. It is seen that, during the pendency of the complaint, the
Opposite Party issued a letter i.e., Ex R20 dated 01.06.2010 informed the
Complainant that, he has completed the work of the apartment. By
considering the above said letter, there is a considerable delay of 14
months. Let us consider two months for additional work, even though there is
a considerable delay of one year in this case which caused damage to the
Complainant.
As far as additional amount collected by the Opposite Party is concerned,
the Complainant sworn to the fact that, the Opposite Party has collected a
sum of Rs.17,591/- as additional amount. The above aspect has been
confirmed by the letter dated 07.08.2008 i.e., Ex R2 issued by the Opposite
Party. As per the said letter the Complainant is not liable to pay the above
said tax under law. The notice has been issued to the Opposite Party by the
concerned authority. When that being the case, the Opposite Party should
pay to the concerned authority and not by the Complainant. But the Opposite
Party burdened that liability on the Complainant and collected the
amount. Further, it is clear from the letter that, the Opposite Party decided
to contest in the court of law and he will refund the same after his position is
justified. That itself shows that, the amount collected by the Opposite Party
i.e., a sum of Rs.17,591/- as additional amount is not correct and the same
shall be refunded to the Complainant, the Assistant Commissioner of Central
Excise Service Tax issued a circular by claiming service tax from the
Opposite Party. But as per the circular dated 01.08.2006, in a case where
the builder, promoter or developer builds a residential complex, having more
than 12 residential units, by engaging a contractor for construction of such
residential complex, the contractor shall be liable to pay service tax on the
gross amount charged for the construction services provided, to the builder/
promoter/developer under construction of complex service falling under
section 65(105)(zzzh) of the Finance Act, 1994.
If no other person is
engaged for construction work and the builder/ promoter/ developer
undertakes construction works on his own without engaging the service of
any other person, then in such cases in the absence of service provider and
service recipient relationship, the question of providing taxable service to any
person by any other person does not arise. In view of the above, the
Complainant is not liable to pay service tax to the Opposite Party.
Further the Complainant sworn to the fact that, the Opposite Party has
received in advance a sum of Rs.1,00,000/- in the name of formation of
Apartment Owner’s Association before the completion of the building. As per
the agreement i.e., Ex C2 the purchaser shall deposit with the vendor a sum
of Rs.1.00 lakh towards the management and maintenance of the common
facilities services. This deposit shall not carry any interest and shall remain
with the vendor until the formation of the Association of apartment owners
and thereafter shall be passed on by the vendor to the said Association. But
in the instant case, before the completion of the apartment the Opposite Party
received the advance for a sum of Rs.1.00 lakh which amounts to deficiency.
However, the apartment is ready for delivery, the refunding of the above
amount will not arise and the same shall be handed over to the Owner’s
Association immediately and at the same time, the Opposite Party shall call
for the Owner’s Association. Further marking of car parking is concerned,
Commissioner reported that car parking was already marked hence this point
does not arise for consideration.
In view of the above discussion, we conclude that, if there is a breach by
the builder of his obligation, purchaser has the right to claim damages by
appearing before this authority under the C.P. Act for relief as a consumer,
against the builder as a service provider. The builder/Opposite Party is duty
bound to complete the construction and deliver the actual possession of the
apartment on the agreed date and also duty bound to obtain and furnish the
completion certificates and other required documents which is the part and
parcel of the building which in law requires the same and also refund the
money collected arbitrarily. But in the instant case, it is proved beyond doubt
that, the Opposite Party not delivered the actual possession of the apartment
on or before 31.03.2009 or within reasonable time. There is a inordinate
delay of one year and also failed to deliver the completion certificate, door
number and other amenities and facilities as agreed by him within the
stipulated time. Further collected Rs.17,591/- as additional amount without
any justification which amounts to deficiency in service and unfair trade
practice.
As far as the relief of damage is concerned, the Complainant sworn to the
fact that, the apartment is a three bedroom apartment with two car parks and
measuring 2006 sq. ft, if she rented out it will fetch more than Rs.25,000/per month. But no material has been placed on record to show that if it given
for rent it will fetch more than Rs.25,000/- per month. At the same time, we
cannot straight away reject the claim of the Complainant. Since it is a three
bed room apartment with two car parks and measuring 2006 sq. ft if she
rented out it may fetch between Rs.12,000/- to Rs.15,000/- per month in this
District. Apart from that, she had also obtained a bank loan to the extent of
Rs.16,82,500/-, she has burdened with the interest on the above said loan
amount. By considering the above facts and circumstances of the case, we
direct the Opposite Party to pay Rs.1,50,000/- as compensation to the
Complainant, in addition to that, we direct the Opposite Party to deliver the
actual possession of the apartment to the Complainant along with required
documents i.e., completion certificate, door numbers and other particulars
sought in the complaint immediately without further delay. Further, we also
direct the Opposite Party to refund Rs.17,591/- and hand over Rs.1,00,000/collected in advance towards the formation of the Apartment to the Owner’s
Association and Rs.1,000/- as cost of the litigation expenses. Payment shall
be
made
within
30
days
from
the
date
of
this
order.
In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party is hereby directed to deliver
the actual possession of the apartment to the Complainant
immediately along with required documents and also refund of
Rs.17,591/-(Rupees seventeen thousand five hundred and ninety one
only) collected from the Complainant as additional amount and
Rs.1,50,000/- (Rupees one lakh and fifty thousand only) as
compensation. Further Rs.1,00,000/- (Rupees one lakh only) collected
by the Opposite Party towards the formation of the Apartment
Owner’s Association shall be paid to the Owner’s Association and
Rs.1,000/- (Rupees one thousand only) awarded as cost of the
litigation expenses. Compliance/payment shall be made within 30 days
from the date of this order.
On failure to comply the aforesaid order within the stipulated
time the Opposite Party is hereby directed to pay interest at the rate of
12% p.a. on the total amount from the date of failure till the date of
payment”.
20. The State Commission while affirming the order of District Forum observed;
“13.It is an admitted fact that the appellant is a builder. As per the pamphlet issued
by him, the respondent approached with an intention to purchase a
flat in the ground floor that is G-01 constructed by the appellant
under the name and style of ‘Maurishka Towers’ situated in Kadri ‘A’
vilalge of Bendoor Ward of Mangalore city along with car parks and
entered into an agreement dated 22.09.2007. Accordingly, to the
complainant, the appellant had agreed to complete the construction of
the apartment as described in the schedule ‘B’ in all respects and
undertaken to deliver the apartment on or before 31.3.2009. As per
the agreement, the respondent/ complainant agreed to purchase the
flat for a total consideration of Rs.27,07,500/- but not paid the entire
amount which has been admitted by the complainant himself.
Therefore, the appellant was constrained to issue several reminders
and compelled him to pay the same with penal interest on the delay
payment otherwise the appellant will cancel the agreement of sale.
Therefore, the respondent approached the Vijaya Bank, Falnir
Branch, Mangalore and availed a loan of Rs.16,82,500/- and also
paid the penal interest of Rs.3,00,000/- and got registered the sale
deed on 21.2.2009.
14.As per the terms of the agreement, the appellant is expected to complete
the construction of the flat and handed over the same on or before
31.3.2009 and the appellant has collected the amount from the
complainant with interest on the delayed payment one month prior to it.
Of course, the reason assigned by the appellant before the DF for
delayed is the completion certificate and providing other facilities.
Several reasons were assigned namely after introduction of the new
N.B.C. rules with the new F.S.I. and various other rules changing from
time to time and the OP had to re-design the project and implementing
the same as per the new rules of fire and safety and drainage
connection caused the extension of time for completion of the project.
The DF has observed that the appellant has not produced any
documentary evidence in support of its defense and therefore does not
accept the contention of the OP. Now-a-days even the builders are also
facing several problems from the authorities concerned forgetting to
approve the sanction plan, getting the required power supply, sewerage,
completion certificate and etc. If the purchaser sought for any
modification of the flat purchased by him, it will also consume
reasonable time to make alterations and etc. to fulfill the demands made
by the purchaser.
15. Of course, the delay in non- completion of the construction of the flat
admitted by the appellant will have to see from all angles and about the
reasonable cause shown by the complainant. The appellant has
collected Rs.17,591/- towards service tax and also Rs.1,00,000/towards Apartment Owner’s Membership fee. The contention of the
complainant is that the appellant/ OP has collected the additional
amount of Rs.17,591/- without any justifi-cation. A specific contention
was taken by the OP in its version as stated at page of the impugned
order that the service tax collected from the purchasers has been paid to
the department and if there is any refund by the tax authorities, it will
be refunded. The District Forum also directed the appellant/OP to
refund Rs.17,591/- collected from the complainant as additional amount
which is in our opinion is correct.
16. During the course of arguments, the learned counsel for the appellant has
relied on certain citations reported in AIR 1996 Cal 67 and AIR 1981 SC
679. In AIR 1996 CL 67 it is held that the contract stipulates mutual
obligations to be performed by the parties and the defendant is not entitled
to complain of non-performance of a later obligation by the plaintiff
without performing his earlier obligations and in AIR 1981 SC 679 it is
held that a party to an instrument or transaction cannot take advantage of
one part of the document or transaction and reject the rest.
17. The aforesaid decision are not at all applicable to the facts of the case on
hand. When once the appellant admitted that he is a developer and builder
selling the flats to the intending purchasers with car parking space he is
bound to pay compensation for the delay in handling over possession of
the property.
18. As per the agreement, the appellant builder is expected to complete the
construction of the building and deliver the possession on or before
31.3.2009 or within the reasonable time. But the OP failed to give the
possession of the Schedule ‘B’. The appellant/OP also has collected the
sum of Rs.1,00,000/- towards formation of the Apartment Owner’s
Association and it has retained the same and failed to form the
association. Therefore, the DF is right in directing the appellant to pay the
said amount of Rs.1,00,000/-.
19. As far as awarding damages of Rs.1,50,000/- is concerned on account of delay in
handing over possession of the said flat even though the sale deed has been
executed by the appellant. If the appellant/ OP delivered the possession
alongwith necessary documents within the stipulated time, he would have
occupied the same to save money by way of rent. Therefore, the DF has
rightly observed that on account of delayed attitude in handing over the
flat, the complainant sustained heavy loss and accordingly awarded a sum
of Rs.1,50,000/- by way of compensation and rightly awarded the cost of
Rs.1,000/- towards litigation expenses. Consideringthe facts and
circumstances, in our considered opinion, the DF has rightly awarded the
interest at the rate of 12% p.a. in case of failure to comply with the order
within 30 days. Accordingly, we pass the following:
ORDER
Appeal is dismissed. The order passed by the DF, Mangalore in Complaint No.
286/09 is hereby confirmed.”
21. It is an admitted fact that “Agreement for Sale of Residential Apartment” was executed
between the parties on 22.09.2007. Clause No.2 of this Agreement, prescribe the schedule of
payment. Whereas, Clause No.3 and No.4 which are relevant to decide the controversy between
the parties read as under;
“3 Possession of the apartment shall be delivered by the owner to the PURCHASER on
or before 31.3.2009. The vendor shall not incur any liability by failure to
deliver possession of the apartment by the said date if delayed by reason of
non-availability of electricity and corporation water supply to the Apartment
or on account of any other valid reason or ground such as non- availability
of cement, steel or other building materials, etc.
4. Commencing a week after notice is given by the VENDOR, that completion
certificate has been obtained from the Corporation in respect of their
Apartment, the PURCHASER shall be liable to pay and bear all taxes in
respect of the Apartment and charges for water, electricity consumed in their
apartment and their proportionate share of any tax or levy collected from
the VENDOR in respect of the ‘A’ schedule land or the Apartment, or the
building”.
22. Thus, as per Clause No.3 of the Agreement, the possession of Apartment had to be
delivered by the petitioner to the respondent on or before 31.3.2009. Further as per this
Clause, petitioner shall not incur any liability by failure to deliver possession of the
Apartment by the said date if due to non-availability of electricity, water supply or on
account of any other valid reason or ground such as non-availability of cement, steel or
other building materials etc.
23. There is nothing on record to show that petitioner ever proved the above defence before
the Fora below, “that failure to deliver the possession of flat in question to the
respondent by the specific date was due to the above reasons mentioned in Clause No.3
of the Agreement.”
24. District Forum in its order has observed “that petitioner had obtained the completion
certificate only on 24.4.2010.” Another observation made by the District Forum is “that
on 1.6.2010, that is, during the pendency of the proceedings before it, the petitioner has
informed the respondent, that it has completed the works of Apartment and is ready for
occupation. But that document nowhere shows the date of complete construction of the
building.” Apart from this, District Forum also observed “the Complainant took an
expert opinion by appointing a Commissioner to show that the possession of the
apartment was not handed over to the complainant. The Commissioner submitted his
report dated 22.3.2010, i.e., Ex.C-11 stating that the apartment is in possession of the
petitioner.”
25. It has been duly established from the record, that respondent had paid the entire due
amount along with interest, to the petitioner within the stipulated period. However, the
possession of the apartment was not given to the petitioner within the prescribed period,
that is, by 31.3.2009 as per the agreement. Thus, deficiency in service on the part of
petitioner, is writ large in this case. Even otherwise, petitioner himself has admitted that
there was delay in adhering to the construction schedule of the apartment as stipulated
in the agreement for Sale.
26. A Coordinate Bench of this Commission in Innovative Constructions Pvt. Ltd. Vs.
Dr.Sangeeta H. Pikale, First Appeal No.702 of 2012 decided on 26.4.2013 has held;
“It is further a fact that flats in question were to be handed over to the
respondents/Complainants on or before 31.3.2003 whereas those were
handed over on 08.01.2008 with a delay of four years and six months.
This was admittedly a delay on the part of Appellant in not adhering
to the construction schedule of the flats as stipulated in the agreement.
As pointed out by the State Commission the Appellant did not tender
any evidence regarding demand notices issued from time to time nor
any evidence to justify these demands which were to be correlated
with the stages of construction.
In view of the above facts, we agree with the finding of the State
Commission that the Appellant was not justified in asking the
Respondents/Complainants to pay penal interest since it was the
Appellant who had delayed construction of the flats and handing over
possession of the same. We, therefore, uphold the order of the State
Commission in toto and dismiss the present First Appeals.”
27. Another Coordinate Bench of this Commission in M/s. Sagar Shopping Developers Vs.
Anil Dattatrey Kadam, Revision Petition No.281 of 2013 decided on 01.5.2013 has
observed;
“ The privity of the contract between the parties stand established. Certain
harsh realities cannot be glossed over. Facts are the stubborn things. It is
difficult to fathom why should anyone take a dallop of injustice from
someone else because he is in a more influential position. The skimblescamble explanation given by the petitioner does not help the cause
of justice at all. If he has no place at Sagar Avenue-II, he must provide or
create the same. The petitioner cannot befool the people like this. The
building is ready and he must provide accommodation to the complainant.
It must be mentioned here that the District Forum had passed the order on
15.07.2011. Now, almost 2 years have elapsed. The said order has not been
complied with. The complainant paid the amount of Rs.3,00,000/- in the fond
hope of getting the flat in the year 2007. Since then six years have
elapsed. The attainment of justice is the highest human endeavor. Justice
delayed Is not only Justice denied- it is also Justice Circumvented, Justice
mocked and the system of Justice undermined.”
28. 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.
29. 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”.
30. In view of the above discussion, we hold that the order passed by both the Fora below,
do not call for any interference as the same are well reasoned. There is no infirmity and
illegality in the impugned order passed by the State Commission. The present revision
petition being without any legal basis is not maintainable and same is hereby dismissed
with cost of Rs.10,000/-(Rupees Ten Thousand Only).
31. 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.
32. In case, petitioner fails to deposit the cost within prescribed period, then it shall be liable
to pay interest @ 9% p.a. till its realization.
33. List on 28th March, 2014 for compliance.
……..……………………J
(V.B. GUPTA)
PRESIDING MEMBR
…………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 806 of 2013
(From
the
order
dated
17.01.2013
of
the
Punjab
Disputes Redressal Commission, Chandigarh in Appeal no. 163 of 2012)
State
Consumern
Krishan Kumar Batra Son of Shri Tara Chand Batra Resident of F 7/ 56 Mata Kaulan Marg
Kashmir Avenue Amritsar (Punjab)
Petitioner
Versus
Punjab National
Bank
Manager/Principal Officer
Lawrence
Road Branch
Amritsar
Through
its Branch
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
IN PERSON
Pronounced on 21st February 2014
ORDER
REKHA GUPTA
Revision petition no. 806 of 2013 has been filed against the order dated 17.01.2013 of the
Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State Commission’)
in First Appeal no. 163 of 2012. The brief facts of the case are that the petitioner/
complainant was an employee of Punjab National Bank (PNB) and he remained posted at
Lawrence Road Branch, Amritsar of the aforesaid Bank. Smt Madhu Batra wife of the petitioner
was also an employee of PNB and the petitioner and his wife had jointly obtained a housing
loan of Rs.6,00,000/- from their employer, i.e., PNB which was repayable in equal monthly
instalment of Rs.5850/- per month.
2.
The respondent Bank started deducting monthly instalments from the salary of the
petitioner. However, due to certain disputes between the petitioner and the employer, the enquiry
of which is pending, the bank officials stopped the salary of the petitioner and due to this
reason, the housing loan instalments was also stopped.
3.
Since the very inception of the petitioner in the service of the Bank, provident fund was
being deducted from the salary of the petitioner and the petitioner has the right to get regular
statements from the bank to know about the amount outstanding to his credit on amount of
provident fund. The petitioner on 24.02.2007 demanded statement of account of provident fund
from the bank but it was not provided to him and it was on the direction of Central Information
Commissioner that the respondent – Bank provided the statement of account in respect of
provident fund to the petitioner on 04.07.2009 and to his utter surprise, the petitioner found from
the statement of account came to know that the amount of Rs.5,81,334.74 has already been paid
by the petitioner and that the respondent has illegally and unlawfully deducted Rs.5,81,334.74
from the provident fund account of the petitioner despite the fact that the petitioner has not
withdrawn even a single penny from his provident fund account.
4.
Thereafter the petitioner made enquiries from the respondent bank and came to know that
the respondent itself has withdrawn the aforesaid amount of Rs.5,81,334.74 from the provident
fund account no. 48097 of the petitioner in two instalments, i.e., Rs.5,81,334.74 paisa and
Rs.24,038.40 paisa and credited the same in the joint housing loan account of the petitioner and
his wife.
