NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2517 OF 2013
(Against order dated 10.01.2013 in First Appeal No. 854/2009 of the
Rajasthan State Consumer Disputes Redressal Commission, Jaipur)
Oriental Bank of Commerce Hinduan Branch, Station Road, Hinduan City, Distt. Karauli,
Rajasthan
…Petitioner
Versus
Chandan Bala Jain W/O Late Sh. Sugan Chand Near Jain Mandir, Vardhman
Nagar, Hinduan City, Distt. Karauli, Rajasthan
…Respondent
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
: Mr. Vipin Jain, Advocate
PRONOUNCED ON 1st AUGUST, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
2.
3.
4.
This Revision Petition is directed against the Order in First Appeal No. 854 of 2009
passed on 10.01.2013 by the State Consumer Disputes Redressal Commission, (in
short, ‘State Commission’), Circuit Bench 2, Jaipur, Rajasthan whereby the State
Commission has allowed the First Appeal, setting aside the order of the District
Consumer Disputes Redressal Forum (in short, ‘District Forum’), Karauli, Rajasthan
in Complaint No. 49/2008.
Facts of the Case in brief:
The Complainant’s husband, Late Sri Sugan Chand took a housing loan of Rs.3 lacs
from the OP Bank in 2006 and OP charged Rs.265/- as a processing fee and
insurance premium of Rs.1929/-. He had paid 16 instalments of Rs.3,000/- per month
totalling Rs.48,000/-. Sugan Chand died in a road accident on 16.05.2007. After the
death the OP recovered Rs.2,84,000/- towards the balance loan and interest.
The main issue of the Complainant was that the OP bank had recovered the
outstanding loan from her husband instead of which the OP should have recovered
the loan amount from insurance company. Hence, for deficiency in service filed a
complaint before the District forum. The OP Bank admitted the sanction of loan but
has denied charging 0.8% process fee and so insurance amount cannot be paid. The
District forum dismissed the complaint.
Against the order the District Forum the Complainant preferred an appeal before the
State Commission. The State Commission through evidence on record and the
terms/conditions of loan agreement made the observation as:
“In the light of the above terms, the OP was to provide free Personal
Accident Insurance up to Rs.5 lacs and Process Fee was to be
recovered from the borrower by debiting his account. There was no
term in the Loan Agreement that the Borrower had to pay insurance
premium, thus by not insuring the borrower, the OP was deficient in
service due to which the Complainant had to pay the outstanding
dues with interest to the OP after the death of Mr. Sugan Chand on
16.05.2007, which she is entitled to recover should from the OP.”
5.
6.
The State Commission allowed the appeal and directed the OP to refund of
Rs.2,52,000/- collected as principal amount and interest after 16/5/2007 within one
month otherwise they will be liable to pay 9% p.a. interest. The OP can retain
Rs.265/- towards Process Fee. The OP shall also pay to the Complainant an amount
of Rs.10, 000/- towards mental agony and Rs.2, 000/- towards litigation costs.
16.05.2007.
Aggrieved by the order of the State Commission this Revision Petition was filed in
this commission.
7.
We have heard the counsel for petition who argued vehemently. There is a delay of
81 days in filing this Revision Petition. The application filed by the petitioner for the
condonation of delay did not specify or explain day to day reasons of delay. Hence,
the delay cannot be condoned. Regarding the merits of this petition it is clear from
the OP’s own circular which is reproduced as:
“Bank shall provide free personal accident insurance up to
Rs.5.00 lacs or the loan amount whichever is lower to the
applicants and also insurance of house/flat up to the loan amount
free of cost. In such cases, process fee @ 0.8% is to be
recovered from the borrower.”
8.
Accordingly, the OP should have provided free personal accident insurance up to
Rs.5 lacs and they should have recovered the process fee from the borrower by
9.
debiting his account. Therefore, the OP failed to do so. It is the deficiency of
service for which OP is liable.
Therefore, this Revision Petition is barred by time and even devoid of merits. It is
dismissed. No order as to costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(Dr. S. M. KANTIKAR)
MEMBER
MSS/14
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2049 OF 2013
(Against order dated 15.02.2013 in First Appeal No. 805/2012 of the
Kerala
State
Consumer
Disputes
Redressal
Commission,
Thiruvananthapuram)
Kerala State Co-operative Bank Ltd. A Schedule Bank Head Office at Co-Bank Towers,
Palayam, Thiruvananthapuram, Kerala State Rep. By
Its Senior Manager
…Petitioner
Versus
1.
L.R. Lekha, W/O G.R. Jayakumar, Pandaravilakom, Sri Gowri Sankaram,
Marayamuttom P.O., Neyyattinkara, Thiruvananthapuram, Kerala State
2.
G.R. Jayakumar S/O Gopalakrishnan Nair, Pandaravilakom, Sri Gowri Sankaram,
Marayamuttom P.O., Neyyattinkara, Thiruvananthapuram, Kerala State
…Respondents
BEFORE:
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
:
Mr. M.T. George, Advocate
PRONOUNCED ON 1st August , 2013
ORDER
PER DR. S.M. KANTIKAR
1.
2.
This Revision Petition is filed by Kerala State Co-operative Bank Limited against
the Order dated 15.02.2013 Kerala State Consumer Disputes Redressal
Commission, Thiruvananthapuram (in short, ‘State Commission, Kerala’) in Appeal
No. 805/2012.The said decision of the State Commission was passed in the
appeal filed against the Order dated 30.04.2012 passed by the District Consumer
Disputes Redressal Forum, Thiruvananthapuram (in short, ‘District Forum’) in CC
No. 225/2010.
Facts in brief:
The Complainants availed a loan of Rs.7,00,000/- from ‘The Kerala State Cooperative Bank Ltd’.( the OP), Karamana Branch for repair and renovation to their
building in Perumkadavila Village. The loan was sanctioned on 10.06.2006 that the
loan was disbursed in three instalments as 1st of Rs.2,10,000/-, 2nd of
Rs.2,801,000/- and 3rd of Rs.2,10,000/- that the loan with interest is to be repaid in
180 monthly instalments, that the interest rate was fixed as 7.25% and the penal
interest is attracted only if there is default in payment of principle or interest . The
1st instalment was disbursed on 29.06.2006. The repayment EMIs without any
default started by the 1st Complainant. On perusal of 1st Complainant’s bank
account it was found that the OP have charged interest more than agreed rate of
7.25%. It was without notice to the Complainant and against the terms and
conditions. On enquiry with the OP, who stated that the higher rate of interest was
due to non-receipt re financing from the NABARD. The OP had collected an
amount of Rs. 20,216/- in excess than the agreed rate of interest at 7.25% from the
Complainant from 29.02.2008 to 30.05.2010. Hence the Complainant asked the OP
not to charge interest in excess than that of the agreed rate of 7.25% and to refund
the excess amount of Rs.20,216/- and also to pay compensation and cost.
But OP denied complainants demand .The OP contended that as the NABARD has
stopped the refinancing of loan for rural housing which resulted huge loss to the
bank and therefore, the Directors of the bank reviewed the scheme and increased
the rate of interest. This decision was conveyed to the Complainant by registered
post. The OP has discretion to modify the terms and conditions impose or to add
additional terms and conditions that kept considered necessary to protect its
interest.
Thereafter, the complainant filed a complaint No 225/2010 before District Forum
on the ground that OP has committed grave irregularity in collecting excess rate of
interest unilaterally and violated the terms and conditions of the agreement which
is deficiency in service and unfair trade practice.
3.
The District Forum allowed the complaint ordered as :
“Opposite Party shall not charge interest in excess than that of the agreed
rate of 7.25%. Opposite Party shall tabulate the account on the basis of
interest at 7.25% and shall refund the excess amount collected so far in
excess of the contractual rate of interest of 7.25% per annum to the
Complainants. Opposite Party shall pay Rs.5,000/- as compensation and
Rs.2,000/- as cost to the Complainants.”
4.
Against the order of District Forum the respondent preferred an appeal No.
805/2012 before the State Commission. The State Commission relied upon its own
decision dated 07.10.2009 F.A. 142/09; the “Managing Director, Kerala State
Co-operative Bank, Thiruvananthapuram Vs. P. Arumugharn”. In that appeal
the State Commission has taken a view that the Respondent/Complainant who
availed the loan is only bound to pay the fixed interest @ 7.25% p.a. so the action
of the part of the appellant/opposite parties in demanding and collecting
enhanced interest at interest at 9% p.a. is an unauthorised high handed
action. On hearing both the parties and perusal of Loan Agreement and
records on file the State Commission dismissed the appeal with further cost of
Rs.10,00/-.
5.
6.
Aggrieved by the order of State Commission the respondent bank filed this
revision petition.
Heard the learned counsel for Petitioner who contended that;
The loan was sanctioned at a concessional rate of interest of 7.25% per annum
under the NABARD sponsored Scheme “Rural Housing Loan”. NABARD stopped
refinance to the Bank which resulted huge loss to the bank and hence the Board of
Directors of the Bank decided
to effect an upward revision of interest from 7.25% to 9% for the loans under Rural
Housing Loan. It was stated that OP shall have the discretion to modify the terms
and conditions to impose or to add additional terms and conditions that kept
considered necessary to protect its interest, though the Complainant is not a party
in the agreement executed between the NABARD and the petitioner in respect of
sanctioning of the funds.
7.
It is noted from the evidence on record that the petitioner bank has decided to
extend the loan facility by enhancing the rate of interest at 9% treating the
loan as of an own fund loan so as to give protection to its customers. Accordingly
registered notice to RHL Scheme customers providing an opportunity to them
either to continue a loan facility with enhanced rate of interest or to close the loan
within the time limit specified in the registered notice was given/published.
8.
Discussing the merits of this case , it is clear the Complainants were only
bound to follow the agreement executed between the bank and themselves. The
agreement did not mention any directions or rules of NABARD. The loan
disbursement document is very clear that last loan instalment (3rd) was disbursed
on 4/1/2007; but the letter of enhancement of interest of 9% was sent by registered
post on 30/1/2008. OP has collected excess interest of Rs. 20216/- from
29/2/2008 to 31/5/2010. It appears that the OP has acted upon its own whims
and fancy without any proper directions or rules that has increased the interest
abruptly. It amounts to unfair trade practice and OP bank has no right to collect
any excessive amount of interest which is a deficiency in service. The OPs have
not produced any documents, rules or directions to prove their contentions.
9.
Therefore, there is no illegality in the orders passed by the Fora below. Hence,
this Revision Petition is dismissed with costs of Rs.10,000/- to be paid to the
Complainant. The order should be complied within 60 days otherwise it will carry
interest @ 9% per annum till the payment.
.…..…………………………
(Dr.S. M. KANTIKAR)
MEMBER
MSS/14
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4662 OF 2012
(Against order dated 03.08.2012 in First Appeal No. 1010/2012 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
Jaswinder Singh, S/o. Kulwanth Singh, R/o. Plot No.9, P&T Colony,
Balamrai, Secunderabad
…Petitioner
Versus
Corporation Bank, S.P. Road Branch, 9-1-86/1, Sardar Patel Road, Secunderabad,
Rep By its Chief Manager.
…Respondent
AND
REVISION PETITION NO. 4663 OF 2012
(Against order dated 03.08.2012 in First Appeal No. 1011/2012 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
Sri Pradeep Kumar Gupta, S/o. Late Babulal Gupta, R/o H.No.8-5-317/1, Plot No.91/C,
Brindavan Colony, Old Bowenpally, Secunderabad
…Petitioner
Versus
Corporation Bank, S.P. Road Branch, 9-1-86/1, Sardar Patel Road, Secunderabad,
Rep By its Chief Manager.
…Respondent
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
in both cases
For the Respondent in both cases
: Mr. Himanshu Gupta, Advocate
: Mr. Alok Kumar, Advocate with
Mr. Amit Kumar Dadhich, Advocate
PRONOUNCED ON 1st August , 2013
ORDER
PER DR. S.M. KANTIKAR
1.
This common order passed is passed in the two Revision Petitions No.
RP/4662/2012 and RP/4663/2012 filed against the order of the State Consumer
Disputes Redressal Commission, Hyderabad, A.P. (in short, ‘State Commission’) in
First Appeal No. 1010 of 2012 and First Appeal No. 1011 of 2012, whereby the
Hon’ble State Commission was pleased to allow the appeal preferred by the
Respondent/Corporation Bank and dismissed the Complaint filed by the Petitioner.
2.
Brief facts in the case are :
The facts are similar in both revision petitions. The Respondent/Bank published a
notification for the sale of mortgage properties in the public auction on 27.05.2009 at
11.30 a.m. Accordingly as per the auction conditions the petitioners in both
Revision Petitions participated the auction proceedings by depositing earnest m
oney
of
Rs.1,10000/each.
The
Petitioner
in
RP
4662/2012
succeeded the auction for the Flat No. 8-7-114/8/28, 2nd floor at Hussaini Bagh,
Golbowli, Old Bowenpally, under Kukatpally Municipality for a sum of Rs.15,05,500/-.
The petitioner in RP No 4663/2012 succeeded the auction for the Flat No. 8-7114/8/28. on first floor flat at Hussaini Bagh, Golbowli, Old Bowenpally, under
Kukatpally Municipality for a sum of Rs.16,40,000/- . Thereafter, the OP asked
to remit the balance auction money. On 28.05.2009 the OP issued Xerox
documents of the auction property for the scrutiny from the Complainant. The
Complainant
approached
few
other Banks for getting
loan,
who
on verification on the title deed stated that the title deeds are defective. The
Complainant verified the title deeds from legal consultants who also confirmed about
the defects in the title deeds Hence, thereafter the Petitioner approached the
Corporation Bank (OP) for getting Housing Loan with respect to said property. But the
OP Bank also refused to grant loan without setting any reasons. Therefore, the
Petitioner wrote a letter to the Regional Office on 30.05.2009 about the defects in the
title of a said property and requested the OP to refund the said deposited earnest
money of Rs.1,10,000/-. The OP did not respond but stated that they have already
sent a letter by forfeiting investment money paid by the Complainant. But no such
letter received by the Complainant. Therefore, the Complainant finally sent a
registered letter on 11.06.2009 for which the OP replied evasively with false and
frivolous allegations. Further, the Complainant approached a senior legal Counsel
who also being advocate in the panel of banking institutions and took a legal opinion
on the said title deed. As per their opinion dated 28.6.2009 the property covered by
Registered sale deed is in favour of defaulter of the OP and the powers vested in
favour of vendor of the said defaulter from each other. On this ground the
Complainant wrote another letter to OP on 09.07.2009 enclosing the said legal
opinion and requested to refund the earnest money deposited. But the OP did not
complied with the Complainants request. Hence, alleging deficiency of service the
Complainant filed a complaint before the District Consumer Disputes Redressal
Forum, Hyderabad, A.P. (in short, ‘District Forum’) for the relief in the CC No.
810/2009.
3.
The OP filed their version as follows:
They have acted as per the terms and conditions furnished to the bidders in
respect of auction property. The Complainant was declared as highest bidder
but he did not comply with the terms and conditions of auction .He has not
deposited 25% of the bid amount on same day and also failed to pay the
remaining 75 % within fifteen days. Therefore, the OP have forfeited the
earnest money of 1,10,000/- as per terms of auction.The OP also contended
that they have sustained loss by the way of conducting another auction in
respect same property and expenses of publication. Therefore, no deficiency
in service.
4.
The District Forum allowed the Complaint after hearing the Counsel for
both the parties and perused all material on record and directed the OP to refund
the earnest deposit amount of Rs.1,10,000/- to the Complainant along with interest at
9% p.a. from the date of the deposit till the date of realization and to pay Rs.2,000/towards costs of the complaint.
5.
6.
Aggrieved by the order of the District Consumer Forum the Bank (OP) preferred two
appeals FA No. 1010 of 2012 and FA No 1011/2012 before State Commission. OP
contended that there is no illegality or irregularity or deficiency in service in forfeiting
earnest money.
The State Commission perused the entire material on record and the evidence
and heard the both the parties and set aside the order of the District Forum
and dismissed the complaint.
7.
Aggrieved by the order of State Commission the Petitioners have filed the
instant Revision Petitions before this Commission.
8.
We have heard the Counsel for the parties. The Counsel for the Petitioner
argued that the OP Bank as played fraud as they have knowledge about the
defective title deed and OP betrayed the trust of the general public by
auctioning such property.
9.
10.
We have considered the following submissions of the OP Bank. It is pertinent
to observe that, when the bank has advertised that purchase of flat would be on
‘as-is-where-is’ basis, it clearly means that the Seller is not responsible for the
Title Deeds. It is the bounden duty of the Purchaser to find out, whether the
above said flat is free from all encumbrances. The Bank is not responsible for
that. That is why Bank has given the advertisement in such a manner,
cautioning the Purchaser to verify the Title Deeds. In that context, the Bank will
have to spend lot of money on advertisements and on auction itself. The time of
the bank managers is also wasted.
On perusal of
evidence on record it appears that the O.P have
misused the term for “as is where is”. It was a deliberate
concealment of legal position of the title deed. It is clear that at the
inception only the intentions of OP were to conceal the defective title.
Therefore, the advertisement “as is where is” created confusion in this case.
Affidavit of Complainant shows that the Complainant was interested in
participating in the public auction and requested the OP to provide the copies
of the title deeds for verification prior to the date of auction but the OP refused
to provide it prior to the date of auction. Therefore, the Complainant was
unable to verify the title.
11.
From the inception the OP
was well aware about the defective
title of said auctioned property
and
with
malafied
intentions
OP
has not issued those documents to the complainant for verification of legal
aspects of title. It is quite surprising to note that OP issued the copies of title
deed after completion of auction process. Therefore, such defective title is of no
use for the complainant.
12.
Even after successful bidding the complainant tried his level; best to get loan to
remit balance of bid amount; but no banks were ready to grant loan on basis of
such defective title deed. The OP bank also denied giving loan to the
complainant.
13.
14.
Hence, we hold the OP bank responsible for such debacle by which the
Complainant did not get house and sustained loss despite he was a successful
bidder. The OP publishing or advertising such defective titled property for
auction sale amounts to unfair trade practice and deficiency in service. Hence,
the action of OP in forfeiting the earnest money is an illegal act.
Hence, we partly allow both Revision Petitions. Accordingly we set
aside the order
of State Commission and restore the order of
District forum with modifications as ;
The OP bank is directed to refund to each petitioner amount
of
Rs.1,10000/- without any interest after deduction of Rs.25,000/towards the cost of auction proceedings, advertising etc. This order
should be compiled within 45 days otherwise it will carry interest @ 9%
per annum till realisation.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(Dr. S. M. KANTIKAR)
MEMBER
Mss/7-8
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2450 OF 2008
From the order dated 26.02.2008 in Appeal No. 276/2006 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
Abhay Deo Saxena R/o 11/103, Kaveri Pathh, Man Sarovar, Jaipur (Raj) – 302020
… Petitioners/Complainant
Versus
1. Rajasthan Housing Board Jyoti Nagar, Jaipur, Through: Chairman
2. Rajasthan Housing Board Jyoti Nagar, Jaipur, Through: Secretary
3. The Chief Estate Manager, Rajasthan Housing Board Jyoti Nagar, Jaipur,
4. The Estate Manager, Rajasthan Housing Board Pratap Nagar, Jaipur
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
For the Respondents
:
:
Mr. Abhay Deo Saxena, In person
Mr. Milind Kumar, Advocate
PRONOUNCED ON
1st August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/Complainant against the
order
dated
26.02.2008
passed
by
the
Rajasthan
State
Consumer
DisputesRedressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal No.
276/2006 – Rajasthan Housing Board Vs. Mr. Abhay Deo Saxena by which, application
for review of order was dismissed.
2.
Brief facts of the case are that complainant filed complaint before District Forum
and learned District Forum vide order dated 13.2.2003 allowed complaint and directed
OP to allot House No. 63/37 which is still vacant. Both the parties filed appeal before
State Commission and learned State Commission dismissed both the appeals. Later
on, complainant/petitioner filed application and submitted that by typing mistake, House
No. 63/37 has been typed in the orders instead of House No. 62/37 which may be
corrected. Learned State Commission vide impugned order dismissed application
against which, this revision petition has been filed.
3.
Heard the petitioner in person and learned Counsel for the respondent and
perused record.
4.
Perusal of record clearly reveals that learned District Forum directed
OP/Rajasthan Housing Board to allot House No. 63/37 to the complainant and appeals
filed by both the parties were dismissed by learned State Commission. In both the
appeals, House No. 63/37 has been mentioned. Learned State Commission in the
impugned order observed that there is no typing mistake in the order and order of
District Forum for allotment of House No. 63/37 has been affirmed by learned State
Commission. It was further observed that learned State Commission has no power to
review its order.
5.
As held by the Apex Court in (2011) 9 SCC 541 – Rajeev Hitendra Pathak and
Others Vs. Achyut Kashinath Kakekar and Another, the State Commission has no
power to recall its order. Learned State Commission has not committed any error in
dismissing review petition by the impugned order.
6.
We do not find any illegality, irregularity 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 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. 1233 OF 2012
(From the order dated 24.11.2011 in Appeal No.202 of 2010 of the Gujarat State
Consumer Disputes Redressal Commission, Ahmedabad)
Sahara India First Floor, Chhikniwala Bldg., Beside Bank of India, Opp. Naroda, Police
Station, Naroda, Ahmedabad.
… Petitioner/Opp. Party (OP)
Versus
1.
2.
3.
4.
Ashok Kumar Ranchand Gunani
Minaben Ashok Kumar Gunani
Haresh Ashok Kumar Gunani
Kamlesh Ashok Kumar Gunani
All R/o A-1, Sindhunagar Society Kubernagar, Ahmedabad
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Gautam Awasthi, Advocate
For the Respondent
:
Mr. Akhil Dave, Advocate
PRONOUNCED ON 1st August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
24.11.2011 passed by the Gujarat State Consumer Disputes RedressalCommission,
Ahmedabad (in short, ‘the State Commission’) in Appeal No. 202 of 2010 – Sahara
India Vs. Ashok kumar Ranchand Gunani & Ors. by which, while allowing appeal partly,
order of District Forum allowing complaint was confirmed, but words ‘Insurance Policy
and ‘Bond’ mentioned in the order of District Forum were substituted by the
word ‘Insurance Order’ and ‘Bank Order’, respectively.
2.
Brief facts of the case are that Sangitaben obtained insurance policy from OP-
Petitioner
on
31.7.1998
for
Rs.10,000/-
for
a
period
of
10
years
and
deceased Sangitaben nominated each of the complainants/ as a nominee in the ratio of
25% each. On 12.10.2007, Sangitaben died. Complainant No. 1 was paid Rs.10,000/-
as death maturity, but Death Health Facility Benefit was not granted. Alleging
deficiency on the part of OP/petitioner, complainant filed complaint before District
forum. OP was proceeded ex-parte and learned District Forum vide order dated
6.1.2010 allowed complaint and directed OP to make payment of Rs.12,00,000/. Appeal filed by the petitioner was dismissed by State Commission vide impugned
order against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused original record of District
Forum.
4.
Learned Counsel for the petitioner submitted that notice for appearance on
2.12.2009 before District Forum was issued on 9.12.2009 and on account of nonappearance of petitioner, petitioner was proceeded ex-parte on 22.12.2009 and exparte order was passed on 6.1.2013 without taking any evidence and learned State
Commission committed error in dismissing appeal; hence, revision petition be allowed
and impugned order of District Forum be set aside. Learned Counsel for the respondent
admitted that as per record, by notice dated 9.12.2009, petitioner was asked to appear
on 2.12.2009 before District Forum and apparently, District Forum committed error in
allowing complaint ex-parte; hence, revision petition be allowed and matter may be
remanded back to the District Forum for disposal in accordance with law.
5.
Perusal of record of District Forum clearly reveals that notice for appearance of
petitioner on 2.12.2009 has been issued by District Forum on 9.12.2009. Learned
Counsel for the respondent submitted that by inadvertence 9.12.2009 has been
mentioned whereas apparently notice was issued on 9.11.2009. This contention cannot
be accepted because the date 9.12.2009 has been mentioned on the notice at two
places, on the top as well as at bottom. Thus, it becomes clear that notice for
appearance on 2.12.2009 has been issued on 9.12.2009 and ex-parte order has been
passed against the petitioner on 22.12.2009, which could not have been passed by
learned District Forum without service of proper notice for 2.12.2009. Further, it also
reveals that District Forum allowed complaint even without recording any evidence of
the complainant. Thus, it becomes clear that District Forum committed error in allowing
complaint ex-parte. Learned State Commission further committed error in dismissing
appeal by impugned order without considering aforesaid contention of the petitioner
made in the memo of appeal before State Commission and in such circumstances,
impugned order is liable to set aside. Learned Counsel for the respondent also
admitted this mistake on the part of District Forum and State Commission and prayed
that after setting aside impugned order, matter may be remanded back to learned
District Forum for deciding the matter after giving opportunity of being heard to both the
parties.
6.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 24.11.2011 passed by learned State Commission in Appeal No. 202 of
2010 - Sahara India Vs. Ashok Kumar Ranchand Gunani & Ors. is set aside and order
of District Forum dated 6.1.2010 is set aside. District Forum is directed to decide the
matter afresh after giving opportunity of being heard to petitioner/OP.
7.
Parties are directed to appear before District Forum, Ahmedabad City, Gujarat on
9.9.2013.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3759 of 2011
(From the order dated 18.8.2011 in Appeal No.615 of 2008 of the State Consumer
Disputes Redressal Commission, Chennai Bench II)
G. Ramachandran 18/6, Peyalwar Koil Street, Triplicane, Chennai – 600005
… Petitioner/Complainant
Versus
ICICI Bank Limited Nungambakkam Branch No. 110, Prakash Presidum
Nungambakkam Chennai – 600034
… Respondent/Opp. Party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Manish Kumar, Advocate
For the Respondent :
Mr. Pankaj Yadav, Advocate
PRONOUNCED ON 1st August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner against the impugned order
dated 18.8.2011 passed by the State Consumer Disputes RedressalCommission,
Chennai, Bench II (in short, ‘the State Commission’) in Appeal No.615 of 2008 – ICICI
Bank Limited Vs G. Ramachandran. by which, while allowing appeal partly, order of
District Forum allowing complaint was partly set aside.
2.
Brief facts of the case are that complainant applied for loan from Employees’
Provident Fund organization to complete his construction and loan of Rs.75,000/- was
sanctioned by Employees’ Provident Fund organization and cheque dated 11.9.2003
worth Rs.75,000/- was sent by Employees’ Provident Fund organization to OP for
crediting in Complainant/Petitioner’s account which was not credited. Alleging
deficiency on the part of OP/respondent, complainant filed complaint with a prayer to
credit the cheque amount of Rs.75,000/- with interest @ 24% p.a. interest and further
pay compensation and cost. OP contested complaint and submitted that as cheque did
not bear correct account number; hence, amount could not be credited in complainant’s
account and awaiting instructions from their Head Office. Learned District Forum after
hearing both the parties, allowed complaint and directed OP to credit Rs.75,000/- along
with 24% p.a. interest in complainant’s account and further pay Rs.15000/- as
compensation and Rs.1,000/- as litigation cost. Appeal filed by the respondent was
partly allowed by learned State Commission vide impugned order and order directing to
credit Rs.75,000/- was set aside and rest of the order was upheld against which, this
revision petition has been filed.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that learned District Forum rightly
directed OP to credit Rs.75,000/- in petitioner’s account, but learned State Commission
has committed error in setting aside this order; hence, revision petition be allowed and
impugned order be set aside. On the other hand, learned Counsel for the respondent
submitted that on account of illegible/wrong account number, amount of cheque could
not be credited in the petitioner’s account and order of State Commission is in
accordance with law; hence, revision petition be dismissed.
5.
Perusal of record reveals that cheque was sent by Employees’ Provident Fund
organization along with letter to OP for crediting Rs.75,000/- in petitioner’s SB A/c, but
his SB Account number shown in the letter is not legible. Later on, on 27.10.2003
petitioner wrote letter to OP regarding non-crediting of Rs.75,000/- in his SB Account,
but in that letter too he has mentioned petitioner’s different SB Account number at two
places. In such circumstances, this amount could not have been credited in petitioner’s
SB Account. Learned Counsel for the petitioner has not proved this fact that
Rs.75,000/- has been credited in any one’s account and debited in the Employees’
Provident Fund organization A/c. In such circumstances, petitioner was not entitled to
get credit of Rs.75,000/- from OP and learned State Commission has not committed any
error in modifying the order of learned District Forum to this extent.
6.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order and revision petition is liable to be dismissed.
7.