5.
The provident fund amount is the property, social security for old age of the employee
(petitioner) and the respondent has no right to deduct any amount from the provident fund
account of the petitioner and to adjust the same towards the housing loan account in the name of
the petitioner and his wife. The respondent has neither given any notice or intimation to the
petitioner before withdrawing the amount from the provident fund account of the petitioner and
adjusting the same towards the loan account of the petitioner and his wife nor any opportunity
was given to the petitioner nor the explanation of the petitioner was sought before withdrawing
the amount from his P F account much less written consent of the petitioner was obtained for
such purpose. As submitted above, the housing loan was jointly obtained by the petitioner and
his wife from the respondent Bank at the maximum, the respondent could deduct monthly
instalment of loan from the salary of the wife of the petitioner who is a co-loanee and her
liability was joint and several with the petitioner or at the most can recover from the petitioner
due course of law if so required.
6.
It was, therefore, prayed as under:
*
The respondent may kindly be directed to transfer the amount of Rs.5,81,334.74 paisa and
Rs.24,038.40 paisa to the provident fund account of the petitioner with interest @ 18%
per annum from the date of withdrawal till its transfer.
*
The cost of the complaint and counsel fee may also be awarded to the complainant.
*
Compensation of Rs.1,00,000/- be also awarded to the petitioner.
*
Any other relief to which the petitioner is found entitled under the law and equity may also
be awarded to him.
7.
In their written statement, the respondent/ opposite party have stated that the petitioner is
guilty of suppression of material facts as well as actual state of affairs from the Hon’bleForum,
as such the petitioner having not come to the Hon’ble Forum with clean hands and was not
entitled to any relief and the complaint was liable to be dismissed. The real facts and the actual
state of affairs were as follows:
8.
The petitioner – Clerk of the respondent approached the respondent Bank at its Branch
at Hansale Bazar Amritsar for financial assistance by way of housing loan to the extent of
Rs.2,70,000/- for construction of new house vide application for loan under the scheme for
housing loan to Members of Staff in form PNB 560 – 726 (10) dated 08.01.1996.
9.
Smt Madhu Batra wife of Krishan Kumar Batra executed and signed a letter of undertaking
dated 08.01.1996 giving letter of undertaking as “I have no objection to construct building on
plot which is in my name and for mortgage of plot for loan in the name of my
husband Krishan Batra. I will stand guarantor in any facility to loan to Shri Krishan Batra.
10.
In response to the aforesaid loan application executed and signed by the petitioner and the
aforesaid
letter
of
undertaking
executed
and
signed
by Smt Madhu Batra wife
of KrishanKumar Batra, the respondent - Bank allowed, sanctioned and granted the aforesaid
loaning facility to the petitioner at its Branch at Hansali Bazar, Amritsar.
11.
In pursuance to the sanction and grant of housing loan for construction for Rs.2,50,000/- to
the petitioner by the respondent at its Branch at Hansali Bazar, Amritsar on 18.01.1996, the
petitioner executed and signed letter dated 18.01.1996 addressed to the Trustee, Punjab National
Bank, Employees Provident Fund Trust, New Delhi authorising the trust to pay the amount of
gratuity provident fund etc., and all other dues what so ever, payable to him on ceasing to be in
the employment of the bank, due to retirement, termination of service, dismiss or any other
reason what so ever to the bank, to be utilised towards payment of outstanding and the interest
accruing due to the above loan and this authority irrevocable until the loan mentioned above with
interest thereon is paid in full and handed over the same to the respondent.
12.
The fresh housing loan of Rs.50,000/- was granted to the petitioner at its
Branch Hansali Branch, Amritsar on 08.07.1998.
13.
The petitioner while posted at Punjab National Bank, Lawrence Road Branch, Amritsar
again applied for sanction of Housing Loan of Rs.3,00,000/- for making additions to the existing
house built with the bank finance, which was sanctioned on 24.03.2000 by the incumbent incharge of the Punjab National Bank, Lawrence Road Branch, Amritsar.
14.
In pursuance to and in consideration of the sanction and grant of the aforesaid loaning
facility, the petitioner executed and signed letter dated 27.03.2000 addressed to the Trustee
Punjab National Bank Employees Provident Fund Trust, New Delhi regarding loan for
Rs.3,00,000/- granted to him under the housing loan scheme to the effect “whereas I agree and
authorise the Bank to utilise the amount of gratuity, provident fund and bonus and also other
dues whatsoever, payable to him on my ceasing to be in the employment of the bank or at the
time of any payment of such gratuity, PF, bonus and other dues, towards payment of the amount
due on the aforesaid loan.
15.
The service of the petitioner was terminated by the Bank on 10.04.2006 and he ceased to be
in the employment of the respondent, the bank.
16.
The amounts received by the respondent from Punjab National Bank Employees Provident
Fund Trust, New Delhi were credited to the loan account of the petitioner.
17.
The provident fund was deducted from the salary of the petitioner and deposited with the
Punjab National Bank Employees Provident Fund Trust, New Delhi as per service rules. As
stated that in pursuance to the letter of authorisation dated 18.01.1996 and 27.03.2000 executed
and signed by the petitioner addressed to the Trustee Punjab National Bank Employees Provident
Fund Trust, New Delhi forwarded to the Bank a sum of Rs.5,81,334/- from the Provident Fund
of the petitioner and the same was credited to the loan account of the petitioner.
18.
District Consumer Disputes Redressal Forum, Amritsar (‘the District Forum’) vide order
dated 05.01.2012 dismissed the complaint by observing as under:
“From the perusal of the entire record of this case i.e. pleadings of the parties as well as
the evidence produced on record by both the parties, we have come to the conclusion that
the dispute between the parties is that complainant Krishan Kumar Batra and his
wife Madhu Batra, both employees of the opposite party obtained housing loan of
Rs.6,00,000/- from their employer Punjab National Bank which was payable in equal
monthly installments of Rs.5850/- per month. The provident fund is being deducted from
the salary of the complainant and is being deposited with the Punjab National Bank
Employees Provident Fund Trust and the complainant has authorized the trustee of the
aforesaid trust as well as the manager of the opposite party that in case of default of any
kind under whatsoever circumstances and the loan account become irregular, the
defaulted amount of the aforesaid loan due, the bank has right to adjust the entire amount
from the account of provident fund and bonus, towards the amount due to the aforesaid
loan, vide his letters exbt.R-4 and R-6. It is the admitted case of both the parties that
amount of the installment of the loan was being deducted from the salary of the
complainant. The complainant was dismissed from service vide order dated 10.4.06, copy
of which is exbt.R-7. It is also the admitted case of the parties that after dismissal of the
complainant from the service, he failed to make the payment of the installments.
Resultantly the amount of the loan obtained by the complainant from the opposite party
became irregular , thereby complainant has committed default and the opposite party i.e.
Punjab National Bank was authorized , competent and entitled to recover the due amount
of the loan from the complainant lump sum with penal interest because the complainant
had become defaulter in non-payment of installments. But opposite party i.e. Punjab
National Bank has not charged any penal interest from the complainant. It has only
adjusted the amount of the provident fund due to the complainant towards the loan
amount due recoverable from the complainant.
The plea raised by the counsel for the complainant that the installments were to be paid
by the complainant and his wife Madhu Batra, who is still employee of the opposite
partyupto 2017, so the opposite party was not competent to adjust the amount of the
provident fund of the complainant towards the loan amount due recoverable from the
complainant, is not tenable because when the complainant committed default in payment
of installments of the loan regularly, the loan account became irregular, thereby
complainant has committed default in non-payment of the loan installments. Resultantly
the opposite party was authorized to recover the entire balance amount of the loan from
the complainant in lump sum and they adjusted the provident fund amount due payable to
the complainant, towards the loan amount recoverable from the complainant. Rather the
opposite party has not charged any penal interest from the complainant. There is no
deficiency in service on the part of the opposite party. The complaint is without merit and
the same is hereby dismissed with no order as to costs. Copies of the orders be furnished
to the parties free of costs. File is ordered to be consigned to the record room”.
19.
Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State
Commission. The State Commission after hearing the arguments of the petitioner in person and
counsel for the respondent and perusing the records of the case dismissed the appeal by
upholding the order of the District Forum. In coming to the conclusions that there was no
deficiency of service on the part of the respondent held that:
“As regard the contention of the complainant that the amount should have been
recovered from the salary of his wife, it is contended that the loan was taken by the
complainant and not by Madhu Batra. It was therefore to be recovered from the
complainant. Madhu Batra never came forward nor applied to the bank to inform them
that she was ready to pay the aforesaid amount and the same should be recovered from
her salary. In the absence of the request of Madhu Batra, no such order could be passed
by the OP bank to recover the amount from her without her consent.
In view of the above discussion, we are of the opinion that the District Forum rightly
dismissed the complaint. There is no merit in this appeal and the same is accordingly
dismissed”.
20.
Hence, the present revision petition.
21.
The main grounds for the revision petition are that:
*
The
said
housing
loan
is
in
the
name
of Krishan Kumar Batra and
his
wife Madhu Batra. Both are employees of the same institution, i.e., Punjab National Bank
(Respondents). All the documents signed by them are jointly. Both gave letter of authority to
deduct instalments from the salary every month. Agreement for Housing Loan Having Title
K K Batra and MadhuBatra singed by both jointly and called themselves ‘the borrowers’. Bank
officer witnessed and signed to confirm the said borrowers. Almost 25-25 signatures by
both Madhu Batra andKrishan Batra are present in the loan documents. Loan was disbursed and
instalments and given at the signatures of both K K Batra and Madhu Batra. The plot for
construction is in the name of Madhu Batra. When the bank stopped paying salary to one coloanee K K Batra and instalments stopped crediting in the housing loan, bank did not start
deducting instalments from the second co-loanee Madhu Batra, employee of the same bank and
had given letter of authority to deduct monthly instalments from salary. No instalment missed till
the salary being paid to K K Batra.
22.
We have heard the petitioner in person and have also gone through the records of the case
carefully. Vide order dated 26.07.2013 the petitioner had been directed to file the certified/
attested copy of the application forms for the loans as well as the terms and conditions of the
loans, if filed, before the District Forum. The documents that he has filed have been obtained by
him from RTI on 26.07.2013. There is no indication whether these documents have been filed
before the District Forum nor has he filed any application for filing fresh new documents.
23.
It is quite apparent from the facts on record that the petitioner’s service had been
terminated by his employer, i.e., Punjab National Bank on 10.04.2006. He had filed his
complaint on 30.07.2009 but has mislead this court and concealed this fact as in his complaint.
He had stated in paragraph 1 of his complaint that “he is an employee of the Punjab National
Bank” and he remain posted with the Lawrence Road Branch, Amritsar of the aforesaid Bank
and further that “due to certain disputes between the petitioner and the employer, the enquiry of
which is pending, the bank officials stopped the salary of the petitioner and due to this reason,
the housing loan installment also stopped”.
24.
The loan applications were made by the petitioner. As per the respondent his wife had
stood guarantor for the loan has also given an undertaking that she had no objection to
construction of building on the plot in her name and the plot being mortgaged.
25.
As per the letter of authority on record the petitioner, authorized the bank to deduct the
monthly installment payable towards adjustment of the loan granted under the housing loan
scheme, from the salary payable to the borrowing member of staff every month dated
27.03.2000, the petitioner had agreed to repay the loan within the stipulated interest thereon by
month to month installments deductible from his salary every month. This is in addition to
the security by way of mortgage of my property and right of the Bank to appropriate the amount
that may accrue due to me by way of gratuity, provident fund, bonus etc. The petitioner has filed
no such authority given by Ms Madhu Batra.
26.
It is an undisputed fact that the petitioner/ complainant availed loan of Rs.6.00 lakh which
was being deducted from his monthly salary. After his termination on 10.04.2006, since his
salary stopped, repayment of installments also stopped. He paid no further installments and
became a defaulter. The bank was compelled to recover the amount due from his terminal
benefits as per the undertaking given by him. There is nothing on record to show that the
petitioner and his wife had made joint application to the Bank to recover the balance amount
from her salary after his termination. There is also no joint complaint against the action of the
Bank or prayer to the Consumer Fora from both the petitioner and his wife that the balance
amount of loan should be deducted from his wife’s salary. The petitioner has failed to prove
deficiency of service against the respondent bank.
27.
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.”
28.
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. Since, two Fora below have given detailed and
well-reasoned order which does not call for any interference nor they suffer from any infirmity
or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby,
dismissed with cost of Rs.5,000/- (Rupees five Thousand only).
29. 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,
petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to
pay interest @ 9% p.a., till realization.
30.
List on 31st March 2014 for compliance.
Sd/-..………………………………
[ V B Gupta, J.]
Sd/-………………………………..
[Rekha Gupta]
satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4008 OF 2012
(From the order dated 17.08.2012 in Appeal No.
State Consumer Disputes Redressal Commission, Ranchi)
23/2011
of
the
Jharkhand
Bundel Financing & Manufacturing Pvt. Ltd. Through Kapildeo Singh, MD Swarajpuri Road,
P.O. Head Post Office P.S. Civil Lines, Distt. Gaya, Bihar.
…Petitioner/Opposite Party (OP)
Versus
1. Sukriya Devi W/o Ramprit Nayak Barka Toli, Ratu Chatti Kantitand, Ranchi
2. Shivam Finance & Leasing Company Panchwati Plaza, 5th Floor, Kutchery Road, PO –
GPO, PS – Kotwali, Ranchi
…Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
For the Respondents
:
:
Mr. Sanjay Kr. Dubey, Advocate
Ex-parte
PRONOUNCED ON 24th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 17.08.2012
passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (in short, ‘the
State Commission’) in Appeal No. 23/2011 – Kapildeo Singh Vs. Sukrya Devi & Anr. by
which, while dismissing revision petition, order of District Forum allowing complaint against
OP No. 1 was upheld.
2.
Brief facts of the case are that complainant/Respondent No. 1
intended to purchase ‘Piaggio Auto Tempo’. from OP No. 1/Petitioner, but OP misled the
complainant and sold ‘Karlo Tempo’ instead of ‘Piaggio Auto Tempo’ which was not road
worthy. Complainant paid a sum of Rs.60,000/- from her own saving and Rs.79,000/- were
financed from OP No. 2/Respondent No. 2. There were many manufacturing defects in the Auto
and complainant visited showroom of OP No. 1 for repairs, but found that the showroom was
closed and shifted to Gaya. Alleging deficiency on the part of OP, complainant filed complaint
before District Forum. OP No. 1 was proceeded ex-parte. OP No. 2 resisted complaint and
submitted that he was not responsible for any alleged manufacturing defects in the Auto, as he
has only financed the vehicle and payment was to be made in 24 monthly installments, but
complainant
has
made
payment
of
only
two
installments;
hence,
complaint
be
dismissed. Learned District Forum after hearing both the parties, allowed complaint and directed
OP No. 1 to pay Rs.1,39,000/- and compensation of Rs. 50,000/- and litigationcost of
Rs.10,000/- to the complainant. Revision 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; so, the respondent was proceeded ex-
parte.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that learned District forum allowed
complaint even without proper service and learned State Commission dismissed appeal without
any cogent reason; hence, revision petition be allowed and impugned order be set aside and
matter may be remanded back to learned District forum.
6.
Perusal of record reveals that learned District Forum observed in its order that notice sent
to OP No. 1 could not be served and returned back unserved and later on notice was sent
by courier to OP No. 1, which was returned back with the endorsement ‘refused’ and in such
circumstances District Forum proceeded ex-parte. Perusal of record clearly reveals that
complainant purchased Auto from ‘Bundel Financing and Manufacturing Pvt. Ltd.’, whereas in
the complaint “Kapil Deo Singh Automobiles Pvt. Ltd.” has been impleaded as OP No. 1 and on
the same address notice has been sent by Regd. Post and by courier. Notice sent by Regd. Post
was received back with the endorsement ‘incomplete address’ and notice sent by courier was
returned back with the endorsement ’refused’, but it has not been mentioned that who refused to
receive the notice. Admittedly, notice was addressed to “Shri Kapil Deo Singh Automobiles Pvt.
Ltd.“ which is not the correct nomenclature of OP No. 1, as complainant purchased Auto from
‘Bundel Financing and Manufacturing Pvt. Ltd.’ and complainant ought to have impleaded
Bundel Financing and Manufacturing Pvt. Ltd. as OP No. 1 and notices should have issued to
OP No. 1 on this address. As complainant has not impleaded correct party and notice was also
not sent to the correct OP No. 1, in such circumstances, service of notice on ‘Bundel Financing
and Manufacturing Pvt. Ltd.’ cannot be presumed and learned District Forum committed error in
proceeding ex-parte against OP No. 1 impleaded in the wrong name. Purchase bill of Auto does
not reveal that it was purchased from “Shri Kapil Deo Singh Automobiles Pvt. Ltd“. It appears
that “Shri Kapil Deo Singh was Managing Director of Bundel Financing and Manufacturing Pvt.
Ltd. as shown in the affidavit filed along with revision petition and complainant impleaded OP
No. 1 in the wrong name. Learned State Commission has committed error in upholding order of
District Forum on merits without considering merits of the case.
7.
Learned Counsel for the petitioner further submitted that petitioner was compelled by State
Commission to file revision petition in the same name in which District Forum allowed
complaint and in such circumstances, in the wrong name revision petition was filed before State
Commission, but now he has filed revision petition before this Commission in the correct name
which is apparent from the purchase bill of Auto.
8.
Learned State Commission observed in its order that petitioner should have filed appeal
instead of revision and revision was also filed after 2 years of the impugned order. It is true that
petitioner should have filed appeal before the State Commission instead of revision, but on this
ground revision petition filed by the petitioner was not dismissed by learned State
Commission. It is also not true that revision petition was filed after 2 years of the District Forum
order. As order was passed by learned District forum without service, petitioner could not have
filed appeal/revision before State Commission within the prescribed period of limitation and in
such circumstances, delay of 265 days in filing revision petition before State Commission should
have been condoned by learned State Commission. We do not find delay of 2 years in filing
revision petition before State Commission as District Forum’s order was passed on 18.12.2010
and revision petition was filed in December, 2011.
9.
In view of the above discussion, impugned order is liable to set aside and matter is to be
remanded back to District forum.
10. Consequently, revision petition filed by the petitioner is allowed and impugned order dated
17.08.2012 passed by the State Commission in Appeal No. 23/2011 – Kapildeo Singh Vs.
Sukrya Devi & Anr. and order of District Forum dated 18.12.2010 passed in Complaint Case No.
248/08 – Sukriya Devi Vs. Sri Kapil Deo Singh Automobiles Pvt. Ltd. is set aside and matter is
remanded back to District Forum to decide the complaint on merits after taking written statement
of OP No. 1/Petitioner on record as per law.
7. Parties are directed to appear before the District Forum on 3.4.2014 and petitioner shall
file written statement on that day.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2925 OF 2008
(From the order dated 23.04.2008 in First Appeal No.
State Consumer Disputes Redressal Commission, U.T. Chandigarh)
68
of
2008
of
the
National Insurance Co. Ltd. Divisional Office-III, SCO No. 813, Chandigarh Kalka Road, NAC
Manimajra U.T. Chandigarh
…Petitioner/Opp. Party (OP)
Versus
Jagan Nath S/o Sh. Sohan Lal, R/o Badshahpur, District Patiala, Old Ropar Road, Manimajra,
U.T. Chandigarh
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Ms. Nanita Sharma, Advocate
For the Respondent
:
Mr. Sukaam Gupta, Advocate
PRONOUNCED ON 24th February, 2014
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 23.04.2008
passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (in short, ‘the
State Commission’) in Appeal No. 68 of 2008 – Jagan Nath Vs. National Insurance Co. 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’s car PB-11-B-5337 was insured
by OP/petitioner for a period of one year from 26.10.1998 to 25.10.1999. Car wasstolen on
18.3.1999 and FIR was registered. Intimation was given to the Insurance Company. Claim was
submitted to the OP, but OP vide letter dated 16.8.2002 apprised that cover note has not been
issued by the Company. Alleging deficiency on the part of OP, complainant filed complaint
before District Forum. OP resisted complaint and submitted that no theft was committed and it
was a concocted story and further submitted that no intimation was given to OP regarding theft
of vehicle. Learned District Forum after hearing both the partiesdismissed complaint. Appeal
filed by the complainant was allowed by learned State Commission vide impugned order and
directed OP to pay a sum of Rs.90,000/- along with 12% p.a. interest and further awarded cost of
Rs.20,000/- 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 considered
documents which were not filed before District Forum; 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 Ld. State Commission is in accordance with law; hence, revision petition be
dismissed.
5.
Perusal of order of District forum reveals that complainant did not file necessary
documents in support of his complaint in the District forum and has filed about 21 documents
before the State Commission along with application for taking documents on record.
6.
Learned Counsel for the petitioner submitted that application for taking documents on
record was not decided by learned State Commission and documents were not taken on record;
even though, learned State Commission decided appeal after considering documents filed along
with application. Learned Counsel for the respondent does not dispute this factual aspect. As
learned State Commission considered documents not forming part of record of Fora below and
without allowing application and taking documents on record, impugned order is liable to set
aside. Learned State Commission could have considered only those documents which were
either filed before District Forum or taken on record by State Commission after allowing
application for taking additional documents on record. In such circumstances, impugned order
is liable to set aside and matter is to be remanded back to learned State Commission to first
decide application for taking documents on record and then to decide appeal on merits.
7.
Consequently, revision petition filed by the petitioner is allowed and impugned order dated
23.4.2008 passed by learned State Commission in Appeal No. 68 of 2008 – Jagan Nath Vs.
National Insurance Co. Ltd. is set aside and matter is remanded back to learned State
Commission to first decide the application for taking additional documents on record and then
decide appeal after giving an opportunity of being heard to both the parties.
8.
Parties are directed to appear before the learned State Commission on 2.4.2014.
………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
REVISION PETITION NO. 2968 OF 2011
(Against order dated 07.06.2011 in First Appeal No.2895 of 2006 of the State
Consumer Disputes Redressal Commission, Haryana, Panchkula)
M/s Lakshya Garments, Through its Proprietor, Sh. Shakti Swaroop Village Kala Amb.
P.O.Hamid Pur, District Ambala, Tehsil Naraingarh Haryana
….. Petitioner
Versus
National Insurance Company Limited, Regional Office SCO-337-340, Sector-35-B, Chandigarh
….. Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B.GUPTA, PRESIDIENG MEMBER.
HON’BLE MRS. REKHA GUPTA MEMBER.
For the Petitioner : Mr. Salil Paul, Advocate
For the Respondent : Ms. Neerja Sachdeva, Advocate
Pronounced on : 26th February,2014
PER MR.JUSTICE V.B.GUPTA,PRESIDING MEMBER
ORDER
Petitioner/Complainant being aggrieved by order dated 07.06.2011 passed by State
Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State Commission’)
(in First Appeal No.2186 of 2006) has filed the present revision petition under Section 21(b) of
the Consumer Protection Act,1986(for short, ‘Act’).
2. Facts of this case are that petitioner got insured his garments shop with the
Respondent/Opposite Party for Rs.5,00,000/- for the period w.e.f.3.11.2003 to 2.11.2004. It is
alleged that during the intervening night of 30/31.10.2004, some unknown person housetrespassed into the shop by breaking open the lock of the shop and stole garments worth
Rs.3,50,000/-.DDR No.9 dated 30.10.2004 was recorded at Police Post Kala Amb. On being
informed, respondent deputed surveyor who investigated the matter and reported that it was
a false claim. However, as per the stock statement collected from UCO Bank, the surveyor
considered the claim equivalent to Rs.46,842/- by all means and considered the same to be
reasonable and justified value of stock held in the insured in the absence of proper books of
account. The respondent closed the claim of the petitioner as ‘No Claim’ for want of sufficient
proof. 3. Dissatisfied with action of the respondent, a consumer complaint was filed by the
petitioner praying for the following reliefs;
“(i) To pay Rs.3,50,000/- on account of loss of goods by way of theft, which were
insured with the respondent, along with interest @ 18% P.A.
(ii) To
pay
compensation
of
Rs.50,000/of mental agony, harassment and other expenses etc.
on
account
(iii) To pay Rs.2,500/- on account of cost of
forced proceedings.”
4. District Consumer Disputes Redressal Forum, Ambala(for short, ‘District Forum’) vide order
dated 18.10.2006, allowed the complaint by granting the following relief;
“(i) pay Rs.3,50,000/- towards the loss suffered by the complainant as a result
of theft of his goods etc. along with interest @ 10% P.A. from the
repudiation of the claim till realization.
(ii)
5.
To pay Rs.500/-as cost of proceeding”.
Aggrieved by the order of District Forum, respondent filed an appeal before the State
Commission, which accepted the same and dismissed the complaint of the petitioner.
6.
Now, petitioner has filed this revision petition. In response to this petition, respondent has
filed its counter affidavit.
7. We have heard the learned counsel for the parties and gone through the record.
8. It has been contended by learned counsel for the petitioner that State Commission has
completely ignored the documents duly proved on record with regard to the stock
statement furnished to the bank. Moreover, petitioner has furnished various bills in respect of
purchases made by him and stock thereof which was lying in the shop at the time of incident.
Moreover, the surveyor though had filed his report but he did not appear in the witness box, as
such no reliance can be put on his report. In support, learned counsel for petitioner has relied
upon the following judgments;
(i) Banaras Breads Ltd.& Ors.Vs. New India Assurance Co. Ltd. and Ors.
II(2005)CPJ 111 (NC) and
(ii) New India Assurance Co.Ltd. Vs.Kohinoor Sizing Factory
II(2006)CPJ 237(NC).
9. On the other hand, it has been contended by learned counsel for the respondent that petitioner
did not prove that he was an Income Tax payee. Moreover, petitioner did not maintain the
account books with respect to the stock in the insured shop. All the photo copies of the bills
submitted by the petitioner to the surveyor were referred to the concerned firms on the addresses
given on those bills for confirmation, but same were returned with the reports that these firms
were not in existence in the area. Thus, it stand established from the record that petitioner had
produced bogus bills for getting false claim. In these circumstances, State Commission rightly
rejected the claim of the petitioner.
10. Case of petitioner is that goods were hypothecated with the UCO Bank and official of Bank
have been making periodic visit to his shop for the purpose of inspection of the stock and the
stock statement was being signed by Sh. Vijay Singh, Field Officer of UCO Bank. In this regard,
petitioner has placed on record copies of the stock statements(Page No. 60 to 65 of the Paperbook).
11. After perusal of these stock statements, we find that these have been signed by the Owner,
i.e. Petitioner alone. There are no signatures on these statements of any official of the UCO
Bank. The relevant stock statement is dated 30.09.2004. Even this stock statement does not bear
signatures, either of Mr. Satpal Singh or that of Mr. Vijay Singh, Field Officer of the UCO Bank.
These statements nowhere state that the stocks were checked by the Field Officer on 30.09.2004.
The best person to depose about inspection of the stocks of the petitioner’s shop was Mr. Vijay
Singh, Field Officer of the UCO Bank. No affidavit of said Field Officer has been filed nor was
he examined as a witness by the petitioner before the District Forum. Under these circumstances,
no reliance can be put on all unsigned stock statements.
12. Be that as it may, the case of petitioner is that he had furnished copies of the bills with
regard to the items purchased from various firms to the Surveyor. Interestingly, not even a
single person from whom the alleged purchases were made by the petitioner, has been examined
by the petitioner.
13. On the other hand, as per survey report submitted by the Surveyor appointed by the
respondent, the Surveyor had sent Registered letters to various persons from whom the petitioner
has allegedly made purchases. However, all those letters were returned back with remarks of the
Postal authorities namely “NO SUCH FIRM IN THE AREA. NO SUCH NO. IN PAN
MANDI, RETURNED TO SENDER ETC.”.
14. Hence, there is nothing on record to show that goods worth Rs.3,50,000/-were ever stolen
from the shop of the petitioner.
15. State Commission in its impugned order observed as under;
“The perusal of the report of surveyor produced on record support the version
of the opposite party. It is established that the complainant was not an Incometax payee and for that reason its claim could be settled in view of the record
collected from UCO Bank from where the complainant had obtained loan for
his shop. The complainant also did not maintain the account books with respect
to the stock in the insured shop. The photo copies of the bills were submitted by
the complainant to the Surveyor were referred to the concerned firms on the
addresses given on those bills for confirmation but the same were returned with
the reports that those firms were not in existence in the area. Thus, from the
evidence available on record, it is proved that the complainant produced bogus
bills for getting false claim. District Consumer Forum has failed to appreciate
all these facts and committed error by holding the Insurance Company to pay
compensation and as such the impugned order cannot be allowed to sustain.
For the reasons recorded above, this appeal is accepted, the impugned order
is set aside and the complaint is dismissed”.
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 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.
17. None of the judgments cited by learned counsel for the petitioner are applicable to the facts
and circumstances of the present case.
18. Thus, we do not find any reason to disagree with the findings given by the State Commission.
Moreover, there is no infirmity or illegality in the impugned order passed by the State
Commission. Hence, the present revision petition stands dismissed.
19. No order as to cost.
…………………………J
(V.B. GUPTA)
PRESIDING MEMBR
…………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.2143 OF 2013
(From the order dated 30.11.2012 in First Appeal No.393 of 2010 of the
Gujarat State Consumer Disputes Redressal Commission Ahmedabad)
WITH INTERIM APPLICATION NO.4639 OF 2013
(CONDONATION OF DELAY)
Oriental Insurance Co. Ltd. A-25/27, Asaf Ali Road New Delhi Rep By : The Divisional
Manager The Oriental Insurance Co. Ltd. Divisional Office No.3 Rao Pura, Vadodara
Versus
1. Jagrut Nagrik Through Shri P.V. Murjani, Trustee & Secretary Amin Building, 3rd Floor,
Gandi Gate Road, Vadodara - 390017
2. Arvind Julal Patil E/2, Saraswati Nagar, New Ram Wadi Bh. Roses Guardian, Navayard
Vadodara
3. Medical Supdt. Hospital Authority Managing Director M/s Sheth M.L.Vaduwal Eye Hospital,
Vadodara Marg Salawada, Vadodara - 390001
..... Respondents
REVISION PETITION NO.2144 to 2161 OF 2013
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner:
Mr. Rahul Sharma, Advocate Alongwith Ms. Uzma Ashraf, Advocate
For the Respondents 1&2 : Mr.P.V. Moorjani (Secretary of R-1) on behalf of R-1 & 2
For the Respondent-3: Ms.Sonam Anand, Advocate Alongwtih Mr. Nimit Mathur, Advocate
Dated : 26th February, 2014
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
By this order we propose to dispose of the above noted revision petitions involving
similar question of law and fact. The revision petitions are directed against the impugned order
of State Consumer Disputes Redressal Commission Gujarat Ahmedabad dated 30.11.2012 vide
which the State Commission dismissed the appeals preferred by the petitioner insurance
company against the similar orders of the District Forum.
2.
The petitioner insurance company being aggrieved of the orders of the District Forum in
respective complaints preferred appeals claiming that the District Forum has committed an error
in holding the insurance company jointly and severally liable to pay compensation to the
respective complainants ignoring the fact that there was no privity of contract between the
petitioner and the complainants or the first opposite party, namely, Sheth M.L.Vaduwal Eye
Hospital, Vinobha Bhave Marg, Vadodara. The State Commission, however, dismissed the
appeals vide common order dated 30.11.2012 which is impugned in the above revision petitions.
3.
Briefly put, the fact relevant for the disposal of the above revision petitions are that
opposite party no.1, namely, M/s Sheth M.L. Vaduwal Eye Hospital held an eye camp wherein
the complainants, who had registered themselves on payment of registration fee of Rs.250/-,
were operated upon for cataract of eye. According to the complainants, the doctors and the
surgery team of the above noted hospital were negligent while conducting surgery inasmuch as
they used non sterilized surgery appliances, contaminated medicines and inferior quality
lenses. Consequently, the above noted complainants developed infection of eye and suffered
loss
of
vision. The
complainants,
therefore alongwith consumer
organization Jagrut Nagrik Trust filed separate consumer complaints seeking compensation from
the hospital and the petitioner insurance company. Allegations against the insurance company
were that they had issued Professional Indemnity Dr. (IMA) Insurance Policies in the name
of Dr.Shah Anisha, Dr.Vadhani Rajshree, Dr. PalaSajida Ismail, Dr. Thakkar Bhadresh, Dr.Jiruw
ala Fakhri, Dr. Chokshi Neelam Chirayu.
4.
Both the opposite parties contested the complaints and denied the allegations of medical
negligence. The petitioner insurance company however denied its liability to pay compensation
to the respondents complainants on the ground that it had no privity of contract either with the
complainants or with the hospital. It was pleaded that the Professional Indemnity Dr. (IMA)
Insurance Policies were issued in the name of individual doctors against whom no specific
allegations of medical negligence were made nor any compensation was claimed from
them. They were not even arrayed as opposite parties in the complaint.
5.
Learned District Forum on consideration of the pleadings and evidence adduced by the
parties allowed the respective complaints with the following directions.
“The complaint is partly allowed. The opponents are directed to pay
Rs.1,70,000/- (Rupees One Lac Seventy Thousand only) as compensation with 9%
interest from the date of operation till realization. The opponent no.1 is directed
to refund the amount of Rs.250/- (Rupees Two Hundred Fifty only). The
opponents are further directed to pay Rs.3000/- (Rupees Three Thousand only)
for mental agony and inconvenience and another sum of Rs.1500/- (Rupees One
Thousand Five Hundred only) as the cost of this proceedings. The liability of
both the opponent is joint and several but the award is enforced against the
opponent no.2 i.e. the insurer. The award be complied with within one month
from the hereof after the receipt of the copy.”
6.
Shri Rahul Sharma, Advocate, learned counsel for the petitioner has contended that the
impugned order is not sustainable for the reason that it is based upon incorrect appreciation of
law and facts. He has contended that the foras below have failed to appreciate that the petitioner
had insured specific doctors against claims for medical negligence and it had no privity of
contract with the complainants or the above noted hospital. Doctors who were insured under the
policies were neither the party to the complaint nor there was any specific allegation of medical
negligence on their part. Moreover, the foras below have not returned any finding of medical
negligence on the part of those doctors. It is argued that under these circumstances, there is no
justification for holding the petitioner jointly and severally liable for the payment of awarded
amount. In the alternative, it is contended that even if it is assumed that petitioner is liable to
indemnify the hospital for the claim under the insurance contract, petitioner’s obligation to
indemnify is to the extent of Rs.2,00,000/- under each policy in respect of any one case of
medical negligence within any one year. Learned counsel has contended that unless there is a
specific finding of medical negligence, the petitioner cannot be asked to indemnify hospital for
medical negligence caused by its staff.
7.
Shri P.V. Moorjani, Authorised Representative of the complainants on the contrary has
argued in support of the impugned order. He contended that insurance policies in the name of
above named doctors were obtained by opposite party no.1 hospital which makes it clear that
those doctors were working for said hospital. Therefore, it can be safely assumed that they were
negligent in the cataract surgery of the complainants and as such, the petitioner being insurer has
been rightly held to be jointly and severally liable to compensate the respondents complainants.
8.
We have considered the rival contentions and perused the record. On perusal of the
impugned orders of the fora below and the evidence on record, we find that the liability of the
petitioner insurer to pay the awarded amount jointly and severally alongwith opposite party
hospital has been fixed by the fora below in view of six Professional Indemnity Dr. (IMA)
Insurance
Policies
in
the
name
of Dr.Shah Anisha,Dr.Vadhani Rajshree, Dr. Pala Sajida Ismail, Dr. Thakkar Bhadresh, Dr.Jiruw
ala Fakhri, Dr. Chokshi Neelam Chirayu, whose business address is shown to be Vaduwala Eye
Hospital. This fact by itself cannot lead to the conclusion that those doctors or anyone of them
were involved in the cataract surgery resulting in the loss of eye sight of the respective
complainants. In order to fix the liability of the petitioner insurer, complainants were required
to prove that the above noted insured doctors participated in the cataract surgery of the
complainants and they were guilty of medical negligence. On perusal of the record, we find that
neither there is any specific allegation of medical negligence on the part of the above noted
doctors or anyone of them nor those doctors were arrayed as opposite parties in the
complaint. No relief was claimed against the doctors. Complainants have even failed to lead
any evidence which may suggest that the above noted doctors or anyone of them was associated
with the subject cataract surgeries. The fora below have held the petitioner jointly and severally
liable to pay compensation without returning finding of medical negligence against anyone of the
above noted doctors who were insured vide Professional Indemnity Dr.(IMA) Insurance
Policies. In absence of any allegation or finding of medical negligence on the part of anyone of
the insured doctor, the fora below have committed a grave error to hold the petitioner jointly and
severally liable alongwith the respondent hospital to pay compensation for medical negligence
awarded to the victim complainants on the basis of said six insurance policies, which are in
respect of medical negligence claims against the doctors and not the opposite party hospital.