Consequently, the revision petition 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. 3146 OF 2012
(From the order dated 16.07.2012 in Appeal No.201 of 2012 of the State Consumer
Disputes Redressal Commission, UT, Chandigarh)
Sanjay Kumar Mishra H.No. 1224, G/F, New HBC Sector-19 Panchkula – 134113
(Haryana)
… Petitioner/Complainant
Versus
1.Public Information Officer (PIO) State Information Commission (SIC) Punjab S.C.O.
84-85, Sector 17C, Chandigarh – 160017
2.Chief Information Commissioner (CIC) State Information Commission (SIC) Punjab
S.C.O. 84-85, Sector 17C, Chandigarh – 160017
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
For the Respondent Nos. 1 & 2
:
For Union of India (Impleader)
:
Advocate
PRONOUNCED ON 1st August, 2013
In person
Mr. Vishal Mahajan, Advocate
Mr. Ali Naqvi,
APPLICATION FOR IMPLEADMENT OF PARTY
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order
dated
16.07.2012
passed
by
the
State
Consumer
Disputes RedressalCommission, UT, Chandigarh (in short, ‘the State Commission’) in
Appeal No. 191 & 201/2012 – Sanjay Kumar Mishra Vs. Public Information Officer
(PIO) & Anr. bywhich, while dismissing both the appeals, order of District Forum
dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner filed complaint before
District Forum for a direction to OP/respondent to provide him parawise information and
grant of compensation which complaint was dismissed by District Forum and upheld by
learned State Commission.
3.
During pendency of
revision petition, Union of India filed application
for impleadment of Union of India as a party and submitted that outcome of these
proceedings will have a bearing on all public authorities and authorities under
Consumer Protection Act have no jurisdiction to deal with the matters covered under
Right to Information Act; hence, Union of India may be impleaded as a party. Petitioner
filed reply and submitted that Union of India is neither necessary nor proper party in this
matter and Union of India was not a party before District Forum or State Commission;
hence, application be dismissed.
4.
Heard the petitioner in person and Counsel for the respondent and Union of India.
5.
Learned Counsel for the Union of India submitted that a party can be impleaded
at any stage of the proceedings and outcome of these proceedings will have bearing on
all public authorities; hence, Union of India may be impleaded as a party. On the other
hand, petitioner submitted that Union of India is neither necessary nor proper party;
hence, application for impleadment may be dismissed.
5.
It is admitted case that Union of India was not a party before District Forum and
State Commission. District Forum has already dismissed complaint and State
Commission has upheld order. During the pendency of the revision petition, the Union
of India had filed application for impleadment as a party. Learned Counsel for the Union
of India has placed reliance on (2010) 7 SCC 417 – Mumbai International Airport
Private Limited Vs. Regency Convention Centre and Hotels Private Limited and
others in which it was held that at any stage of the proceedings Court can add or
delete any party under Order 1 Rule 10 CPC. We agree to the proposition of law laid
down by Hon’ble Apex Court, but we do not find any ground for impleading Union of
India as a party in these proceedings merely because outcome of these proceedings
may have a bearing on all public authorities under Right to Information Act. Petitioner
has alleged deficiency only against Public Information Officer and Chief Information
Commissioner, Punjab and has not claimed any relief against Union of India. In such
circumstances, Union of India cannot be impleaded as a party in this revision petition,
but at the same time, as outcome of this litigation may have impact on other public
authorities, it would be appropriate to allow Counsel of Union of India to address this
Commission at the time of final arguments.
6.
Consequently, I.A. No. 206 of 2013 filed by the Union of India is dismissed with
permission to address Bench at the time of final arguments.
7.
List the matter for admission hearing on 04.10.2013.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 411 OF 2007
(Against the order dated 24.04.2007 in CC No. 56/1998 of the
Delhi State Consumer Disputes Redressal Commission)
St. Stephens Hospital Through its Medical Superintendent Tis Hazari Delhi
…
Appellants
Versus
Smt. Roshani Devi, Wife of Late Ram Niwas, Resident of Village Asanda, P.O. Sampla,
Distt. Rohtak, Haryana
…
Respondents
FIRST APPEAL NO. 488 OF 2007
(Against the order dated 24.04.2007 in CC No. 56/1998 of the
Delhi State Consumer Disputes Redressal Commission)
1.
Smt. Roshani Devi, Wife of Late Ram Niwas, Resident of Asanda, P.O. Sampla,
Distt. Rohtak, Haryana
2.
Km. Mamta Rani, Daughter of Late Ram Niwas, Resident of Village Asanda,
P.O. Sampla, Distt. Rohtak, Haryana
3.
Master Amit Kumar, Son of Late Ram Niwas, Resident of Village Asanda,
P.O. Sampla, Distt. Rohtak, Haryana
4.
Master Anuj, Son of Late Ram Niwas, Resident of Village Asanda, P.O. Sampla,
Distt. Rohtak, Haryana
…
Appellants
Versus
St. Stephens Hospital, Through its Medical Superintendent, Tis Hazari, Delhi
…
BEFORE:
HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON'BLE MR. VINAY KUMAR, MEMBER
IN FA/411/2007
For the Appellants
Mr. Rajeev Sharma, Advocate
Respondents
Mr. Sahil Bhalik, Advocate
For the Respondents
Ms. Aruna Mehta. Advocate
IN FA/488/2007
For the Appellants
Ms. Aruna Mehta. Advocate
For the Respondents
Mr. Rajeev Sharma, Advocate
Mr. Sahil Bhalik, Advocate
Pronounced : 1st AUGUST, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
First Appeal No. 411 of 2007 has been filed by St. Stephens Hospital being
aggrieved by the order of the State Commission, which had allowed the complaint of
medical negligence alleged by Smt. Roshani Devi, complainant before the State
Commission and respondent herein. A cross appeal (First Appeal No. 488 of 2007) in
the same matter has been filed by respondent/complainant, seeking enhancement of
the compensation awarded by the State Commission. Since the cause of action and
the parties involved are common in both the cases, we propose to dispose of both
appeals through a single order by taking the facts from First Appeal No. 411 of 2007.
2.
In her complaint before the State Commission, Complainant/respondent
Smt. Roshani Devi contended that her late husband (hereinafter referred to as ‘patient’),
who had been suffering from intermittent fever from 12.02.1996 and which could not be
cured in Rohtak, was admitted to appellant hospital on 22.02.1996. He was discharged
on 26.02.1996 with the remark that the patient had “improved” and required treatment
as an outdoor patient, whereas the patient was in a very critical condition when he was
discharged with platelet counts which had dropped to even more critical levels from
19,000 to 16000 cumm; whereas the normal count is between 1,50000 to
4,50000 cumm. It was stated that although the concerned Doctors of Appellant Hospital
had clearly recorded that liver abscess was suspected but no tests were conducted to
confirm the same or to diagnose the cause of the very low platelets counts
(Thrombocytopania). In fact throughout the period of the stay of the patient in Appellant
Hospital, only empirical treatment to deal with the overt symptomatic conditions like
fever, pain and nausea were given such as Combiflame,Lariago and Perinorm. Some
of these medicines are contraindicated as being toxic in respect of liver complaints.
3.
The same night, following the discharge, patient’s s condition further deteriorated
and bleeding started from his nails, gums and nose. He was rushed to AIIMS but could
not be admitted there due to non-availability of a bed. He was thereafter admitted to
Holy Family Hospital on 27.02.1996. Although, a correct diagnosis was made there and
treatment started but, because of the medical negligence on the part of appellant No.1
in not correctly diagnosing and treating the patient, his life could not be saved and he
passed away on 11.03.1996.
4.
Being aggrieved by the deficiency in service and medical negligence on the part
of the appellant hospital because of which a young man of 32 years who was working
as a school teacher on a monthly salary of Rs. 5,000/- (and which would have
substantially increased over the years), expenditure of over Rs. 1,20,000/- spent on his
treatment and also the acute mental agony and invaluable loss caused to Respondent
and her young children, Respondent filed a complaint before the State Commission
requesting that the Appellant-Hospital be directed to pay the Respondent following:
i) For loss of income present and future
:
Rs. 13,00,000/ii) For Expenses incurred towards medical
treatment in the concerned hospitals
:
iii) For loss of love, affection etc.
Total
5.
Rs. 1,28,000/:
:
Rs.
72,000/-/-
Rs. 15,00,000/-
The contentions of the respondent were denied by the Appellant-Hospital in its
written rejoinder who inter-alia took the following plea:
“(i) A Doctor can be said to be guilty of negligence only if he commits
such an error which no doctor of reasonable competence will
commit. A doctor cannot make a final diagnosis straightway and
any diagnosis that is made by a doctor is always to an extent prima
facie;
(ii)
All the test reports of patient turned out to be normal except his
platelets count which was low. Low platelets count is commonly
found in blood examination of patients of malaria. After treatment
for Malaria the patient’s fever settled and he felt better;
(iii)
There were no symptoms indicating jaundice. Normally diagnosis of
jaundice is made on the basis of yellowing of the skin, itching and
mental indentation (confusion). Though, the OPD doctor had
suspected liver abscess, however, after admission and examination
by the Consultant, it was found that the patient was suffering from
malaria fever and treatment for the same was started;
6.
(iv)
Patient was properly taken care for and treated as per medical
practice and procedure. At the time he was discharged from the
hospital he was not in a serious or a life threatening condition. The
doctors at the hospital never suspected liver abscess;
(v)
The complainant was wrong in assuming that platelet count of 19000
is indicative of critical condition. This view is not supported by
medical literature”.
The State Commission after hearing the parties and on the basis of evidence
adduced before it, allowed the complaint by observing as follows:
“As is apparent from the aforesaid medical literature the normal
human body has 1.5 lakh to 4.5 lakhs platelets per cu. Milliliter of
blood and if as many count above 1,00,000 per cub. Mil. Patients
are not symptomatic and the bleeding time remains
normal. Patients with a platelets count below 20,000 per cub.
Millimeters have an appreciable incidence of spontaneous bleeding,
usually have petechiae and may have intracranial or other
spontaneous internal bleeding. In the instant case patients was
having platelets of 16,000 at the time of discharge still his condition
was shown as normal whereas at the time of admission he was
having 19,000 count. Patient with such low count platelets needs
hospitalization and proper management as such a count has
potential instance of spontaneous bleeding which usually
have petechiae and may have intracranial or other spontaneous
internal bleeding.”
7.
The State Commission directed the Appellant-Hospital to pay Rs. 5,00,000/- to
the Respondent-Complainant as against Rs.15,00,000/- sought by her by observing as
follows:
“Taking over all view of the matter, the age of the patient as well as the
profession and his earnings, the legal heirs left by him and the medical
negligence on the part of OP No.1, mainly discharging the patient in such
a condition which was against the medical ethic, in our view Rs. 5,00,000/(Rupees Five Lacs) to be payable by OP No.1 Hospital would meet the
ends of justice.”
Hence the present cross appeals.
8.
9.
Learned Counsels for both parties made oral submissions.
Counsel for the Appellant-Hospital reiterated the stand it took before the State
Commission and vehemently argued that the State Commission erred in concluding that
it was guilty of medical negligence. While agreeing that Patient had been admitted in
Appellant-Hospital with a history of intermittent fever, at the time of his admission, most
of his vital parameters were within normal range except for the low platelet count. Since
the intermittent fever coupled with low platelet count is usually indicative of either
Typhoid or Malaria, Patient was tested for the same but both blood reports were
negative. However, since Malaria Parasites are often not captured in the first blood
sample and the symptoms were those of Malaria, Patient was given treatment for the
same. There was no symptom of Hepatitis such as yellowing of the skin, dark yellow
urine, acute nausea etc. On a query by us to Counsel for the Appellant-Hospital as to
how the Patient’s diagnosis just a few days later and his subsequent death due to acute
hepatic failure could be explained, he cited medical literature entitled “Fulminant Hepatic
Failure” by William M. Lee and Frank VinholtSchiodt in support, wherein it is
documented that such hepatic failure can have a very rapid onset and, therefore,
Counsel for Appellant-Hospital contended that Patient developed the serious liver
ailment overnight and after he had been discharged from the Appellant-Hospital. To
further explain why Appellant-Hospital discharged Patient with such a low platelet count
and also did not give blood transfusion, Counsel for the Appellant-Hospital again relied
on medical literature contained in “Guidelines for the Transfusion of Platelets” New York
State Council on Human Blood and Transfusion Practices committee, New York State
Department of Health, wherein it is inter alia stated “Patients with platelet counts above
5,000/uL who are not bleeding and who are otherwise stable may not require
transfusion”. Thus, after carefully assessing Patient’s condition, he was discharged as
an Indoor Patient but was advised to come for follow up check-up in OPD. Counsel for
the Appellant-Hospital also cited number of judgments of Hon’ble Supreme Court,
including in Jacob Mathew V. State of Punjab And Anr. [(2005) 6 SCC 1], to assert
that taking into account the principles of what constitutes medical negligence as
enunciated in these cases, this was clearly not a case of medical negligence and
deficiency in service since Patient was treated by highly qualified doctors in a wellreputed hospital taking all reasonable care and precaution and using their best
professional judgment in carefully assessing his medical condition on the basis of
clinical and pathological diagnosis/tests.
10.
Counsel for the Respondent-Complainant on the other hand stated that the State
Commission erred in concluding that there were no symptoms to indicate that Patient
had liver problems. In fact, in the prescription prepared after Patient’s examination and
before admitting him in the Appellant-Hospital, it was clearly stated that the liver
was perpitable and the doctor who examined him had written after due examination that
the symptoms were indicative of abscess of liver and, therefore, in the column ‘Advice’,
Patient was advised “x-ray of the abdomen and ultrasound abdomen urgent” with
instructions to admit him in the Medicine Ward. However, none of these tests, including
ultrasound, were carried out to either confirm or rule out abscess of liver during the 5
days that Patient was admitted in the hospital even though a preliminary diagnosis of a
major liver problem was made. In fact the very low platelet count which further fell,
coupled with the preliminary diagnosis of liver, should have alerted any prudent doctor
to carry out tests to rule out any problem pertaining to the liver. Counsel for the
Respondent-Complainant
also
relied
on
medical
literature
entitled
“Harrisons’s Principles of Internal Medicine’, 12th Edition, Vol.I, which inter alia states
that patients with a platelet count below 20,000 per cubic millimeter suffer from a
serious medical condition and have an appreciable incidence of spontaneous
bleeding. In the instant case, within few hours of his discharge from Appellant-Hospital,
Patient started hemorrhaging from the gum, nose etc. At the time of discharge of the
Patient from the Appellant-Hospital, it had clearly stated that Patient had
Thrombocytopenia and, therefore, it was not understood how any qualified Doctor using
his reasonable judgment could have concluded that Patient’s condition had improved
when in fact it had deteriorated as indicated by the falling platelet counts. Counsel for
the Respondent-Complainant further brought to our notice relevant medical records
maintained in Holy Family Hospital wherein it was stated that the acute hepatitis from
which Patient was suffering was of 10 days duration. In view of the above facts,
medical negligence was fully established as also concluded by the State
Commission. However, State Commission erred in granting very low compensation of
Rs.5,00,000/- whereas in such cases the compensation could have been calculated
using the formula used in motor accident cases i.e. after taking into account the age of
the patient, his present employment and the potential for remuneration in the future etc.
and applying the relevant multiplier.
11.
We have heard learned Counsels for both parties and have also gone through the
evidence on record. The fact pertaining to Patient being admitted in Appellant-Hospital
on 22.02.1996 for intermittent fever and related ailments is not in dispute. It is also an
admitted fact that Patient was diagnosed with Thrombocytopenia, which is low platelet
count, and to rule out that Patient was suffering from Typhoid and Malaria necessary
pathological blood and vidal tests were carried out since Thrombocytopenia is a
symptom common to both these diseases. Based on the symptoms present in the
Patient, no test for any other disease was required. We have perused the records
produced in evidence, including the medical history of the Patient in the AppellantHospital, and note that the above contentions of Counsel for the Appellant-Hospital are
not borne out by their own documentary evidence on record before the State
Commission. In fact, as also observed by the State Commission, at the time of
Patient’s admission in Appellant-Hospital it was clearly stated that his liver
was perpitable with tenderness on the left side and on the basis of this observation the
Doctor had suspected abscess of liver. Patient was, therefore, advised to be admitted
in the Medicine Ward and x-ray and ultrasound of the abdomen were also urgently
advised. Thereafter, in the column “Treatment”, the following observations were made
by the concerned Doctor :
“Received the patient from OPD at 1.30 P.M., Query – Acute Hepatitis ….”
Thus, despite both these clear observations that acute hepatitis could not be ruled out,
no diagnostic tests, ultrasound, x-ray of liver functions tests were got done. The
contention of the Appellant-Hospital and its Counsel that it was not considered
necessary because overt symptoms of liver abscess/jaundice were not present e.g.
yellowing of the skin and nausea, does not inspire confidence because one of the
symptoms of liver ailment is also low blood platelet counts. This coupled with the
finding that the liver was perpitable and tender, and after Malaria and Typhoid had been
clearly ruled out, any prudent Doctor would have conducted tests pertaining to the liver
especially since Doctors in the same Appellant-Hospital had clearly advised the same.
12.
In support of the case that a platelet of 19,000 Cumm may not require any blood
transfusion and it was under these circumstances that despite a fall in the platelet
counts from 19,000 to a critical 16,000, Patient was discharged, Counsel for the
Appellant-Hospital had cited medical literature. However, there is evidence, including
medical literature, to the contrary as cited by Counsel for the RespondentComplainant. The fact that Patient at the time of discharge had Thrombocytopenia is an
admitted fact and in the discharge slip no mention has been made of the cause for this
condition. This coupled with the fact that Thrombocytopenia had in fact got more
aggravated, we are unable to comprehend the contention of Counsel for the AppellantHospital that Patient’s condition had actually improved at the time of his discharge.
13.
It is an admitted fact that Patient was admitted to Holy Family Hospital following
the worsening of his medical condition and with bleeding from the gum, nose etc. within
hours of his discharge from the Appellant-Hospital and from a perusal of the records of
this hospital, we note that after conducting tests following his admission an immediate
diagnosis of Thrombocytopenia being “Hepatitis Induced” was made and blood
transfusion and necessary treatment to treat this life threatening disease started but
since 5 days had been lost, Patient could not be saved. Under the circumstances, the
contention of Counsel for the Appellant-Hospital that this disease as per medical
literature could have developed overnight and after he had been discharged from the
Hospital is totally unconvincing.
14.
What constitutes medical negligence is now well established through a number of
judgments of this Commission as also of the Hon’ble Supreme Court, includingJacob
Mathew (supra) cited by the Counsel for the Appellant. In the same judgment what
constitutes medical negligence based on the touchstone of the Bolam’stest
(Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582) has been
discussed and accepted. An important principle applied is whether the doctor adopted
the practice (of clinical observation diagnosis – including diagnostic tests and treatment)
in the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the field.
From a narration of the facts of this case, as discussed above, it is evident that neither
were the required diagnostic tests nor the consequent medical treatment adopted in this
case as should have been adopted by any Doctor of even ordinary skill as per standard
professional management of such cases. In the instant case what is particularly
unfortunate is that not even preliminary tests were conducted in respect of the Patient’s
liver even though the Doctors who examined him at the time of his admission had
clearly advised the need for the same on the basis of a preliminary diagnosis of liver
abscess. Therefore, we uphold the finding of the State Commission that the complaint
of medical negligence against the Appellant-Hospital has been fully established.
15.
Respondent-Complainant has also filed an appeal seeking enhancement of the
awarded amount of Rs.5,00,000/-. We note that State Commission had after taking an
overall view of the matter awarded Rs.5,00,000/- as compensation. Keeping in view the
gross medical negligence on the part of Appellant-Hospital in the treatment of the
Patient which was substantially responsible for his death at the age of 32 years, the
medical expenses incurred by Respondent-Complainant, the invaluable loss both
financial and emotional of a spouse and father caused to Respondent No.1 and her
minor children respectively and the future potential of the Patient who was gainfully
employed as a teacher at the time of his death, there is scope for enhanced
compensation. We are, therefore, of the view that a lump sum compensation of
Rs.8,00,000/- is justified in this case.
16.
To sum up, First Appeal No.411 of 2007 filed by the Appellant-Hospital is
dismissed. The order of the State Commission finding Appellant-Hospital guilty of
medical negligence and deficiency in service is upheld. First Appeal No.488 of 2007
filed by the Respondent-Complainant is partly allowed. The order of the State
Commission is modified and the compensation of Rs.5,00,000/- is enhanced to
Rs.8,00,000/-. Appellant-Hospital is directed to pay this amount to the RespondentComplainant within a period of 12 weeks, failing which it will carry interest @ 9% per
annum for the period of default.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
SB/Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2809 OF 2012
(Against the order dated 03.04.2012 in Appeal No. A/12/285 of the State Consumer
Disputes Redressal Commission, Maharashtra, Mumbai)
Alok Kumar Roy Bldg No-A/2, Flat No.06 (Ist Floor) Opp Raolicamp Gurdwara, MA
Road Sion Koliwada, Sion (E), Mumbai – 400037, Maharastra
...........Petitioner
Versus
1. Head of the Sales & Service (Lap Top Computer) Hewlett Packard India Sales Pvt.
Ltd., 1st Floor, Central Plaza, 106, Vidhyanagari Marg, Opp Maha Auto, Kalina
Santacruz (East) Mumbai – 400098 Maharashtra
2. The Proprietor Demesne, SP Infosys Retail Venture, 1D Vorkar House, 385
Lamington Road, Grant Road (E), Mumbai – 400007 Maharashtra
...........Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
In person
PRONOUNCED ON 1st AUGUST, 2013
ORDER
PER DR. S.M. KANTIKAR
1. The Revision Petition is filed against the impugned order of Maharashtra State
Commission Disputes Redressal Commission, Mumbai (in short, State
Commission, Maharashtra) in First Appeal No. A/12/285 against the Consumer
Complaint No. CC/09/618 of Consumer Disputes Redressal Forum, Mumbai –
Sub-District (in short District Consumer Forum).
2. Facts in Brief:
The complainant purchased a Lap Top from the OP-2 for Rs. 56,500/- which was
manufactured by OP-1 with warrantee of one year from 05.06.2007. It went
frequently out of order and for which repairs were undertaken by the OP-2 even
after warrantee. The complainant had spent Rs. 1400/- for repairing the said Lap
Top and hence it was the negligence of OP-2 which incurred loss to the
complainant. The complainant is an Engineer and he was expecting job in
U.S. Due to break-down of Lap Top, he was unable to contact the U.S. Company
in time and hence lost the opportunity. The complainant also requested the OP-2 to
replace the Lap Top. But OP-2 had not paid any heed to his request, therefore, the
complainant filed a complaint before the District Forum for the compensation,
mental agony and the price of Lap Top totaling an amount of Rs. 9,73,436/-.
3. The OP denied the allegations about the faulty Lap Top. Also they have stated that
the defects were promptly repaired and the defect was in DVD writer which they
have replaced hence there is no deficiency of service. The District Forum partly
allowed this complaint and directed the OP-1 to pay Rs. 30,000/- to the complainant
within six weeks, failing which, the amount will carry interest @ 9% per annum.
4. Aggrieved by this order of the District Forum, the complainant filed an Appeal No.
12/285 before the State Commission for enhancement of amount of compensation.
5. The State Commission heard the complainant and perused the documents on
record. The main contention of the complainant before the State Commission was
that the unfair trade practices were adopted by the OP. They sold the defective Lap
Top. The State Commission dismissed the appeal on the ground that the
complainant has not produced any expert evidence to prove that his Lap Top was
defected and the OP has repaired the Lap Top and removed the defects properly
within
warranty period. Therefore,
the State
Commission dismissed the
appeal. Against the order of the State Commission, the complainant/petitioner filed
this revision petition before us.
6. We have heard the petitioner and perused the documents, bills and evidence on
record. We find that the OP has repaired the Lap Top, done the servicing during
the warranty period. He has replaced the defective DVD drive. On perusal of the
email communications we do not find any corroborated evidence from the
complainant about his confirmed job or lost job opportunity at U.S. Even otherwise,
if his Lap Top goes out of order, for a short period he had other alternatives for
internet access through various internet/cyber cafes. Therefore, the Complainant’s
claim for Rs.9,73,436/- appears to be unjust enrichment. The award of Consumer
Court is not a jackpot or a lottery. Hence, the contention of the Complainant is quite
surprising and mischievous.
7. The award of Rs.30,000/- by the District Forum is just and proper. We endorse the
view taken by both the Fora below in disposing the Complainant’s case. Hence, this
Revision Petition is dismissed. No orders as to cost.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Jr/2
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 473 OF 2012
(Against the order dated 25.4.2012 in CCSR 1733 of 2012 of the State Commission,
Andhra Pradesh)
1. A.S.Chakravarthy S/o A.S. Srinivasan
2. A. Sandhya Chakravarthy W/o A.S. Chakravarthy Both Residents of
H.No.12-10-586/66/A Opp. Amaravathi Grammar School Medi Bavi, Sitafalmandi
Secunderabad- 500061
...... Appellants
Versus
M/s. Asvasidh Homes Builder & Developer Plot No.153, MLA’s Colony
Road No.12, Banjara Hills, Hyderabad- 500034 (Represented by its Managing
Partners,
1. Mr. Varun Reddy Kancharla S/o Late K. Anil Kumar
2. Mr. Siddharth Reddy S/o Late K. Anil Kumar
.....Respondents
BEFORE:
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Appellants
PRONOUNCED ON:
: Mr. Hitesh Kumar Saini, Advocate
1 August 2013
ORDER
PER MR. VINAY KUMAR, MEMBER
The
complaint
of
the
present
appellants
against
respondent/M/s. Asvasidh Homes and its managing partners was dismissed by the AP
State Consumer Disputes Redressal Commission in CCSR/1733/2012. The State
Commission came to a conclusion that the complaint was not maintainable before it and
therefore directed the same to be return to the Complainants. The decision is sought to
be challenged in the present proceedings.
2.
Challenging the order of the State Commission, the Complainants filed a revision
petition under Section 21 B of the Consumer Protection Act, 1986, terming it as a review
petition. The same has been admitted as an appeal before this Commission and taken
up for consideration under Section 19 of the Consumer Protect Act, 1986.
3.
The appeal has been filed with delay of 59 days for which an application
for condonation has subsequently been filed on 25.2.2013. The application has been
perused. The main explanation as contained in para 3 thereof is:-
“It is humbly submitted that the Petitioners/appellants have been
representing themselves in person before this Hon’ble Commission and as
also before the State Commission. That since the services of an Advocate
were not utilized by the appellants as a result of the same the appellants
had wrongly preferred a Revision Petition instead of a First Appeal. Thus,
an unintentional delay was caused in filing of the present First Appeal which
was initially filed as a Revision Petition presuming the limitation period to be
90 days.”
In the circumstances of the case, the above explanation is accepted and delay of 59
days is condoned.
4.
While deciding to return the complaint, the State Commission has taken into
consideration the nature of relief sought by the Complainant and the fact that the
genesis of the complaint lies in purchase of a flat from the OP under a registered sale
deed of 30.10.2010. Six months later, the consumer complaint was filed before the
State Commission on 28.4.2012. The State Commission has therefore observed that :“Considering the nature of the claim and the fact that the title of the flat
has already been conveyed to the complainant, and he having been in
possession of the property, he can seek rectification of defects and even
compensation for any deficiency of service. We fail to understand how he
can seek refund of sale consideration and compensation. More so when title
as well as possession was transferred in his favour, under guise of
complaint recoursing to the provisions of the Consumer Protection Act filed
the complaint the reliefs of which can be granted by Civil Court, even
assuming he can maintain all these claims in a suit, obviously in order to get
over payment of court fee etc. Therefore, we are of the opinion that the
complaint is not maintainable before this Commission, and the complainant is
directed to approach appropriate court for the reliefs.”
5.
The appellant/Complainant has challenged the order of the State Commission on
the ground that he is a consumer ‘under the law’. Therefore, it is alleged that without
hearing both sides the State Commission could not have come to a conclusion that the
matter needed to be decided by the civil court. However, neither the appellant nor the
appellant’s counsel have made any attempt to substantiate this claim with reference to
the provision in Section 2 of the Consumer Protection Act, 1986. Learned Counsel for
the appellant relied upon the decision of this Commission in RP No. 4002 of 2011 in
M/s. Daddys Developers
&
4.4.2012. and argued
the
that
Builders Vs.
State
Sri
Commission
S. Kanan decided
should
have
directed
on
the
OP/respondent to give an alternative flat in replacement of the defective one.
6.