9.
In view of the discussion above, it is evident that impugned orders of the foras below
against the petitioner are based upon misreading of the insurance contract. The impugned orders,
therefore, cannot be sustained. Accordingly, we set aside the impugned orders of the fora below
qua the petitioner insurance company. It is made clear that the impugned order shall remain
operative against opposite party no.1, namely, Medical Supdt./Hospital Authority, Managing
Director M/s Sheth M.L.Vaduwal Eye Hospital, Vinobha Bhave Marg, Salawada, Vadodara –
390001.
10.
Revision petitions are disposed of accordingly.
…………………..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………….……………
(SURESH CHANDRA)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2121 OF 2012
(From the order dated 19.04.2012 in First Appeal No. 609/2012 of Karnataka State
Consumer Disputes Redressal Commission)
1. Mithuna Developers & Builders Pvt. Ltd. opposite to SBM, Shettihalli Main Road, Tumkur –
572102 by its Managing Director D.N. Narasinga Rao
2. D.V. Srinivas s/o Venkatappa, Director, Mithun Developers & Builders Pvt. Ltd. opposite to
SBM, Shettihalli Main Road, Tumkur – 572102
3. T.V. Srinivas s/o Late Venkatappa, Director, Mithun Developers & Builders Pvt. Ltd. opposite
to SBM, Shettihalli Main Road, Tumkur – 572102
... Petitioners
Versus
Ramanand T.V. s/o G. Venkatesh, I cross, III Block, 4th Main Road, Kuvempu Nagar, Tumkur –
572102.
… 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. B.S. Sharma, Advocate proxy
For Mr. V.N. Raghupathy, Advocate
For the Respondent
Mr. Sabarish Subramanian, Advocate
PRONOUNCED ON : 26th FEBRUARY 2014
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 19.04.2012, passed by the Karnataka State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 609/2012,
“Mithuna Developers & Builders Pvt. Ltd. & ors. versus Ramanand TV,” vide which the order
dated 13.03.2012, passed by the District Consumer Disputes Redressal Forum, Tumkur in CC
No. 157/2011, partly allowing the said complaint, was upheld.
2.
Brief
facts
of
the
case
as
stated
in
the complaint filed
by
the
present
respondent/complainant before the District Forum are that in pursuance of an advertisement,
published in the newspapers by the petitioner/OP, offering sites being developed by them, the
complainant paid an amount of ` 7 lakh to the OPs for allotment of 7 sites in Mithuna
Bhadavane. Out of these, a sum of ` 2 lakh was given through cheque, bearing no. 452234 dated
12.03.2008
and
` 5 lakh was given in cash. As per the complainant, the OPs agreed to get registered 7 sites,
sites no. 9 to 15, in favour of the complainant. However, they failed to do the same, despite
several requests from the complainant. He sent a legal notice to them on 28.10.2011, in
response to which the OPs replied on 21.11.2011, that out of total amount of ` 7 lakh received by
them, they had repaid ` 3 lakh back to the complainant. The complainant then filed the consumer
complaint in question before the District Forum. In their reply before the District Forum the
OP’s admitted the version of the complainant that they had received a sum of ` 7 lakhs from him,
out of which ` 2 lakh was received in cheque, ` 5 lakh in cash and had agreed to get registered 7
sites, site no. 9 to 15 in his favour. However, they stated that the complainant was not a
consumer as defined in the Consumer Protection Act, 1986 and this matter should have been
agitated in the Civil Court only. They also stated that the complainant had taken back a sum of `
3 lakh on 1.10.2008 from the OPs vide cheque no. 521640, drawn on State Bank of Mysore,
Tumkur, and hence the complainant was entitled to get 4 sites, and not 7 sites. They further
stated that the land in question was the subject matter of litigation but they were willing to get
registered 4 sites in favour of the complainant after the said dispute was settled. The OPs also
stated in their reply that they had been paying interest to the complainant on the balance amount
of ` 4 lakh although they did not spell out the rate of interest. The District Forum after taking
into account the evidence of the parties, partly allowed the complaint with cost of ` 5,000/- and
directed that site number 9 to 15 should be registered in their favour, or in the alternative a sum
of ` 7 lakh should be returned to the complainant alongwith a compensation of ` 1 lakh per site
towards damages with future interest @ 9 % p.a. from the date of complaint till realisation. The
operative part of the order reads as under:“The complaint filed by the complainant is hereby allowed in part
with costs of Rs.5,000/-
The OPs are directed to register the site Nos. 9 to 15 in Mithuna
Bhadavane formed by them in favour of the complainant or in
alternative they shall refund a sum of Rs.7,00,000/- (Seven Lakh
Rupees only) to the complainant together with Rs.1,00,000/- each per
site i.e., totally Rs.7,00,000/- to the complainant towards damages
(i.e. in total Rs.14,00,000/-) with future interest at the rate of 9% p.a.
from the date of complaint till realisation.
Order shall be complied within a period of 90 days.”
3.
An appeal was made against the order of the District Forum before the State Commission,
but it was dismissed at the stage of admission. The State Commission observed in their order as
follows:“7.
Of course, it is a well settled law that, while awarding
interest, the DF or the State Commission either to grant interest at
the rate of 18% p.a or damages by way of compensation. But in the
instant case, the DF awarded damages at the rate of Rs 1 lakh for
each site and future interest at the rate of 9% p.a. If the DF awarded
interest at the rate of 18% p.a from the date of deposit then, the order
under challenge in awarding a compensation of Rs. 1 lakh for each
site that is in all Rs. 7 lakhs would become improper. Therefore,
considering the facts and circumstances of the case, the DF perhaps
keeping in mind the decision rendered by the Hon’ble National
Commission and the Apex Court and also this Commission, thought
it fit to award damages at the rate of Rs. 1 lakh and future interest at
the rate of 9% p.a only. If it is calculated, the same is more
beneficial
to
the
appellants/OPs
than to
the
respondent/complainant. Accordingly, we don’t notice any primafacie case to admit this appeal. Hence, appeal is liable to be
dismissed.”
4.
The State Commission thus, observed that the District Forum should have either granted
interest @18% p.a. or damages by way of compensation, but still they upheld the order of the
District Forum, allowing the compensation of ` 1 lakh per site and future interest @9% p.a.
5.
At the time of arguments before us, learned counsel for the petitioner stated that in their
written statement, they had taken the main plea that the complainant in question was not a
‘consumer’ as he had deposited money for buying 7 sites in one go. They had also taken the plea
that a sum of `3 lakh had been returned to the complainant through cheque. However, neither the
District Forum nor the State Commission gave any finding to this effect and just decided the case
in favour of the complainant. He also stated that the State Commission themselves have
observed that it was not fair to award compensation as well as interest, but still they upheld the
order of the District Forum. The complainant was not entitled to get double benefit. On the
other hand, learned counsel for the respondent stated that the petitioner/OP have failed to get the
site registered in his name, although he had paid his hard-earned money to them. He further
stated that it was not a commercial transaction, and hence he was covered under the definition of
‘consumer’.
6.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The facts of the case on record are very clear that the
petitioner/OP have taken the main plea in their written statement as well as the arguments that
the complainant is not a ‘consumer’ as he had planned to buy 7 sites in one go, and hence it was
a commercial transaction. It cannot be stated that the said transaction was made for the purpose
of earning his livelihood only. The petitioners have also taken the plea that out of a sum of ` 7
lakh, ` 3 lakh had already been returned to the complainant through cheque. It was the duty of
the District Forum and State Commission to call for the relevant record and verify the facts as
stated above, before coming to a conclusion. Further, it is obvious from the orders passed by the
District Forum that they have awarded a compensation for damages, ` 1 lakh per site to the
complainant as well as given him interest @9% p.a. on the said amount. The State Commission
observed that it was improper to give him the benefit of compensation as well as
interest. However, they also observed that the complainant should have been given interest
@18% as compensation. It is not understood, therefore, as to how the State Commission upheld
the order of the District Forum allowing both the compensation and interest @9% p.a. It is made
out, therefore, that the State Commission has not carried out a correct analysis of the facts and
circumstances on record and hence, the order passed by them is perverse in the eyes of
law. There is, therefore, no alternative, but to set aside the impugned order, and we order
accordingly. The revision petition is allowed, the order passed by the State Commission is set
aside and the matter is remitted back to the State Commission with the direction that they should
hear the parties again and then take a fresh decision based on the facts and circumstances of the
case. Parties are directed to appear before the State Commission on 22.05.2014.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1232 OF 2011
(From the order dated 06.01.2011 in First Appeal No. 602/2006 of Rajasthan State
Consumer Disputes Redressal Commission)
Nagar Palika, Nathdwara, through its Commissioner/Chairman, Nagar Palika Board, Nathdwara,
District Rajsamand (Rajasthan)
... Petitioner
Versus
1.
Vikram s/o Sh. Kishan Pal Paliwal
2.
Kishan Lal s/o Shri Kanju Lal Paliwal both r/o Dhora Mohalla, Pipli Chabutra, Kankroli,
District Rajsamand (Rajasthan)
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENT
For the Petitioner
Mr. Davendra Mohan Mathur, Advocate
For the Respondents
Mr. Manoj Kumar, Advocate
PRONOUNCED ON : 26TH FEBRUARY 2014
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 06.01.2011, passed by the Rajasthan State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 602/2006, “Nagar
Palika, Nathdwara versus Vikram & Anr.” vide which while dismissing the appeal, the order
dated 16.12.2005 allowing the consumer complaint no. 149/2005 filed by the present respondent,
was upheld.
2.
Brief facts of the case as stated by the complainant are that the mother of respondent no. 1
Vikram and respondent no. 2 Kishan Lal, got allotted two plots of land measuring 18 ft. X 37
ft., total 666 sq. ft. from the petitioner Nagar Palika, Nathdwara and deposited the necessary
amount of `425/- vide receipts no. 141 and 143 dated 16.02.1983. The site maps for carrying
out construction on the said plots were also sanctioned by the petitioner on 01.07.1983 on
deposit of the necessary fees. However, the actual possession of the plots could not be handed
over to the allottees as some other persons were found to be having possession on the spot. An
assurance was given to the allottees that some other plots will be allotted to them, but it was not
done. The complainants filed an application before the Permanent Lok Adalat whereupon the
Chairman of the Board was authorised to allot the plot to the complainants. However, no plot
was allotted to them. They filed the complaint in question, asking for the allotment of the plot
and also suitable compensation of `90,000/-. The District Forum vide their order dated
16.12.2005 allowed the complaint and directed that the possession of the allotted plots measuring
18 X 37 ft., total area 666 sq. ft., should be handed over to them within two months of passing
the order. In case, it was not possible to allot the plots then plots may be allotted at any other
place. An appeal filed by the petitioner Nagar Palika before the State Commission was
dismissed by the State Commission by the impugned order. It is against this order that the
present petition has been made.
3.
On the other hand, the case of the petitioner, as stated in the reply to the consumer
complaint says that the physical and actual possession was handed over to the
complainants/respondents by the petitioner and permission for construction was also
granted. Such permission is granted only when the possession has already been
given. However, due to non-construction on the plots in question, the possession was taken over
by some other persons. In fact, the complainants did not take any action for 22 years after the
allotment of plots. They had filed the consumer complaint only to put pressure on the petitioner
for allotment of another plot.
4.
At the time of hearing before us, the learned counsel for the petitioner stated that the
impugned order had been passed without going through the entire submissions made by the
petitioner in the appeal filed before them. The orders passed by the State Commission and the
District Forum were contrary to law and facts. It has been stated in the complaint that a plot was
allotted in the name of the mother but the mother has not been made a party in the proceedings
before the Consumer Fora and hence the impugned order were perverse in the eyes of
law. Learned counsel reiterated that the possession of the plot in question had been handed over
to the allottees just after the allotment and sanction for construction had also been given, but due
to total inactivity on their part for 22 years, some other persons had taken possession of the land.
The learned counsel for the respondents, however, stated that the impugned order has been
passed in accordance with law and should be sustained.
5.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. A perusal of the order passed by the State Commission
indicates that the State Commission has dealt with the position of non-production of evidence by
the petitioner before the District Forum and held that the petitioners could not satisfy them as to
why proper representation was not made before the District Forum. However, it is made out that
the State Commission have not touched upon the other issues raised in the memo of appeal
before them. A copy of memo of appeal no. 602/2006 filed by the present petitioner Nagar
Palika, Nathddwara, has been placed on record. A few extracts from the grounds of appeal reads
as follows:-
6.
“3.
That the respondents themselves filed the complaint whereas
they themselves have mentioned in the complaint that the
plots were allotted to their mother and mother of the
respondents is not a party to thecomplainant; and why she
has not been impleaded party has not been explained and no
ground has been taken to this effect. The respondents
have concealed true position regarding their mother and have
filed the baseless complaint.
4.
That it has nowhere been mentioned in the complaint as to in
what capacity the respondent no. 2 has filed it and what locus
standee he has come with. Even as per own submissions of
respondent no. 2, he has no relation of consumer with
appellant because, mother of respondent No. 2 got the plots
allotted in her own name, she herself deposited the amount of
surety with the appellant. The respondent no. 2 has nothing
to do with it. There is also no privity of contract between the
appellant and respondent no. 2. In such situation the
complaint itself has been filed erroneously; still the learned
Forum below without considering those facts has passed the
order impugned, which deserves to be quashed.
5.
That the Forum below first of all ought to have decided the
question of relation of consumer between appellant and
respondent no. 2, but it has not been done by Forum below
though the respondent no. 2 has also not claimed himself as
beneficiary…..”
It is quite obvious from the grounds taken in the memo of appeal and the entire record that
the main issues in the present case relate to the question, whether the complaint was not
maintainable in view of the fact that mother of respondent no. 1 was not made a party. Another
important issue to be determined is whether the contention of the petitioner that possession was
handed over to the allottees immediately after allotment is true or not? These issues and other
issues given in the memo of appeal should have been gone into in depth by the State
Commission and they should have given their clear-cut findings on all issues before pronouncing
their order. In the interest of justice, therefore, it is necessary that all the issues raised in the
appeal are touched upon and proper finding be given on each issue. In the absence of such
exercise being completed, there is likely to be a grave miscarriage of justice, which should be
avoided.
7.
In the light of the discussion above, we have no alternative but to set aside the impugned
order and to remand the case back to the State Commission with the direction that they should
hear both the parties and give their clear-cut findings on the issues involved, and we order
accordingly. The revision petition in question, is allowed and the order passed by the State
Commission is set aside. The parties are directed to appear before the State Commission on
29thMay 2014 for further proceedings.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2059 OF 2009
(Against the order dated 26.03.2009 in
Appeal
No.1499/2008
of
the
State
Commission, Maharashtra)
1.
Union of India Through the Secretary Ministry of Communication New Delhi
2.
Director General of Posts & Telegraphs, New Delhi
3.
Post Master General Maharashtra G.P.O. Mumbai – 400001
4. The Sr.Supdt. of Post Office O/o Superintendent of Post Office
West Division Dadar H.P.D. Building 6th Floor, Dr. B.A.Road Mumbai
5.
Post Master Mumbai Central Post Office Mumbai Central, Mumbai – 400008
6.
Post Master Mahim Post Office Mahim, Mumbai – 400016
Mumbai City
....... Petitioners
Versus
1. George Mathew A/3, Staff Quarters Catering College Veer Savarkar Marg Dadar (W),
Mumbai – 400028
2. The Regional Director National Savings Organization/Institute East & West Insurance Bldg.
55, Mumbai Samachar Marg, Mumbai – 400023
3. T.M.Dedhia
4. Mrs. Vasanti T.Dedhia Both residents of : 203/B, Sai Leela Building Nanashankar Seth X
Marg Vishnu Nagar, Dombivali (W)
5. Kusum P.Joshi Anand Niwas, 74, Shivaji Park Dr. M.B. Raut Road Dadar (W), Mumbai –
400028
6. Vanita T.Dedhia 203/B, Sai Leela Building Nanashankar Seth X Marg Vishnu Nagar,
Dombivali (W)
7. Shaligram S. Bhardwaj Flat No.11, Milan Society Linking Road Extension Santacruz (W),
Mumbai – 400054
…... Respondents
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner:
Mr. R.V.Sinha, Advocate
For the Respondent: Mr. Rajesh Kumar, Advocate for R-1 Mr. V.K.Malhotra, Advocate for R-2
Pronounced on : 26th February, 2014
ORDER
REKHA GUPTA
Revision Petition No. 2059 of 2009 has been filed against the order dpated 26.3.2009,
passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (short, “State
Commission”) in First Appeal No.1499 of 2008.
2.
The brief facts of the case as gleaned from the order of District Consumer Disputes
Redressal Forum, Central Mumbai (short, District Forum) are that Mr. T.M.Dedhia and his wife
Vasanti T.Dedhia – Opponent nos.9 and 10/Respondent nos.3 and 4 respectively were the
Authorized Agents of National Savings Scheme and Small Savings Scheme since more than 20
years. The Complainant/Respondent no.1 had made investments in various schemes of the Post
Office through the said Agents.
3.
In the month of March 1999, the respondent no.1 handed over to the said Authorized
Agents a crossed cheque No.91102 dated 31.3.1999 of Rs.1,00,000/- drawn on Corporation
Bank, Shivaji Park Branch issued in favour of the Post Master, Mahim Head Office for
investment in Post Office Monthly Income Scheme along with necessary filled-up forms.
4.
The respondent no.1 also handed over to the said Agents another crossed
cheque vide No.91109 dated 28.8.1999 of Rs.1,00,000/- drawn on the same Bank and issued in
favour of the Post Master, Mahim Head Office for submitting the same to the Mahim Post
Office. The agents told to the respondent no.1 that whenever the passbooks would ready, they
would be given to him. The respondent no.1 trusted the said Agents as he had dealt with them for
the past several years.
5.