From a perusal of the above decision it is seen that the respondent S.Kanan, had
entered into an agreement with the petitioner/Daddy’s Developers for purchasing a plot
and construction of a villa on it. The sale deed of the plot was signed on 31.3.2005 and
the respondent also paid about Rs.25,00,000/- as sale consideration and for
construction of a residential flat thereon. It was the case of the respondent that the
petitioner agreed to hand over the property to him on 26.12.2007 and both the parties
agreed to certain specifications to be followed in the construction. Allegedly, the
petitioner failed to adhere to the specifications which led to the rain water flowing into the
premises during the monsoon. In the month of August 2008, water stagnated upto the
height of about 3 feet over and above the ground level.
Having failed to obtain any
solution from the developers, he filed a complaint before District Forum, with the prayer
to direct the OP to provide an alternative Villa in the same layout and also to pay
compensation. His complaint was allowed and the District Forum held that:“OP is directed to provide alternative Villa and execute the registered
Sale Deed of the same in favour of the Complainant in the same layout with
same measurement within 60 days from the date of this Order. After taking
the possession of the alternative Villa, Complainant has to reconvey the
subject Villa in favour of the OP.”
The above view taken by the District Forum was upheld by the State Commission and
confirmed by the National Commission in the decision cited above.
7.
Per contra, the case of the appellants in the present proceedings arises from a
very different set of facts. A perusal of the complaint filed before the State Commission
shows that the entire matter arises from the registered sale deed of 30.10.2010 for
purchase of a Flat No.105 in Asvasidh Abode. The complaint has listed 14 deviations
from the approved plan and 11 deficiencies in construction. The relief claimed includes
not only compensation of Rs.30 lakhs towards deviations, deficiencies and mental agony
but also full refund of the purchase price of Rs.31 lakhs, interest on housing loan and
other funds of Rs.4.38 lakhs and refund of the registration charges of Rs.1.6
lakhs. There is no explanation how a prayer for refund of the sale price and all other
costs is made in a completed transaction of sale of property. There is no quantification of
the cost of rectification of the alleged defects. For violations of the approved plan, if any,
the builder developer is answerable to the concerned authorities. There is no
explanation why the complainant should be entitled to be compensated for them.
Significantly, the prayer is not for provision of a comparable alternative flat by the
Developers/OP. Nor,
is
it
limited
to
rectification
of
alleged
defects. The
appellants/Complainants can therefore derive no support from the decision of this
Commission cited above.
8.
The State Commission has very rightly refused to entertain the petition filed by the
appellants/Complainants. There is no justification to interfere with the order of the State
Commission, which has left it open to the appellants/Complainants to seek their remedy
in an appropriate court. The appeal is therefore, dismissed. No order as to
costs.
…..…………Sd/-….…….……
(VINAY KUMAR)
PRESIDING MEMBER
S/-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1852 OF 2007
(From the order dated 07.03.2007 in First Appeal No. 405/2004
of Orissa State Consumer Disputes Redressal Commission)
1. The Regional Provident Fund Commissioner, Employees Provident Fund
Organisation, Bhavishya Nidhi Bhawan, Unit – IX, Bhubaneswar – 751022
District – Khurda Orissa
2. The Regional Provident Fund Commissioner, Employees Provident Fund
Organisation, Regional Office, 28, Bhavishya Nidhi Bhawan, 7th Floor, Wazirpur
Industrial Area Delhi - 110052
3. Assistant Provident Fund Commissioner-cum- Officer-in-Charge, Sub-Regional
Office, Berhampur District Ganjam.
... Petitioner(s)
Versus
1. G. Eswaramma c/o UIP Hospital At/PO – Khatiguda District - Nabaranpur
2. Executive Engineer Podagada Dam Division At/PO – Khatiguda
District – Nabarangpur
…. 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)
For the Respondent-1
For the Respondent-2
Mr. Rajesh Manchanda, Advocate
Mr. Dhruv Mohan, Advocate
Mr. Shibashis Misra, Advocate
PRONOUNCED ON : 1st AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 07.03.2007
passed by the Odisha State Consumer Disputes Redressal Commission (for short ‘the
State Commission’) in FA No. 405/2004, “Regional Provident Fund Commissioner,
Bhubaneswar vs. G. Eswaramma & Ors.” by which while dismissing the appeal, the
order dated 29.03.2004 passed by District Consumer Disputes Redressal Forum,
Nabrangpur allowing the complaint no. 81/03 was upheld.
2.
Brief facts of the case are that the complainant/respondent no. 1 is the widow of a
deceased workman G.S.M. Reddy who joined duty on 18.07.81 in Podagada Dam
Division, which was allotted PF Code No. OR/3156. He was working as carpenter (WC)
in the office of respondent no. 2, Executive Engineer, Podagada Dam Division, District
Nabarangpur. The Podagada Dam Division establishment was covered under the
Employees Provident Fund Act (EPF) 1952, with effect from 31.07.1983. A deduction
from the salary of the deceased was made with effect from August 1983. However,
subsequently, the deceased along with some other employees was transferred to
another establishment in November 1983, namely, Kapur Dam Division. The said
establishment was not covered by the Provident Fund Scheme. The deceased was
transferred from Podagada Dam Division on 9.11.1983 and joined the new
establishment on 11.11.83. Later on, Kapur Dam Division was also covered under the
EPF Act with effect from 30.11.86 vide code number OR/3244. Unfortunately, G.S.N.
Reddy died on 07.03.87, meaning thereby that he remained covered under the EPF Act
for a period of little over three months. The plea taken by the complainant says that her
husband was entitled for payment of EPF dues and pension under the relevant rules.
The District Forum vide their order dated 29.03.2004 directed the petitioner/OP No. 1 to
take immediate necessary steps to regularise the matter by collecting the
information/document from OP No. 2 for payment of EPF claims and also sanction
pension in favour of the complainant according to relevant rules. An appeal was filed
against this order by the petitioner before the State Commission, but the same was
dismissed with costs by the State Commission. It is against this order that the present
petition has been made.
3.
It was argued by the learned counsel for the petitioner that G.S.N. Reddy was first
working in Podagada Dam Division since 1981, but since the said establishment was
covered under the EPF Act from 31.07.83 and the deceased employee was transferred
to another establishment on 9.11.83, he remained covered under the EPF Act for a
period of three months and 9 days only. He was transferred to Kapur Dam Division
when he joined on 11.11.83 but the said establishment was not covered under the EPF
Act. Kapur Dam Division was covered under the EPF Act from 30.11.86 and hence the
deceased who died on 07.03.87 was covered at the new establishment for three months
and 6 days only. In this way, the deceased remained covered under the EPF Act for 6
months 15 days only, which works out to be less than one year and hence he was not
entitled for the grant of pension in accordance with provisions of Employees Family
Pension Scheme 1971. Learned counsel argued that the said provision had been
amended with effect from 1.04.88 and now this period has been reduced from one year
to 3 months, but at the time of death of G.S.N. Reddy, the period was one year only.
He further stated that the order passed by the District Forum, in which they observed
that late G.S.N. Reddy had completed more than two years of reasonable service and is
entitled for benefits under the relevant rules, does not reflect a correct appreciation of
facts.
4.
Learned counsel for the respondent has drawn our attention to clause 6 of the
scheme entitled as “Retention of Membership”. He argued that the transfer of the
employee from one establishment to another cannot be taken as a break in service.
5.
Learned counsel for respondent no.2, Executive Engineer, Podagada Dam
Division has also drawn our attention to clause 6 of 1971 Scheme (hereinafter referred
to as ‘Scheme’) saying that once a person becomes a member of the family pension
fund, he does not lose his membership on being transferred to another establishment.
In the present case, the entire Provident Fund for the whole period, i.e., from August
1983 to December 1986 have already been deposited by respondent no. 2 and this fact
had been admitted by the petitioner in their revision petition as well. He further stated
that clause 3 of the Scheme read with clause 6 makes it clear that the employee did not
lose the membership of the scheme on his transfer.
6.
In the reply, learned counsel for the petitioner stated that the word ‘transfer’ had
not been included in proviso to clause 6 of the Scheme and hence break in membership
of the family pension fund after being transferred to another establishment shall not
allow him to continue as a member of family pension fund.
7.
We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us.
8.
It is an admitted case of parties that husband of complainant late G.S.N. Reddy
was appointed as work-charged carpenter and joined Podagada Dam Division on
18.07.81 and then, he joined the Kapur Dam Division with effect from 11.11.83. It is
also admitted that he died on 7.3.87. The case of the petitioner is this that there was
deduction of provident fund dues for only 3 months 9 days in the first establishment, and
3 months 6 days in the second establishment and hence the total period comes out to 6
months 15 days, which being less than one year, the complainant is not entitled to
pension under the 1971 Scheme. However, this version is quite contrary to facts as per
detailed reply filed on behalf of respondent no. 2, Executive Engineer, Podagada Dam
Division. It has been clarified that late G.S.N. Reddy worked in Podagada Dam Division
from 18.07.81 till 10.11.83 and then he was transferred to Kapur Dam Division. The
said establishment was not covered under the provisions of EPF and Miscellaneous
Provisions Act 1952 at that time. Subsequently, vide order no. 8548 dated 27.05.86 of
Regional Provident Fund Commissioner, Bhubaneswar, the Podagada Dam Division
came under the purview of the Act with effect from August 1983 and allotted code No.
OR/3156 with effect from August 1986. Both the employees’ share and employer’s
share used to be recovered and deposited regularly before the RPFC, Orissa.
However, regarding deposit of arrears for the pre-discovery period, i.e., August 1983 to
July 1986, the RPFC Orissa waived of the deposit of employees’ share of the staff of
Podagada Dam Division vide order dated 11/08/47 dated 21.10.87. Accordingly, the
employer’s share only for the period August 1983 to July 1986 was deposited with the
RPFC. At that time, the share for late G.S.N. Reddy was not deposited with RPFC as
he had already been transferred to Kapur Dam Division. Kapur Dam Division came
under the purview of the EPF Scheme from Nov. 1986 as per letter number 3351 dated
18.07.87 from RPFC Orissa and was given code number OR/3244. EPF contribution
for the period December 1986 upto 7.3.87 for late G.S.N. Reddy was deducted by
Kapur Dam Division and was deposited with RPFC Orissa. Subsequently, Kapur Dam
Division was merged with Podagada Dam Division and all record of late G.S.N. Reddy
were transferred to it. As per the decision taken by Dy. General Manager (Finance), the
dues pertaining to the period from August 1983 to Nov. 1986 of late G.S.N. Reddy were
deposited with the EPF Authority to finalise the issue. A plea was also made before the
District Forum accordingly and finally vide order dated 29.03.2004, the District Forum
decided the case with a direction to regularise the matter, by collecting the
information/documents from OP No. 2, Podagada Dam Division, for payment of
provident fund and also sanction of pension in favour of the complainant. According to
relevant Act and Rules. It is very clear, therefore, that the deceased employee became
a member of the Family Pension Fund with effect from 31.07.83 and was given EPF
Account OR 3156/327 in the Podagada Dam Division. Once an employee is transferred
to another division within the organisation, his coverage under the Act is not suspended.
9.
It is very clear from the factual position narrated by respondent no. 2 that late
G.S.N. Reddy became a Member of the Fund with effect from 31.07.83 and the
contribution to Provident Fund was regularly made till his death in March 1987. The
contention of the petitioner that by transfer from one establishment to another
establishment his membership got suspended does not have any force. In this case, it
is a transfer from one division to another division within the same organisation, and by
no stretch of imagination, it can be counted as break as stated in clause 6 of the
Scheme. It is held, therefore, that the State Commission or the District Forum have not
committed any illegality or irregularity in passing the impugned orders in favour of the
complainant. It was the duty of the petitioner to collect the necessary information and
documents from the office of OP No. 2 Podagada Dam Division and then pass orders
for the release of Provident Fund dues and sanction of pension in accordance with
relevant Act and Rules. The revision petition is, therefore, ordered to be dismissed and
the impugned order is upheld with no order as 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. 1317 OF 2008
(From the order dated 05.10.2007 in Appeal No. A-260/2004 of the State Consumer
Disputes Redressal Commission, Delhi)
Delhi Development Authority Through its Director (R.L) Vikas Sadan, I.N.A.,
New Delhi
…Petitioner/Opp. Party
Versus
Shri Barkat Lal S/o Sh. Jodha Ram H. No. 121, Gali No. 8, Krishan Nagar
New Delhi
…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. Praduman Kumar Aggarwal, Advocate
: NEMO
PRONOUNCED ON 2nd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the
order
dated
05.10.2007
passed
by
the
Delhi
State
Consumer
Disputes RedressalCommission, (in short, ‘the State Commission’) in Appeal No. A260/04 – Delhi Development Authority Vs. Mr. Barkat Lal by which, while allowing
appeal partly, order of District Forum allowing complaint was upheld, but grant of
interest from the date 1.11.2001 was changed to date of filing complaint.
2.
Brief facts of the case are that complainant/respondent is a member
of Mianwali District House Building Society Ltd. In the draw conducted by the Delhi
Development Authority (DDA) on 15.4.1986, Complainant was allotted Plot No. A-1/13
measuring 149.83 sq. yd. Complainant’s name was approved by the Registrar of
Coop. Societies on 9.10.1986 for execution of sub-lease. Complainant did not hear
anything from DDA for a long period and in such circumstances, complainant wrote to
the DDA/OP on 16.3.1989. OP vide letter dated 8.2.1996 asked complainant to deposit
43,516/- as late execution charges. Complainant deposited aforesaid amount and lease
deed was executed on 9.2.1996. Complainant could not raise construction during first 3
years period. Complainant applied to OP for extension of time vide letter dated
22.3.1999 and got extension upto 30.6.2001 vide letter dated 7.2.2001 issued by OP,
subject to payment of composition charges amounting to Rs.68,040/-. Complainant
deposited charges and completed construction within the extended time. Complainant
made a representation dated 13.7.2001 to the OP for refund of late execution charges
of Rs.43,516/- and composition charges of Rs.68,040/-. Vide letter dated 19.10.2001,
complainant was informed that composition fee from 22.3.1999 to 30.6.2001 along with
late execution charges had been waived. Complainant received refund of Rs.67,890/vide cheque dated 1.11.2001. Complainant further submitted that OP has unjustifiably
withheld the balance amount of Rs.43,666/-. Alleging deficiency on the part of OP,
complainant filed complaint before District Forum. OP-Petitioner contested complaint
and submitted that Rs. 43,566/- deposited by the complainant consisted of Rs.6,267/as penalty for late execution charges of the sub-lease and Rs.37,249/- for delay in the
construction from 17.11.1987 to 16.11.1996. It was further submitted that complainant
was to be refunded only Rs.30,641/-, whereas he has been refunded Rs.37,249/- in
excess
which
are
to
be
recovered
by OP
and
prayed
for
dismissal
of
complaint. Learned District Forum after hearing both the parties allowed complaint and
directed OP to refund Rs.43,666/- minus composition charges for the period 9.2.1999
to 21.3.1999 with interest @ 10% p.a. from 1.11.2001 till payment. Appeal filed by the
petitioner was partly allowed by learned State Commission vide impugned order and
interest was made payable from the date of filing complaint instead of from 1.11.2001
against which, this revision petition has been filed.
3.
None appeared for the respondent even after service.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that excess amount has been
refunded to the petitioner and petitioner is entitled to recover excess amount and
petitioner is not liable to refund any money even then learned District Forum has
committed error in allowing refund and learned State Commission further committed
error in upholding order; hence, revision petition be allowed.
6.
Learned District Forum observed as under:
“Both the parties have filed their evidence by way of affidavits and
we have heard them and have also gone through the record. We
have also seen the relevant noting file of the DDA produced by the
DDA at the time of arguments. As per the very first noting on the file
the sum of Rs.43,516/- consists of late execution charges of
Rs.6267/- for the period 17.11.1987 to 16.11.1996 and Rs.37,249/as penalty for non-construction for the period 17.11.89 to 16.11.91,
the period from 17.11.86 to 16.11.89 being the free
period. However, the complainant was never conveyed this breakup and vide letter dated 08.02.96 (Annexure A-6) the charges of
Rs.43,516/- were termed only as “late execution charges”. The
complainant applied for the waiver of the same and got it. Secondly,
it has been admitted by the OP in its reply that no penalty is
chargeable for the period of 3 years after the execution of the sublease deed. Hence, the OP cannot charge any penalty for nonconstruction prior to the period of 3 years after the execution of the
sub-lease on 09.02.96. Hence, looking from both the angles the
complainant is entitled to refund of Rs.43,516/-.
As to the composition charges paid by the complainant the same
relate to the period 17.11.1996 to 30.6.2001 as conveyed to the
complainant by the OP vide letter dated 8.3.2002 (Annexure A-15).
As per the own admission of the OP in its reply the free period for
construction was 3 years after the execution of the sub-lease on
9.2.1996 which ended on 8.2.1999. The complainant has already
been granted the waiver of composition charges from 22.3.1999 to
30.6.2001. Therefore, the OP can claim the composition charges at
the most for the period 09.02.99 to 21.3.99. Therefore, the
withholding of the substantial amount by the OP is not justified and
the OP cannot claim any refund from the complainant”.
7.
As per admission by the petitioner in paragraph 5 of the written statement that no
penalty is chargeable during the period of 3 years from the execution of sub-lease (as
stated in District Forum order) and as complainant got waiver of the penalty on him and
no break up of Rs.43,516/- was conveyed to the complainant in the letter issued by
petitioner, learned District Forum has not committed any error in allowing refund of
aforesaid amount and learned State Commission has not committed any error in
upholding order of refund.
8.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order, which calls for any interference and revision petition is liable to be dismissed.
9.
Consequently, revision petition filed by the petitioner is dismissed with no order as
to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2680 of 2012
(From the order dated 1.05.2012 in Appeal No.357 of 2011 of the State Consumer
Disputes Redressal Commission, U.T. Chandigarh)
1. Sh. Avtar Singh, S/o Late Dharam Singh
2. Sh. Gurlal Singh, S/o Late Dharam Singh
3. Smt. Malkit Kaur, W/o Late Dharam Singh
All R/o of: No. 80, Village Makhewala Tehsil Sardulgarh, District Mansa, Punjab
… Petitioners/Complainants
Versus
SBI Life Insurance Co. Ltd. SCO No. 127-128, 1st Floor, Sector 17C Chandigarh,
Through its Branch Manager
… Respondent/Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners :
For the Respondent :
Mr. Shakti K. Pattanaik, Advocate
Mr. Rakesh Malhotra, Advocate
PRONOUNCED ON 2nd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioners/Complainants against the
impugned
order
dated
1.05.2012
passed
by
the
State
Consumer
DisputesRedressal Commission, U.T. Chandigarh (in short, ‘the State Commission’) in
Appeal No. 357 of 2011 – The SBI Life Ins. Co. Ltd. Vs Sh. Avtar Singh
& Ors. by which, while allowing appeal, order of District Forum allowing complaint was
set aside.
2.
Brief
facts
of
the
case
are
that
deceased Dharam Singh,
father
of
complainants/petitioners purchased insurance policy from OP/respondents and paid first
premium of Rs.15,000/- on 9.9.2008. Deceased filled proposal form while subscribing
for aforesaid insurance policy. Dharam Singh died on 9.10.2008. When complainants
came to know about the policy, they approached OP for payment of amount, but as
claim was repudiated, complainants filed complaint alleging deficiency on the part of
OPs. OP-1 contested complaint and submitted that, as there was no concluded
contract between Dharma Singh and OP, merely by deposit of premium amount along
with proposal form, did not automatically result into the issuance of an insurance policy.
It was further alleged that on 15.9.2008, Dharam Singh was asked to comply with some
requirements, but he failed to comply with the requirements. Denying deficiency on the
part of OPs, prayed for dismissal of complaint. OP 2 submitted that complaint may be
dismissed for misjoinder of parties, as OP 2 was only operating SB Salary Account
of Dharam Singh. District Forum after hearing both the parties, allowed complaint and
directed OP to pay Rs.2,02,500/-. Appeal filed by the OP was allowed by learned State
Commission vide impugned order against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as soon as premium
was encashed by OP, insurance policy came into force and OP 1 committed deficiency
in repudiating claim and learned State Commission committed error in allowing appeal;
hence, revision petition be allowed and impugned order be set aside. On the other
hand, learned Counsel for the respondent submitted that order passed by learned State
Commission is in accordance with law, which does not call for any interference; hence,
revision petition be dismissed.
5.
Perusal of record clearly reveals that Dharam Singh submitted proposal form for
obtaining life insurance policy on 9.9.2008 along with premium of Rs.15,000/-. On
15.9.2008, OP asked petitioner to comply with certain requirements, which were not
complied with and on 9.10.2008 Dharam Singh died. Thus, it becomes clear that
contact of insurance was not concluded between Dharam Singh and OP. Merely
by encashing cheque of premium, insurance contract does not come into force, as held
by
this
Commission
in
[I
(2011)
CPJ
60
(NC)]
– LIC
of
India Vs. Bhoomikaben M. Modi & Ors., [2009 STPL (CL) 479 (NC)] – Elsa Tony
Phillip Vs. Manager, LIC of India and Ors. and [I (2010 CPJ 137 (NC)] –
Kolla Vijaya Laxmi Vs. Life
Insurance
Corporation
of
India
& Anr. This
Commission in Elsa Tony Phillip case (Supra) in para 3 & 4 observed as under:
“3. Thrust of argument advanced by Shri T. Harish Kumar for the
appellant is that along with the proposal first premium was paid by
Tony Phillip by issuing a cheque of Rs.1,662 which was
got encashed by the Insurance Co. and, thus a concluded contract
came into existence between the parties and the order under
appeal was thus, legally erroneous. As may be seen from the order
under challenge, the State Commission in reaching the conclusion
that concluded contract had come into existence, has heavily relied
the decision in Life Insurance Corporation of India V.
RajaVasireddy Komalavalli Kamba and Ors. ((1984)
2
SCC
719.) Omitting immaterial portion, para Nos. 14 & 15 of this
decision at pages 726 & 727 of the report read thus:
“14…The mere receipt and retention of premium until after
the death of the applicant or the mere preparation of the
policy documents is not acceptance. Acceptance must be
signified by some act or acts agreed on by the parties or
from which the law raises a presumption of acceptance. See
in
this
connection
the
statement
of
law
in
Corpus Juris Secundum, Vol. XLIV, wherein it has been
stated as:
The mere receipt and retention of premiums until after the
death of applicant does not give rise to a contract, although
the circumstances may be such that approval could be
inferred from retention of the premium. The mere execution
of the policy is not an acceptance; an acceptance, to be
complete, must be communicated to the offer or, either
directly, or by some definite act, such as placing the contract
in the mail. The test is not intention alone. When the
application so requires, the acceptance must be evidenced
by the signature of one of the company’s executive officers.
15. Though in certain human relationships silence to a
proposal might convey acceptance but in the case of
insurance proposal, silence does not denote consent and no
binding contract arises until the person to whom an offer is
made says or does something to signify his
acceptance. Mere delay in giving an answer cannot be
construed as an acceptance, as, prima facie, acceptance
must be communicated to the offeror. The general rule is
that the contract of insurance will be concluded only when
the party to whom an offer has been made accepts it
unconditionally and communicates his acceptance to the
person making the offer. Whether the final acceptance is
that of the assured or insurers, however, depends simply on
the way in which negotiations for an insurance have
progressed. See in this connection statement of law
in MacGillivray & Parkington on Insurance Law, Seventh
Edition, page 94, paragraph 215”.
4.
Admittedly, neither acceptance of the proposal was
communicated nor policy was issued to Tony Phillip by the
respondent-Insurance Co. Considering the ratio of the said
decision of Supreme Court, mere encashment of cheque,
given towards first premium, is not enough to conclude that a
contract had come into existence between the
parties. Decision in LIC & Ors. v. Smt. Raksha Devi (R.P.
No. 702 of 2003, decided on 20.10.2005) is of no help to the
appellant. Impugned order, thus, does not suffer from any
legal infirmity and the appeal deserves to be dismissed being
without merit”.
6.
In the light of aforesaid discussion, we do not find any illegality, irregularity 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.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3438 of 2012
(From the order dated 06.06.2012 in Appeal No.2660 of 2008 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
1. The Life Insurance Corporation of India Shahpur Branch Office
Yadgir Road, Shahpur Through its Branch Manager
2. The Life Insurance Corporation of India Divisional Office PB No. 43
Satkacheri Road, Raichur Through its Divisional Manager
3. The Life Insurance Corporation of India DO 1, Jeevan Prakash, JC Road Bangalore
– 560002 Through Shri Balihar Singh Asstt. Secretary (Legal) LIC of India (CO Legal
Cell) Delhi H-39 (First Floor) New Asiatic Bldg. Connaught Circus New Delhi
… Petitioners/Opp. Parties (OP)
Versus
Smt. Neelamma W/O Sri Sidana Shivputra Tumbigi R/o UKP Camp at
Post Geeratagi Taluk Jewargi, District Gulbarga
… 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. Pankul Nagpal, Advocate
Mr. C.B. Gururaj, Advocate
PRONOUNCED 2nd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order
dated
06.06.2012
passed
by
the
Karnataka
State
Consumer
DisputesRedressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal
No.2660 of 2008 – LIC & Ors Vs Neelamma by which, while dismissing appeal, order of
District Forum allowing complaint was upheld.
2.
policy
Brief facts of the case are that complainant/respondent purchased endowment
on
27.2.2006. The
premium
was
payable
quarterly. Insured
paid
premiumupto November, 2006, but did not pay premium payable in the month of
February, 2007. OP issued letter to the insured to pay the premium payable in the
month of May, 2007 stating that grace period is upto 27.6.2007 in respect of premium
payable in the month of May, 2007. Insured died on 12.5.2007. Complainant submitted
claim which was repudiated by OP/petitioner on the ground that policy lapsed on
account of non-payment of premium of February, 2007 and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties, allowed complaint by
order dated 18.10.2008. Learned State Commission vide order dated 24.2.2009 in
Appeal No. 2660 of 2008, while allowing appeal, set aside order of District Forum.
Complainant filed Writ Petition No. 81794 of 2009 before High Court of Karnataka
and Hon’ble Court by order dated 4.8.2010 allowed writ petition and set aside order of
State Commission and directed State Commission to dispose of the appeal afresh in
accordance with law. Learned State Commission vide impugned order dismissed
appeal and confirmed order of District Forum 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 quarterly premium which was to
be paid by 27.2.2006, was not paid and policy lapsed on 27.3.2007 and as insured died
on 12.5.2007, petitioner has not committed any deficiency in repudiating the claim, but
learned State Commission has committed error in dismissing appeal and earned District
Forum committed error in allowing complaint; hence, revision petition be allowed and
impugned order be set aside. On the other hand, learned Counsel for the respondent
submitted that for quarterly premium due in May, 2007, notice depicted grace
period upto 27.6.2007 and insured died on 12.5.2007. Complainant was entitled to claim
and order passed by learned State Commission is in accordance with law which does
not call for any interference; hence, revision petition be dismissed.
5.
It is admitted case of the parties that policy was obtained on 27.2.2006 and
premium was to be paid quarterly. It is also admitted case that payment due on
27.2.2007 was not paid and insured died on 12.5.2007.
6.
On account of non-payment of premium due on 27.2.2007, policy lapsed on
27.3.2007. Learned State Commission has upheld order of District Forum on the basis
of intimation letter dated 3.5.2007 giving grace period for payment of due
premium upto 27.6.2007. Perusal of letter clearly reveals that this grace period was
applicable for premium to be paid by 27.5.2007. In this letter itself date for last due
premium has been shown as 27.2.2007. Receipt No.2071912 clearly depicts that
petitioner deposited earlier premium also with late fee and in that receipt also next
premium due has been shown in February, 2007. Perusal of Receipt No.2583588 also
reveals that insured made payment of premium with late fee. Thus, it becomes clear
that insured always made payment along with late fee and he was aware that next
payment of premium was to be paid in February, 2007, but he did pay and in such
circumstances, policy lapsed on 27.3.2007, It is admitted case that insured died on
12.5.2007 meaning thereby after lapse of policy and in such circumstances,
OP/petitioner has not committed any deficiency in repudiating the claim and learned
State Commission has committed error in dismissing appeal and learned District forum
committed error in allowing complaint.
7.
Consequently, the revision petition is allowed and impugned order dated
06.06.2012 passed by the Karnataka State Consumer Disputes Redressal Commission,
Bangalore in Appeal No.2660 of 2008 – LIC & Ors Vs Neelamma is set aside and
complaint filed by the complainant/respondent 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. 2191 of 2013
(From the order dated 19.01.2011 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula in First Appeal no. 1987 of 2004)
Paltu Ram Son of Shri Munshi Ram Resident of Village Dundahera Tehsil and District
Gurgaon
Petitioner
Versus
United India Insurance Co. Ltd., Kanchanjunga Building Barakhamba Road
Cannaught Place New Delhi
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Mandeep Singh Kapoor, Advocate
Pronounced on 5th August 2013
ORDER
REKHA GUPTA
Revision petition no. 2191 of 2013 has been filed challenging the judgment
dated 19.01.2011 coupled with the order dated 07.10.2011 passed by the Haryana
State Consumer Disputes Redressal Commission, Panchkula (‘the State Commission’)
in appeal no. 1987 of 2004.
The brief facts of the case as per the petitioner/ complainant are that the petitioner
had purchased a new brand Swaraj Mazda from M/s Swaraj Mazda Ltd., Pune for a
sum of Rs.5,13,216/- on 28.03.2001, the body and chasis of the Swaraj Mazda was
prepared by Khan Brothers and Body Repairing KapasheraDelhi for a sum of
Rs.70,000/-. The above said vehicle was got financed from M/s Interstate Finance
Ltd.,/ City Corporation Finance India, Delhi. The above said vehicle bearing Engine
no. S/CBN 044677, Chasiss no NBW EL 4GN 0052027 was fully insured by the
respondent against a value of Rs.5,50,000/- vide cover note no. 216354 dated
30.03.2001. It was a comprehensive insurance policy. On purchasing the above said
vehicle, the petitioner entered into an agreement with M/s Speedage Express Cargo a
division of ARC India Ltd. On 01.04.2011 and attached the vehicle in question bearing
registration no. HR 55 – 8007 with effect from 01.04.2001 to 31.03.2003.
The above said vehicle met with an accident on 07/08.03.2002 in the area of
PS Niwari District Ghaziabad and FIR no. 57/ 2002 dated 08.03.2002 was lodged in
PS Niwari District, Ghaziabad (UP). The above said vehicle no. HR 55 – 8007 was
damaged and the loss of damage was assessed as total loss. Just after the accident,
information
was
sent
to
the
respondent
who
appointed
its
Surveyor
-
Shri Darshan Singh Arora who inspected the vehicle on 11/12/03/2002 at Modi Nagar,
District Ghaziabad and again Shri K R Arora, Surveyor has also assessed the loss of
damage of vehicle at the instance of the respondent. Both the surveyors have assessed
total loss of the vehicle.
However, the respondent has delayed the payment of the total loss to the tune of
Rs.5,50,000/-. The application in respect of the payment of loss was also given on
04.04.2002 and again verbally so many times, but the respondent has not paid any
heed towards the request of the petitioner rather delayed the matter on one pretext or
the other and has not settled the claim of petitioner till today.
The petitioner also informed the respondent about the contract/ agreement with
M/ Speedage Express Cargo and the respondent had full knowledge about the finance
of the vehicle in question, but the respondent intentionally, illegally and with ulterior
motive without any reasons had not settled the claim/ losses to the vehicle and has not
paid any penny to the petitioner or the financier till today.
The respondent/ opposite party stated in their reply before the District Forum that
the petitioner, as per his admission in his complaint, has already filed a claim petition
before the Motor Accident Claim Tribunal, Gurgaon for recovery in respect of damages
to his Swaraj Mazda bearing no. HR 55 – 8007 in the very accident for which the
present complaint is filed. Therefore, the present complaint is not legally maintainable.
The petitioner cannot file two petitions simultaneously for the recovery of damages
arising out of one accident. Therefore, the present complaint is liable to be dismissed
with costs.
The complaint is pre-mature. The claim of the petitioner had already been got
surveyed and assessed. Vide letter dated 21.08.2002 was informed that the surveyor
had assessed the loss on total loss basis to the tune of Rs.3,85,000/- subject to the
terms and conditions of the policy. However, the final settlement is still pending because
the petitioner has not supplied the spot survey report of Mr Darshan Singh Arora, from
who he had got the vehicle inspected allegedly at the spot (which is an essential
document to the exact reasons of the damages) in spite of various reminders and lastly,
especially was called upon vide registered letter dated 09.04.2003 to supply the same.
But till to date, the petitioner has not supplied the required spot survey report and rather
has filed the present complaint, unnecessarily, without having any cause of action for
the same.
Soon
after
the
receipt
of
information
about
the
damages
to
the
insured Swaraj Mazda bearing registration no. HR 55 – 8007 registered on 05.04.2001
in an accident which allegedly took place on 08.03.2002, K R Arora & Co, Government
approved Surveyors and Loss Assessors and Valuers was appointed to assess the
loss. The surveyor had contacted and discussed the loss and manner of assessment
with the petitioner in the process of assessment of the loss. The market was also
surveyor in order to know the market value of Swaraj Mazda, bearing registration no.
HR 55 – 8007, registered on 05.04.2001 on the date of loss i.e., 08.03.202 from the
dealers who deals in sales/ purchase of these types of vehicles in the open markets.
The market value of the said Swaraj Mazda was found to be Rs.3,85,000/- in the open
market on the date of loss i.e., 08.03.2002. It is submitted that as per the insurance
policy’s terms and conditions, the market value or the insured’s estimated value of the
vehicle whichever is less is payable. In these circumstances, subject to the terms and
conditions of the insurance policy, the loss was assessed to the tune of Rs.3,85,000/less excess clause of Rs.1,500/- and return of the damage vehicle to the Co. and
transfer of registration in the name of the Co. by the surveyor. This was informed to the
petitioner. However, report of spot survey got conducted by the petitioner
through Darshan Singh Arora was not supplied in spite of various reminders in spite of
registered letter dated 09.04.2003 as stated above. Therefore, the final settlement is still
pending due to delay on the part of the petitioner. But the petitioner instead of
complying with the requirement, has unnecessarily, filed the present complaint. The
respondent is still ready to settle the claim subject to the terms and condition of the
insurance policy on the receipt of the spot survey report, referred above, and the other
usual requirements. Thus, the respondent is in the process of processing the claim and
the same is pending for completion of the legal and mandatory formalities on the part of
the petitioner. For this reason also, the complaint is not maintainable and is liable to be
dismissed at this every stage.
The District Consumer Disputes Redressal Forum, Gurgaon (‘the District Forum’)
after considering all the facts and circumstances of the case ordered that“after
deducting 10% of the insured amount, the respondent is directed to pay Rs.4,95,000/to the petitioner along with interest at the rate of 9% per annum which is to be
calculated after three months of the accident till the date of payment subject to the
terms and conditions of the company. The compliance of this order be made within one
month after the receipt of the copy of this order. No costs”.
Aggrieved by the order of the District Forum, the respondent filed an appeal before
the State Commission. The State Commission came to the conclusion that ‘the
undisputed facts are that the new vehicle was purchased for Rs.5,13,216/- on
28.03.2001 got insured the vehicle for Rs.5,50,000/- and charged the premium. The IDV
could not be more than the cost of the new vehicle. Vehicle having met with an accident
on 07/08.03.2002 was also not disputed. How and on what basis the surveyor assessed
the loss of Rs.3,85,000/- is not coming forth. The vehicle being less than one year old,
the depreciation could only be to the extent of 10% of the cost of the vehicle.
Therefore, we feel it appropriate to modify the award by deducting 10% of the
value being depreciated value of vehicle which comes to Rs.5,13,216/- – Rs.51,321/- =
Rs.4,61,895/- along with 6% interest.
With this modification this appeal stands disposed of”.
The respondent filed a miscellaneous application seeking modification in the
operative part of the order that was passed on 19.01.2011. The State Commission vide
its order dated 07.10.2011 modified the order stating that ‘the appellant has sought
modification that in the operative part of the order though the amount to be paid to the
complainant has been quantified, however, by inadvertence, it has not been mentioned
that this shall be on transfer of the vehicle and return of salvage. Though in the order, it
has been mentioned that this shall be subject to terms and conditions of the company,
however the modification is sought is only in the shape of clarification. Application for
modification is allowed. In the operative part after the end of the paragraph the following
shall be added “that the payment of amount shall be upon return of salvage and transfer
of vehicle in favour of insurance company”.
Hence, this present revision petition.
The main grounds for the revision petition as given by the petitioner are as under:
The State Commission has not examined the contract of insurance between
the parties. The State Commission although notices the purchase price of the
vehicle as Rs.5,13,216/- however failed to consider the amount spent by the
petitioner on making the vehicle as road worthy. It was Rs.70,000/- which was
spent by the petitioner to make the vehicle road worthy. The coverage
accordingly was obtained by the petitioner for Rs.5,50,000/-. The total value
although on the date of insurance was Rs.5,70,000/-. The State Commission has
wrongly taken the value of insured vehicle as Rs.5,13,261/- instead of
Rs.5,50,000/-. The depreciation or deduction of 10% was required to be made
from Rs.5,50,000/- and not from Rs.5,13,216/- as ordered by the State
Commission.
The State Commission committed grave error by reducing the interest from
9% to 6%. There is no infirmity in the interest of 9% as awarded by the District
Forum.
The State Commission again committed grave error by modifying the order
on 07.10.2011 without giving petitioner any notice of the same. The State
Commission failed to take into consideration that the vehicle was registered in
2001 and the estimated life of the vehicle was 10 years. The State Commission
failed to take into consideration the fact that on the date i.e., 07.10.2011 when
the directions was passed to get the vehicle transferred it was not possible for
the petitioner to get the vehicle transferred as the life of the vehicle has already
expired. There is no provision in the motor vehicle Rules which could have
allowed the transfer of the vehicle in favour of the respondent on the said ate.
Moreover, the vehicle which was total loss on the date of accident in 2002 has
totally become wreck and without any recognition. It was not possible for the
petitioner to assemble the said salvage as such the State Commission has
committed further error by directing return of the salvage which was not in
existence on the date of passing of its order. It was totally over looked that the
vehicle was total loss.
Along
with
revision
petition
the
petitioner
has
filed
an
application
for condonation of delay of 859 days. However, as per the office report there is a delay
of 476 days. The reasons given for the delay are as follows:
*
The petitioner although deputed a counsel for defending his case before the State
Commission however no information about the status of the case was ever given to the
petitioner. The petitioner was way back informed that the appeal has been admitted and
it shall come up in due course. The petitioner never received any notice of appearance
thereafter. The petitioner in March 2013 when made enquiries about the case
was apprised of the fact that the appeal has been decided way back. The petitioner
thereafter obtained the copies of the orders. Since the petitioner only in March 2013
came to know about the disposal of the appeal as such the delay has occurred. The
petitioner also faced difficulty in getting all the documents which were required for
preferring the revision. Sometime was also lost in getting the documents collected.
We have heard the learned counsel for the petitioner and have also carefully
gone through the records.
It is seen from the application that no specific dates have been given regarding the
exact date and the manner in which the knowledge had come to the petitioner. No date
has also been given regarding when in March 2013 the petitioner came to know about
the disposal of the appeal. Though the petitioner has blamed his advocate for the delay
in defending his case before the State Commission, at the time of filing of the
application, he had made no complaint regarding deficiency of service with regard to the
counsel either with the Bar Council or any Consumer Court. It was only during the
hearing of the case in the National Forum, that a complaint was filed with the Bar
Council of Chandigarh on 31st July 2013.
In Banshi vs Lakshmi Narain – 1993 (1) RLR 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, especially when the case
was regarding deposit of arrears of rent. The statue also prescribes a time bound
programme regarding the deposit to be made.
In Jaswant Singh vs Assistant
Registrar,
Co-operative
Societies
–
200
(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.
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 did he send
any letter, was disbelieved while rejecting an application to condone delay.
With regard to limitation it is well settled that ‘sufficient cause’ for condoning the
delay in each case is a question of fact.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), has held that:
“It is also apposite to observe that while deciding an application filed in such
cases for condonation of delay, the Court has to keep in mind that the special
period of limitation has been prescribed under the Consumer Protection Act, 1986
for filing appeals and revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if this Court was to
entertain highly belated petitions filed against the orders of the Consumer Foras”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bona
fide, it
had taken all possible steps within its power and control and had
approached the Court without any unnecessary delay. The test is
whether or not a cause is sufficient to see whether it could have
been avoided by the party by the exercise of due care and
attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition,
2005]”.
In 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.”
The petitioner has failed to adequately explain the day to day delay or give
‘sufficient cause’ for condoning the delay of 476 days.
In view of the above, the revision petition is dismissed being time barred by
limitation with cost of Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’ of this Commission within four weeks from today. In case
the petitioner fails to deposit the said cost within the prescribed period, then it shall be
liable to pay interest @ 9% per annum till realisation.
List on 6th September 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3479 OF 2011
(From order dated 25.07.2011 in First Appeal No.1001 of
2011 of State Consumer
Disputes Redressal Commission, Haryana)
1. The Manager, Mapsko Builders Pvt. Ltd., 52, North Avenu Road, Punjabi Bagh
West, New Delhi-26.
2.
The Site Manager/Sale Executive, Mapsko Builders Pvt. Ltd. Mapsko City Homes,
Sector-27, Sonepat through Sh. Gagan Chawla.
...…Petitioners
Versus
Mrs. Sunil Dahiya W/o Anup Singh Dahiya, R/o H. No. 3239, Sector-15, Sonepat,
Haryana
.... Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners
: Mr. Himanshu Gupta, Advocate
For the Respondent
: Mr. Ashim Shridhar, Advocate
Pronounced on: 5th August, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Aggrieved by impugned order dated 25.07.2011 passed by State Consumer
Disputes
Redressal
Commission,
Haryana,
Panchkula
(for
short,
‘State
Commission’),petitioners have filed the present revision petition.
2. Brief facts of this case are that respondent/ complainant had booked a residential
independent ground floor in Mapsko City Home project of the petitioners located at
Sector-27,Sonepat and had paid a sum of Rs.1,50,000/-on 2.2.2010 vide receipt
no.4689 and further a sum of Rs.1,50,000/- on 3.4.2010 vide receipt no.5162. Despite
the above said part payment of her residential, neither the petitioners have allotted the
residential independent ground floor nor they have started construction of the unit in
question. Being harassed at the hands of the petitioners, respondent has filed a
complaint before the District Forum.
3. The plea of the petitioners was that respondent has failed to make the payments of
the house as per the provisional allotment letter dated 30.1.2010. Hence, taking into
account the act and conduct of the respondent in not paying the scheduled amount of
the house, provisional allotment letter was cancelled and earnest money of the
respondent was forfeited.
4. District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’),
vide order dated 28.6.2011 allowed the complaint of respondent.
5. Being aggrieved by the order of District Forum, petitioners filed an appeal before the
State Commission which was dismissed in limini alongwith cost of Rs.10,000/-.
6. Now, petitioners have filed the present petition.
7. We have heard learned counsel for the parties and gone through the record.
8. It has been contended by learned counsel for the petitioners that as per agreed
terms and conditions contained in the application for registration of provisional allotment
dated 30.1.2010, the respondent was liable to pay Rs.30% of the basic sale price +
50% of EDC and IDC within 90 days of booking/at the time of allotment. This amount
comes to Rs.5,26,512/-. However, the respondent has paid only Rs.3 lacs till date and
has not paid the remaining amount at the relevant stage of payment when the same
became due. Thus, it is in these circumstances, when the respondent herself has
defaulted in making the due and agreed payments in time, that she has not been
allotted the residential unit in question. The mere taking of the booking amount as well
as additional instalment of the house does not entitle the respondent to the allotment of
the residential unit, when there is failure on her part to make the 3 rd payment of 10% of
BSP + 50% of the EDC & IDC, whereafter only she would have been allotted the
residential unit. Since, respondent herself has not deposited 30% of the initial amount,
petitioners cancelled the allotment of the respondent vide letter dated 17.12.2010. Both
the Fora below have failed to notice these aspects and as such impugned order passed
by the State Commission is liable to be set aside.
9. On the other hand, it has been contended by learned counsel for the respondent
that as per concurrent findings of the Fora below, no construction of the project has
been started by the petitioners within the specified period, as such there is no infirmity
in the impugned order passed by the State Commission.
10. District Forum while allowing the complaint in its order has held;
“In the written statement and affidavit, the respondent no.2 has
admitted that the complainant remitted payment of Rs.1,50,000/each in favour of the respondents. It was further agreed that the
basic sale price of the house is Rs.15,35,040/-.Further in para
no.4, page 3, the respondent no.2 has submitted that at present
Rs.2,80,789/- is outstanding. Meaning thereby, the complainant
has been making the payment of installments regularly, but
despite that as per the respondent no.2, finding no other way, the
respondents on 17.12.2010 has sent a letter for cancellation of
provisional letter of allotment and forfeiture of earnest money. In
our view, the action taken by the respondents against the
complainant is totally wrong, illegal, arbitrary, unjustified and
against the principles of law.
The respondent no. 2 in the entire written statement and affidavit has
not uttered even a single word about the construction activities
and about the development at the site. In our view, when there is
no construction activities at the site or there is no development at
the site, the respondents have no right to foist their wrong upon
the complainant. In our view, definitely the complainant is entitled
to get interest from the respondents on her deposited amount
which the respondents are utilizing without providing her any
facilities or services. Accordingly, it is directed to the respondents
to pay interest at the rate of 09% per annum on the amount
deposited by the complainant with the respondents from the date
of its deposit till the possession of the floor is handed over to the
complainant.
Further, in our view, the respondents wrongly and illegally
issued the letter dated 17.12.2010 to the complainant and the
respondents are directed to withdraw the same. In our view, the
complainant has been able to prove the deficiency in the service of
the respondents and the respondents are directed to allot the
residential independent ground floor in Mapsko City Home in Block
ME 73 to 81 and 62 to 70 in East to the complainant. It is also
directed to the respondents to accept the instalments without any
interest, penalty or surcharge form the complainant i.e after start of
the construction activities. It is also directed to the respondents to
inform the complainant about the delivery of the possession of
residential independent ground floor so that she could arrange the
money for its deposit with the respondents. Since, the complainant
has been able to prove the deficiency in service on the part of the
respondents, the respondents are directed to compensate the
complainant to the tune of Rs.10,000/-(Rupees Ten Thousand) for
rendering deficient services, for unnecessary harassment and
Rs.5,000/-(Rupees Five Thousand) under the head of litigation
expenses. The present complaint stands allowed and the
respondents are directed to make the compliance of this order
within one month from the date of pronouncement of this order”.
11. The State Commission while affirming the decision of the District Forum, in
its impugned order observed;
“On our asking, it is not disputed by the learned counsel for the appellant
that despite of taking the booking amount as well as additional
insatllment of the house, complainant has not been allotted the
residential unit in question. It is further not disputed that no
construction of the alleged project has been started by the
appellant till date. The plea of the appellant that 30% payment
has not been made by the complainant, therefore, construction
work of the flat in question could not be started, is not a ground to
forfeit the earnest money of the complainant. It is not disputed
that builders always project their case favouring them instead of
ever bothered for the interest of allottees. The builder used the
hard earned money of the investors and thereafter acted in an
arbitrary manner, so as to build up pressure upon the
complainant to part with their hard earned money without
performing their part of contract by raising construction of the
flats. We are, therefore, of the view that there is great deficiency
on the part of the appellants/ opposite parties in not raising the
construction, rather impressing upon the complainant to pay the
instalments in time without carrying the construction work of the
flat in question. We, therefore, dismiss this appeal with the costs
of Rs.10,000/- in limini.
However, complainant would be entitled to adjust this amount of cost,
while making the balance payment of his house to the
appellants”.
12. Petitioners have placed on record ‘Instalment Payment Plan’ showing as
to what stage what instalment amount has to be paid by the
respondent. However, Instalment Payment Plan is absolutely
silent as to by which date the possession of the flat will be
handed over to the respondent.
13. Petitioners have not placed on record the agreement executed between the
parties. However, it has placed on record copy of “Floor Buyer’s Agreement”(page 56
to 65 of the paper book) of some other purchaser. As per clause 14-a of the “Floor
Buyer’s Agreement”;
“Promoter shall endeavour to complete the construction of the
said Floor within a period of 18 months from the date of signing of
this Agreement with the Buyer or within an extended period of six
months, subject to force majeure conditions as mentioned in
Clause (b) hereunder or subject to any other reasons beyond the
control of the Promoter”.
14.
There is nothing on record to show as to what was the status of the construction
when respondent has filed the complaint before the District Forum.
15.
Both the Fora below have given a categorical finding that “No construction has
started yet”.
16. State Commission, vide impugned order dated 25.7.2011 in this regard has
observed
“It is further not disputed that no construction of the alleged project
has been started by the appellant till date”.
17.
Petitioners in this case having accepted substantial amount of money from the
respondent in February/ April,2010 but had not started any construction till
25.7.2011(date of decision of the State Commission). This conduct of the petitioners
on the face of it amounts to unfair trade practice.
18. In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd.(First Appeal No.88 of 1999
and 345 of 2001) decided on 6.5.2002,this Commission has laid down;
“That there has been a delay in delivery in handing over the
possession of the Town House which is a deficiency in service
within the definition of this word as per CPA, 1986”.
19. Present revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986. It is well settled that the powers of this Commission as a
Revisional Court are very limited and have to be exercised only, if there is some prima
facie jurisdictional error in the impugned order.
20. Hon’ble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli
Bikshalu and others,(AIR 1999 (SC) 3095) has observed;
“It was also not open to the High Court in exercise of its revisional
jurisdiction to have indulged in a reassessment of evidence and
thereby interfered with the finding of the facts recorded by the two
Courts below”.
21. Hon’ble Supreme Court, in Rubi (Chandra) Dutta vs. United India Insurance Co.
2011 (3) Scale 654 observed that;
“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”.
22. Petitioners/builder in the present case “wants to have the cake and eat it too”, as
admittedly it has received substantial amount of money of the flat. Thus, petitioners
being the builders are enjoying the substantial amount of money of the flat paid by the
respondent. On the other hand, respondent after having paid substantial amount of
money of the flat to the petitioners is still without any roof and also does not know as to
when she will get the same.
23. Thus, no jurisdiction or legal error has been shown to us to call for interference
in the exercise of power under section 21 (b) of the Act, since, State Commission
has given cogent reasons in its order, which does not call for any interference nor it
suffer from any infirmity or revisional exercise of jurisdiction.
24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
“Courts of law should be careful enough to see through such
diabolical plans of the judgment debtor to deny the decree holders
the fruits of the decree obtained by them. These type of errors on
the part of the judicial forum only encourage frivolous and
cantankerous litigations causing law’s delay and bringing bad
name to the judicial system”.
25. It is well settled that no leniency should be shown to such type of litigants who in
order to cover up their own fault and negligence, goes on filing meritless petitions in
different foras. Equity demands that such unscrupulous litigants whose only aim and
object is to deprive the opposite party of the fruits of the decree must be dealt with
heavy hands. Unscrupulous builders like petitioners should not be spared who after
taking substantial cost of the flat do not perform their part of obligations. A strong
message is required to be sent to such type of builders that this Commission is not
helpless in these type of matters.
26. Now question arises for consideration is as to what should be the quantum of costs
which should be imposed upon the petitioner for dragging the respondent upto this fora.
It is not that every order passed by the judicial fora is to be challenged by the litigants
even if the same are based on sound reasonings.
27. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil
Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
“45. We are clearly of the view that unless we ensure that wrong –doers
are denied profit or undue benefit from the frivolous
litigation, it would be difficult to control frivolous and
uncalled for litigations. In order to curb uncalled for and
frivolous litigation, the Courts have to ensure that there is
no incentive or motive for uncalled for litigation. It is a
matter of common experience that court’s otherwise
scarce and valuable time is consumed or more
appropriately wasted in a large number of uncalled for
cases”.
Apex Court Further observed;
“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.
49. It is a typical example how a litigation proceeds and continues and
in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common man’s 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 me and the probability of the court ordering
prosecution for perjury is less than that of meeting with an
accident while crossing the road”.
28. In our opinion, the present petition is nothing but a gross abuse of process of law
and the revision petition is totally meritless and frivolous, which is required to be
dismissed with punitive cost. Accordingly, we dismiss the present petition with punitive
cost of Rs.75,000/-(Rupees Seventy Five Thousand only).
29.
Out of the cost imposed upon the petitioners, Rs. 50,000/-(Rupees Fifty
Thousand only) be paid to the respondent by way of demand draft in her
name. Remaining cost of Rs.25,000/-(Rupees Twenty Five Thousand only) be
deposited by way of demand draft in the name of “Consumer Legal Aid Account” of
this Commission, within one month from today.
30. In case, petitioners fail to deposit the aforesaid costs within the prescribed period,
then it shall also be liable to pay interest @ 9% p.a., till realization.
31. Cost awarded to the respondent shall be paid only after expiry of the period of
appeal or revision preferred, if any.
32. List on 13th September,2013 for compliance.
.....…………………………J
(V.B. GUPTA)
(PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.187, 188 and 2857 OF 2011
(Against the order dated 2.9.2010 in Appeal No. 3467 and 3468 and 1474/2010 of the
State Commission, Karnataka)
1. The Commissioner Karnataka Housing Board Cauvery Bhavan, Bangalore
2. The Executive Engineer, Karnataka Housing Board, KHB Complex, Mulgund Road
Gadag.
…. Petitioner (s)
Versus
1. Basaiah S/o Shankatkaiah Hiremath Aged about 43 years R/at. Bannikuppa
Yalaburga Tq. Koppal District.
2. Mr. Mahanthesh, S/o Shankataiah Hiremath Aged about 42 years R/at. Jilahala,
Devadurga Tq. Raichur District.
3. Smt. Manjula W/o. Manjunath Kinnala Aged about 32 years R/at. Lakampura,
Kamalapura Post Yalaburga Tq. Kopal District.
4. Smt. Annapoorna W/o. Nagappa Rachoti Aged about 50 years R/At. Vikasnagar
Koppal Tq. & District.
5.
Mr. Mariyappa Ganti Aged about 60 years R/At. Vikasnagar Koppal Tq. & District.
6. Mr. Ramesh S/o Shivaputhrappa Hugar Aged about 40 years R/at
Siddalinganagar, H. No. LIG-58 Gadag.
7. Smt. Rajeshwari W/o Ramesh Hugar Aged about 35 years R/At. Siddalinganagar,
H. No. LIG-58, Gadag.
8. Smt. Thayamma W/o Siddalingesh Hugar Aged about 66 years R/At.
Siddalinganagar, H. No. LIG-58, Gadag.
And others
….Respondents
BEFORE:
HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Shaileh Madiyal, Advocate
For the Respondents
In RP/187/2011
: Mr. Purushottam Sharma Tripathi, Advocate
For the Respondents In RP/188/2011
: Nemo
For the Respondents In RP/2857/2011
: Nemo
Pronounced on: 5th August, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Since common question of facts and law are involved in the above noted petitions,
as such these petitions are being disposed of by this common order.
2. Petitioners/opposite
parties
published
an
advertisement
for
allotment
of
site/residential house. Respondents/complainants applied for allotment of the
site/residential house and paid the processing fee, earnest money as well as initial
deposit. At the time of filing of the applications for allotment, respondents were informed
that the rate was Rs.60/- per sq. ft. After allotment of the site, respondents paid various
amounts by way of instalments. Later on, petitioners informed the respondents that rate
of the site has been changed to Rs.80/- per sq. ft. This act on the part of the petitioners
in increasing the rate of site is illegal. Accordingly, respondents prayed for refund of the
excess amount and compensation as well as cost.
3. Petitioners in their written statement have taken the plea that respondents were
allotted the site pursuant to their application for allotment. In the intimation pertaining
the said allotment, respondents were also intimated that the price for the site was
Rs.80/- per sq.ft. and respondents paid the said price for the site in accordance with
communications dated 30.10.2008 and 4.12.2008 and the site in question were thus
allotted to the respondents. One year after having paid the price of the site @ Rs.80/per sq. ft., respondents filed consumer complaints before the District Consumer
Disputes Redressal Forum, Gadag (for short, ‘District Forum’).
4. District Forum, vide its order dated 2.9.2010 in complaint cases No.450 and
457/2009 and order dated 28.1.2010, in complaint case No.396/2009, allowed the
complaints and directed the petitioners that the price of the site allotted to the
respondents was @ Rs.60/- per sq. ft. Therefore, Petitioners shall refund the excess
amount with interest @ 10% p.a.
5. Being aggrieved by the order of the District Forum, petitioners filed appeals before
the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short,
‘State Commission‘). The State Commission, vide its impugned order dated 2.9.2010,
passed (in Appeal No.3467 and 3468 of 2010) and order dated 12.4.2011 passed (in
Appeal No.1474 of 2010) dismissed all the appeals.
6. Hence, these revision petitions.
7. Notice of above note revision petitions was issued to all the respondents. However,
counsel for respondents (in R.P.No.187 of 2011) has appeared, whereas none
appeared on behalf of respondents (in R.Ps. No.188 and 2857 of 2011) in spite of
service by Regd. AD post. Accordingly, respondents in these petitions were proceeded
ex parte, vide order dated 20.2.2013 passed by this Commission.