The agents instead of depositing the said cheques in the Mahim Post Office together with
the forms signed by the respondent no.1 under the said Post Office Monthly Income Scheme,
deposited the said cheque No.91102 in the saving account of one Vasanti Dedhia and Kusum
P.Joshi, respondent nos.4 and 5 respectively and the amount was withdrawn immediately. The
Agent deposited the amount of cheque No.91109 dated 28.8.1999 in the saving account of
Mrs.Vanita T.Dedhia and Shri T.M.Dedhia, respondent nos.6 and 3 respectively. This amount
was also withdrawn immediately. The respondent no.1 was not aware of this fact.
6.
The respondent no.1 had also handed over two crossed Account Payee cheques of
Rs.50,000/- each vide cheque No.55322 and 55323 both dated 1.12.1999 issued in favour of Post
Master, Mumbai Central Post Office to the Agents i.e., respondent nos.3 and 4 for investing that
amount in the Post Office Monthly Income Scheme in Mumbai Central Post Office alongwith
filled up and signed necessary forms for submission to Mumbai Central Post Office. But the
Agents deposited the cheque No.55322 in the Saving Bank Account No.2654358 in Jt. Account
of opposite party no.13 (now dead) and opposite party no.14/respondent no.7 and the cheque
No.55323 was deposited in the Savings Account of Ms.Beena S.Bharadwaj and
Mrs.S.D.Bharadwaj and the amount was withdrawn immediately. It is the contention of the
respondent no.1 that none of these persons in whose accounts the cheques were deposited were
known to him and he was not aware of this fact. The respondent no.1 when he made enquiry
with the Agents about the Monthly Income Passbooks, the Agents told that he would give the
same to the respondent no.1 after they were issued by the Post Office. According to the
respondent no.1, respondent nos.3 and 4 have forged and fabricated the documents in collusion
with the said Post Masters and mis-appropriated the money while acting in the capacity of the
Agents. Respondent nos.3 and 4 were appointed by the respondent no.2 as Authorized Agents
for saving schemes. The petitioner nos.1 and 2 in collusion with their Agents diverted the
amount of crossed Account Payee cheques issued in favour of the Post Masters to another
account with the said Post Offices and thereby petitioners committed a fraud upon the respondent
no.1 in conspiracy with their agents and caused loss to the respondent no.1.
7.
On enquiry with the Post Master, Mahim Head Office by letter dated 2.9.2000, the
respondent no.1 came to know that in whose account the cheques were deposited and when the
same were withdrawn. Similarly, on his making enquiry by letter dated 9.9.2000 with the Post
Master, Mumbai Central H.O. about two cheques of Rs.50,000/- each, the respondent no.1 came
to know the names of the persons who had encashed these cheques. The respondent no.1,
therefore, sent letter to the Post Master, Mumbai Central H.O. who in turn sent reply to that
letter.
8.
The respondent no.1 by his letter dated 4.9.2000 addressed to the Regional Director,
National Savings – respondent no.2 requested him to restore his loss. The respondent no.1 sent
reminder dated 22.1.2001 to respondent no.2 requesting him to look into the matter. But the
respondent no.2 informed the respondent no.1 that any transaction of the respondent no.1 with
T.M.Dedhia was in his personal capacity only.
9.
The respondent no.1 sent notice dated 21.4.2001 through his Advocate to the other
petitioners and called them to pay respondent no.1 a sum of Rs.3,00,000/- being the total amount
of the respective cheques, failing which the respondent no.1 would be compelled to file a suit
and/or other proceedings against the petitioners. This notice was issued under Section 80 of the
Code of Civil Procedure, 1908. By letter dated 27.9.2001 addressed to respondent no.1’s
advocate, respondent no.2 falsely contended that the respondent no.1 had given money to Shri
T.M.Dedhia in his personal capacity and not in the capacity of National Savings Agent.
10.
The respondent no.1 prayed for amount of Rs.3,00,000/- along with interest @ 18% p.a.
The respondent no.1 asked for Rs.15,000/- towards mental agony and Rs.15,000/- towards the
cost of the complaint.
11.
The petitioner nos.1 to 5 and 8 resisted the claim by filing written statement and denied all
the allegations made by the respondent no.1. According to the petitioners, the complaint is time
barred, more causes of action have been clubbed together. An appropriate Forum for the
respondent no.1 would have been a Criminal Court as well as Civil Court as he is victim of some
ones conspiracy, mischief.
12.
According to these respondents, the cheques in question were drawn in favour of Post
Master, Mahim H.O. and Sr. Post Master, Mumbai Central H.O. by the respondent no.1 but the
accounts in which the sum was to be deposited had not mentioned on the cheques. Therefore,
possibilities that the respondent no.3 as SAS agent might have deceived the respondent no.1 by
depositing the cheques in his Saving Bank Account and withdrawn the amount
subsequently. Therefore, Department was not responsible.
13.
These respondents further stated that in terms of their records as maintained by their
Mumbai Central H.O. no such forms i.e. forms for opening a MIS Account were ever presented
at the Post Office along with cheque No.55322 of Rs.50,000/-. The said cheque was presented
for depositing in Saving Bank Account No.2654358 standing in the joint name of Ms. Beena
Bhardwaj and respondent no.7 on 3.12.1999 with Pay-in-Slip (duly signed by the petitioner) for
that purpose. The cheque No.55323 was deposited in Saving Bank Account No.2654359
standing in the joint name of Ms. Beena Bhardwaj and respondent no.7 along with Pay-in-Slip
(unsigned by presenter). So, the respondent no.1 had handed over to his Agent requisite
forms/slip filled in properly is not believable. The postal services cannot be held liable for the
carelessness and negligence of the respondent no.1 who kept silent for a long time without
insisting the Agent for the MIS passbooks.
14.
The petitioners admit that respondent no.3 was appointed by respondent no.2 as SAS
Agent of the application vide No.7 (g) SAS/19-80/28679 dated 14.2.2011. His agency was
terminated on 16.11.2000. Similarly, respondent no.4 was appointed by respondent no.2 as SAS
Agent vide No.7 (a) MPKBY/82/4778 dated 22.7.1985 and her agency was terminated by
respondent
no.2
on
16.11.2000.
There
was
nothing
suspicious
at
the
time
of
transaction. Therefore, the postal staff had not acted in collusion with the Agents to defraud the
respondent no.1. On investigation and noticing that the respondent no.1 was cheated by the
agent Shri Dedhia, a police complaint was lodged on 9.12.2000 at Mahim Police Station,
Mumbai.
15.
These petitioners submitted that after receipt of notice of this case through the Forum, they
contacted the Bank Authorities and obtained Xerox copies of said cheques. The cheques clearly
show that while depositing the said cheques, the respondent no.1 did not mention that the
cheques are meant for opening a new account under MIS or account in which said cheques to be
credit.
16.
The petitioners further stated that the respondent no.1 has not tendered the cheques himself
on the counter or to the concerned Post Masters on the dates he claimed to have done nor given
any instructions to the concerned Sr.Post Masters. Therefore, postal service is not liable to pay
any compensation or cost to the respondent no.1. On the above various grounds, the petitioners
prays for dismissal of the complaint.
17.
The Regional Director of National Savings Organization i.e. respondent no.2 resisted the
claim by filing its written statement. It is submitted by the respondent no.2 that the National
Savings Organization is working under the administrative control of the Ministry of Finance,
Department of Revenue, Govt. of India through its network spread over the length and breadth of
the nation, entrusted with organizing and administering various saving schemes. According to
the petitioners, the complaint is time barred. These are similar contentions of respondent no.2 as
of petitioner nos.1, 5 and 8 regarding the complaint is time barred, clubbing of many causes of
action and the respondent no.1 is not a consumer.
18.
According to the petitioners, the respondent no.1 could not show any material on record to
fasten the NSO except a bare statement that Mr. and Mrs.Dedhia i.e. respondent nos.3 and 4 are
NSO’s agents. The transaction was entered into by the Agents in their private/personal
capacities. Hence, the complaint be dismissed.
19.
According to the petitioners, the District Forum has no jurisdiction to entertain the
complaint filed by complainant/respondent no.1. Respondent no.2 states that there are about
10833 National Savings Agents working under the Standardized Agency Systems of
Government of India, Ministry of Finance in the Mumbai Region. As per this scheme against
prescribed receipt and as per their authorization agents are authorized to collect cash/cheques
from the investors for depositing in various schemes of National Savings available at Post
Offices. Every agent has an authority letter containing his photograph and signature besides date
of validity of agency. The authority letter contains instructions saying that agents have to issue
the receipt to investors and after depositing money at Post Office, returns passbook/Saving
Certificate to the investor and obtain signature of investor on the said receipt in token of having
received the passbook/certificates as per rules. For this work, agents are paid commission at the
prescribed rates. In the present case, neither respondent no.3 nor 4 have acted in the capacity of
agent(s) of the NSO nor the respondent no.1 has treated them as their authorized agents in as
much as no prescribed receipts seem to have been issued by respondent nos.3 and 4 to the
respondent no.1 nor the same was taken by the respondent no.1 in the capacity of their investor
to claim the protection available to an investor. It shows that the total transactions mentioned in
the complaint were made in absolute private individuals capacity of the parties inter se the agents
and the respondent no.1. The respondent no.1 ropes the Governmental Agent Appointing
Authority which cannot be allowed when he himself behaves foolishly and negligently.
20.
The petitioners stated that when the respondent no.1 was advised by respondent no.2 to
produce certain receipts to evident the transaction to be bonafide, he failed and the presumption
created by the NSO’s letter dated 14.8.2001 works as estoppels against him as far as NSO is
concerned. The respondent no.1 did not rest on this letter of petitioner and sent legal notice and
the same was replied to by respondent no.2.
21.
Respondent no.7 resisted the claim by filing written statement. Respondent no.7 stated
that respondent nos.3 and 4 also cheated him in the similar manner as that of the petitioner and
grabbed the amount of cheques issued by his wife given to these Agents for opening RD
accounts with Mumbai Central Office. Because of this shock of losing money Rs.75,000/- his
wife expired on 8.2.1999 and thereafter, his daughter expired on 25.6.2001. According to the
petitioners, he was not associated with respondent nos.3 and 4 in their acts of fraud alleged in the
complaint and therefore, prays for dismissal of the complaint against him with cost.
22.
Respondent no.1 in person and learned advocate had appeared for petitioner nos.1 to 5 and
8 and also respondent nos.3 and 4 were ex-parte before the District Forum. No one appeared for
respondent no.7.
23.
District Forum, after hearing the counsels and going through the record allowed the
complaint. In the order they observed as follows ;
30. Moreover, there is documentary evidence supporting the allegations of the
complainant about the fraud by Agents i.e. opponent nos.9 and 10 and the
Postal Authority. The Postal Authority has produced on record Xerox copy of
cheques in question. These cheques clearly show that they were drawn
on Corporation Bank wherein the respondent no.1 has account. They were
account payee cheques issued in favour of Post Master of Mahim Head Office
and Mumbai Central Head Office. There are endorsements on the back side
of each cheque which disclosed that the concerned Post Offices sent these
cheques through GPO, Mumbai to RBI for clearance and all the four cheques
were cleared. The Bank’s statement of the complainant of Corporation Bank
shows that the amount of these cheques was debited in the account of the
complainant. After clearance of these cheques, the amount ought to have been
deposited in the account of the concerned Post Master as the cheques were
issued in favour of the Post Master. But instead of the amount was deposited
in the Saving Bank Account of third parties i.e. opponent nos.9, 10,11, 12, 13
and 14. There were endorsements on the back side of each cheque which read
as follows :
Cheque
Date
Amount
Endorsement
055322
1.12.1999
Rs.50,000/-
Mrs.Sushiladevi
S.Bhardwaj, SB A/c
No.2654358
05323
1.12.1999
Rs.50,000/-
Beena S.Bhardwaj
SB A/c No.2654359
091102
31.3.1999
Rs.1,00,000/-
Please credit this
cheque into my SB
A/c No.4475829
091109
28.8.1999
Rs.1,00,000/-
Please credit this
amount in SB A/c
No.4475553
No..
Below these endorsements, there is stamp and signature of the Asstt. Post
Master of the concerned Post Office. Now the question is how the Asstt. Post
Master made these endorsements and on what basis? The Postal Authorities
did not produce on record the pay-in-slip to show that the presenter of the
cheque had given instructions in pay-in-slip to deposit the amount of these
cheques in the SB A/c mentioned on the back side of the cheques. From the
following circumstances, the Post Master/Asstt.Post Master/Postal Staff ought
to have suspected about these cheques and ought to have kept the amount of
cheques in suspense account and ought to have called the drawer of the
cheques before depositing this amount in the SB A/c of the 3rd parties.
a.
b.
c.
d.
e.
f.
A/c payee cheques were issued in favour of the Post Master.
According to the Postal Authority, no forms about any
scheme of the Postal Department were submitted along with
the cheques.
If the amount was instructed to be deposited in the SB A/c of
3rd parties and no forms of any scheme were submitted, why
the cheques were issued in favour of the Post Masters ?
Cheques were not presented by the drawer who issued the
cheques.
According to the petitioners nos.1 to 5 and 8, pay-in-slip
given along with the cheque No.55323 dated 1.12.1999 of
Rs.50,000/- was not signed even by the presenter. Then, on
whose instructions, the amount was deposited in the account
of third party ?
Endorsement on cheque No.091102 was doubtful.
31. If the cheques were presented alongwith endorsements already thereon,
not a single endorsement bears the signature of the person who made that
endorsement. So, the Postal Authority should not have deposited the amount
of these cheques in SB A/c of 3rd parties as the cheques were Account Payee in
favour of the Post Master.
32. Even when the above circumstances were strongly doubtful, the concerned
Postal Authority did not suspect about the cheques and alleged pay-in-slip
and blindly deposited the amount in the SB A/c of 3rd parties. This conduct of
the Postal Authority clearly indicates that there must have been collusion
between the Postal Authority and the Agent – opponent nos.9 and 10 to
defraud the complainant.
33. Opponent no.3 produced on record parawise comments in respect of the
complaint. In para 9 of these comments, it is mentioned “it is however,
admitted that while accepting the cheques the postal staff failed to follow the
procedure laid down for acceptance of cheques tendered by the third party
without having accounts in the Post Office or without giving specific
instructions.” Thus, the Postal Authority has admitted that the postal staff
failed in their duty by not following the procedure laid down for acceptance of
the cheques tendered by opponent no.9.
34. Considering all the circumstances and evidence on record, we are of the
opinion that there was deficiency in service on the part of the Agent i.e.
opponent nos.9 and 10 and the postal staff of Mumbai Central H.O. and
Mahim H.O. The Agents and the postal authorities committed fraud on the
respondent no.1 in collusion with each other. Unless, there was collusion
between the postal staff and the Agents, this fraud would not have been
occurred. Therefore, opponent nos.1 and 2 and opponent nos.3 and 4 are
liable to pay jointly and severally to make the good to the complainant.
35. Opponent no.3 is the Sr. Superintendent of Post Office. Opponent nos.1
and 2 are under the administrative control of opponent no.3 and in turn and
opponent nos.4, 5 and 8 are his superior offices/controlling Ministry.
Opponent no.7, the Regional Director of National Savings Organization is an
Appointing Authority of Agents i.e. opponent nos.9 and 10. At the relevant
time, opponent no.9 was working as SAS Agent since 1977. Opponent no.10
was appointed by opponent no.7 vide No.7 (A) MPKBY/82/4778 dated
22.7.1985 under Authority No. MPKBY Agency No.899 as seen from the
written statement filed by opponent nos.1 to 5 and 8. Opponent nos.9 and 10
acted in the capacity of the Agents. The complainant handed over the cheques
in question to opponent nos.9 and 10 as an Agents of the Postal
Department. Opponent no.7 is entrusted with organizing and administering
various schemes like PPF, RD CTD etc. floated from time to time by the
Union Government through budget other Governmental measures to be
implemented through Post Offices, Nationalized Banks and other
Agents. So, opponent nos.3, 4, 5, 7 & 8 are also liable jointly and severally
with opponent nos.1, 2, 9 and 10.
37. In view of the above discussion, we are of the view that the opponent
nos.1, 5 and 7 to 10 are jointly and severally liable to make good the loss to
the complainant. Hence, the following order ;
ORDER
“The complaint bearing No.CMDF/CC/12/2002 is allowed
the following terms ;
1.
Opponent nos.1 to 5 and opponent nos.7 to 10 are
directed to pay to the complainant jointly and severally Rs.1,00,000/alongwith interest @ 6% p.a. from 6.12.1999, the date of clearing of the
cheques No.055322 and No.055323 of Rs.50,000/- each till the date of
realization.
2.
Opponent nos. 1 to 5 and opponent nos.7 to 10 are
directed to pay to the complainant jointly and severally Rs.1,00,000/alongwith interest @ 6% p.a. from 3.4.1999, the date of clearing of the
cheque No.091102 of Rs.1,00,000/- till the date of realization.
3.
Opponent nos.1 to 5 and opponent nos.7 to 10 are
directed to pay to the complainant jointly and severally Rs.1,00,000/alongwith interest @ 6% p.a. from 2.9.1999, the date of clearing of the
cheque No.091109 of Rs.1,00,000/- till the date of realization.
4.
Opponent nos.1 to 5 and opponent nos.7 to 10 are
directed to pay to the complainant jointly and severally compensation of
Rs.10,000/- towards mental agony.
5.
Opponent nos.1 to 5 and opponent nos.7 to 10 are
directed to pay to the complainant jointly and severally Rs.3,000/- towards
cost of this complaint.”
24.
Aggrieved by the order of the District Forum, the opposite party nos.1 to 5 and 8 filed an
appeal before the State Commission. Vide their order dated 26.3.2009, State Commission,
dismissed the appeal and passed the following order ;
The original complainant invested Rs.1 Lakh on 31/03/1999, another
Rs.1 Lakh on 28/08/1999 and Rs.50,000/- each on 01/12/1999 in Monthly
Income Scheme of the Postal Department. All the deposit amounts were paid by
cheques. The Postal Department had appointed Agent to collect deposit money.
The complainant handed over all the cheques to the agents of Postal
Department. The said Agent fraudulently encashed the cheques for himself. He
did not deposit the money in the MIS Scheme. The Postal Department refused to
pay anything to the depositor. Therefore, depositor filed consumer complaint.
The District Consumer Forum directed the Postal Department to refund the
money with interest @ 6% p.a. The correctness of this order is challenged by
the Postal Department.