8. We have heard the learned counsel for the petitioners as well as counsel for
respondents (in R.P. No.187 of 2011).
9. It has been contended by learned counsel for the petitioners that price revision from
Rs.60/- per sq. ft. to Rs.80/- per sq. ft. was done in accordance with Karnataka Housing
Board Regulation and the same is binding on the respondents. In any event,
respondents were never promised that they would be given sites at the rate of Rs.60/per sq. ft. As such, both the fora below have grossly erred in coming to the conclusion
that respondents had paid all their instalments prior to the price revision by the
Petitioner-Board.
10. On the other hand, it has been argued by learned counsel for the respondents that
at the time of filing of the application for allotment, the respondents were informed that
the rate was Rs.60/- per sq. ft. Accordingly respondents have paid various amounts by
way of instalments. Later on, petitioners informed them that the rate of the site has been
changed to Rs.80/- per sq. ft. This act on the part of petitioners in increasing the price,
after allotment of the site is illegal.
11. In Complaint Case No.450 and 457 of 2009, the District Forum held;
“But here the question is whether the respondents have
distributed/allotted sites to all consumers who have sought sites
under the same notification and have filed applications at the same
time at one price? Or we have to consider as to whether they have
right to charge higher rate as per law under the Board Rules. Here
firstly in the letter written by the 1st respondent to the 2nd respondent
on 23.10.2008 it is started that the price of sites intended to be
purchased by consumers like complainants is Rs.80/- per Sq. Ft.
and the same is in force from 1.10.2008. But here the complainants
have filed application to purchase sites at Rs.60/- per Sq. Ft. before
that date and the sites have to be allotted to these complainants at
that rate only. But here, the respondents have received amount
from the complainants at the rate of Rs.80/- per Sq. Ft. Even
Shivaleela Sullad who had filed application alongwith the
complainant had been asked to pay at Rs.80/- per Sq. Ft. and when
she filed complaint No.49/2009 before the Gadag District Consumer
Forum, respondents have agreed to allot the site to her at Rs.60/-.
From this it is clear that the conduct of the respondents is not in
accordance with the rules of the Board and it also clear that in
fixing the price as they deem fit and without discretion they are
guiltiest of improper business conduct and of deficiency in service.
For this reason, while accepting the decisions of National
Commission cited by the advocate for respondents, and without
questioning the power of respondents in fixing the price, we are of
the opinion that collecting different rates from consumers who have
filed applications at similar period, amounts to improper business
conduct. Hence, while answering the 1st Issue in the affirmative, we
hold that the excess amount at Rs.20/- per Sq. Ft. collected from
the complainants should be calculated and interest at the rate 10%
on the same should be given from the date of collecting excess
money and the same should be refunded to the complainants.
Further by way of warning that such improper business conduct
should not be repeated to other consumers and for not repeating
deficiency of service to others, the respondents should pay to each
of the complainants a sum of Rs.5,000/- as Special Compensation
also pay a total of Rs.2,000/- towards court costs and accordingly
while answering Issue No.2 partly in the affirmative it is ordered as
under;
ORDER
Complaints No.450/2009 and 457/2009 these two complaints
have been allowed in part against Respondents 1 and 2.
The respondents 1 and 2 shall within one month from today, after
considering that the price of sites allotted to the complainants in
these two complaints as Rs.60/- per Sq. Ft., refund to the
complainants the excess amount collected by them alongwith 10%
interest from the date of receipt of the amount. Further to each of
the complainants a sum of Rs.5,000/- shall be paid as special
compensation and for mental agony, a sum of Rs.2,000/- shall also
be paid totally towards court costs.”
12. The State Commission vide impugned order (passed in Appeals No.3467 and 3468
of 2010) has observed as under;
“After considering the averments of the complaints and the
affidavit, DF allowed the complaints of the complainants in part.
Record indicates that in case the society or the housing board
intended to raise/hike the sital value, prior intimation is to be given to
the members. Once the value of the site is fixed at Rs.60/- sq. feet
without notice, the appellants/OPs are not entitled to claim the value
of the site at Rs.80/- sq. feet. The impugned order under challenge
also discloses that sites were allotted to some of the members at
Rs.60/- sq. feet whereas in these 2 cases the appellant/OPs have
collected excess amount of Rs.20/- per sq. feet which is unfair. Since
the appellants/OPs is a board do not expected to collect more
amount from their members. Sites allotted at lesser price for the
other members amounts to discrimination. Therefore the DF is right
in allowing the complaints of the complainants in part.”
13. Respondents in para no.2 of their complaint have made the following averments’
“2. The KHB has made the publication of an advertisement for the allotment of
the
sites/residential
houses
by
their
notification
No.KHB/Allotment/201c/CS/2001-2002 DATED 29.8.01. Accordingly the
complainants have applied in the month of August, 2008 for the
allotment of the sites under the said scheme and paid the processing
fee, EMBD. Initial deposit as per the notification and regulations of the
KHB. The complainants have also claimed reservation of the sites
under various categories which are classified and fixed quota for the
allotment by the KHB. The price of the said sites was fixed at Rs.60/per sq. feet at the time of the accepting the application of the
complainants and other aspirants.”
14. In response to the above averments, petitioners in their written statement states as
under;
“2. The contents of the para 1 & 3 of the complaint is partly true and
in respect of date of application and application number is not
disputed by this Respondent. It is false to state that the price of the
said sites were fixed at Rs.60/- per sq. ft. at the time of the accepting
the application of the complainants and other aspirants.”
15. Thus, as per averments made in para -2 of the complaint, rate of the site was fixed
at Rs.60/- per sq. feet at the time of acceptance of the application. In its written
statement petitioners have nowhere stated that the rate of the site was increased to
Rs.80/- per sq. ft.
16. However, counsel for petitioners has contended during the course of arguments
that respondents have paid the agreed rate of Rs.80/- per sq. ft. and when they
themselves had paid the amount @ Rs.80/- per sq. ft., then question of arbitrariness
and discrimination does not arise.
17. There is nothing on record to show that respondents have ever agreed to the rate
of Rs.80/- per sq. ft. This rate was increased after allotment of the site to the
respondents and both the fora below have given clear findings of fact on this point.
18. Present revision petitions have been filed under Section 21(b) of the Consumer
Protection Act, 1986 (for short, ‘Act’). It is well settled that the powers of this
Commission as a Revisional Court are very limited and have to be exercised only, if
there is some prima facie jurisdictional error in the impugned order.
19. 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.”
20. Thus, no jurisdiction or legal error has been shown to us to call for interference
in the exercise of power under section 21 (b) of the Act, since, two fora below have
given cogent reasons in their orders, which does not call for any interference nor
they suffer from any infirmity or revisional exercise of jurisdiction.
21. In our opinion, the present petitions are nothing but a gross abuse of the process
of law and the same are meritless and have no legal basis, which are required to be
dismissed with costs.
22. Accordingly, we dismiss the present petitions with cost of Rs.10.000/- (Rupees Ten
Thousand only) in each case. Cost be deposited by the petitioners by way of demand
draft in the name of respondents in each case within four weeks.
23. In case, petitioners fail to deposit the aforesaid cost within the prescribed period,
then they shall also be liable to pay interest @ 9% p.a., till realization.
24. List for compliance on 13.9.2013.
…………………………………….J
(V.B. GUPTA)
PRESIDING MEMBER
………………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 292 OF 2013
(From the order dated 01.11.2012 in Appeal No.251 of 2012 of the State Consumer
Disputes Redressal Commission, U.T., Chandigarh)
Bajaj Allianz General Insurance Co. Ltd. 1, DLF Industrial Plot, IInd Floor Moti Nagar,
New Delhi – 110015
… Petitioner/ Opp. Party (OP)
Versus
1. Nitin Verma S/o Sh. Ashwani Verma R/o H. No. 5486, Sector 38 (West) Chandigarh
(Son, Assignee, legal heir of deceased insured)
2.Ashwani Verma S/o Dr. Ram Gopal Verma R/o H. No. 5486, Sector 38 (West)
Chandigarh (Husband, legal heir of deceased insured)
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Ms. Suman, Advocate
For the Respondent-2 :
Mr. Ashwani Verma, In person
PRONOUNCED ON
5th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
01.11.2012 passed by the State Consumer Disputes Redressal Commission, U.T.,
Chandigarh (in short, ‘the State Commission’) in Appeal No. 251 of 2012 – Bajaj Allianz
General Ins. Co. Ltd. Vs. Nitin Verma & Anr. by which, while dismissing appeal, order of
District Forum allowing complaint was upheld.
2.
Brief facts of the case are that Smt. Suman Verma, mother of Complainant
No.1/Respondent no.1 and wife of Complainant No. 2/Respondent No.2 took a Travel
Care Insurance Policy from OP/petitioner on 15.4.2011 for the period from 22.4.2011 to
20.6.2011. Smt. Suman Verma died on 28.4.2011 in USA. Claim was filed before OP,
which was repudiated on the ground of pre-existing disease. Alleging deficiency on the
part of Petitioner/OP, Respondents/complainants filed complaint before District Forum.
OP contested complaint and submitted that claim was repudiated on the ground of
suppression of pre-existing disease; hence, complaint may be dismissed. Learned
District Forum after hearing both the parties, allowed complaint and directed to pay
$10659 (US) in the Indian Currency Value to be calculated on the basis of May, 2011
rates along with Rs.30,000/- as compensation and Rs.15,000/- as litigation cost. It was
further directed that order may be complied within a period of 30 days failing which, OP
will be liable to pay aforesaid amount along with 12% p.a. interest from 2.6.2011, i.e. the
date of repudiation of the claim till payment. 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 petitioner and Respondent no. 2 in person.
4.
Learned Counsel for the petitioner submits that she presses revision petition only
to the extent of awarding penal interest and does not press other prayers, as payment
has already been made to the respondent. Learned Counsel for the petitioner
submitted that after awarding compensation, learned District Forum has committed
error in further allowing 12% p.a. interest; hence, revision petition be accepted to this
extent. On the other hand, Respondent No. 2 submitted that order passed by learned
State Commission and District Forum are in accordance with law; hence, revision
petition be dismissed.
5.
Perusal of order of District Forum reveals that 12% p.a. interest has been
awarded from the date of repudiation of claim till its actual payment, only if order of
District Forum for making payment is not complied with by the petitioner within a period
of 30 days. In such circumstances, award of interest cannot be said to be penal interest,
but it appears that interest has been awarded only for due compliance of the order
within a period of 30 days. In such circumstances, grant of interest cannot be termed as
penal interest. No doubt, interest has been awarded from the date of repudiation of the
claim, whereas interest should have been allowed from the date of order of District
Forum because 30 days period was given for compliance of the order of District Forum
and interest has been awarded only on failure to comply with the directions within 30
days. In such circumstances, revision is liable to be allowed partly.
6.
Consequently, revision petition filed by the petitioner is allowed in part and
impugned order dated 01.11.2012 passed by the State Consumer Disputes Redressal
Commission, U.T., Chandigarh in Appeal No. 251 of 2012 – Bajaj Allianz General Ins.
Co. Ltd. Vs. Nitin Verma & Anr. and order of District Forum dated 27.6.2012 passed in
CC No. 652 of 2011 is modified and date 2.6.2011 mentioned in the order of District
Forum is modified by the date 27.6.2012 and revision petition stands dismissed for rest
of the reliefs claimed in revision petition. There shall be no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 229 OF 2013
(From the order dated 10.10.2012 in Appeal No.1154 of 2012 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
Jilay Singh S/o Shri Ganga Ram R/o 3C/34, NIT Faridabad (Haryana)
… Petitioner/Complainant
Versus
1. National Insurance Company Ltd. Regd. Office at 3 Middleton Street Kolkata –
700071
2.Divisional Manager National Insurance Co. Ltd. Branch Office 15/C1 & 7,
Neelam Chowk, NIT Faridabad – 121001 (Haryana)
3.Citi Corp. Finance India Ltd. FF Division 1st Floor,City Bank Centre, P. No. C-61, G
Block, Bandra Kurla Complex, Bandra E, Mumbai-400051
… 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. Madhurendra Kumar, Advocate
PRONOUNCED ON 5th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order
dated
10.10.2012
passed
by
the
Haryana
State
Consumer
DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal
No. 1154 of 2012 – Jilay Singh Vs. National Insurance Co. Ltd. & Ors. bywhich, while
dismissing appeal, order of District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner’s vehicle HR-38-J-4095 was
insured by OP/respondent for a period of one year commencing from 24.1.2005 to
23.1.2006. On 9.5.2005, vehicle parked in front of the house of driver was stolen. FIR
was lodged on 4.6.2005 and respondents were informed immediately regarding theft of
the vehicle. Respondents repudiated claim alleging deficiency on the part of
petitioner/complainant. Petitioner/complainant filed complaint before District forum.
Respondents contested complaint and submitted that FIR was lodged at a very belated
stage and OP was not informed about theft and prayed for dismissal of complaint.
3.
District Forum after hearing both the parties dismissed complaint. Appeal field by
the petitioner was dismissed by learned State Commission vide impugned order against
which, this revision petition has been filed.
4.
Heard learned Counsel for the petitioner at admission stage and perused record.
5.
Learned Counsel for the petitioner submitted that inspite of intimation to
respondents immediately after theft; learned State Commission has committed error in
dismissing appeal and learned District Forum has committed error in dismissing
complaint and claim should have been allowed on non-standard basis; hence, revision
petition be admitted.
6.
Perusal of record clearly reveals that FIR was lodged on 4.6.2005, whereas
vehicle was stolen on 9.5.2005, i.e. after a period of 25 days. Petitioner has not filed
any document regarding intimation to Insurance Company/respondent immediately
after theft of the vehicle. On the other hand, respondent has denied any intimation by
complainant. In such circumstances, learned State Commission has not committed any
error in upholding order of District Forum dismissing complaint. Learned Counsel for the
petitioner has placed reliance on II (2010) CPJ 9 (SC) – Amalendu Sahoo Vs. Oriental
Insurance Co. Ltd. in which claim was directed to be settled on non-standard basis, as
vehicle was used on hire, whereas insured for personal use. This citation does not
help to the petitioner in this case, as petitioner has lodged FIR after 25 days and has not
intimated to the Insurance Company; hence, violated basic conditions of the policy. He
has also placed reliance on IV (2008) CPJ 1 (SC) – National Insurance Co. Ltd.
Vs. Nitin Khandelwal, which also does not help to the petitioner as in that case also
vehicle was insured for personal use and was being used by the respondent as a taxi,
whereas in the case in hand vehicle has been stolen and no intimation was given by the
petitioner in time to the respondent.
7.
In I (2013) CPJ 713 (NC) – Suman Vs. Oriental Ins. Co. Ltd. and in I (2013) CPJ
741 (NC) – Surender Vs. National Insurance Co. Ltd., I have decided that as per
terms and conditions of the policy, it is obligatory on the part of the complainant to
intimate about theft to the OP immediately. In aforesaid both the cases, I have upheld
order of State Commission dismissing complaint.
8.
In the light of aforesaid judgements, we do not find any illegality, irregularity of
jurisdictional error in the impugned order and revision petition is liable to be dismissed.
9.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2575 OF 2008
From the order dated 04.03.2008 in Appeal No. 1346/1995 of the U.P. State Consumer
Disputes Redressal Commission, Lucknow
1. Lifie Insurance Corpn. of India Main Branch, through its Chairman Post Box No.
19953, Jivan Bima Marg Bombay – 400021
2. Life Insurance Corpn. of India Zonal Office, Through its Zonal Manager Jivan Vikas,
16/98, Mahatma Gandhi Marg,
3. Branch Manager, Life Insurance Corpn. of India 613, First Floor, Railway Road,
Hapur
… Petitioners/Opp. Parties (OP)
Versus
Smt. Manavinder Kaur W/o Smt. Maharaj Singh R/o Khureti House Jail Road
Rae Bareilly.
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Ms. Manisha Tyagi, Advocate
For the Respondent
:
Mr. Himmat S. Sidhu, Auth. Rep.
PRONOUNCED ON 5th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/Opposite parties against
the
order
dated
04.03.2008
passed
by
the
U.P.
State
Consumer
DisputesRedressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal
No. 1346/1995 – LIC of India Vs. Manavinder Kaur by which, while dismissing appeal,
order of District Forum allowing complaint was upheld.
2.
Brief
facts
of
the
case
are
that
complainant/respondent
took
‘Bima Sandesh Policy’ with accidental benefits from OP/petitioner in the name of her
minor son Kulbir Singh Sidhu, who was 17 years & 6 months. He died on 11.6.1991 in
an accident. Complainant filed claim with the OP. OP paid only basic assured amount
without accidental benefits and, as accidental benefits were not paid, alleging deficiency
on the part of OP filed complaint before District Forum. OP/petitioner contested
complaint, filed written statement and submitted that accidental benefits were not
payable, as minor was not covered in accidental benefits and prayed for dismissal of the
complaint. Learned District Forum after hearing both the parties allowed complaint and
directed OP to pay Rs.1,00,000/- as accidental benefits along with 18% p.a. interest
from 22.09.1984 till payment. 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 petitioner and authorized representative of
respondent and perused record.
4.
Learned Counsel for the petitioner submitted that, though, policy for accidental
benefits could not have been issued in the name of minor, but still petitioner has already
paid accidental benefits, but rate of interest awarded by District Forum is on higher side;
hence, revision petition be allowed to this extent and rate of interest be reduced. On the
other hand, authorized representative for the respondent submitted that respondent is
contesting this matter since 18 years and rate of interest awarded by District Forum is
not on higher side; hence, revision petition be dismissed.
5.
As petitioner has already paid original sum assured and amount of accidental
benefits, as awarded by District Forum, we need not to go on the merits of the case.
Now, the question remains only regarding rate of interest..
6.
Learned District Forum has awarded 18% p.a. interest from 22.9.1994 and
learned State Commission has dismissed appeal of the petitioner. It is doubtful whether;
‘Bima Sandesh Policy’ with accidental policy could have been issued by the petitioner in
the name of minor. Apparently, 18% p.a. interest is on the higher side and 12% p.a.
interest would meet the ends of justice. In such circumstances, it would be appropriate
to reduce rate of interest from 18% p.a. to 12% p.a.
7.
Consequently, revision petition filed by the petitioner is partly allowed and
impugned order dated 4.3.2008 passed by learned State Commission and order of
District Forum dated 24.7.1995 passed in Complaint No. 1348/94 is modified and grant
of interest @ 18% p.a. is reduced to 12% p.a. interest. Rest of the order is
upheld. There shall be no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 157 OF 2013
M/s Akash Ganga Airlines Ltd. Registered Office at : Aadharshila Campus
V.I.P.Road, Alambagh, Lucknow-226005 Through its Vice President & Authorised
Representative – Smt. Kavita Verma
........ Complainant
Vs.
Aryavrat Gramin Bank B-192, Nirala Nagar, Lucknow – 220007 Through its Senior
Manager
......... Opposite Party(s)
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Complainant
:
Mr.Shashi Kumar Sinha and Mr.Nikhil Jain,
Advocates
PRONOUNCED ON 06th AUGUST, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
M/s Akash Ganga Airlines Limited has filed instant complaint under section 21
(a)
of
the
Consumer
Protection
Act,
1986
(
in
short,
‘the
Act’)
against Aryavrat Gramin Bank, Nirala Nagar,Lucknow claiming deficiency in service on
the part of the opposite party bank in connection with the loan sanctioned in favour of
the complainant for setting up a domestic airline.
2.
As per the allegations in the complaint , it is clear that services of the opposite
party bank was availed by the complainant in relation to a commercial purpose i.e.
setting up a domestic airlines for earning profit. Therefore, the complainant was given
an opportunity to make submissions on maintainability of the consumer complaint.
3.
Learned Shri Shashi Kumar Sinha, Advocate for the complainant has drawn our
attention to the definition of complaint as provided in section 2 ( c) (iii) and submitted
that the complaint means any allegation in writing made by the complainant relating to a
case where the services hired or availed of suffers from deficiency in service. He,
further, contended that as per the section 2 ( O) of the Act, “service” means service of
any description made available to the user and it includes the facilities in connection
with banking / financing etc. Learned counsel for the complainant submits that as per
the allegations in the complaint, the opposite party had agreed to advance loan to the
complainant for setting up a domestic airlines. As such the aforesaid service falls within
the definition of “service” as envisaged under the Act. Learned counsel thus submitted
that allegations in the complaint clearly indicate deficiency in service on the part of the
opposite party in relation to the loan account of the complainant. As such the consumer
complaint is maintainable.
4.
In support of this contention, learned counsel for the complainant has relied
upon the judgements of the Supreme Court in the matters of Lucknow Development
Authority Vs.M.K.Gupta JT 1993 (6) SC 307 and Civil Appeal No.1064 of 2013
titled Vijaya Bank Vs. Gurnam Singh, CCI Chambers Co-op Housing Society
Vs. D.C.Bank Ltd. AIR 2004 SC 184.
5.
We have considered the submissions made on behalf of the petitioner and
carefully gone through the allegations in the complaint. There is no dispute with the
proposition raised by the complainant that the loan account facility given by a bank to its
customer falls with the definition of “service” as envisaged under section 2 (O) of the
Act. It cannot be disputed that in terms of section 2 ( c ) (iii) a complaint can be filed by
aggrieved party in relation to deficiency of service by the service provider. However, in
our considered view in order to successfully maintain a complaint under the Act, the
complainant must qualify to be a complainant as defined under section 2 (b) of the Act.
6.
The term complainant as defined under section 2 (b) of the Act is reproduced
thus:
“Complainant” means
(i)
a consumer; or
(ii) any voluntary consumer association registered under the
Companies Act, 1956 ( 1 of 1956) or under any other law for the time
being in force; or
(iii)
the Central Government or any State Government; or
(iv) One or more consumers, where there are numerous consumers
having the same interest;]
(v) in case of death of a consumer, his legal heir or representative;]
who or which makes a complaint’’.
On reading of the above for an individual to maintain consumer complaint under
the Act, he has to be a consumer. The term ‘consumer’ has been defined under section
2 (1) (d) of the Act. The relevant portion of the definition which deals with hiring or
availing of service is reproduced thus:
“Consumer means a person who(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 brought and used by him
and services availed by him exclusively for the purpose of earning his
livelihood by means of self-employment”.
7.
On reading of this provision, it is evident that after the amendment of the
definition of consumer by the Act 62 of 2002, the persons availing services for any
commercial purpose are excluded from the definition of “consumer”. In the instant
case, admittedly the loan facility was availed by the complainant for a commercial
purpose i.e. to set up a domestic airline. No doubt the explanation to section 2 (1) (d)
(ii) provides that commercial purpose does not include the services availed by a person
exclusively
for
the
purpose
of
earning
his
livelihood
by
means
of self
employment. Unfortunately, this is not a case before us. Complainant admittedly is a
public
limited
company
and
unnatural
person. Therefore,
it
cannot
take advantage of the explanation to Section 2 (1) (d) (ii).
8.
We have gone through the judgments referred to by learned counsel for the
complainant. In our view, the aforesaid judgments are based upon their distinct facts
and are not applicable to the facts of the case. Further, the aforesaid judgments relate
to the period prior to amendment of definition of “consumer” when the persons availing
services hired for commercial purpose were not excluded from the definition of
consumer. Thus, in our view the aforesaid judgments are of no avail to the
complainant.
9.
Learned counsel for the complainant has also contended that in view of the
judgment of the Supreme Court in the matter of Mahesh Chandra Vs. Regional
Manager, U.P. Financial Corporation AIR 1993 SC 935, it is obligation of the bank to
reschedule the payment of loan by the complainant and also sanction further loan to
make the complainant company viable. In our considered view, aforesaid judgment
has been passed in a different context while interpreting the scope of section 29 of the
State Financial Corporation Act and it has no applicability to the facts of the case.
10.
The result of the above discussion is that the complainant does not fall within
the definition of the complainant as envisaged under section 2 (d) (ii). As such, he
cannot maintain a consumer complaint under the provisions of the Act. The complaint
is, therefore, dismissed as not maintainable. No order as to costs.
………………………….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
…………………………
(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 207 OF 2013
M/s Shri Geeta Infratech Pvt. Ltd. Through its Director, Manisha S. Ranasaria D-404,
Aditya Elite, B.S.Maktha 6-3-1119, Somajiguda Near Keerthilal Jewellers Lane
Hyderabad – 500016
… Complainant
Versus
M/s Lodha Healthy Constructions & Developers Private Limited (LHCPL)
East Block, Eden Square Kukatpally Village Hyderabad – 500072 Regd. Office : 216
Shah & Nahar Industrial Estate Dr.E. Moses Road, Worli Mumbai – 400018 Through its
Chairman & Managing Director
… Opposite Party
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Complainant : Mr. Venkateswar Rao Anumolu,Advocate
PRONOUNCED ON_07.08.2013
ORDER
JUSTICE J.M. MALIK
1.
The key question is “Whether the complainant is a “consumer” and
falls under Section 2(1)(d)(ii) and Explanation appended to it?”.
2.
Even if a Private Limited Co. is treated, as a “person”, will the purchase of
space/residential flats can be for earning its livelihood?. The instant complaint has been
filed by M/s. Geeta Infratech Pvt.Ltd. The complainant is a registered Company under
Companies Act, 1956 and has its registered office at 83, Nootan Cloth Market, Raipur,
Ahmedabad – 380 022. They were looking for a facility of its Director, Manisha
S.Ranasaria’s family’s comfortable living. They
entered
into
an
agreement
with
M/s.Lodha Bellezza Constructions and Developers Pvt. Ltd., having its office at Kukatpally
Village, Hyderabad. They were to provide various facilities in the Lodha Bellezza Complex
as listed in the Brochure. The complainant paid a substantial amount towards the price
of the flat.
3.
Learned counsel for the complainant vehemently argued that the Director is buying
flat for her own personal use. But there is no inkling in the agreement entered into between
the parties. The agreement clearly states that the same is entered into between the OP
and M/s. Geeta Infratech Pvt. Ltd. 83, Nootan Cloth Market, Raipur, Ahmedabad – 380
022. It is, thus, clear that any officer of the Complainant Company will stay on, who will
transact the business for and on behalf of the complainant company. Under these
circumstances, it cannot be said that the complainant is a “consumer”.
4.
In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ
299 (NC), there was delay in handing over possession. The complainant was a Private
Limited
Company. The
complainant
was
nominated for allotment of
showroom. Possession not given. Sale Deed was not executed. Deficiency of service
was
alleged. It
was
held
that even if Private Limited
Co.
is
treated
as
a
“person”, purchase of space could not be for earning for its livelihood. Purchase of space
was for “commercial purpose”.
5.
In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India)
Ltd., & Anr., Concumer Complaint No.296 of 2011, decided by National Commission,
on 03.07.2012, it was held that the business of the complainant extended upto
Mumbai. In order to save on the expenditure incurred on his stay, in hotels, at Mumbai,
during his business trips, he was interested in buying some flats in Mumbai. He took two
flats. It was held,
“Clearly, the transaction is relatable to his business
activity and,
therefore,
it will fall
in
the
category of commercial purpose, which has been taken
out of the purview of the Consumer Protection Act, 1986,
vide Amendment Act No.62 of 2002, effective from
15th of March, 2003. This Commission in the case of Jag
Mohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ
199 (NC), in a somewhat similar case, had held that the
complaint was not maintainable under the Consumer
Protection Act, 1986. It had, therefore, disposed of 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.6030-5031 of
2008,
filed before the Supreme
Court,
stands dismissed vide the Apex Court’s order dated
29.09.2008”.
6.
Against the said order of this Commission, Special Leave Petition (Civil Appeal No.
6229 of 2012, Satish Kumar Gajanand Gupta Vs. Srushti Sangam Enterprises (I) Ltd
& Anr.) was filed before the Hon’ble Supreme Court. The Hon’ble Apex Court
dismissed the said Special Leave Petition, vide order dated 14.09.2012.
7.
In M/s.Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. &
Anr., Consumer Complaint No.112 of 2012, decided by National Commission, on
05.07.2012, it was held that :
“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 barelook on this Resolution clearly goes to show that these
flats would be meant for ‘commercial purposes’.
8.
Against the said order of this Commission, Special Leave Petition (Civil Appeal
Nos.8990-8991 of 2012, M/s. Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal
Housing
Ltd.
Plaza
&
Anr.) was filed
before
the
Hon’ble
Supreme
Court. The Hon’ble Apex Court dismissed the said Special Leave Petition, vide order
dated 07.01.2013.
The complaint, accordingly, is dismissed in limine.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
.…..…………………………
(DR.S. M. KANTIKAR)
MEMBER
dd/19
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2284 OF 2013
(From the order dated 01.04.2013 in First Appeal No. 32/2013
of Rajasthan State Consumer Disputes Redressal Commission)
WITH
I.A. No. 3802 & 3803 /2013
(STAY, EXEMPTION FOR FILING
TRANSLATION OF DOCUMENTS)
1.
Rajasthan Housing Board, Jyoti Nagar, Janpath, Bhagwan Das Road, Jaipur
Through its Secretary
2.
Rajasthan Housing Board, Through Deputy Housing Commissioner CircleFirst, Pratap Nagar, Sanganer, Jaipur
... Petitioners
Versus
Gyan Singh s/o Shri Sujan Singh, r/o 15, Chaudhory Colony,
Kartarpura Jaipur
… Respondent
REVISION PETITION NO. 2285 OF 2013
(From the order dated 01.04.2013 in First Appeal No. 33/2013
of Rajasthan State Consumer Disputes Redressal Commission)
WITH
I.A. No. 3804 & 3805 /2013
(STAY, EXEMPTION FOR FILING
TRANSLATION OF DOCUMENTS)
1.
Rajasthan Housing Board, Jyoti Nagar, Janpath, Bhagwan Das Road, Jaipur
Through its Secretary
2.
Rajasthan Housing Board, Through Deputy Housing Commissioner CircleFirst, Pratap Nagar, Sanganer, Jaipur
... Petitioners
Versus
Karuna Bohra w/o Ashwani Bohra, r/o House No. 51/62,
Pratap Nagar, Sanganer, Jaipur
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
(IN BOTH REVISION PETITIONS)
For the Petitioner(s)
For the Respondent(s)
Mr. Vinay K. Sharma, Advocate
Mr. Rakesh K. Mudgal, Advocate
Mr. Gyan Singh, Advocate
PRONOUNCED ON : 7th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
These two revision petitions have been filed under section 21(b) of the Consumer
Protection Act, 1986 against the impugned order dated 01.04.2013 passed by the
Rajasthan State Consumer Disputes Redressal Commission (for short ‘the State
Commission’) in FA No. 32/2013 “Rajasthan Housing Board versus Gyan Singh” by
which while dismissing the appeal, the order passed by District Consumer Disputes
Redressal Forum, Jaipur in complaint no. 787 and 664 of 2012 filed by the
respondents/complainants was upheld. These two petitions are being disposed off by
this single order and a copy of the same may be placed on each file.
2.
Brief facts of the case, as taken from complaint no. 787/2012 filed by Gyan Singh
respondent in RP No. 2284/2013 are that the Petitioner/OP launched a multi-storey
housing
scheme
at Mewar apartments, Haldighati Marg, Pratap Nagar, Jaipur. The
complainants submitted applications for booking flats in the said Scheme by making
payment of registration amount of Rs.1,80,000/- each. The approximate cost of the flat
was
stated
to
be
Rs.17,90,000/-. The complainants were successful in the draw of lots taken out on
14.04.2008. Allotment letters were issued to them. The complainants deposited the
total amount of the flat in instalments as demanded by the petitioner/OP. As per
commitment made by the Petitioner/OP through the reservation letter dated 22.10.2008,
the petitioners were required to issue a allotment letter/possession letter of the flat
within a period of 30 months from that letter after allotting the house number. However,
the said allotment/possession letter was issued to the complainant on 30.6.2011
meaning thereby that there was a delay of about three months in issuing the said
letter. Further, the petitioners raised further demand of Rs.1,96,215/- in RP No.
2284/2013 and a demand of Rs.1,98,784/- in RP No. 2285/2013 from the complainants
before taking the possession of the flats. The said amounts were also deposited by the
complainants under protest. Further, an additional demand for Rs.97,225/- for parking
in RP No. 2284/2013 and that of Rs.57,495/- in RP No. 2285/2013 was also made by
the petitioner and the said amount was also paid by the complainants. It has been
alleged by the complainants that the petitioners/OP had not completed the construction
work of the flats at the time of offer of possession and hence, there was gross
negligence and deficiency in service on the part of the petitioner. A complaint was,
therefore, made before the District Forum and as per orders passed by the District
Forum on 5.12.2012 in both the cases, it was ordered that in case of complaint no.
787/2012 the petitioner/OP should pay interest @ 15% p.a. on the amount of
Rs.17,90,000/- from 30.03.2011 to 30.06.2011 and also to refund the parking charges of
Rs.97,225/- with interest @ 15% p.a. from the date of receiving such payment till
refund. District Forum also ordered that for failure of the petitioner to provide all
amenities, interest @ 10% p.a. should also be paid on the total amount of
Rs.17,90,000+Rs.1,96,215 = Rs.19,86,215/- and to pay Rs.50,000/- by way of
compensation for mental agony and Rs.3,000/- as litigation expenses.
3.
In case of RP No. 2285/2013, it was ordered that the petitioner should pay interest
@ 9% p.a. on the total amount of Rs.21,40,000/- from 30.03.2011 to 30.06.2011 and to
refund the parking charges of Rs.57,495/- along with interest @ 12% from the date of
receiving the amount till refund. It was also ordered that 10% interest should be paid for
not providing all amenities on the amount Rs.21,40,000/-+Rs.1,98,784/-=Rs.23,38,784/and to pay Rs.50,000/- as compensation for mental agony and Rs.3,000/- for litigation
expenses. Against these orders dated 5.12.2012 passed by the District Forum, appeals
were filed before the State Commission. The State Commission upheld the orders of
the District Forum vide order dated 1.4.2013. It is against this order that the present
petitions have been filed.
4.
Heard the learned counsel for the parties and examined the record.
5.
It has been contended by the learned counsel for the petitioner that the District
Forum has not given any reasons for the grant of interest on the deposited amount
under various heads. They have simply stated that interest @ 10% should be given on
the entire amount charged by the petitioner till all the amenities are provided. The order
is, therefore, quite vague and there has to be a proper rational basis for charging the
interest. The order passed by the State Commission was quite vague/sketchy and no
reasons have been given by them for upholding the orders of the District Forum. The
petitioners had already allowed interest @ 6% p.a. on the deposited amount on the
period beyond 30.3.2011 till the offer of possession.
6.
Learned counsel for the complainants / respondents stated that the petitioner had
not been able to provide proper amenities on the spot and this factor amounted to
deficiency in service and hence, they were required to compensate the complainants for
the same.
7.
We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us. An examination of the order
passed by the District Forum in Gyan Singh’s complaint, in Revision Petition No.
2284/2013, reveals that the District Forum ordered to pay interest @15% p.a. on the
total
cost
of
the
flat,
whereas
in
Revision
Petition
No.
2285/2013
(Karuna Bohra’scomplaint), District Forum ordered to pay interest @ 9% on the cost of
the flat, i.e., Rs.21,40,000/- and interest @ 12% p.a. on the parking amount of
Rs.57,495/. Further, they have ordered in both the cases that interest @ 10% p.a.
should be paid by the petitioner on the deposited amount, till all the amenities are
provided. It is very clear that the complainants shall be entitled for the said interest,
even if a very minor facility is not provided and this will result in unnecessary litigation
between the parties. The District Forum should have adopted a more rational approach
and given cogent reasons for awarding the interest and should have laid down some
specific time-table for completion of the amenities, if they felt that certain facilities had
not been provided. Further, it is observed that in Gyan Singh case, the District Forum
stated in para 18 of their order that the complainant is entitled to get back the amount of
Rs.97,225/- charged for parking space along with an interest @12% p.a. However,
while passing the order, they directed that an interest @ 15% p.a. should be paid on this
amount, which is an apparent contradiction.
8.
Further, it was the duty of the State Commission to examine all aspects of the case
minutely and then give specific reasons for agreeing or disagreeing with the findings of
the District Forum. The order passed by the State Commission is vague and does not
give, at all, any reasons for agreeing with the orders of the District Forum. The
contention of the State Commission that there is no need to re-analyse all the facts and
evidence, is contrary to the provisions of law. The Hon’ble Apex court have also taken
a similar view in many cases that it is the duty of the appellate court to give reasons for
agreeing or disagreeing with this order. Reference may be made in this regard to the
case “HVPNL versus Mahavir [(2001) 10 SCC 659]”
8.
Based on this discussion, we are inclined to accept these two revision
petitions. The order passed by the State Commission is set aside and the cases are
remanded back to the State Commission with the direction to analyse all aspects of the
cases and then pass a detailed speaking order giving reasons for their conclusion. 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. 4270 OF 2012
(From the order dated 09.08.2012 in First Appeal No. 354/2012
of Madhya Pradesh State Consumer Disputes Redressal Commission)
Vijay Singh Tomar s/o Shishupal Singh Tomar r/o Gandhi Colony
Muraina, Madhya Pradesh
... Petitioner
Versus
National Insurance Co. Ltd. Opposite Hariraj Talkies M.S. Road, Morena Madhya
Pradesh Through its Branch 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 Petitioner(s)
For the Respondent(s)
Ms. Swikriti Singhania, Advocate
Mr. Ravi Bakshi, Advocate
PRONOUNCED ON : 7th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 09.08.2012
passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for
short ‘the State Commission’) in FA No. 354/2012, “Vijay Singh Tomar versus National
Insurance Co.” vide which appeal filed against the order dated 10.01.2012 in complaint
case no. 35/2010 passed by District Consumer Disputes Redressal Forum, Muraina,
was partly allowed. The District Forum ordered that the OP shall make payment of
claim on the basis of 100% damages according to IDV within a period of 30 days and
also pay interest @ 7% p.a. with effect from 2.2.2009 in addition to Rs.8,000/- towards
deficiency in service and Rs.2,000/- as litigation costs. The State Commission vide
impugned order partly allowed the appeal of the present respondent/OP Insurance
Company and directed them to pay Rs.2,00,000/- with interest @ 8% p.a. with effect
from 2.2.2009 and also Rs.2,000/- as costs.
2.
Brief facts of the case are that the petitioner/complainant is the registered owner of
bus bearing no. MP-33/P0126 which was insured with the respondent/OP from
17.03.2007 to 16.3.2008 as per policy no. 321401/31/06/6300002091. The said vehicle
got burnt on 12.2.2008 due to some accident and was completely damaged. The
petitioner sent intimation to the insurance company which appointed a surveyor Ashok
Gupta
to
make
a
spot-survey. The
company
thereafter
appointed
another
surveyor Manohar Singh to make an appraisal of loss. The complainant presented a
complaint no. 300/2008 before the District Forum on 15.10.2008 and the District Forum
vide their order dated 2.2.2009 observed as under:“Except that after prepared the report the surveyor kept it with him
for two months. After two months later he has presented the
above report before the Respondent Insurance Company. After
filing the report before the Respondent Insurance Company dated
3/12/08 Respondent Insurance Company has not disposed of his
claim petition till today. There is no justified reason for such
late. So in this situation it is found that for disposal of claim the
Respondent Insurance Company unnecessarily delayed and
defaulter in service to petitioner, but this claim petition shall be
disposed of by the Respondent Insurance Company on merits
and demerits. In this situation it is not found fit to pass any order
regarding compensation and regarding that petition of petitioner is
pre mature.”
3.
The surveyor Manohar Singh in his final report has stated that the loss assessed
on repairing basis would be Rs.3,47,865/-; on cash loss basis it would be Rs.2,36,219/and on total loss basis Rs.7,49,000/-. The company decided to make payment on the
basis of cash loss basis and offered a sum of Rs.2,37,147/- to the petitioner but he
refused to accept the amount and pleaded that he would accept that amount under
protest only. There was correspondence between the petitioner and the company and
ultimately, the amount of Rs.2,37,147/- was received by the petitioner under
protest. The petitioner filed a consumer complaint in front of the District Forum again
against the decision of the Insurance Company vide complaint no. 35/2010 saying that
the insured amount of Rs.7,00,300/- should be paid along with Rs.1 lakh for mental /
physical harassment and Rs.15,000/- for litigation expenses along with interest @12%
p.a. on the amount of claim from the date of filing the same. The District Forum vide
their order dated 10.01.2012 ordered that the payment of claim should be made on the
basis of 100% damages, according to the IDV of the policy along with interest @ 7%
p.a. from 2.2.2009, the date of earlier order passed by the District Forum and also
payment of Rs.8,000/- towards deficiency in service and Rs.2,000/- as litigation cost
should be made to the petitioner. The OP insurance company filed an appeal against
this order before the State Commission and vide impugned order dated 9.08.2012, the
State Commission observed that the petitioner had already received Rs.2,37,847/under protest from the insurance company and he is entitled to get Rs.2 lakh more
along with interest @ 8% p.a. with effect from date of the first order, i.e., 2.02.2009. It is
against this order that the present petition has been made and as per the prayer, the
petitioner has asked for award of Rs.7.5 lakh towards claim, Rs.1 lakh as compensation
for mental and physical agony, Rs.15,000/- as cost of litigation along with interest @
12% p.a. from the date of filing the complaint.
4.
Heard the learned counsel for the parties and examined the record.
5.
It was argued by the learned counsel for the petitioner that the vehicle had been
totally burnt during the accident and hence they are entitled for payment of damages on
total loss basis.
6.
The District Forum vide their order dated 2.2.2009 had commented on the working
of the company saying that the report of the surveyor had been received quite late and
the company was causing undue delay in the disposal of the claim. The District Forum
observed that at this stage, it was not found fit to pass any order regarding
compensation and they, therefore, directed the insurance company to dispose of the
claim on merits, within 30 days of passing the order on 2.2.2009. The learned counsel
further argued that the insurance company had earlier appointed a surveyor, Ashok
Gupta for spot survey and hence, there was no justification for appointing another
surveyor Manohar Singh. Moreover as observed in the order of the State Commission,
there
were
serious discrepancies
in the
report submitted by Manohar Singh
Surveyor. The petitioner had appointed their own surveyor Naren Sharma, who had
given the report that the loss was about Rs.10.32 lakh. In the estimate made by the
authorised dealer S.G. Motors, it had been stated that the expenses incurred to restore
the previous conditions of the vehicle would be Rs.11,82,508/-. The surveyor appointed
by the petitioner has produced photographs which show that the vehicle was completely
damaged by fire. The Branch Manager of the Insurance Company had also filed an
affidavit that if the damage to a vehicle was less than 75%, the claim was given on the
basis of actual damage. In the present case, it was clear that the damage to the vehicle
was more than 75%. The revision petition should, therefore, be accepted and the relief
prayed for should be allowed. Learned counsel invited our attention to the order passed
by Hon’ble Apex Court in “Sri Venkateswara Syndicate versus Oriental Insurance Co.
Ltd. & Anr.” [(2009) 8 SCC 507], in which it has been held by the Apex Court that
appointing surveyors one after another so as to get a tailor-made report to the
satisfaction of the insurer, is impermissible.
7.
Learned counsel for the respondent Insurance Company, however, stated that the
first surveyor Ashok Gupta was appointed just to have spot survey. The main surveyor
in this case is Manohar Singh and it is not correct to say that Manohar Singh is second
surveyor in the case. He stated that the report given by the surveyor appointed by the
petitioner should not be relied upon as Naren Sharma was not an independent
surveyor. The surveyor appointed by them had not taken into consideration the
depreciation of the vehicle whereas the same should be taken into account while
deciding the claim. Moreover, the surveyor of the petitioner has included many items in
the report which are non-admissible. Learned counsel argued that they agreed with the
order passed by the State Commission and the present petition should be dismissed.
8.
In reply, learned counsel for the petitioner again stated that it was a case of total
loss and payment should be made in accordance with the IDV, i.e., Rs.7.5 lakh.
9.
We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us.
10. A perusal of the report submitted by Manohar Singh surveyor appointed by the
Insurance Company indicates that he assessed the loss at Rs.2,37,147/- on cash loss
basis and Rs.3,47,865/- on repair basis. In his opinion, as part of the report, the
surveyor says that “Obviously, opting the settlement of loss in question on cash loss
basis imposing the liability of insurance for Rs.2,37,147/- only would be more
economical as compared to settlement on repairing basis, hence advised in the interest
of the company.” In his earlier report, the surveyor Manohar Singh clearly stated that
the assessment of loss on repair basis is Rs.3,42,865/- to Rs.3,47,865/-, on cash loss
basis, Rs.2,36,219/- and on total loss basis, Rs.7,49,000/-. He recommended that
payment on cash loss basis would be economical and in the interest of company.
11. It is clear from the report of the surveyor appointed by the company that the prime
focus of the surveyor is to look after the economic interest of the company, rather than
to make his report on the reality of the situation. The State Commission vide impugned
order also observed that the valuation done by Manohar Singh surveyor was very low
and a large number of parts had been deleted from the said report. From the
assessments made by dealers like S.G. Motors and the entire material on record, it is
made out that the vehicle suffered an extensive damage and it is quite apparent that the
loss in vehicle would be more than 75%. The estimate of S.G. Motor says that in order
to restore the vehicle to its original condition, a sum of Rs.11.82 lakh will be
required. The District Forum, therefore, after examining the entire evidence on record
came to the conclusion that the Opposite Party should make the payment of claim on
the basis of 100% damage according to the IDV of the policy along with interest @ 7%
p.a. with effect from 2.2.2009 in addition to Rs.8,000/- for deficiency in service and
Rs.2,000/- as costs. In the complaint filed by the petitioner, it has been stated that
when proposals were demanded for disposal of the burnt bus, a proposal was received
for buying the whole burnt bus as junk for an amount of Rs.49,700/-. The petitioner has
requested in his complaint that he is entitled to get a sum of Rs.7,00,300/- (IDV
Rs.7,50,000 – Rs. 49,700) as loss and Rs.1,00,000/- as compensation for mental
harassment and Rs.15,000/- as litigation cost along with an interest @ 12% p.a. from
the date of filing the complaint till realisation.
12. The overall facts and circumstances on record make it amply clear that it is a case
of total loss, where the damage to the bus because of fire incident is much more than
75%. It shall, therefore, be in the interest of justice that payment should be made by the
Insurance Company as per the order passed by the District Forum but after deducting
the salvage value of Rs.49,700/-. This revision petition is, therefore, accepted and the
order passed by the State Commission is modified and the petitioner is directed to make
payment of Rs.7,00,300/- to the complainant along with an interest @7% w.e.f. 2.2.2009
till complete payment within a period of 30 days from the date of pronouncement of this
order. The petitioner should also make payment of compensation of a sum of
Rs.8,000/- for deficiency in service and Rs.2,000/- as litigation costs. 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. 2381 OF 2012
(From the order dated 30.03.2012 in First Appeal No. 970/2008
of Punjab State Consumer Disputes Redressal Commission)
United India Insurance Co. Ltd. Regd. & Head Office 24, Whites Road Chennai –
600014 Through its Regional office No. 1 Kanchenjunga Building
8th Floor, Barakhamba Road, New Delhi – 110001.
... Petitioner
Versus
M/s. Naveen Sales (India) r/o 17/9-10, Jawahar Nagar Midda Chowk, Ludhiana –
141003
… 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)
For the Respondent(s)
Mr. V.S. Chopra, Advocate
Mr. Vivek Gupta, Advocate
PRONOUNCED ON : 7th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 30.03.2012,
passed by the Punjab State Consumer Disputes Redressal Commission (for short ‘the
State Commission’) in FA No. 970/2008, United India Insurance Co. Ltd. versus M/s.
Naveen Sales (India), by which, while dismissing appeal, the order passed by District
Consumer Disputes Redressal Forum, Ludhiana in complaint no. 334/4.5.2005 allowing
the complaint and ordering the petitioner to pay Rs.13,31,181/- along with interest @
9% p.a. from the date of filing the complaint till payment along with a compensation of
Rs.10,000/- and litigation cost of Rs.2,000/- was upheld.
2.
Brief facts of the case are that the petitioner issued an insurance policy number
201002/11/03/00372 called ‘Standard Fire and Special Perils Policy’ in favour of the
complainant / respondent for a sum of Rs.20.50 lacs for the period 17.3.2004 to
16.03.2005. Out of this amount of Rs.20.50 lacs, Rs.20 lacs was meant for stocks of all
kinds of sofa material, curtains cloth, mattresses, pillows, cushions, towels, bed sheets,
etc., and Rs.50,000/- was the coverage for furniture, fixtures, fittings and electrical
items. During the currency of the policy, fire occurred on 19.09.2004 at about 3:30 a.m.
and the respondent estimated the loss to be Rs.20,68,090/-. An intimation was given by
the respondent to the local police on the date of the fire and the insurance company
was also intimated. The petitioner insurance company appointed a surveyor to assess
the loss. Vide his report dated 29.01.2005, the surveyor assessed the loss at
Rs.10,80,770/-. The surveyor also pointed out that at the time of loss, there was
construction going on in the shop on the first and second floors of the building. In order
to supply electric current to first and second floor, electric wires had been put on the
main electric meter for the shop, which resulted in probable short-circuiting, leading to
fire. The petitioner repudiated the claim, saying that there was violation of conditions of
the policy, because construction was going on in the premises. The complainant filed a
consumer complaint before the District Forum which was allowed by the said Forum
and compensation as stated in the foregoing paragraph was allowed. The District
Forum reached the conclusion that as per physical verification, there was stock worth
Rs.18,04,468/-, out of which stock worth Rs.4,73,287/- was lying safe in the
godown. After deducting this amount of Rs.4,73,287/-, the District Forum ordered to
pay Rs.13,31,181/- along with interest @ 9% p.a. and compensation as stated
above. An appeal against this order was also dismissed by the State Commission. It is
against this order that the present revision petition has been filed.
3.
Heard the learned counsel for the parties and examined the record.
4.
The learned counsel for the petitioner argued that the complainant had violated the
terms and conditions of the policy by carrying out construction activity on the
premises. He has drawn our attention to portion B of the warranties, forming part of the
policy, in which it is stated under condition 3(a) that if a change or alteration is made in
the building containing the insured property, so as to increase the risk or loss or
damage by insured perils, it shall constitute violation of the terms and conditions of the
Policy. The learned counsel further argued that in the present case, only the stocks and
furniture etc. had been insured and not the building containing such stocks. As made
out from the report of the surveyor, the cause of fire was short-circuiting due to
construction activity going on at the premises.
5.
Learned counsel for respondent stated, however, that there was separate electric
connection for ground and first, floors. The construction activity had nothing to do with
the fire, in question. He further maintained that the complainant was not required to
obtain the permission of the petitioner/OP before starting the construction, and there
was no such clause in the terms and conditions of the Policy.
6.
The facts of this case bring out that construction activity was being carried out at
the premises in question and as per the surveyor’s report, the probable cause of fire
could be due to short-circuiting, but we agree with the findings of the District Forum and
State Commission that in this case also, the insurance company cannot escape
responsibility to pay the claim under the Policy. We do not agree with the contention of
the petitioner that the construction activity had resulted in increased risk for the insured
stocks in question. It has also been made clear that there are separate electric
connections for the ground floor and first floor and there are separate electricity meters
for the same. It is not clear anywhere that the insured was required to obtain
permission of the insurance company before starting the construction. The District
Forum in their order have rightly assessed the value of the total stocks, in question and
the value of the stocks lying safe in the godown, and allowed the claim after taking into
consideration both these values. We, therefore, find no illegality or irregularity in the
orders passed by the District Forum and State Commission which reflect true
appreciation of the facts and circumstances on record. These orders are, therefore,
upheld and the present revision petition stands 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. 2667 OF 2013
(From the order dated 12.10.2012 in Appeal No. 836/2011 of Kerala State
Consumer Disputes Redressal Commission, Thiruvananthapuram)
WITH
I.A. No. 4527/2013 (DELAY)
1. M/s. Hi-Tech Dry Wash & Hygienic Services, P.O. Box 57, Pathanamthitta P.O. Pin
– 689 645, Kerala Represented by its Power of Attorney Sri. Sharafudeen
2. Sri. Sharafudeen S/o Aboobacker, Shannovre House, Mele Vettipuram,
Pathanamthitta. Pin – 689645 Kerala
... Petitioners
Versus
1. The Manager Kerala Financial Corporation Pathanamthitta Branch, College Road,
Pathanamthitta Pin – 689645
2. The Managing Director
Thiruvananthapuram
Kerala
Financial
Corporation
Vellayambalam
… 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. N.M. Varghese, Advocate
PRONOUNCED ON : 7th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 12.10.2012
passed
by
the
Kerala
State
Consumer
Disputes
Redressal
Commission
Thiruvananthapuram (hereinafter referred as ‘the State Commission’) in Appeal No.
836/2011, M/s. Hi-Tech Dry Wash & Hygienic Services & Ors. Vs. The Manager, Kerala
Financial Corporation, vide which while dismissing the appeal, order passed by the
District Consumer Disputes Redressal Commission Pathanamthitta in Complaint No.
109/2003 filed by the petitioners/complainants was upheld.
2.
The brief facts of the case are that the complainants made an application to the
respondents for a loan of Rs. 15 lakhs for starting a dry wash unit for self-employment
purpose to earn their livelihood. The relevant documents and project report etc. were
also submitted to the respondents. It is claimed that there was verbal assurance from
the officers of the Opposite Parties/Respondents that the said loan will be
sanctioned. Based on that assurance, the complainants took further steps and invested
huge
money
for
placing
orders
for
machinery
etc. However,
the
Opposite
Parties/Respondents rejected their loan application, stating that the proposal was
neither technically feasible nor financially viable. The complainants filed Consumer
Complaint against the Opposite Parties/Respondents against deficiency in service, but
the District Forum vide order passed on 28.05.2010, dismissed the complaint, saying
that the Opposite Parties had conducted studies and made inquiries about the
complainants’ Project, but they found that the said Project was not feasible. The District
Forum held that mere submission of a loan application does not qualify an applicant to
be a Consumer under the Consumer Protection Act, 1986 and they dismissed the
complaint. The appeal filed against this order before the State Commission was also
dismissed. It is against this order that the present petition has been filed.
3.
Heard learned counsel for the petitioner and examined the record.
4.
The learned counsel for the petitioner was asked to explain the delay of 140 days
in filing the said petition before the National Commission. The impugned order dated
12.10.2012 was received by the petitioner on 30.11.2012 but the petition was filed on
18.07.2013. The time taken for obtaining the certified copy has been stated to be 49
days, but even after deducting this time and allowing the prescribed period of 90 days
for filing the Revision Petition, there is a delay of 140 days. The learned counsel for the
petitioner has drawn our attention to the grounds mentioned in the application for
condonation of delay and stated that the main reason was that the petitioners were
unable to mobilize funds towards legal charges for taking steps to prefer the petition. It
took them about six months to arrange the funds and to instruct the counsel to file the
petition. The delay in filing the petition was not intentional. Moreover, petitioner no. 2
Sharafudeen was undergoing treatment for heart problem.
5.
A careful consideration of the facts presented before us reveals that the petitioners
have not been able to give solid and convincing reasons for explaining the delay in filing
the present revision petition. It has been held by the Hon’ble Apex Court in a number of
cases, recently decided that unless, there is a cogent and convincing explanation for the
delay, the same should not be condoned. In this regard, it shall be worthwhile to
mention the following rulings given by the Hon’ble Apex Court on the issue:6.
In the case 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.”
7.
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.”
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.
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 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. In view of the above discussion, we do not find that there is enough justification for
condoning the delay in filing this Revision Petition. This Revision Petition is, therefore,
ordered to be dismissed on the ground of delay in filing the same, with no order as to
costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
PSM
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2745 OF 2013
(Against the order dated 22.05.2013 in C.C. No. 22/2013
of the State Commission Rajasthan, Jaipur)
HDFC Bank Ltd. Branch Office at Ashok Marg C-Scheme, Jaipur
........ Petitioner
Vs.
Nilesh Bhala s/o Shri Gajanand Bhalla r/o plot no. D-51/A, Hathi Babu Marg
Banipark Jaipur At present Post Box Office. 264, Gallo Manor, Johanseburg-2052
Gauteng 01263, South Africa
........ Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
:
Mr.Satish Mishra, Advocate
PRONOUNCED ON : 08th AUGUST, 2013
ORDER
PER HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of
the State Consumer
Disputes Redressal Commission Jaipur ( in short, ‘the State Commission’) in complaint
case no. 22 / 03 whereby the State Commission condoned the delay in filing of the
complaint. The impugned order is reproduced thus:
“Heard on application for condonation of delay. Reason given in the
application of condonation for delay seems sufficient. Therefore Delay
is condone.
Matter admitted for hearing. Counsel for opposite party is present; there
is no need to issue notice. File is put up for reply on 15.07.2013”.
2.
Shri Satish Mishra, learned counsel for the petitioner has contended that the
impugned order of the State Commission is not sustainable for the reason it is a non
speaking order, bereft of any details and also because the order was passed in undue
haste without giving any opportunity of being heard to the petitioner. It is contended that
State Commission has committed a serious illegality by condoning the delay without any
sufficient cause.
3.