The entire money was paid to the Agent appointed by the Postal
Department. For the act of Agent, Principal is liable. The District Consumer
Forum therefore rightly allowed the complaint and directed the Postal
Department to refund the money with interest. Innocent depositor cannot
visualize at the time of investment of money, that agent would play fraud in
future. The Postal Department should have taken utmost care in appointing
agents. Appointment of dishonest person as an agent is a serious misconduct of
Postal Department. The question of contributory negligence does not arise. No
interference is called. The order of the District Consumer Forum is perfectly
legal and correct. In the result, we pass the following order :-: ORDER :1. Appeal stands dismissed.
2. No order as to costs.
3. Misc. Appl. No.2111/2008, which is for stay stands disposed of.
4. Copies of the order be furnished to the parties.”
25.
Hence, the revision petition.
26.
The main grounds of the revision petition are that ;
·
·
The learned fora below failed to appreciate that the facts of the consumer
complaint revolve around several factors which need comprehensive, exhaustive
and thorough legal examination of questions of law and that of facts. There were
allegations of fraud, forgery and misrepresentation apart from non-compliance of
rules and procedures. These issues have to be decided by a court of competent
jurisdiction. These issues require great deal of evidence to be scrutinized.
Voluminous evidence has to be recorded.
The learned fora below failed to appreciate that the whole complaint is based on
an allegation that the agent has embezzled the cheque amount issued for allegedly
opening of the MIS account and grabbed the same by misappropriation and also
further committed criminal breach of trust. The law governing the Principal and
agency is very clear in so far as liability of the respective parties and also the
circumstances under which the principle of joint responsibility can be fixed. In the
instant case, the learned fora below have erred in applying such principle in the
situation governing the complaint, under reference. The petitioners herein cannot
be held either jointly or severally liable for the acts of commission and omission
committed by the agent outside the scope of agency. Certainly, the petitioners,
who are the State would not have directed the agents to commit fraud,
misrepresentation, forgery and such other and commission of any or all of them
are solely resorted to by the agents themselves. Sec. 182 of the Indian Contract
Act, dealing with the Principal and Agency relationship, clearly stipulates that
only such person can be an agent who is employed to do any act for another or to
represent others in dealing with the persons and anything done beyond would be
at the sole liability of the agent. In the instant case the acts of agents are not
during the course of agency and hence, they cannot bind the principal.
27.
We have heard learned counsel for the petitioner and respondent as also carefully gone
through the records
28.
It is an undisputed fact that four cheques were issued by respondent no.1 (as per the
details given below) and handed over to respondent no.3 to be deposited under Post Office
Monthly Income Scheme in the joint account of George Mathew and Mercy Mathew. The details
are as follows ;
Date
of Cheque
cheques
No.
clearance
Bank Name
Amount
In favour of
5.4.1999
91102
Corporation
Bank
Rs.1,00,000/-
Post Master
H.O.
Mahim
3.9.1999
91109
Corporation
Bank
Rs.1,00,000/-
Post Master
H.O.
Mahim
7.12.1999
55322
Corporation
Bank
Rs.50,000/-
Post Master Mumbai
Central H.O.
7.12.1999
55323
Corporation
Bank
Rs.50,000/-
Post Master Mumbai
Central H.O.
29.
As per respondent no.1, he kept asking for the Passbook and did not receive the same. He
then wrote a letter to Post Master, Mahim Head Office on 2.9.2000. In its reply dated 22.9.2000,
Sr. Superintendent of Post Offices stated as follows ;
“Mr.George Mathew
A/3, Staff Quarters
Catering College
Veer Savarkar Marg
Dadar, Mumbai – 400028
No. : WL-2/SB -63/2000-01 dated at MBI – 14
the 22/09/2000
Sub : Complaint against Shri T.M.Dedhia S/S Agent
Sir,
Please refer to your complaint dated 2.9.2000 addressed to Post
Master, H.O.
Enquiries made in the above matter revealed that, your cheque No.91102
dated 3.4.1999 for Rs.1,00,000/- was credited in Mahim H.O. SB A/c
No.4475829 on 15.4.1999 hold in the joint name of Kusum P. Joshi and
V.T.Dedhia and said amount was withdrawn on same day i.e. on 15.4.1999.
Your another cheque No.91109 dated 3.9.1999 for Rs.1,00,000/- was
credited at Mahim Head Office on 9.9.1999 in SB Account No.4475853 hold in
the joint name of Vanita A.Dedhia and Shri T.M. Dedhia. The amount of said
cheque was withdrawn on 16.9.1999.
As per your complaint, the above cheques were given to Shri T.M.Dedhia
for opening MIS account in your name. However, Shri Dedhia instead of opening
MIS account deposited both the cheques in the SB accounts jointly hold by
Dedhia.
You may lodge a police complaint in this matter. You may also approach
Regional Director, National Savings, East & West Insurance Building, 55,
Samachar Marg, Mumbai – 400023, who is licensing authority of said agent.
Sr.Supdt. of Post Offices
Mumbai City West Division
Mumbai-400014”
30.
The petitioner then vide his letter dated 9.9.2000 wrote to the Post Master, Mumbai
Central Head Office and received a reply dated 6.2.2001 from Sr. Superintendent of Post Offices,
Mumbai, stated as follows ;
“To,
Mr.George Mathew
A/3, Staff Quarters
Catering College
Veer Savarkar Marg
Dadar, Mumbai – 400028
No.WLZ/SB-63 (B)/2000-01 dated 6.2.2001
Sub : Complaint against Shri T.M. Dedhia
Sir,
This has with reference to yoru letter dated 9.12.2000 addressed to this
office on above subject. In this connection, enquiry made with Sr.Post Master,
Mumbai Central H.O. revealed that your cheque nos. 55322 and 55323 were
credited in SB A/c No.2654358 and 2654359 respectively on 3.12.1999. The
said cheques were cleared on 6.12.1999. Above said both the S.B.Accounts
were opened in the name of Mrs. Sushiladevi S.Bhardwaj and Mr. Shaligram
S.Bhardwaj was jointly and Ms. Beena S.Bhardwaj and Mr.S.D.Bhardwaj
jointly respectively proceeds and said accounts have been withdrawn on
14.12.1999.
In this regards further enquiry is under progress.
Yours faithfully,
Sr.Supdt. of Post Offices
Mumbai”
31.
By these two letters, the petitioners had admitted the fact that the said cheques had been
received by the Post Offices concerned and credited into accounts other than those of respondent
no.1 and the amounts so deposited has been withdrawn.
32.
As advised by the petitioner no.4, the respondent no.1 addressed a letter to respondent no.2
vide its letter dated 4.9.2000. He sent a reminder on 22.1.2001 and received a reply on 14.8.2001
from the Regional Director, National Savings Mumbai Region, which reads as under ;
“No.A-3/DEV/2000/3185
Dated : 14.8.2001
To,
George Mathew
A/3, Staff Quarters, Catering College,
Veer Savarkar Marg, Dadar, Mumbai – 400028
SUB : Regarding complaint against Shri T.M.Dedhia,
Agent.
National Savings
Sir/Madam,
You are requested to send the receipt issued to you by Shri T.M.Dedhia (if
any), in continuation of your complaint dated have not sent the same. In absence of
the same, we will presume any transaction with Shri T.M.Dedhia with you was in
personal capacity only.
Yours faithfully,
(Master Sajjad)
Regional Director
National Savings, Mumbai Region”
33.
The response of respondent no.2 is not understood that as to how and why a transaction
between respondent no.1 and respondent no.3 could be treated as “in personal capacity
only”, particularly in view of the fact that the respondent no.3 had been appointed as SAS Agent
on 8.8.1997 and held a valid agency till 31.12.2000 and further vide their letter dated 11.8.1977,
they had categorically informed the office of the Regional Director, National Savings, in their
letter dated 11.8.1977 that respondent no.3 was attached to the Post Office in that region for sale
of small savings securities.
“Office of the Regional Director
National Savings (Govt. of India)
Bombay Region, Bombay, 4th Floor,
East & West Ins. Bldg., 55, Apollo Street,
Bombay Samachar Marg, Fort, Mumbai-400023
No.03/22/SAS/76-77/5892
Dated : 11.8.1977
To,
Sub Post Master,
Shivaji Park P.O.
Bombay
Sub : SAS – Appointment of Auth. Agent for the
sale of Small Savings Securities
Sir,
I send herewith certificate of Authority No.B-3032 dated 8.8.1977 issued in the
name of Shri T.M.Dedhia who is attached to your Post Office for the sale of 7Year, H.S.C. II, III, IV and V Issue and 2, 3 and 5 – Year Post Offices Time
Deposit Accounts and National Savings Annuity Certificates. Office Time Deposit
Accounts and National Savings Annuity Certificates.
Please acknowledge receipt.
Yours faithfully,
Regional Director,
National Savings Bombay Region”
34.
On 14.2.2001, Regional Director, National Savings Organization, Govt. of India, Ministry
of Finance vide their letter dated 14.2.2001 addressed to Ms.Abha Singh, Sr. Superintendent of
Post Offices, Mumbai City West Division, Dadar, Mumbai, stated as under ;
“D.O.No.A-3/DEV/2000/1061
14th Feb., 2001
Dear Madam,
Please refer to your D.O. letter No.WE-2/SB-63/2000 dated 8.2.2001
regarding Shri T.M.Dedhia, SAS Agent.
We have to inform that Shri T.M.Dedhia was appointed as SAS agent on
8.8.1977 under Agency No.B-3032. He has been getting renewals for his agency
and the latest renewal was done on 12.2.2000. His agency was valid upto
31.12.2002. But on receiving complaints from the post office and other investors,
his agency was terminated on 16.11.2000 and intimated to your office also.
You were requested to instruct the concerned post office issuing receipt
books to agents to inform us the number of used/partially used/unused receipt
books. You have informed that the Mumbai Central, Head Post Office has issued
three receipt books of Rs.5,000/- denomination on 14.2.2000, 26.2.2000 and
4.3.2000 resp.
As per information received through our Departmental Inquiry Officer, Shri
T.M.Dedhia is missing since 25.8.2000 according to letter submitted by Advocate,
Shri Hasmukh V. Shah on 8.11.2000 in connection with clarifying the position of his
client Smt. V.T.Dedhia, wife of Shri T.M.Dedhia.
You are again requested to instruct the concerned post offices to furnish
details of receipt books issued and used by Shri T.M.Dedhia as the post office has
been paying commission to agents on the basis of monthly submission of
commission claims upto April, 2000, thereafter instant payment of commission to
agents has been started, so we hope that the information must be available with the
post office issuing receipt books to agents.
Yours sincerely,
Nassir Sajjad)
Ms.Abha Singh
Sr. Supdt. of Post Offices
Mumbai City West Division
Dadar, Mumbai – 400014”
35.
It is quite apparent from the letters exchanged between respondent no.1, the petitioners
and respondent no.2 that respondent no.3 held a valid agency to act as an Agent for the sale of
small savings securities.
36.
It is also very clear from the letter of Regional Director, National Savings Organization
that it is the Post Office which has been using the services of respondent no.3 by paying
commission to him for the business generated for the Post Offices.
37.
The petitioners cannot escape their liability today by stating that respondent no.3 was
appointed by respondent no.2. Further, they also cannot escape their liability for deficiency of
service and negligence which lead to misappropriation and fraud as cheque Nos.091102 and
091109 were made out to Post Master, Mahim Head Office and cheque Nos.055322 and 055323
were made out to Post Master, Mumbai Central Head Office. It is under the signature of the
Asstt. Post Masters in each case that these cheques were credited to savings account to other than
respondent no.1 and allowed to be withdrawn also by persons other than respondent no.1. Once,
a cheque is received by the Post Master, he de facto becomes the custodian of the amount of the
money so entrusted to him. In case of doubt, he should have checked with respondent no.1 either
through letter or on telephone. This is more so as it was mentioned that there were numerous
complaints regarding respondent no.3 on the basis of which his agency was thereafter
cancelled. Though, the petitioners had informed to the respondent no.1 that an enquiry was
conducted the results of the enquiry have not been brought on record.
38.
Respondent no.2 also cannot escape its liability as respondent no.3 was appointed by
respondent no.2 and as a Principal, he is certainly also responsible for the act of the Agent and
the State Government Organization is squarely liable for fraud and misappropriation of
investor’s money and the custom of the Agent appointed by one of his Authorized Officers.
39.
We have gone through the citation which was placed on file by the petitioner in the case of
“Post Master, Dargamitta H.P.O., Nellore Vs. Raja Prameellamma (Ms.) (1998) 9 SCC 706”,
the facts are not applicable to the present case.
40.
We have also gone through the citation placed on file titled “The State of Punjab & Anr.
Vs. Nirmal Singh & Anr. (RP No.3552 & 3553 of 2008)”, the facts are identical in this case but
the principle of the order have been applied to the instant case.
41.
Of late, many cases have come before this Forum relating to fraud and misappropriation
by an Agents appointed by National Savings Organization acting as an Agent for Department of
Posts. In such cases, both tried to avoid their liabilities towards the persons who have been
victims of these unscrupulous agencies. Most of the victims are either Sr. Citizen, or an innocent
members of Public who have placed their trust in Agents appointed by working on behalf of
Central and State Governments.
42.
We are of the view that it is the time that cognizance should be taken of the fact that
Agents have been appointed without proper scrutiny and verification and continue to work by
repeated automatic renewal of their agencies by the Appointing Authorities. There is no
supervision and over sight over their working either by Appointing Authority or by the Agencies
using their services such as Department of Posts. It is the high time that entire system is
reviewed by the Ministry of Finance in consultation with the stakeholders to bring out clear cut
guidelines to avoid the cheating and victimization of the public at the hands of these
unscrupulous agents, and quite after in connivance with the officials of the Department of Posts.
A list of do’s and don’t’s should invariably be displayed prominently in the post office as also
given to all the clients of Department of Posts, who avail of their services with regard to small
savings scheme so that they can safeguard their interests. There should be a similar set of
guidelines with a detailed check list for the Post Master and staff in the Post Offices. Affidavits
shall be filed by the Secretary, Economic Affairs, Ministry of Finance and Secretary, Department
of Posts with regard to action taken in this regard and a separate affidavit shall be filed by
Secretary, Department of Posts with regard to the enquiry held in their specific case and what
action taken in this regard.
43.
From the facts of the case given above, it is clear that 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. Since, two Fora below have given detailed and reasoned orders which do not call for any
interference nor do they suffer from any infirmity or erroneous exercise of jurisdiction or
material irregularity. Thus, present petition is hereby, dismissed with cost of Rs.1,00,000/(Rupees One Lakh only).
44. Petitioners are directed to pay Rs.50,000/- (Rupees Fifty thousand only) directly to
respondent no.1 and balance amount of Rs.50,000/- (Rupees Fifty thousand only) 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, petitioners fail to pay/deposit the said cost within the
prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. Cost is
to be recovered from the official found guilty of negligence and collusion.
45.
List on 4.4.2014 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
………..…………..………..
(REKHA GUPTA)
MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 32 OF 2013
(From the order dated 27.11.2012 in First Appeal No. 329/2012 of Rajasthan State
Consumer Disputes Redressal Commission)
Bajaj Allianz General Insurance Co. Ltd. 1, DLF Industrial Plot, IInd Floor, Near Metro Station
Moti Nagar, New Delhi – 110015.
... Petitioner
Versus
M/s OM International Shanti Bhawan Saubhag Club Civil Lines, Ajmer 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
Mr. K.L. Nandwani, Advocate
For the Respondent
Mr. Surya Prakash Gandhi Advocate
PRONOUNCED ON : 26th FEBRUARY 2014
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 27.11.2013 passed by the Rajasthan State Consumer
Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 329/2012, “M/s
Om International versus Bajaj Allianz General Ins. Co. Ltd.” vide which while allowing the
appeal, the order dated 17.02.2012 passed by District Consumer Disputes Redressal Forum,
Ajmer in consumer complaint no. 377/2010, dismissing the complaint was set aside and the
consumer complaint in question was allowed directing the petitioner/OP to pay a sum of
`1,40,174/- alongwith interest @9% p.a. from the date of filing the complaint as well as `10,000/as cost of litigation.
2.
In brief, the facts of the case are that the present respondent, M/s Om International are
stated to have purchased water-filling machine for `9 lakh from Swami Samarth Aqua Filling
Industries, Vasai (East), Thane, Maharashtra. The said machine was to be delivered
from Barsai to Gaygal at the office of the complainant/respondent through a truck. Before
the booking of machine with the transport company, the complainant got it insured from the
petitioner vide Marine Cargo Policy bearing no. OG-09-1406-1002-00000003. The machine was
delivered on 26.03.2009 at about 9:00 PM but it was found to be in a damaged condition. This
fact was noted at the back of the GR (builty), andthe Insurance Company as well as the
vendor were informed. The vendor sent their mechanic / engineer and found that the machine
was damaged. The claim was lodged with the Insurance Company which appointed a surveyor
to assess the loss. However, the machine was got repaired by the complainant on payment of
`2,08,783/-. According to the surveyor, the damage certificate by the transporter was not
provided and the machine was not packed as per standard packing specifications and hence it got
damaged. The surveyor assessed the loss to the tune of ` 1,40,174/- and after deducting
`
5,000/-
as
per excess clause,
held
the
complainant
entitled
to
` 1,35,174/- only. The Insurance Company, however, repudiated the claim that the machine was
not given proper packaging and hence it got damaged. The consumer complaint was then filed
saying that a sum of ` 2,08,775/- alongwith interest @12% should be provided to them being the
sum spent on the repair of the machine. In addition, a sum of ` 10,000/- as compensation for
mental harassment and
` 11,000/- as legal expenses should also be provided.
3.
In their reply to the consumer complaint, the Insurance Company took the plea that in fact,
the complainant had got the delivery of the machine in perfect condition, but later on, due
to malafide intention and dishonesty, he got noted on the back of GR from the driver of
the vehicle that the machine was damaged in transit and that the delivery was given in damaged
condition. If the machine was damaged, the complainant should not have taken the delivery of
the machine and should have informed the Ajmer branch of the petitioner and got the surveyor
appointed before taking delivery. The complainant got the machine repaired on his own without
informing the insurance company and hence he has done breach of the conditions of the terms of
contract. It has further been stated that if the insured cargo is having insufficient or
unsuitable packing or preparation, the insurance company was not liable to pay the claim as it
would fall under the exclusion clause of the policy. The District Forum after taking into account
the evidence of the parties found that the complainant had failed to prove that the machine was
sent in transit after standard packaging and hence, they dismissed the complaint in question. An
appeal
was
made
against
this
order
before
the
State
Commission,
which
was
allowed vide impugned order and the complaint was held entitled to get `1,40,174/- with interest
@9% p.a. from the date of filing of the complaint as damages and `10,000/- as cost
of litigation. It is against this order that the present petition has been made.