We have considered the submissions on behalf of the petitioner and perused the
record. On perusal of the impugned order, we find that this order was passed by the
State Commission in presence of counsel for the complainant / respondent as also the
petitioner. The order records that arguments on application for condonation of delay
were heard. Therefore, it cannot be said that impugned order was passed without
hearing the parties. It is true that the order passed by the State Commission is cryptic
and bereft of details but the fact remains that the reason for delay in filing of complaint
was explained in the application for condonation of delay. Copy of the application
for condonation of delay is annexed to the revision petition, wherein the respondent /
complainant has explained that petitioner bank allowed illegal withdrawl of 11,70,520/from his NRI Account on 04.10.2010.
It is alleged in the application that on coming to
know about the illegal withdrawl, the complainant pursued the matter with the officers of
the bank during the period w.e.f. 01.12.2010 to 04.12.2011.When the opposite party /
bank failed to give any relief to the complainant, the complainant filed a complaint with
the Bank’s Ombudsman, Reserve Bank of India, Jaipur on 23.03.2011. The Bank’s
Ombudsman passed an award in favour of the complainant on 07.09.2011. The
petitioner not being satisfied with the award, preferred an Appeal before the appellate
authority and the appeal was accepted on 19.03.2012 whereby the award was set aside
but
the
complainant
was given
right
to
agitate
his grievance
before
the
competent redressal agency. Thereafter, the complainant / respondent filed this
complaint. From the aforesaid, it is obvious that complainant was all through vigilantly
pursing his remedy. Therefore, he cannot be faulted with any negligence or laxity.
In
view of the above, we do not find any reason to interfere with the order of the State
Commission condoning the delay in exercise of revisional jurisdiction. Revision petition
is, therefore, dismissed with cost of Rs.20,000/- to be paid by the petitioner to the
respondent for the unnecessary delay caused.
……………………………….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
………………………………
(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2915 OF 2008
(From the order dated 03.03.2008 in Appeal No.371 of 2007 of the State Consumer
Disputes Redressal Commission, Delhi)
Delhi Jal Board Through its Zonal Revenue Officer South West III Sector-7, New Delhi –
110022
… Petitioner/Opp. Party (OP)
Versus
Sh. O.P. Mehra, ACM (Retd.), R/o A-934, Vasant Vihar, New Delhi – 110057
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
NEMO
For the Respondent
:
Ms. Vinita Sasidharan, Advocate
PRONOUNCED ON
8th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
03.03.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in
short,
‘the
State
Commission’)
in
Appeal
No.
07/371
–
Delhi Jal Board
Vs. Shri O.P. Mehra, ACM (Retd.) by which, while dismissing appeal, order of District
Forum allowing complaint was upheld.
2.
Brief facts of the case are that OP/petitioner provided two water connections to
the complainant/respondent. Meters of both the connections were defective right from
the year 1999. It was further alleged that there was no water supply from one of the
connections; however, OP continued raising bills against both these connections on ad
hoc basis and complainant made payment under threat of disconnection. Inspite of
repeated complaints, OP did not redress grievances of the complainant. Meters were
replaced in April, 2004. Alleging deficiency on the part of OP, complainant filed
complaint before District Forum. OP resisted complaint. Learned District Forum after
hearing both the parties, allowed complaint and directed OP to refund Rs.26,750/- paid
by the complainant on account of illegal bills and further directed to issue revised bills
on the basis of average consumption and further awarded Rs.25,000/- for mental agony
and physical harassment and Rs.5,000/- as cost of litigation. Petitioner filed appeal
before State Commission and during course of arguments, learned Counsel for the
petitioner restricted submissions to the extent of compensation granted by District
Forum and in such circumstances, findings of District Forum were affirmed on merits by
learned State Commission. Learned State Commission vide impugned order upheld
grant of compensation and cost against which, this revision petition has been filed.
3.
None appeared for the petitioner even after service. Heard learned Counsel for
the respondent and perused record.
4.
District Forum allowed refund of Rs.26,750/- to the complainant paid by him on
account of illegal bills raised by the OP and to this extent, appeal has not been pressed
and learned State Commission upheld this order on merits which aspect does not
require reconsideration in this revision petition and revision petition is to be decided only
to the extent of compensation awarded to the respondent.
5.
District Forum awarded compensation and cost of litigation to the complainant;
though, no reasons have been given by District Forum while granting compensation
except to the extent that complainant is a senior citizen, but learned State Commission
while affirming order observed as under:
“Compensation of Rs.25,000/- has not been granted for any
monetary loss. It has been granted for mental and physical
harassment suffered by the respondent due to deficiency in service
committed by the appellant. The respondent is a senior citizen. His
grievances
started
in
the
year
1999.
He
made
complaints/representations and attended the meetings with the
officials of the appellant, but grievances were not redressed and
rather he was made to pay illegal bills under threat of
disconnection. The defective water meters were ultimately replaced
only in April, 2004. Thus, respondent suffered at the hands of the
appellant for the long period of more than 4 years. The conduct of
the appellant in dealing with the matter in hand cannot be termed
less than callous. Such conduct on the part of a public authority
can cause such mental tension and agony to a law-avoiding citizen,
which
cannot
be
measured
in
terms of money though same has to be quantified. In the
facts and circumstances of a given case, compensation is granted
to a consumer not only to compensate him for mental agony etc.
suffered by him due to deficiency in service committed by traders or
service providers, but also to spur them to improve the service in
future. The respondent is a retired Air Chief Marshal and a former
Governor of two States. If he could not move the authorities in the
Delhi Jal Board to get his grievances redressed for a long period,
plight of an ordinary citizen can well be imagined”.
6.
None has appeared for the petitioner to pursue this revision petition and revision
petition is liable to be dismissed.
7.
We do not find any illegality, irregularity or jurisdiction error in granting
compensation to the respondent, who was retired Air Chief Marshal and former
Governor of two States.
8.
Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 110 OF 2013
(From the order dated 23.11.2012 in Appeal No.1843 of 2009 of the Punjab State
Consumer Disputes Redressal Commission, Chandigarh)
Jaspreet Singh S/o Late Assa Singh R/o Shop-cum-office Navkaran Complex,
SCF Urban Estate, Phase 1, Jalandhar New Address H. No. 31-D, New Colony,
Near Aggarwal Daba, Cool Road, Jalandhar, Punjab
… Petitioner/Complainant
Versus
1. ICICI Home Finance Co. Ltd. 403, 3rd Floor, Delta Chamber, Opp. Bus Stand, Plot
No. 35, Jalandhar Through its M.D./Manager/Auth. Signatory
2. ICICI Home Finance Co. Ltd. 31, Infotech Ltd. Maratha Mandhir Annesce,
Mumbai Central, Mumbai – 400008
…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. Atulesh Kumar, Advocate
PRONOUNCED ON
8th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order
dated
23.11.2012
passed
by
the
Punjab
State
Consumer
DisputesRedressal Commission, Chandigarh (in short, ‘the State Commission’) in
Appeal No. 1843 of 2009 – Jaspreet Singh Vs. ICICI Home Finance Co. Ltd. by which,
while dismissing appeal, order of District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner filed complaint before District
Forum and submitted that complainant was joint holder of 28 FDRs along with his wife
Smt. Lata Singh. These FDRs were matured on 29.9.2008. Complainant deposited
original FDRs on 1.9.2008 for release of maturity amount, but he came to know that
Rs.7.52 lakhs FDR amount has already been withdrawn before the date of maturity on
9.11.2006 without any consent or signatures of the petitioner on the basis of forged and
fabricated documents with the connivance of Smt. Lata Singh and officials of
OP/respondent. Alleging deficiency on the part of OP, complaint was filed. OP resisted
complaint and submitted that complainant has not come with clean hands and has
suppressed material facts. It was further submitted that Smt. Lata Singh has already
taken payment and for the purpose of taking double payment in connivance with
Smt.Lata Singh, the complainant has filed this complaint. Lata Singh has not been
impleaded as a party; hence, complaint be dismissed. Learned District Forum after
hearing both the parties, dismissed complaint against which, appeal filed by the
petitioner was dismissed by the learned State Commission vide impugned order against
which, this revision petition has been filed.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that respondent has released
payment on the basis of duplicate FDRs obtained by forged signatures of the
complainant; hence, revision petition be admitted.
5.
Perusal of record and copies of FDRs clearly reveals that 7 FDRs of the value of
3.50 lakhs were in the name of Smt. Lata Singh and complainant was nominee and 9
FDRs worth Rs.4.02 lakhs were in the name of Smt. Lata Singh jointly with
complainant. Smt. Lata Singh vide letter dated 29.8.2006 requested for change of her
residential address and for issuance of duplicate FDRs. Pre-mature payment was
withdrawn on submission of indemnity bond which were signed by Smt. Lata Singh and
complainant. Amount
of
FDRs
was
transferred
in
the
account
of
Smt. Lata Singh. Learned Counsel for the petitioner submitted that Smt Lata Singh
forged signatures of complainant and has taken pre-mature payment of the
FDRs. Apparently, this argument is devoid of force, as 7 FDRs were in the name of
Smt. Lata Singh and she was entitled to get pre-mature payment and as far as another
9 FDRs are concerned, they were also in the name of Lata Singh jointly with the
complainant and duplicate FDRs were issued only on submission of indemnity bond
signed by Smt. Lata Singh and complainant. Complainant has not proved by any cogent
evidence that signatures were forged by Smt. Lata Singh on the letter of request and
indemnity bond and in such circumstances; apparently, no deficiency can be imputed on
the part of respondents.
6.
Perusal of record clearly reveals that complainant himself has not come with clean
hands. In the complaint, he has shown himself to be owner of 28 FDRs, whereas 7
FDRs were exclusively in the name of Smt. Lata Singh and 9 FDRs were in the name of
Smt. Lata Singh jointly with complainant. Another 7 FDRs were in the name of
complainant and Smt. Lata Singh was nominee and other 5 FDRs worth Rs.2.50 lakhs
were in the name of complainant jointly with Smt. Lata Singh. Complainant should have
clearly stated in the complaint about holders of the FDRs, but he has given wrong facts
in the complaint. Hon’bleApex Court in Faquir Chand Gulati Vs. M/s. Uppal Agencies P.
Ltd. & Anr. Special Leave Petition (C ) No. 18225-18226 of 2011 dated 14.08.2011
observed:
“From what we have stated above, it is clear that the petitioner has
not approached the Court with clean hands. Therefore, he is not
entitled to be head on the merits of his grievance. Reference in this
connection can usefully be made to the judgment of this Court
inDalip Singh Vs. State of U.P. (2010) 2 SCC 114, the first two
paragraphs of which are extracted below;
“For many centuries Indian Society cherished two basic
values of life i.e. “satya” (truth) and “Ahinsa” (nonviolence) Mahavir,Gautam Budha 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 vogue in the
pre-Independence era and the people use 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 suppressions 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 to 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”.
7.
No only this, Smt. Lata Singh was necessary party in the complaint and
complainant has purposely not impleaded Smt. Lata Singh as a party to the complaint
and without impleading Smt. Lata Singh as a party, who was necessary party, complaint
was not maintainable.
8.
If signatures of the complainant were forged by Smt. Lata Singh on the letter of
request for issuance of duplicate FDR or on bonds submitted before respondent,
complainant should have approached to the civil court because in summary
proceedings, question of forging documents cannot be decided.
9.
In the light of above discussion, we do not find any illegality, irregularity or
jurisdictional error in the impugned order and revision petition is liable to be dismissed.
10.
Consequently, revision petition filed by the petitioner is dismissed 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. 2561 OF 2012
(From the order dated 11.04.2012 in Appeal No.A/10/885 of the Maharashtra State
Consumer Disputes Redressal Commission, Mumbai)
Jyoti Rajesh Shah W/o Rajesh Shah R/o 2, Ashirwad Apartment, 140 Railway Lines,
Solapur – 413001 And Rajesh Nanji Shah S/o Nanji Shah R/o 2, Ashirwad, 140 Railway
Lines, Solapur – 413001
… Petitioners/Complainants
Versus
Integrated Enterprises (India) Ltd. A registered Indian Company Having its office
B-710, Sagar Park, Amrut Nagar, Ghatkopar (West), Mumbai – 400086
… Respondent/Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Mr. Vijay Kr. Shah, Auth. Rep.
For the Respondent
: Mr. S. Sundaram, Advocate
PRONOUNCED ON
8th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/complainants against the
order dated 11.04.2012 passed by the Maharashtra State Consumer Disputes
Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No.
A/10/885 – Jyoti Rajesh Shah & Anr. Vs. Integrated Enterprises (India) Lt d. by which,
while dismissing appeal, order of District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainants/petitioners opened a Demat account
with OP/Respondent. Complainants alleged that after introduction of computerized slips
in the year 2001, complainants were not provided new computerized slips for operating
a Demat account and alleging deficiency on the part of respondent, filed complaint
before District Forum. OP resisted complaint and submitted that computerized slips
were not handed over, as the signatures on his requisition letter did not match. Later on,
6 slips were sent by courier, but complainants’ door was found locked and slips could
not be delivered, hence, prayed for dismissal of complaint. After hearing both the
parties, District Forum dismissed complaint against which, appeal filed by the petitioner
was dismissed by leaned State Commission vide impugned order against which, this
revision petition has been filed.
3.
Heard petitioners’ authorized representative and learned Counsel for the
Respondent and perused record.
4.
On 11.7.2013, after hearing the parties to some extent, petitioners were directed
to supply self-attested copy of PAN Card to the respondent within a week and
respondent was directed to allow the petitioners to operate account within a week from
receipt of self-attested copy of PAN Card. On 1.8.2013, authorized representative of
the petitioners and learned Counsel for the respondents submitted that direction dated
11.7.2013 have been complied with by the parties. Authorized Representative of
petitioners further submitted that he has been allowed to operate his Demat account.
5.
As grievances of the petitioners have been redressed by the respondent and
petitioners have been allowed to operate Demat account, nothing remains in the
revision petition and revision petition is to be dismissed as having become infructuous.
6.
Consequently, revision petition filed by the petitioners is dismissed being
infructuous 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. 1955 OF 2008
(From the order dated 13.03.2008 in Appeal No.668/2007 of the State Consumer
Disputes Redressal Commission, U.T., Chandigarh)
Punjab Technical University Ladowali Road, Adjoining B.Ed. College Jalandhar,
Punjab
… Petitioner/Opposite Party
Versus
1. Abhinav Aggarwal S/o Sh. Parveen Kumar Aggarwal House No. 207, Sector 7A,
Chandigarh
2. Chitkara Institute of Engineering & Technology Village Jansala, Tehsil Rajpura
Ditt. Patiala Through its Principal
3. Chitkara Institute of Engineering & Technology Saraswati Kendra SCO 160-161
Sector-9C, Chandigarh
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
NEMO
For the Respondent
: NEMO
th
PRONOUNCED ON 8 August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the order dated
13.03.2008 passed by the Punjab State Consumer Disputes Redressal Commission,
UT, Chandigarh (in short, ‘the State Commission’) in Appeal No. 668/07 –
Abhinav Aggarwal & Ors. Vs. Punjab Technical University by which, while allowing
appeal, additional refund of Rs.7,500/- was ordered while confirming order of District
Forum allowing complaint.
2.
Brief facts of the case are that complainant/respondent No.1 took admission in the
name Institute of OP Nos. 2&3/Respondent Nos.2&3 and deposited fees. Later on,
complainant got admission in other University and requested for refund of fees. OPs
refused to refund fees. Alleging deficiency on the part of OP, complainant filed appeal
before District Forum. OPs resisted complaint. Later on, District Forum after hearing
both the parties allowed complaint against OP Nos. 2 & 3 and directed them to refund
Rs.39,534/- and further pay compensation of Rs.25,000/- and cost of Rs.2500/-, but
dismissed complaint against OP No.1. Complainant filed appeal before State
Commission and learned State Commission vide impugned order directed OP1/Petitioner to refund Rs.7,500/- to the complainant against which, this revision petition
has been filed.
3.
4.
None appeared for the parties even after service. Perused record.
Learned State Commission while allowing appeal of the complainant observed as
under:
“Adverting to the merit of appeal: after perusal of pleadings of the
parties, record of the case, impugned order and the grounds of
appeal, we are of the considered opinion that contention of
appellant has considerable merit that the District Forum failed to
appreciate the clause given on annexure A-1 detailing the break-up
of Rs.10,000/- charged towards counselling fee. Since it has been
mentioned in A-1 reproduced in the grounds of appeal, that out of
Rs.10,000/- deposited at the time of his counselling Rs.7,500/-,
shall be credited towards the semester fee. The contention of
appellant is further supported from annexure A-2 in which it is also
stated that Rs.2500/- were towards the counselling fee. On the
basis of the clause in the both A-a and A-2, it is proved that
Rs.7,500/- are to be paid to the college or institute where the
student seeks admission and the same amount would be given by
the OP No. 1 to the institute where the admission is granted/sought
by the student. Thus both these documents amply prove the case
of appellant that he is entitled to refund of Rs.7500/- and the
respondent No.1/OP No.1 P.T. Uwas entitled to retain Rs.2500/- on
account of counselling fee etc.”
5.
Learned State Commission rightly came to the conclusion that complainant is
entitled to get refund of Rs.7500/- from petitioner.
6.
We do not find an illegality, irregularity or jurisdictional error in the impugned
order, which calls for any interference and revision petition is liable to be dismissed.
7.
Consequently, revision petition filed by the petitioner is dismissed with no order as
to cost.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4621 OF 2009
(From the order dated 29.10.2009 in First Appeal No. 106/2007
of Andhra Pradesh State Consumer Disputes Redressal Commission)
B. Shankar s/o B. Bhadru c/o B. Parasuram IInd Floor, H. No. 1-9-285/3A, Lalitha Nagar
Ramnagar Gundu Hyderabad – 500044.
... Petitioner
Versus
1. Union Bank of India Chikkadapally Branch, 1-8-563/2 Opp. Sandhya Theare,
Charminar X Roads, Chikkadapally Hyderabad – 20 Rep. by its Manager
2. M/s Tata AIG General Insurance Co. Ltd., Life Style Building, Begumpet
Secunderabad, Rep. by its Branch Manager, Srikakulam Town and District
… Respondent(s)
REVISION PETITION NO. 2048 OF 2010
(From the order dated 29.10.2009 in First Appeal No. 106/2007
of Andhra Pradesh State Consumer Disputes Redressal Commission)
Union Bank of India Regional Office at New Delhi Shaheed Bhagat Singh Place New
Delhi
... Petitioner
Versus
1. B. Shankar s/o B. Bhadru H. No. 1-2-375/1, Street No. 6,
Nagaiah, Old Building Near Gagan Mahal Hospital Domalguda, Hyderabad
2. M/s Tata AIG General Insurance Co. Ltd., Life Style Building, Begumpet
Secunderabad
… 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
RP No. 4621 of 2009
For the Petitioner(s)
For the Respondent-1
For the Respondent-2
NEMO
Mr. Gautam Gupta, Advocate
Ms. Anjalli Bansall, Advocate
RP No. 2048 of 2010
For the Petitioner(s)
For the Respondent-1
For the Respondent-2
Mr. Gautam Gupta, Advocate
NEMO
Ms. Anjalli Bansall, Advocate
PRONOUNCED ON : 8th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
These two revision petitions have been filed under section 21(b) of the Consumer
Protection Act, 1986, against the impugned order dated 29.10.2009 passed by the
Andhra Pradesh State Consumer Disputes Redressal Commission (for short ‘the State
Commission’) in FA No. 106/2007, “B. Shankar versus Union Bank of India & Anr.”, vide
which while allowing the appeal, order passed by the District Forum, Hyderabad in
consumer complaint no. 42/2006 dated 20.12.2006, dismissing the complaint, was set
aside.
2.
Brief facts of the case are that the complainant, B. Shankar purchased a vehicle
Tata Indica for Rs.3,45,959.42/- by raising finance from OP No. 1, Union Bank of India
for the purpose of earning his livelihood. He spent a sum of Rs.23,062/- towards extra
fittings to the vehicle. The said vehicle was insured with OP No. 2, M/s. Tata AIG
General Insurance Co. It has been stated in the complaint that the complainant is
holder of savings bank account bearing no. 6148 with the OP No. 1, Union Bank of India
and he is regularly using this bank account and maintaining sufficient balance in the
same. The complainant issued cheque bearing number 282302 dated 16.6.2004 for
Rs.9,623/- drawn on OP No.1, Union Bank of India in favour of OP No. 2, Tata AIG
General Insurance Co., towards payment of insurance premium for the vehicle and he
also paid a cash amount of Rs.449/- to OP No. 2 in order to get the insurance policy of
the vehicle renewed for a period of one year from 16.6.2004. The complainant was
always under this impression that the insurance policy had been renewed with effect
from 16.6.2004. In the meanwhile, the vehicle, in question, was stolen on the mid-night
of 09.07.2004. The complainant lodged an FIR with the Police and also informed OP
No. 2 Insurance Company regarding the theft and requested for payment of insurance
claim. However, the said claim was rejected by OP No. 2 and they informed the
complainant that his cheque bearing number 282302 dated 16.06.2004 for Rs.9,623/had been dishonoured by OP No.1 and hence the insurance policy could not be
renewed. The complainant then contacted OP No. 1 bank, where it was found that
there was sufficient balance in the account of the complainant. The bank authorities
vide their letter dated 13.07.2004 sent to the OP No. 2 insurance company stated that
their counter clerk / officer had inadvertently returned the cheque issued by the
complainant by oversight on 18.06.2004 and there was sufficient balance in savings
account no. 6148 of the complainant. They also issued a banker’s cheque dated
13.07.2004 for Rs.9623/- in favour of OP No. 2 but the OP No. 2 rejected the said
request and also rejected the claim filed by the complainant as the vehicle had already
been stolen by that time. The complainant thereafter filed the consumer complaint in
question, seeking relief that the OP should be directed to pay Rs.4 lakh towards the
cost of the vehicle, Rs.1 lakh as compensation for mental agony and loss and a cost of
Rs.3,000/-. The District Forum dismissed the complaint and observed that the
complainant was at liberty to approach the civil court for appropriate relief. An appeal
filed against this order by the complainant was allowed as per the impugned order and
the OPs were directed to pay a sum of Rs.1,50,000/- towards compensation and a cost
of Rs.5,000/- to the complainant within four weeks, failing which the said amount shall
attract interest @ 9% p.a. It was observed by the State Commission that although the
value
of
the
vehicle
was
Rs.4 lakh, they were allowing only Rs.1.5 lakh as vehicle had already run for a period of
6 years. Against this impugned order, the complainant has filed Revision Petition No.
4621/2009 for enhancement of the compensation and Union Bank of India has filed
Revision Petition No. 2048/2010 challenging the said order.
7.
The petitioner, B. Shankar, last appeared before this Commission on 21.02.2013,
during hearing before circuit bench at Hyderabad and submitted that he is a poor
person and he could not come to Delhi to argue his case. He filed his written
arguments which were taken on record as requested by him and his presence was
exempted for subsequent hearings. In his written arguments the complainant, B.
Shankar, has stated that he had purchased the said vehicle on 13.02.2003, but
inadvertently, the date of purchase was mentioned as 1.08.1998 instead of 13.2.2003;
hence the vehicle was only 16 months old, when it was stolen on 09.07.2004. The
petitioner has attached copies of the invoice and the registration certificate of the
vehicle
in
support
of
his
contention
that
the
vehicle
was
purchased
on
13.2.2003. These documents are also attached with the RP No. 2048/2010 filed by the
Union Bank of India. Further, the petitioner has stated that after the payment of cheque
of Rs.9,623/- drawn on OP No. 1 Bank, in favour of OP No.2 insurance company and
after paying Rs.449/- in cash to the insurance company, he was under the impression
that the insurance policy had been renewed for a period of one year with effect from
16.6.2004. He further states that when he went to the office of OP No. 2 for informing
them about the theft of the vehicle and requesting for the insurance claim, he was
astonished to hear from OP No.2 that cheque, in question had not been honoured by
the Bank and the insurance policy had not been renewed. Thereafter, he went to the
bank to enquire into the matter. The bank issued letter dated 13.07.2004 saying that
the cheque was returned inadvertently on 18.06.2004, although there was sufficient
balance in the savings account of the petitioner. The Bank itself issued a banker’s
cheque of Rs.9,623/- and requested the insurance company to renew the policy, but
they refused to do so. The Petitioner, B. Shankar, requested in his written arguments
that the OP should be asked to pay him a sum of Rs.4 lakh along with interest @12%
from the date of purchase of vehicle and compensation of Rs.1 lakh and cost of
Rs.3,000/-.
8.
At the time of arguments before us, the learned counsel for the petitioner Union
Bank of India, stated categorically that the cheque, in question, was never produced
before the Bank. He also stated that the letter dated 13.07.2004 purported to have
been issued by the Bank is a false and forged document and such a document was
never issued by the Bank.
9.
Learned counsel for the insurance company stated that they never received the
premium, in question, and hence the policy was not renewed by them. The cheque
presented by them to the Bank was dishonoured. The amount of Rs.449/- paid in cash
by the complainant B. Shankar was returned to him after the cheque was
dishonoured. A registered letter was sent by the insurance company on 30.06.2004
about the cancellation of the policy with effect from 16.6.2004. The complainant was
advised to make fresh remittance of premium in cash, so that the policy could be
renewed. Learned counsel, however, stated that at this juncture, they could not
produce the said dishonoured cheque before this Commission.
10. We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us.
11. The main point involved in the present case is that the insurance policy for the
vehicle in question was valid up to 16.6.2004 and it was not renewed thereafter,
because the insurance company was not able to get the premium for renewal of the
same. It is the case of the complainant as well as the insurance company that cheque
number 282302 dated 16.6.2004 for Rs.9,623/- was issued by him and was presented
before OP No. 1 by the OP No.2 but the same was not honoured and returned to the
insurance company. The Bank admitted vide letter dated 13.07.2004 that said cheque
was dishonoured inadvertently, due to the mistake of their counter clerk. They also
enclosed a banker’s cheque dated 13.07.2004 for Rs.9,623/- in favour of the OP No.2 to
renew the insurance policy. During the course of the arguments, learned counsel for
the Bank stated that the said cheque was never presented before the Bank and the
letter dated 13.07.2004 was a forged document. However, a perusal of revision petition
no. 2048/2010 filed by the bank itself reveals that such a plea has not been taken by the
Union Bank of India in the grounds of revision petition. Ground ‘C’ in the revision
petition is reproduced as under:“For that the Ld. State Commission has grossly erred in placing
undue weight to the Ex.9 and observe that because of the
dishonour of the cheque the insurance policy was cancelled and
thereby the complainant could not obtain the insurance
claim. That it is material to mention here that even if the subject
cheque could have cleared and policy had been in existence, the
complainant could not have obtained the insurance claim for his
vehicle run for commercial purpose under the policy issued for
private vehicle. Because on account of having put the subject
vehicle to commercial use there has been apparent breach of the
policy terms as appearing on the subject policy to the effect that –
“no claim would be admissible if the insured vehicle is used for
hire or reward.”
12. It is quite clear from the above that the Bank, in their own revision
petition, have not stated anywhere that the letter dated 13.07.2004 was a forged
document. They have also not denied that they issued a banker’s cheque for the
amount of Rs.9,623/- to the insurance company and requested them to renew the
insurance policy.
13. It may be observed here that the complainant filed a complaint before the Banking
Ombudsman also on 12.08.2004. In proceedings before the Banking Ombudsman, the
Union Bank of India filed reply to the complaint vide their letter dated 20.09.2004, in
which they clearly admitted that, “due to inadvertent error on the part of the official, the
said cheque was returned unpaid on 18.06.2004 despite availability of balance in the
account” The Bank also admitted that they issued a pay order of equal amount on
13.07.2004 to rectify the error. It is clear, therefore, that the Bank should not have
stated the facts wrongly in proceedings before this Commission and their act amounts
to a sheer misconduct on their part. The letter dated 13.07.2004 has been issued on
the letter-head of the Bank, there is a seal of the Bank on the said letter and also it is
signed by Deputy Manager, Chikkadapally, Hyderabad Branch of the Bank.
14. It is clear from the above facts that due to fault of the Bank in dishonouring the
cheque for premium amount, the insurance policy could not be renewed. The consumer
cannot be allowed to suffer because of the wrong-doing of the Bank. Had the Bank not
dishonoured the cheque, the policy would have been renewed and there would have
been no controversy regarding the payment of the claim.