4.
At the time of hearing before us, the learned counsel for the petitioner/OP reiterated the
stand taken by the petitioner in reply to the complaint before the District Forum that the
complainant/respondent should have informed them immediately before taking the delivery of
the vehicle so that they could have the machine inspected. On the other hand, the complainant /
respondent chose to have the machine repaired on his own. The learned counsel further stated
that since the packaging of the machine was not done properly, the claim falls under the
exclusion clause of the policy and hence the petitioner was not liable to make payment of the
claim. Our
attention
has
been
drawn
to
the
report
given
by
the
Surveyor Ramavatar Parashar dated 12.12.2010 which says that the machine was sent in open
condition without packing. There was, therefore, a breach of terms and conditions of Insurance.
The learned counsel has drawn our attention to order passed by the Hon’ble Supreme Court of
India in Civil Appeal No. 6739/2010, “Oriental Insurance Company versus P.C. Chadha” saying
that if the insurance company was not informed immediately, there was breach of terms and
conditions of the policy and hence, the insurer was not liable to pay any damages.
5.
The learned counsel for the respondent argued that the contention of the petitioner was not
correct as made out from the documents / material on record. In fact, the petitioner had
appointed M/s Wings Surveyors for verification of the mode of packing in this case and the
report made by the said company dated 26.07.2010 is on record. The said company have stated
in their opinion as follows:“The consignment of Filling Machine having Model no. SSAI/FA/60
invoiced vide No.
13
Dt.
24.03.2009
of
M/s. Swami
Samarth Aquafill Industries transported vide Consignment Note No.
1687 Dated 24.03.2009 of M/s. Speedwing Roadlines, while in transit
from Vasai to Ajmer was packed with a polythene / plastic cover
only, as per standard practice.”
6.
The learned counsel stated that the damage certificate dated 28.03.2010 given by
M/s Speedwing Roadlines, states that the machine was got damaged during transit. Further, there
was a declaration dated 20.03.2010 given by the supplier Swami Samarth Acquafill Industries
saying that all of their machines are delivered under strict standard packaging and no machine is
dispatched without packaging. The learned counsel mentioned that the complainant/respondent
had informed the Insurance Company and sent his claim immediately after knowing about the
damages. The learned counsel also produced a judgement of this Commission dated 03.12.2004,
“M/s HarsoliaMotors versus M/s National Insurance Co. Ltd. & Ors.” as reported in 2005 (I)
CPR 1 (NC), saying that a person who takes insurance policy to cover the risk does not take
policy for commercial purpose as the policy is not intended to generate profit.
7.
We have examined the entire material on record and given a thoughtful consideration to
the arguments advanced before us. The petitioners have taken the main line of argument that
there has been the violation of terms and conditions governing in policy in question because the
machine in question had not been packed properly. A perusal of the record indicates that the
petitioner appointed M/s Wings Surveyor for the sole purpose of verification of mode of packing
under the claim reported by the complainant/respondent. The said surveyor have categorically
stated in their report that the machine during transit was packed with a polythene / plastic cover
only, as per standard practice. In the impugned order, the State Commission have rightly
observed that as per the surveyor appointed by the petitioner itself, the machine was covered as
per standard practice. Further, the suppliers of the machine have also stated in their letter dated
20.03.2010 that all their machines are delivered under strict standard packaging and no machine
is dispatched without packaging. The transporter has given the certificate that the machine was
damaged during transit only due to the bad road condition. The State Commission have rightly
observed that the petitioner / OP failed to show “As to what was the standard packaging for the
heavy and voluminous machine?” We have no reason to differ with this finding of the State
Commission because the machine was packed as per standard practice as reported by the
surveyor appointed by the petitioner.
8.
The petitioner have taken the plea in the grounds of revision petition that the complainant
was not a consumer as the machine was purchased for commercial purpose only. However, this
point was not pressed by the learned counsel for the petitioner at the time of arguments. Further,
it has been stated in the complaint that intimation about the damaged condition of the machine
was given to the insurance company immediately. The claim cannot be repudiated, therefore, on
the ground that intimation was not sent to the insurance company in time.
9.
Based on the discussion above, we do not find any reason to differ with the impugned
order passed by the State Commission, as the said order does not suffer from any illegality,
irregularity or jurisdictional error of any kind. The present 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. 1097 OF 2014
(From order dated 06.05.2013 in First Appeal No. 31 of 2011 of the
Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench, Aurangabad)
WITH I.A. No. 961 OF 2014 I.A. No. 962 OF 2014 (Stay & Condonation of Delay)
Shaikh Zakiruddldin S/o Sk. Allauddin R/o Ganesh Colony, Rashidpura Aurangabad
(Maharasthra State)
… Petitioner
Versus
Vijay S/o Narayan Patharkar R/o Shiv Sainagar, Taroda (Bk) Nanded, District Nanded,
Maharashtra State
… Respondent
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. J. N. Singh, Advocate
Dated : 27.02.2014
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER (ORAL)
1.
Learned counsel for the petitioner heard.
2.
The State Commission passed the following order:“None for the appellant as well as the respondent are present. Their
respective counsel are also absent. The record reflects that the
appellant as well as his counsel are also absent since
08.10.2012. However, on last date the matter was adjourned till
today by way of last chance subject to condition of depositing cost
of Rs.500/- in the ‘legal aid account’ of this Commission. But the
same is not complied with. On the contrary, the appellant as well
as his counsel are absent. Therefore, the appeal deserves to be
dismissed in default. Hence it be recalled at 3.00 p.m. for order.
2. Matter is recalled at 3.30 p.m. but nobody for the appellant is
present. So also the respondent. We have perused the copy of
impugned judgment and order and also the copies of complaint and
we find that the impugned ex-parte judgment and order is just,
legal and proper. Therefore, no interference is warranted. Hence,
the appeal is dismissed. No order as to cost.”
3.
After this order, the revision petition was filed which is further delayed by 181
days. Learned counsel for the petitioner has filed an application for condonation of delay. The
delay is explained in paras 3 and 4 of the application for condonation of delay, which is
reproduced as under:
“3. That the petitioner was seriously ill due to serious illness he
was advised to take bed rest by the doctor from 12.3.2013 to
14.11.2013 and therefore, could not contact to his counsel
representing him in the State Commission and due to which some
delay is caused in filing the present revision petition which is not
intentional and deliberate and the copy of medical certificate is
annexed with the present revision.
4. The petitioner submits that the matter was dismissed in default
and no intimation was given by his advocate and he could not
contact his advocate due to illness and due to the said reason and
unavoidable circumstances some delay is caused in filing the
present revision petition and in the facts and circumstances
narrated above which was beyond the control of petitioner herein
the Hon’ble Commission may be condoned the delay in filing the
present revision petition.”
4.
Learned counsel for the petitioner has invited our attention to the fact that the doctor has
certified that the petitioner was lying sick from 12.3.13. He has filed the medical certificatewhich is
issued by one Dr. S. M. Sarosia, M.B.B.S., D.C.P., M.D. (Patho.), Registration No. 29682,
Barudgarnala, Aurangabad 431001 wherein it is mentioned that the patient was suffering
from cervical spondylitis from 12.3.2013 to 14.11.2013. It was further mentioned that he
is medically fit to resume his duties/work/school w.e.f. 15.11.2013. It, therefore, means that the
Doctor has got printed the documents and he is not an expert in this specialty to advise and treat such
patient, which related to orthopedic. The medical certificate appears to be false. The matter be
reported to the Medical Council with the request that such like doctor should be debarred from
issuing such like certificates when they are not expert in the specific field. A copy of this order be
sent to the Medical Council of India along with photocopy of medical certificate. Moreover, as per
the certificate, the appellant was not able to attend the Commission from 12.3.2013.
5.
Now let us turn to the impugned order. It mentions that nobody appeared before the
Commission since 8.10.2012. The explanation of five months is not satisfactory. The application
for condonation of delay is subsequently silent about the same. The matter is barred by time. This
view is supported by following authorities in Anshul Aggarwal v. NewOkhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), R.B. Ramlingam v. 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, Bikram Dass Vs. Financial Commissioner and
others AIR 1977 Supreme Court 1221.
6.
In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason 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.
7.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellant in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
8.
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 has did he send any letter, was
disbelieved while rejecting an application to condone delay.
9.
It is well settled that Qui facit per alium facit per se, negligence of a litigant’s agent is
negligence of the litigant himself and is not sufficient cause for condoning delay.
10.
In view of this position of law, the revision petition is hereby dismissed. The Registry is
directed to report to Medical Council of India, as already ordered.
HON’BLE S. M. KANTIKAR, MEMBER
I agree with the findings and I want to add few remarks:
Dr. S. M. Sarosia is a pathologist, who is competent in diagnostic services but not in
therapeutic aspects. He issued the certificate (Annexure P-5) with a disease mentioned as
‘Cervical Spondylitis’. This certificate neither mentions any details of treatment nor supported
by Radiological findings (X-ray/CT). The period of rest was approximately for 9 months.
Medical certificates are legal documents. Medical practitioners who deliberately issue a
false, misleading or inaccurate certificate could face disciplinary action under the Indian Medical
Council (Professional Conduct, Etiquette and Ethics), Regulations, 2002.
In our view, issuing medical certificate with advice of bed rest for long duration of about
9 months, needs specialist in Orthopedics/ Neurosurgery. In this case, the certificate was issued
by a Pathologist, created many doubts in our mind, whether the pathologist is
competent/authorized to issue such certificate. Certainly, it amounts to violation of Medical
Ethics and appears to be a case of Medical Malpractice/Professional Misconduct.
Therefore, we seek an appropriate action from the Medical Council of India. The copy of
this order along with the copy of Medical Certificate be sent to MCI, New Delhi.
It is further directed that Medical Council of India, New Delhi should send compliance
report in this case to the Registrar of this Commission within 90 days otherwise, it will
tantamount to contempt of court.
The revision petition stands dismissed accordingly.
.…..…………………………
(J. M. MALIK, J) PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR) MEMBER
Naresh/5
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1073 of 2013
(From the order dated 07.12.2012 in Appeal No. 752/2012 of State Consumer Disputes
Redressal Commission, Rajasthan)
Shalini Vohra Vice President – Human Resources, SpiceJet Ltd., 319 Udyog Vihar, Phase-IV,
Gurgaon 122016, Haryana, India.
….. Petitioner
Vs.
Akanksha Singh Bhadoriya “Bhadoriya House” 2-Krishna Colony, Kala Kuwa, Housing
Board, Alwar, Rajasthan
…..Respondent
BEFORE: HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Ms. Meghna Sankhla, Advocate.
For the Respondent:Mr. Mohan Lal Sharma, Advocate & Mr. Ashish Sisodia, Advocate.
ORDER
(Pronounced on 28th day of February, 2014)
D.K. JAIN, J., PRESIDENT
This Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (for
short “the Act”) has been preferred by a senior executive of SpiceJet Ltd. (for short “the
Company”) (as impleaded in the Complaint) against order dated 07.12.2012 passed by the State
Consumer Disputes Redressal Commission Rajasthan, Jaipur (for short “the State
Commission”) in First Appeal No. 752 of 2012. By the impugned order, the State Commission
has upheld the order, dated 29.11.2011, passed by the District Consumer Disputes
Redressal Forum, Alwar (for short “the District Forum”) in Complaint No. 547 of 2011,
whereby, while allowing the Complaint, the District Forum had directed the Petitioner to refund
to the Complainant a sum of `50,000/-, deposited by her as training fee with interest @ 9% p.a.,
along with a further sum of `3,000/- as compensation for the mental agony suffered by her on
account of non-refund of the said amount.
2.
Briefly stated, the facts of the case are that the Company invited applications for
recruitment of “Trainee Cabin Attendants” from across the Country. Candidates above the age
of 18 years were eligible to apply for the said post. The Complainant also applied. On
12.12.2010, she was called for interview. On being selected on 28.12.2010, she was offered the
job. As per the policy of the Company she deposited a non-refundable amount of `50,000/- for
undergoing the training. However, on scrutiny of the papers submitted by her at the time of
joining for training, it was discovered that she had wrongly mentioned her date of birth in her
Resume as 02.11.1990, whereas her actual date of birth was 02.11.1993 and, therefore, as on the
date of interview on 12.12.2010 she was below the age of 18 years. On gaining the said
knowledge, the Company revoked the letter of offer sent to her and forfeited the
said deposit of `50,000/-. On 08.03.2011, the Complainant sent a legal notice to the Petitioner
seeking refund of the said amount. The prayer for refund of the said amount having been turned
down by the Company, alleging deficiency in service, a Complaint under Section 12 of the Act
was filed by the Complainant, praying for refund of the said amount alongwith compensation
of `1 lac on account of loss of one precious year and a further sum of `30,000/- as compensation
for mental trauma, tension and depression.
3.
The Complaint was contested by the Petitioner. Written reply on behalf of the Company
was sent to the District Forum by post. In the said reply besides raising preliminary objections
regarding maintainability of the Complaint on the ground that the Complainant was not a
“consumer” as defined in Section 2 (1) (d) of the Act, it was also alleged that as per her own
admission she had misrepresented in her Resume as well as at the time of interview that her age
was 20 years 1 month and 11 days. However, her actual date of birth being 02.11.1993, she was
only 17 years 1 month and 11 days of age as on the date of interview. It was also stated that the
amount deposited by her was non-refundable as per the terms and conditions of the letter of
offer sent to her.
4.
The District Forum, while cursorily dealing with the allegation of misrepresentation
relating to the date of birth, held as follows:“According to opposite parties, the complainant had disclosed the wrong fact regarding
her date of birth while it was stated by the complainant that she made aware to the
opposite parties about all facts and gave the correct date of birth and after issuance of
their letter, she deposited `50,000/- through D.D. with them. Because the complainant
has not done any training with the opposite parties and due to this reason, it was the
responsibility of the opposite parties to refund the deposited amount to the
complainant. By not refunding the said deposited amount, the opposite parties have
deficiency service towards her.”
5.
Accordingly, accepting her bald plea that she had herself disclosed to the Petitioner her
correct date of birth, and she had not undergone training, non-refund of the said amount
amounted to deficiency in service by the Company to the Complainant, the District Forum
issued the afore-noted directions to the Petitioner. The said order having been affirmed by the
State Commission, the present Revision Petition has been filed.
6.
We have heard Learned Counsel for the parties.
7.
Learned Counsel appearing for the Petitioner strenuously urged that the Complainant had
managed to secure the said job by making a misrepresentation about her correct date of birth in
her Resume, she had played fraud with the Company. It was contended that had the
Complainant disclosed her correct date of birth, being less than 18 years of age at the relevant
time, she would have been disqualified at the initial stage itself. It was asserted that both the
Fora below brushed aside a serious objection in a very casual manner. It was pleaded, that the
District Forum ought to have dismissed the Complaint on the ground of misrepresentation,
without going into the merits of the Complaint.
8.
Ld. Counsel appearing for the Complainant, on the other hand, while supporting the
decision of the Fora below, submitted that having permitted the Complainant to continue her
training on the assurance that her admission will be regularized on her attaining the age of
18 years, the Company was estopped from revoking the letter of appointment.
9.
It is trite law that an act of deliberate deception with a design to secure something, which
is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or by words,
which induces the other person or authority to take a definite determinative stand as a response
to the conduct of the former either by words or by letter. (See: Regional Manager, Central Bank
of India Vs. Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC 170.).
10.
In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRS. &
Ors. (1994) 1 SCC 1, the Supreme Court had an occasion to consider the doctrine of fraud and
its effect on the judgment obtained by a party. The Court prefaced its judgment with the
following observations:“Fraud avoids all judicial acts, ecclesiastical or temporal” observed
Chief Justice Edward Coke of England about three centuries ago. It is the settled
proposition of law that a judgment or decree obtained by playing fraud on the court is a
nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by
the highest court – has to be treated as a nullity by every court, whether superior or
inferior. It can be challenged in any court even in collateral proceedings.”
Disagreeing with the opinion of the High Court that “there is no legal duty cast upon the
plaintiff to come to court with a true case and prove it by true evidence” the Hon’ble Court
observed as follows:“The courts of law are meant for imparting justice between the parties. One who comes
to the court, must come with clean hands. We are constrained to say that more often
than not, process of the court is being abused. Property-grabbers, tax-evaders, bankloan-dodgers and other unscrupulous persons from all walks of life find the courtprocess a convenient lever to retain the illegal gains indefinitely.We have no hesitation
to say that a person, who’s case is based on falsehood, has no right to approach the
court. He can be summarily thrown out at any stage of the litigation.”(Emphasis
Supplied)
11.
In United India Insurance Co. Ltd. Vs. Rajendera Singh & Ors. and United India
Insurance Co. Ltd. Vs. Sanjay Singh & Ors. (2000) 3 SCC 581 on revelation of new facts
indicating that the awards had been obtained by the claimants by allegedly playing fraud, the
Insurance Company sought to challenge two awards made by the Motor Accidents Claims
Tribunal ( for short “the MACT”) for payment of compensation under the Motor Vehicle Act
1988, which had attained finality. The applications filed by the Insurance Company for recall
of the awards were dismissed by the MACT and the High Court. Allowing the appeal preferred
by the Insurance Company and setting aside the awards, the Supreme Court held that no Court
or Tribunal can be regarded as powerless even to recall its own order, if it is convinced that the
order was wrangled through fraud or misrepresentation of such a dimension as would affect the
very basis of the claim. It was observed that:
“Fraud and justice never dwell together” (fraus et jus nunquam cohabitant) is a pristine
maxim which has never lost its temper over all these centuries. Lord Denning observed
in a language without equivocation that “no judgment of a court, no order of a Minister
can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything”
(Lazarus Estates Ltd. V. Beasley) ( (1956) 1 QB 702: (1956) 1 All ER 341: (1956) 2
WLR 502(CA)”
12.
In Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat & Ors. (2008) 12 SCC 353 the
Supreme Court went to the extent of saying that if an order is obtained by reason of commission
of fraud, even the principles of natural justice are not required to be complied with for setting
aside such an order. Therefore, any order obtained by playing fraud on any court or authority,
superior or inferior, is a nullity and non est in the eyes of law.
13.
Having considered the case in the light of the aforestated legal position in our opinion, the
orders of the Fora below are unsustainable. The material on record leaves little doubt in our
mind that the Complainant got selected for the said job by declaring her date of birth as
02.11.1990, which was wrong to her knowledge. Admittedly, on the basis of her actual date of
birth i.e. 02.11.1993, being below the age of 18 years, the minimum age requirement, she was
not even eligible to apply for the said job. It was a clear case of misrepresentation and
deliberate deception, which was discovered by the Company while scrutinizing the documents
filed by the Complainant at the time of joining for training. All these factual aspects were
brought to the notice of the District Forum by the Petitioner in the written objections but we are
constrained to observe that both the Fora below have failed to address themselves on this vital
aspect of misrepresentation. We are of the view that by consciously declaring an incorrect date
of birth in her application in order to secure a job, the Complainant was guilty of
misrepresentation and, therefore, her complaint should have been dismissed by the District
Forum at the threshold.
14.
Since we have come to the conclusion that the very foundation of the Complainant’s claim
was based on falsehood and, therefore, her Complaint should have been summarily dismissed
by the Fora below, we deem it unnecessary to deal with other objections raised by the Company
regarding the maintainability of the Complaint.
15.
For the aforegoing reasons, we allow the Revision Petition; set aside the impugned order
and dismiss the complaint on this short ground alone. However, on the facts and circumstances
of the case there shall be no orders as to costs.
…….…………………
(D.K. JAIN, J.)
PRESIDENT
…….…………………
(VINEETA RAI)
MEMBER
…….…………………
(VINAY KUMAR)
MEMBER
ar.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
(1)
FIRST APPEAL NO.100 OF 2013
(Against the order dated 21.12.2012 in Complaint No.03 of 2006 of the State Commission,
Haryana, Panchkula)
Shri Pavel Garg, Proprietor, M/s. Combitic Global, D-2, Industrial Area, Sonepat, Haryana –
131001.
… Appellant
Versus
The New India Assurance Company Limited, an insurance company incorporated under the
Companies Act, 1913 having its Head office at 87, Mahatma Gandhi Road, Fort, Mumbai –
400001, having its regional Office inter alia at SCO 36-37, Sector-17A, Chandigarh 160 017,
and Divisional Office at 203-L, Model Town Road, Sonepat – 131001.
…Respondent
FIRST APPEAL NO.101 to 118 OF 2013
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Jos Chiramel, Advocate with Mr. Ramesh Kumar, Advocate
For the Respondent : Mr. P.K. Seth, Advocate
Pronounced on: 28th February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Appellant/Complainant has filed the above noted First Appeals against common order dated
21.12.2012 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for
short, ‘State Commission’) in (Complaint No.03 of 2006) and (Complaint Nos.03 to 20 of 2010)
vide which 19 complaints filed by the appellant against Respondent/Opposite Party-Insurance
Company were dismissed.
2. Since, facts are common and similar question of law is involved, as such these appeals are
being disposed of by this common order.
3. On 25.5.2006, appellant had filed 19 complaints before the State Commission, Haryana at
Panchkula. It is alleged that, thereafter on the legal advice appellant filed 19 fresh complaints on
16/17.11.2006 before the State Consumer Disputes Redressal Commission, Union Territory,
Chandigarh, since the Competent Authority of the respondent to take decision on the claims was
at Regional Office at Chandigarh. Thereafter, appellant on 13.3.2007 withdrew 18 complaints
pending before the State Commission, Haryana, Panchkula, whereas one complaint mistakenly
was left behind and was dismissed for non-prosecution.
4. With this background, we have to deal with above appeals. Appellant in the consumer
complaints alleged that he was having a business of export of pharmaceutical products out of
India and was holding valid licence for carrying on such export business. The petitioner firm
purchased a Marine Insurance Open Cover from the respondent, vide Cover Note No.004196 for
a sum insured of Rs.10 Crores covering the pharmaceutical products. The premium amount of
Rs.2,00,000/- was deposited with the respondent. On 3rd May, 2002, appellant signed an
agreement with the intermediatory, M/s. Paktiya Trading LLC, Bur Dubai, UAE to provide good
export orders. The appellant obtained two orders for supply of pharmaceutical products from
M/s.“OOO” STROI-CONTROL,St.Petersburg through M/s.Paktiya Trading LLC on 4.11.2002
and 29.1.2003. The pharmaceutical products were dispatched to the buyer as per the terms and
conditions of the contract. Total 19 invoices for a total amount of $11,35,578 were issued
against the said sales. The present complaint is in respect of invoice No.119 dated 2.1.2003
issued for an amount of $ 43425 to the buyer M/s. “OOO” STROI-CONTROL. The dispatch of
the consignment was declared/informed to the respondent and premium amount of Rs.3121/- was
also debited to the firm’s deposit account with the respondent. An amount of Rs.1,46,667/- was
further deposited by the Firm with the respondent on 10.1.2003. The extension of the duration
period of the insurance cover by 28 days was made by the respondent on 11.4.2003 for which
additional premium of Rs.2553/- was debited to the appellant firm’s deposit account with the
respondent on 11.4.2003. The consignment was handed over to Multimodal Transport Company
for final delivery at consignee’s place. On 14.5.2003, appellant received an E-mail from the
consignee that the consignment in question had not reached the destination. Upon intimation,
notice was sent to the M/s. Multimodal Transporter, M/s. Seasky Cargo & Travel Private
Limited, New Delhi and forwarder Transporter, Aleborg Oy Vanha, Finland. Intimation was
given to the respondent with regard to the notice. On 10.7.2003, appellant informed the
respondent for non-delivery of consignments and consignee’s mail regarding ‘Non-locating of
M/s. Ingosstrakh Insurance Company Ltd. at given address to whom respondent asked to contact.
On 23.7.2003, M/s. Ingosstrakh Insurance Company Ltd. asked through E-mail for certain
documents, which were sent on 25.7.2003. The respondent raised some queries and appellant
submitted the required documents. Appellant requested the respondent for consignment but the
respondent neither gave the consignment nor any payment. Surveyor Mr. J.R.Sharma was
appointed by the respondent to investigate the matter. The surveyor demanded FIR from the
appellant, but the appellant only gave DDR. The representative of the appellant lodged the police
report regarding non-delivery of respective consignments at Police Station, St. Petersburg,
Russia, on 11.8.2005 against the transporters. The respondent did not settle the claim of appellant
despite various written requests. Thus, there was deficiency in service on the part of the
respondent.
5. Respondent contested the complaint and took the plea that, neither FIR was lodged nor nondelivery certificate was produced. The delivery of the consignment had already been taken by the
representative of the consignor. Upon intimation regarding loss of consignment, the respondent
appointed surveyor, who submitted his report. In his report, surveyor has mentioned that after
going through the documents, it was confirmed that they had already received payment in respect
of the claim from the guarantor. It is not disputed that respondent issued cover note to the
appellant and received an amount of Rs.2,00,000/- as premium. Further, as per Multimodal
Transport Company’s documents, the liability of the respondent was upto Kotka Port only. The
delivery of the material at the Kotka Port was taken by the authorized representative of the
consignor. The appellant/consignor did not supply the required documents to M/s. Atul Kapur &
Company in spite of various reminders. There was no delay on the part of the respondent and
hence there was no deficiency in service on the part of the respondent.
6. With similar facts, the claim of the appellant with respect to other 18 invoices were also filed.
7. 16 (Sixteen) complaints out of eighteen (18) filed before State Commission, Chandigarh
(UT) were decided by common judgment dated 01.10.2007, vide which complaints were
allowed. However, two complaints i.e. Complaint No.10/2008 with respect to Invoice No.123
dated 02.01.2003 for US$23908 and Complaint No.13/2008 with respect to Invoice No.126
dated 02.01.2003 for US$ 40791 were decided vide common judgment dated 14.01.2009.
8. Respondent challenged the award passed by State Commission, Chandigarh (UT) before this
Commission. Vide order dated 15.12.2009 passed by this Commission, appeals of the respondent
were allowed and order of the State Commission, Chandigarh (UT) was set aside on the ground
that it had no jurisdiction to decide the complaints. However, liberty was granted to the
appellant to file complaints before Haryana State Commission, Panchkula within four weeks of
the order.
9. Thereafter, State Commission, Haryana, Panchkula vide impugned order dated 21.12.2012,
dismissed all the complaints being barred by limitation.
10. Hence, the present appeals.
11. We have heard the learned counsel for both the parties and gone through the written
synopsis filed by the appellant and have perused the entire record.
12. It is well settled that where a litigant approaches any judicial fora with unclean hands,
conceal and suppress material facts and also try to hoodwink the foras, then the petition of such
litigant should be thrown out on the threshold itself. Further, if such litigant choose to file the
documents on a selective basis and withhold the relevant documents, then on that score also the
petition is liable to be dismissed.
13. It is an admitted fact that appellant initially had filed 19 complaints before the State
Commission, Haryana, Panchkula, on 25.5.2006. It is also an admitted fact that during pendency
of these complaints, appellant filed another set of the complaints before State Commission,
Chandigarh (UT) on 16/17.11.2006. There is nothing on record to show that appellant ever
brought to the notice of the State Commission, Chandigarh (UT) that the earlier complaints filed
by it before State Commission, Haryana, Panchkula, are already pending. Appellant has cleverly
in the present appeals not filed the copies of the second set of the complaints filed before the
State Commission, Chandigarh (UT). This goes on to show that the appellant was pursuing two
set of the complaints before two different fora at the same time and that too, after concealing this
important and relevant fact from both the State Commissions.
14. It is case of the appellant that second set of complaints were filed on legal advice before the
State Commission, Chandigarh (UT). However, who gave the appellant such legal advice, has
nowhere been mentioned nor the name of the legal advisor has been furnished. Be that as it may,
as per appellant’s case it withdrew 18 complaints from the State Commission, Haryana,
Panchkula. However, for reasons best known to the appellant, he has not placed on record second
set of complaints which were filed before he State Commission, Chandigarh (UT), so-called
legal advice nor copy of the order passed by the State Commission, Haryana, Panchkula,
permitting the appellant to withdraw those complaints.
15. In view of the facts narrated above, it is manifestly clear that appellant had sought to
hoodwink both the State Commissions by concealing the material facts.
16. In this regard with advantage we quote the following observations made by Hon'ble
Supreme Court in M/s. Sam Fine O Chem Limited Vs. Union Bank of India (Civil Appeal
No.7141 of 2013) decided on August 19, 2013;
“In our considered view, the appeal is liable to be dismissed not only because
it lacks merit but also because the appellant has deliberately omitted to place on
record the most important document, i.e., complaint filed under Section 21 of the
Act and without going through the same it is not possible for this Court to
record a finding that the appellant falls within the definition of ‘consumer’
under Section 2(1)(d) of the Act.”
17. Another aspect to be noted in the present case is that, no ‘Forum Hopping’ can be permitted
to any litigant meaning thereby a litigant, cannot be allowed to go on filing
different petitions/appeals as per his choice in different fora as per his sweet-will. Therefore, on
this score also present appeals are liable to be dismissed.
18. The State Commission, in this regard in its impugned order observed;
“The contention of the complainant with respect to initially filing
complaints before Haryana State Commission and simultaneously also filing
complaints before U.T. Commission without withdrawing the complaint filed
before Haryana State Commission and after filing complaint before U.T.
Commission withdrawing the complaint filed before Haryana State
Commission with prayer that on account of technical reasons the same were
being withdrawn shows that the complainant was not fair in his approach
despite being pointed out by opposite party in complaint filed before U.T.
Commission that the complainants were pending before Haryana State
Commission and still pursuing the same and also keeping in view the
observation of Hon'ble National Commission with regard to the conduct of
complainant in ‘Forum Hopping’ or ‘Forum Shopping’ by the complainant,
Hon'ble National Commission observed “it does not appear to us to be an
innocuous or bona fide move and evidently smacks of ‘Forum Hopping’ or
‘Forum Shopping’ by the complainant……” indicate that the complainant
was not bonafide in pursuing the case, no relief can be granted. Since the
complainant has been availing remedy in parallel proceedings befoe two
State Commission at same time with respect to same claims for same invoices
and concealed this fact, therefore, he cannot take the benefit for condonation
of delay in filing of these complaints in view of law settled by Hon'ble
Supreme Court in case cited as 2011 (3) RCR (Civil), Ramji Pandey and
others versus Swaran Kali (SC) wherein it was held that a party pursuing
remedy in the complainant are barred by limitation, the same cannot be
decided on merits. Support in this regard can be taken from the judgement
cited as State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481
(SC) (CP) = JT 2009(4) S C 191, wherein Hon'ble Supreme Court has
observed that;
“8. 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 the 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 sort of a legislative command to the consumer forum to examine on
its own whether the complaint has been filed within limitation period
prescribed thereunder. 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, the 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.”
Further reference is made to case cited as V.N. Shrikhande (Dr.) Versus Anita Sena
Fernandes 2011 CTJ 1 (SUPREME COURT) (CP) wherein Hon'ble Supreme Court has
held that;
“Section 24A(1) contains a negative legislative mandate against
admission of a complaint which has been filed after 2 years from the date
of accrual of cause of action. In other words, the consumer forums do not
have the jurisdiction to entertain a complaint if the same is not filed within
2 years from the date on which the cause of action has arisen. This power
is required to be exercised after giving opportunity of hearing to the
complainant, who can seek condonation of delay under Section 24A(2) by
showing that there was sufficient cause for not filing the complaint within
the period prescribed under Section 24A(1). If the complaint is per se
barred by time and the complainant does not seek condonation of delay
under Section 24A(2), the consumer forums will have no option but to
dismiss the same.”
The facts of the instant case are fully attracted to case law Ramji Pandey’s case
(Supra) State Bank of India versus B.S. Agricultural Industries (Supra) and V.N.
Shrikhande (Dr.) Versus Anita Sena Fernandes (Supra). Hence, these complainants
are not maintainable being barred by limitation and therefore cannot be decided on
merit in view of the law settled by Hon'ble Supreme Court.
For the reasons recorded above, all these complaints are dismissed being barred
by limitation.”
19. Further, it would also be pertinent to quote the following observations made by this
Commission earlier in this litigation in order dated 15.12.2009;
“The decision of the Supreme Court is applicable with all force to the facts
and circumstance of the present case because as mentioned above the
entire cause of action for filing the complaints had arisen under the
territorial jurisdiction of Haryana State Commission and no part of the
cause of action arose within the territorial jurisdiction of the UT
Commission. We have, therefore, no manner of doubt that the UT
Commission did not have the territorial jurisdiction to entertain and
adjudicate the complaints which it has answered by means of the impugned
order. It would appear to us that the complainant had rightly filed the
complaint No.5 to 21 of 2006 before the Haryana State Commission, which
had the jurisdiction and competence to entertain and adjudicate the
complaints. However, it is not easy to understand the reasons why the
complainant filed soon thereafter another set of identical complaints based
on the same cause of action claiming the same relief before the UT
Commission, Chandigarh in November, 2006, when the complaints filed by
him were still pending in the Haryana State Commission. It does not appear
to us to be an innocuous or bona fide move and evidently smacks of ‘Forum
Hopping’ or ‘Forum Shopping’ by the complainant. No doubt, at a
subsequent stage, after the Insurance Company objected to the
maintainability of two sets of identical complaints before the two
Commission that the complainant filed an application before the Haryana
State Commission seeking withdrawal of the said complaints. However, the
only ostensible ground set out in the application for withdrawal was
“………….There are some mistakes in the drafting of the complaint and
some technical difficulties as a whole. The deponent does not want to
pursue this complaint and he wants to withdraw the same” and “That the
deponent will seek his remedy against the respondents before the
appropriate forum."
20. So, “Forum Hopping” or “Forum Shopping” is writ large in these cases on behalf of the
appellant. In view of the mischievous conduct on the part of the appellant, the present appeals are
liable to be thrown away at the threshold.
21. It would be fruitful to quote the observations made by Hon’ble Supreme Court in Dalip
Singh Vs. State of U.P (2010) 2 SCC 114, which are fully applicable to the facts and
circumstances of the present case;
“1. For many centuries Indian Society cherished two basic values of life i.e.
“satya” (truth) and “ahinsa” (non-violence). Mahavir, Gautam Buddha and
Mahatma Gandhi guided the people to ingrain these values in their daily
life. Truth constituted an integral part of the justice-delivery system which
was in vague in the pre-Independence era and the people used to feel proud
to tell truth in the courts irrespective of the consequences. However, postindependence period has seen drastic changes in our value system. The
materialism has overshadowed the old ethos and the quest for personal gain
has become so intense that those involved in litigation do not hesitate to take
shelter of falsehood, misrepresentation and suppression of falsehood,
misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who
belong to this creed do not have any respect for truth. They shamelessly
resort to falsehood and unethical means for achieving their goals. In order to
meet the challenge posed by this new creed of litigants, the courts have, from
time to time, evolved new rules and it is now well established that a litigant,
who attempts to pollute the stream of justice or who touches the pure fountain
of justice with tainted hands, is not entitled to any relief, interim or final.”
22. Again the Hon'ble 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 ;
“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.
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 hardly 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.
It is a typical example how a litigation proceeds and continues and in the end
there is a profit for the wrongdoers.
Learned Amicus articulated common man’s general impression about
litigation in following words ;
“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 him and the probability of the court ordering prosecution for
perjury is less than that of meeting with an accident while crossing
the road.”
23. Thus, there is not an iota of doubt in the present case that the appellant is guilty of
withholding the fact that it had simultaneously filed separate set of complaints on the same cause
of action before the State Commission, Chandigarh (UT) as well as State Commission, Haryana,
(Panchkula) which amounts to “Forum Hopping”.
24. From what we have stated above, it is clear that the appellant has not approached the fora
below with clean hands. Therefore, he is not entitled to be heard on the merit of his grievance.
25. Hence, for filing these complaints by concealing material facts and misleading the fora
below, the appellant is saddled with cost of Rs.25,000/- (Rupees Twenty Five Thousand only) in
each appeal. The appellant is directed to deposit the aforesaid cost in the name of ‘Consumer
Legal Aid Account’ of this Commission, within four weeks.
26. In case, appellant fails to deposit the aforesaid costs within the prescribed period, then he
shall also be liable to pay interest @ 9% p.a., till realization.
27. List for compliance on 11.4.2014.
…………………………………….J
(V.B. GUPTA)
PRESIDING MEMBER
…………………………………………
(REKHA GUPTA)
MEMBER
Sg.