15. It may also be mentioned here that as per the version of the complainant that after
sending cheque for insurance premium and depositing a sum of Rs.449/- in cash with
the Insurance Company, he was under this impression that the policy had been
renewed. However, when the vehicle was stolen, the complainant went to the police
station to lodge an FIR and then went to the office of the Insurancecompany requesting
for payment of insurance claim. However, he learnt from Insurance Company that the
cheque, in question, had not been honoured by the Bank and as such the policy had not
been renewed. It cannot be stated, therefore, that the complainant had the opportunity
to pay the premium amount again and get a new insurance policy. However, in the
reply filed by the Insurance Company before the District Forum, it has been stated that
after knowing the report of unpaid cheque by the Bank they informed the complainant
by registered letter dated 30.06.2004 about the dishonour of the cheque and the
cancellation of insurance policy. The Insurance Company have also taken the plea that
the complainant was well-aware about the dishonour of the cheque not only by his
banker but also from the insurance company much prior to the alleged theft of the
vehicle but he contended, suppressing all these facts, that he was astonished to know
from the Insurance Company about dishonour of cheque when he made insurance
claim for payment of sum assured. From the facts on record, it is made out that
although there is no documentary evidence to show as to when the complainant
received the letter dated 30.06.2004 from the Insurance Company yet it can be stated
that after depositing the cheque dated 16.6.2004 with the Insurance Company the
complainant did not bother to know about the issuing of insurance policy after getting
money from the Bank. The complainant is, therefore, guilty of showing negligence in
the matter if he slept over the issue till the theft of the vehicle took place.
16. It is further borne out from record that after receiving the cheque of Rs.9,623/-, the
Insurance Company did issue policy in favour of the complainant which was valid for a
period of one year till 15.06.2005 but the said policy was cancelled by the Company
after the cheque was dishonoured by the Bank. In the said insurance policy the total
Insured Declared Value (IDV) of the vehicle has been shown to be Rs.2,62,000/-. The
complainant in his complaint and further in written submissions has stated that since the
vehicle was purchased for a sum of Rs.3,45,959.40 and it was only 16 months old,
when it was stolen. The complainant has demanded a sum of Rs.4 lakh as
compensation for the value of the vehicle. However, from the IDV mentioned in the
Policy issued by the insurance company, it can be safely presumed that the
complainant is not entitled to get more than Rs.2,62,000/- for loss of the vehicle.
However, looking at the negligence shown by the complainant in not pursuing this case
after submitting cheque for the premium amount he needs to be penalised also to some
extent. It is felt, therefore, that a sum of Rs.1,50,000/- as already allowed by the State
Commission seems to be a reasonable amount for awarding compensation to the
complainant for loss of the vehicle.
17. In the facts and circumstances of the case, Revision Petition No. 2048/2010, filed
by the Union Bank of India, is ordered to be dismissed. Revision Petition No.
4621/2009 filed by the complainant, i.e., B. Shankar, is also 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. 3479 OF 2011
(From order dated 25.07.2011 in First Appeal No.1001 of
2011 of State Consumer
Disputes Redressal Commission, Haryana)
1.
The Manager, Mapsko Builders Pvt. Ltd., 52, North Avenu Road, Punjabi Bagh
West, New Delhi-26.
2.
The Site Manager/Sale Executive, Mapsko Builders Pvt. Ltd. Mapsko City
Homes, Sector-27, Sonepat through Sh. Gagan Chawla.
...…Petitioners
Versus
Mrs. Sunil Dahiya W/o Anup Singh Dahiya, R/o H. No. 3239, Sector-15, Sonepat,
Haryana
.... Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners
For the Respondent
: Mr. Himanshu Gupta, Advocate
: Mr. Ashim Shridhar, Advocate
Pronounced on: 5th August, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Aggrieved by impugned order dated 25.07.2011 passed by State Consumer
Disputes
Redressal
Commission,
Haryana,
Panchkula
(for
short,
‘State
Commission’),petitioners have filed the present revision petition.
2. Brief facts of this case are that respondent/ complainant had booked a residential
independent ground floor in Mapsko City Home project of the petitioners located at
Sector-27,Sonepat and had paid a sum of Rs.1,50,000/-on 2.2.2010 vide receipt
no.4689 and further a sum of Rs.1,50,000/- on 3.4.2010 vide receipt no.5162. Despite
the above said part payment of her residential, neither the petitioners have allotted the
residential independent ground floor nor they have started construction of the unit in
question. Being harassed at the hands of the petitioners, respondent has filed a
complaint before the District Forum.
3. The plea of the petitioners was that respondent has failed to make the payments of
the house as per the provisional allotment letter dated 30.1.2010. Hence, taking into
account the act and conduct of the respondent in not paying the scheduled amount of
the house, provisional allotment letter was cancelled and earnest money of the
respondent was forfeited.
4. District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’),
vide order dated 28.6.2011 allowed the complaint of respondent.
5. Being aggrieved by the order of District Forum, petitioners filed an appeal before the
State Commission which was dismissed in limini alongwith cost of Rs.10,000/-.
6. Now, petitioners have filed the present petition.
7. We have heard learned counsel for the parties and gone through the record.
8. It has been contended by learned counsel for the petitioners that as per agreed
terms and conditions contained in the application for registration of provisional allotment
dated 30.1.2010, the respondent was liable to pay Rs.30% of the basic sale price +
50% of EDC and IDC within 90 days of booking/at the time of allotment. This amount
comes to Rs.5,26,512/-. However, the respondent has paid only Rs.3 lacs till date and
has not paid the remaining amount at the relevant stage of payment when the same
became due. Thus, it is in these circumstances, when the respondent herself has
defaulted in making the due and agreed payments in time, that she has not been
allotted the residential unit in question. The mere taking of the booking amount as well
as additional instalment of the house does not entitle the respondent to the allotment of
the residential unit, when there is failure on her part to make the 3 rd payment of 10% of
BSP + 50% of the EDC & IDC, whereafter only she would have been allotted the
residential unit. Since, respondent herself has not deposited 30% of the initial amount,
petitioners cancelled the allotment of the respondent vide letter dated 17.12.2010. Both
the Fora below have failed to notice these aspects and as such impugned order passed
by the State Commission is liable to be set aside.
9. On the other hand, it has been contended by learned counsel for the respondent
that as per concurrent findings of the Fora below, no construction of the project has
been started by the petitioners within the specified period, as such there is no infirmity
in the impugned order passed by the State Commission.
10. District Forum while allowing the complaint in its order has held;
“In the written statement and affidavit, the respondent no.2 has
admitted that the complainant remitted payment of Rs.1,50,000/each in favour of the respondents. It was further agreed that the
basic sale price of the house is Rs.15,35,040/-.Further in para
no.4, page 3, the respondent no.2 has submitted that at present
Rs.2,80,789/- is outstanding. Meaning thereby, the complainant
has been making the payment of installments regularly, but
despite that as per the respondent no.2, finding no other way, the
respondents on 17.12.2010 has sent a letter for cancellation of
provisional letter of allotment and forfeiture of earnest money. In
our view, the action taken by the respondents against the
complainant is totally wrong, illegal, arbitrary, unjustified and
against the principles of law.
The respondent no. 2 in the entire written statement and affidavit has
not uttered even a single word about the construction activities
and about the development at the site. In our view, when there is
no construction activities at the site or there is no development at
the site, the respondents have no right to foist their wrong upon
the complainant. In our view, definitely the complainant is entitled
to get interest from the respondents on her deposited amount
which the respondents are utilizing without providing her any
facilities or services. Accordingly, it is directed to the respondents
to pay interest at the rate of 09% per annum on the amount
deposited by the complainant with the respondents from the date
of its deposit till the possession of the floor is handed over to the
complainant.
Further, in our view, the respondents wrongly and illegally
issued the letter dated 17.12.2010 to the complainant and the
respondents are directed to withdraw the same. In our view, the
complainant has been able to prove the deficiency in the service of
the respondents and the respondents are directed to allot the
residential independent ground floor in Mapsko City Home in Block
ME 73 to 81 and 62 to 70 in East to the complainant. It is also
directed to the respondents to accept the instalments without any
interest, penalty or surcharge form the complainant i.e after start of
the construction activities. It is also directed to the respondents to
inform the complainant about the delivery of the possession of
residential independent ground floor so that she could arrange the
money for its deposit with the respondents. Since, the complainant
has been able to prove the deficiency in service on the part of the
respondents, the respondents are directed to compensate the
complainant to the tune of Rs.10,000/-(Rupees Ten Thousand) for
rendering deficient services, for unnecessary harassment and
Rs.5,000/-(Rupees Five Thousand) under the head of litigation
expenses. The present complaint stands allowed and the
respondents are directed to make the compliance of this order
within one month from the date of pronouncement of this order”.
11. The State Commission while affirming the decision of the District Forum, in its
impugned order observed;
“On our asking, it is not disputed by the learned counsel for the appellant
that despite of taking the booking amount as well as additional
insatllment of the house, complainant has not been allotted the
residential unit in question. It is further not disputed that no
construction of the alleged project has been started by the
appellant till date. The plea of the appellant that 30% payment
has not been made by the complainant, therefore, construction
work of the flat in question could not be started, is not a ground to
forfeit the earnest money of the complainant. It is not disputed
that builders always project their case favouring them instead of
ever bothered for the interest of allottees. The builder used the
hard earned money of the investors and thereafter acted in an
arbitrary manner, so as to build up pressure upon the
complainant to part with their hard earned money without
performing their part of contract by raising construction of the
flats. We are, therefore, of the view that there is great deficiency
on the part of the appellants/ opposite parties in not raising the
construction, rather impressing upon the complainant to pay the
instalments in time without carrying the construction work of the
flat in question. We, therefore, dismiss this appeal with the costs
of Rs.10,000/- in limini.
However, complainant would be entitled to adjust this amount of cost,
while making the balance payment of his house to the
appellants”.
12. Petitioners have placed on record ‘Instalment Payment Plan’ showing as
to what stage what instalment amount has to be paid by the
respondent. However, Instalment Payment Plan is absolutely
silent as to by which date the possession of the flat will be
handed over to the respondent.
13. Petitioners have not placed on record the agreement executed between the
parties. However, it has placed on record copy of “Floor Buyer’s Agreement”(page 56
to 65 of the paper book) of some other purchaser. As per clause 14-a of the “Floor
Buyer’s Agreement”;
“Promoter shall endeavour to complete the construction of the
said Floor within a period of 18 months from the date of signing of
this Agreement with the Buyer or within an extended period of six
months, subject to force majeure conditions as mentioned in
Clause (b) hereunder or subject to any other reasons beyond the
control of the Promoter”.
14.
There is nothing on record to show as to what was the status of the construction
when respondent has filed the complaint before the District Forum.
15.
Both the Fora below have given a categorical finding that “No construction has
started yet”.
16. State Commission, vide impugned order dated 25.7.2011 in this regard has
observed
“It is further not disputed that no construction of the alleged project
has been started by the appellant till date”.
17.
Petitioners in this case having accepted substantial amount of money from the
respondent in February/ April,2010 but had not started any construction till
25.7.2011(date of decision of the State Commission). This conduct of the petitioners
on the face of it amounts to unfair trade practice.
18. In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd.(First Appeal No.88 of 1999
and 345 of 2001) decided on 6.5.2002,this Commission has laid down;
“That there has been a delay in delivery in handing over the
possession of the Town House which is a deficiency in service
within the definition of this word as per CPA, 1986”.
19. Present revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986. It is well settled that the powers of this Commission as a
Revisional Court are very limited and have to be exercised only, if there is some prima
facie jurisdictional error in the impugned order.
20. Hon’ble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli
Bikshalu and others,(AIR 1999 (SC) 3095) has observed;
“It was also not open to the High Court in exercise of its revisional
jurisdiction to have indulged in a reassessment of evidence and
thereby interfered with the finding of the facts recorded by the two
Courts below”.
21. Hon’ble Supreme Court, in Rubi (Chandra) Dutta vs. United India Insurance Co.
2011 (3) Scale 654 observed that;
“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”.
22. Petitioners/builder in the present case “wants to have the cake and eat it too”, as
admittedly it has received substantial amount of money of the flat. Thus, petitioners
being the builders are enjoying the substantial amount of money of the flat paid by the
respondent. On the other hand, respondent after having paid substantial amount of
money of the flat to the petitioners is still without any roof and also does not know as to
when she will get the same.
23. Thus, no jurisdiction or legal error has been shown to us to call for interference
in the exercise of power under section 21 (b) of the Act, since, State Commission
has given cogent reasons in its order, which does not call for any interference nor it
suffer from any infirmity or revisional exercise of jurisdiction.
24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
“Courts of law should be careful enough to see through such
diabolical plans of the judgment debtor to deny the decree holders
the fruits of the decree obtained by them. These type of errors on
the part of the judicial forum only encourage frivolous and
cantankerous litigations causing law’s delay and bringing bad
name to the judicial system”.
25. It is well settled that no leniency should be shown to such type of litigants who in
order to cover up their own fault and negligence, goes on filing meritless petitions in
different foras. Equity demands that such unscrupulous litigants whose only aim and
object is to deprive the opposite party of the fruits of the decree must be dealt with
heavy hands. Unscrupulous builders like petitioners should not be spared who after
taking substantial cost of the flat do not perform their part of obligations. A strong
message is required to be sent to such type of builders that this Commission is not
helpless in these type of matters.
26. Now question arises for consideration is as to what should be the quantum of costs
which should be imposed upon the petitioner for dragging the respondent upto this fora.
It is not that every order passed by the judicial fora is to be challenged by the litigants
even if the same are based on sound reasonings.
27. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil
Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
“45. We are clearly of the view that unless we ensure that wrong –doers
are denied profit or undue benefit from the frivolous
litigation, it would be difficult to control frivolous and
uncalled for litigations. In order to curb uncalled for and
frivolous litigation, the Courts have to ensure that there is
no incentive or motive for uncalled for litigation. It is a
matter of common experience that court’s otherwise
scarce and valuable time is consumed or more
appropriately wasted in a large number of uncalled for
cases”.
Apex Court Further observed;
“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.
49. It is a typical example how a litigation proceeds and continues and
in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common man’s 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 me and the probability of the court ordering
prosecution for perjury is less than that of meeting with an
accident while crossing the road”.
28. In our opinion, the present petition is nothing but a gross abuse of process of law
and the revision petition is totally meritless and frivolous, which is required to be
dismissed with punitive cost. Accordingly, we dismiss the present petition with punitive
cost of Rs.75,000/-(Rupees Seventy Five Thousand only).
29.
Out of the cost imposed upon the petitioners, Rs. 50,000/-(Rupees Fifty
Thousand only) be paid to the respondent by way of demand draft in her
name. Remaining cost of Rs.25,000/-(Rupees Twenty Five Thousand only) be
deposited by way of demand draft in the name of “Consumer Legal Aid Account” of
this Commission, within one month from today.
30. In case, petitioners fail to deposit the aforesaid costs within the prescribed period,
then it shall also be liable to pay interest @ 9% p.a., till realization.
31. Cost awarded to the respondent shall be paid only after expiry of the period of
appeal or revision preferred, if any.
32. List on 13th September,2013 for compliance.
.....…………………………J
(V.B. GUPTA)
(PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2294 OF 2013
Alongwith ( I.A.for C/Delay and Stay )
(From order dated 01.04.2013 in First Appeal No.117 of 2011of State Consumer
Disputes Redressal Commission, Delhi)
Ansal Housing and Construction Ltd. IS, UGF, Indraprakash Building, 21, Barakhamba
Road, New Delhi-110001.
.... Petitioner
Versus
Rajendra Prasad Gupta, R/o 46, Amrit Nagar, South Extension Part-I, New Delhi.
...…Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
: Mr.Aaditya Vijay Kumar, Advocate
Pronounced on: 12th August, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/O.P. aggrieved by order dated 1.4.2013 of the State Commission, Delhi
(for short, ‘State Commission’) has filed the present revision petition under Section 21 of
the Consumer Protection Act, 1986(for short, ‘Act’).
2. At the outset, it may be pointed out that petitioner for the reasons best known to it,
has not placed on record copy of the complaint filed by the respondent/complainant
before District Forum. On this short ground, present revision is liable to be
dismissed. In Special
Leave
to
Appeal
(Civil)
No.
22967of
2012,Ganpathi
Parmeshwar Kashi and Anr. Vs. Bank of India & Anr, decided by Hon’ble Supreme
Court on 14.1.2013, the court observed;
“i) the petitioners have deliberately omitted to place before the Court,
copies of the complaint filed by them and the written
statement filed by respondent No. 1. This has been
done with a view to avoid scrutiny by the Court of the
averments contained in the complaint”.
3. Be that as it may, as apparent from the record, respondent had filed Complaint
No.1106 of 2011, before District Forum-VI, I.P. Estate, New Delhi (for short, ‘District
Forum’).Since, petitioner did not appear before the District Forum despite service of the
notice on 23.5.2012, District Forum passed the following order;
“23.05.12:Mr.Ankit Sinha, Counsel for complainant. Notice already
served on OP. OP Called several times. OP proceeded
ex-parte. Fix up for ex-parte evidence on 28.8.2012”.
4.
Against order dated 23.5.2012, petitioner filed (First Appeal No.117of 2013) before
the State Commission. Alongwith it, an application seeking condonation of delay of 221
days was also filed.
5.
State Commission, vide impugned order rejected the application for condonation of
delay and dismissed the appeal being time barred.
6.
Thus, aggrieved by the impugned order, petitioner has filed this revision.
7.
We have heard the learned counsel for the petitioner and gone through the record.
8.
It has been contended by learned counsel for the petitioner that no valid and
effective notice has been served upon the petitioner. Notice for hearing for 19.3.2012
was received by the petitioner on 22.3.2012 which cannot be said to be valid and
effective service. Since, no notice has been received from the District Forum, thus there
were sufficient grounds for setting aside the ex-parte order passed by the District Forum.
The application for condonation of delay was filed before the State Commission as a
matter of abundant caution, as the ex-parte order came to be known only on 22.1.2013.
9. Main grounds on which condonation of delay was sought before the State
Commission read as under;
“3. That the appellant had no notice of the pendency of the present
matter and that an order to proceed ex-parte against it had
been made on 23.05.2012 and the knowledge of the pendency
of the said matter was obtained by the appellant company only
on 22.01.2013.
4.
That on 22.01.2013, when a clerk of the appellant company who
was newly assigned in 2013 to look after the matters of the
appellant company in Learned District Consumer Disputes
Redressal(New Delhi) ITO, New Delhi-01 was noting the dates
of various matters of the appellant company before the Hon’ble
District Forum, from the court diary, he noticed that against the
date of 30.01.2013 the present matter against the appellant is
listed for final arguments. The same was accordingly
communicated to the concerned officer of the legal department
of the appellant company and inquiries made as to how the
matter could have skipped the notice of the officers assigned for
handling consumer cases in the said District Forum. It was then
that the clerk who was handing the matters in District Forum till
November, 2012 which he saw in the notice board when he
went to the court premises and orally stated to the Hon’ble
District Forum that the appellant did not know of the pendency
of the said matter and will file an application which oral prayer
was not allowed. The said clerk left for his native place on the
very same day due to some family problems and returned after
a week and since he was assigned in another department of the
appellant company in December, 2012 he forgot to bring the
said event to the notice of the concerned officers of the
appellant company earlier and the present appeal therefore
could not be filed earlier.
5.
That this being the situation an application for inspection of the file
of the present matter was urgently made on 24.1.2013 and
which inspection was allowed to be carried on 28.01.2013 since
25.01.2013 to 27.01.2013 were holidays. It was found that the
present matter was indeed listed for final arguments on
30.1.2013 after an ex parte order against the appellant was
passed on 23.05.2012 and pleadings and evidence complete in
the matter. It was further found that the matter was listed on
19.03.2012 although the same was not shown in the cause list
in the website of the Hon’ble District Forum on the said date.
6. That in this view of the matter is it humbly submitted that the
appellant became aware of the pendency of the present
proceedings only on 22.1.2013 and filed the present appeal
immediately after inspection of the court file which was done on
28.01.2013. In this view of the matter the delay in filing the
present appeal may kindly be condoned in the interest of
justice”.
10. In the application for condonation of delay, petitioner itself admits that knowledge of
the pendency of the matter before the District Forum was obtained by the petitioner on
22.1.2013. In the same breath, petitioner in the application for condonation of delay has
taken an altogether different stand stating that;
“Clerk who was handling the matters in the District Forum till
November, 2012 has stated that he saw the matter listed in the
cause list on 30.11.2012”.
11. It is further the case of petitioner that said Clerk left for his native place on the same
very day and returned back after a week and since that clerk was assigned in other
department of the petitioner-company, he forgot to bring the said event to the notice of
the concerned officers of the petitioner-company earlier and the appeal, therefore, could
not be filed earlier.
12. Another version with regard to the service of notice from the District Forum has
been mentioned by the petitioner in the “List of Dates and Events”(page no.1 of the
paper-book) and the same state as under;
“The petitioner receives the notice returnable on 19.03.2012,
three days later i.e. on 22.3.2012”.
13. Thus, as per petitioner’s own case, petitioner’s clerk was aware about the
pendency of the matter before the District Forum for 19.3.2012 and later on for
30.11.2012.
14. However, in the entire application for condonation of delay, name of that clerk has
not been mentioned nor affidavit of that so called clerk has been filed.
15. The State Commission while dismissing the appeal in its impugned order observed;
“9 In the case in hand the ground is that the work was assigned to the officers
of the company, who skipped. Obviously,there is a sheer negligence
and carelessness on the part of the company in dealing the
cases. Suffice to say, that the appellant is a company registered
under the Indian Companies Act, 1956 and has large number of
employees in the Law Department to deal with the legal
cases. Further, it is having full-fledged legal department under its
command comprising large number of legal personal. Inspite of
having all the resources in its command, if a company registered
under the Indian Companies act takes more than seven months in
filing the appeal, then it can only be said that how inefficient, careless
and negligent are the employees of the appellant. Despite having all
the facilities and infrastructure under it,the appellant officials have
acted in a very careless and negligent manner for the purpose of filing
this appeal. We may further mention that the order sheet dated
23.5.2012 of the aforesaid case of the District Forum that a specific
and categorical finding has been made by the District Forum that
notice has already been served on the appellant, and despite several
times none appeared. This very apparently shows the callous and
lethargic act of the appellant. Under these circumstances,the
application for condonation of delay is hereby rejected. In
consequence, the appeal filed by the appellant dismissed as being
barred by time thereof”.
16.
Apex Court in 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”.
17. This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H.
Khandelwal and Anr, Revision Petition No.1848 of 2012 decided on 21.5.2012 has
held;
“that under the Consumer Protection Act, 1986 the District
Forum is supposed to decide the complaint within a period of 90
days from the date of filing and in case of some expert evidence
is required to be led then within 150 days. The said Bench
dismissed the revision petition on the ground that it was delayed
by 104 days”.
18. 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 the delay.
See M/s. Chawala & Co. vs. Felicity Rodrigues, 1971 ACK 92.
19. There is nothing on record to show that petitioner’s Company is being represented
by illiterate persons. Therefore, it was expected from petitioner to have been vigilant and
careful in pursuing the litigation which was pending before the fora below. Thus, gross
negligence, deliberate inaction and lack of bonafide is imputable to the petitioner. In
order to cover up its own negligence, the petitioner has shifted the entire burden upon a
clerk, which cannot be justifiable under any circumstances.
20. Thus, in our view, the discretion exercised by the State Commission in declining the
petitioner’s prayer for condonation of long delay of 221 days, does not suffer from any
legal infirmity and the possibility of this Commission forming a different opinion in the
matter of condonation of delay cannot justify interference with the impugned order under
Section 21(b) of the Act.
21. The present revision petition having no merit and being without any legal basis, has
been filed just to delay the disposal of the complaint filed by the respondent. Under
these circumstances, the present revision is required to be dismissed with punitive cost.
Accordingly, we dismiss the present revision petition in limine with cost of Rs.30,000/(Rupees Thirty Thousand Only).
22. Out of this cost, Rs.20,000/-(Rupees Twenty Thousand Only) shall be paid to the
respondent. Petitioner is directed to deposit the cost of Rs.20,000/- by way of demand
draft in the name of respondent and balance amount of Rs.10,000/-(Rupees Ten
Thousand Only) by way of demand draft in the name of ‘Consumer Legal Aid Account’ of
this Commission. Aforesaid costs be deposited within four weeks. In case, petitioner fails
to deposit the aforesaid costs within the specified period, then it shall also be liable to
pay interest @ 9% p.a. till realization.
23. Cost awarded in favour of the respondent shall be paid to him only after expiry of
period of appeal or revision preferred, if any.
24. Pending application, if any, stand disposed of.
25. List on 13.09.2013 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2416 OF 2013
(From the order dated 16.05.2013 in First Appeal No. 386/2010
of U.P. State Consumer Disputes Redressal Commission)
Devender Kumar Verma s/o Bhaiya Lal Verma r/o 22, Mohalla Gandhi Nagar
Kasba Orai District Jalaon
... Petitioner
Versus
The Oriental Insurance Co. Ltd. Through Branch Manager The Oriental Insurance Co.
Ltd. Branch Raj Marg Oral, Pargna Orai
Distt. Jalaon
… 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. Abhishek Sharma, Advocate
PRONOUNCED ON : 12th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 16.05.2013
passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (for
short
‘the
State
Commission’)
in
FA
No. 386/2010, “Devender Kumar Verma versus Oriental Insurance Co. Ltd.,” by which,
while dismissing appeal, order dated 15.12.2009 passed by the District Consumer
Disputes Redressal Forum, Jalaon, dismissing the complaint no. 146/2007 , was
upheld.
2.
Brief facts of the case are that the complainant Devender Kumar Verma bought a
Mahindra Jeep 2 WD for Rs.3,60,000/- on 07.01.1998 and got it insured with the OP
Oriental Insurance Co. by paying annual premium of Rs.11,264/-, bearing insurance
policy no. 1998-1008 dated 08.01.98 and cover note number 484981. On 16.11.1998,
at about 8 p.m., four unknown persons are stated to have looted the said jeep,
intimation of which was given to the Police and case crime No. nil / 98 u/s 328/394 IPC
was got registered at P.S. Kotwali Orai and after investigation, final report was filed in
the court of Sub-Judge Urai, bearing criminal case no. 41/2001 and the court accepted
the said report on 07.02.2001. It has been stated in the complaint that after the
acceptance of final report by the Court, the complainant submitted application to the
respondent on 09.02.2001 and the insurance claim was duly filed along with relevant
documents. However, the said claim was repudiated by the Insurance Company on
28.03.2000 saying that the complainant did not complete the necessary formalities
required. It was also stated that the complainant had sold out the said jeep or had
misappropriated the same, so that the insurance company may not get any investigation
done. The complainant filed consumer complaint before the District Forum which was
dismissed as being time barred and also due to violation of the terms and conditions of
insurance. An appeal against this order was also dismissed by the State Commission
vide impugned order. It is against this order that the present revision petition has been
filed.
3.
The learned counsel for the petitioner stated at the time of admission hearing that
the petitioner/complainant tried his best to lodge an FIR with the Police, but the FIR was
lodged only after an order was passed by the Court on an application
u/s 156(3) Cr.P.C. The petitioner promptly reported the lodging of the FIR to the
respondents and they appointed a surveyor to assess the loss. However, the
respondent again and again requested for the final report of the Police from the
petitioner, but without waiting for the report, repudiated the claim on 28.03.2000. The
learned counsel stated that the orders passed by the State Commission and District
Forum are perverse in the eyes of law, because they ignored the fact that he had
approached the Police for lodging the FIR and they had refused to register the
same. The final report of the Police was submitted to the Court on 7.02.2001 and
hence, repudiation of the claim by the insurance company before the submission and
acceptance of final report was bad in the eyes of law. The learned counsel further
stated that in case there had been any violation of terms and conditions of the policy,
the claim should have been allowed on ‘non-standard’ basis, as held by
the Hon’ble Apex Court in “National Insurance Co. versus Nitin Khandelwal” [2008 CTJ
680 (SC) (CP)]. He also invited our attention to the letters dated 08.03.99, 30.06.99 and
10.12.99 sent by the surveyor asking for certain documents and final report of Police.
4.
We have examined the material on record and given a thoughtful consideration of
the arguments advanced before us.
5.
The consumer complaint no. 146/2007 has been filed in July 2007 by the petitioner
/ complainant, whereas the alleged incident took place on 16.11.98 and the claim of the
petitioner was repudiated by the insurance company on 28.03.2000 and an intimation to
this effect was sent by registered post on 30.03.2000. It is very clear, therefore, that the
complaint has not been filed within prescribed limitation period of two years from the
cause of action, as laid down under section 24(A) of the Consumer Protection Act,
1986. The petitioner has not been able to give any reasons for late filing of the
complaint. It is made out from record that application for condonation of delay in filing
the complaint was also not filed. Moreover, it is also clear from record that the
intimation of dacoity was given to the insurance company after 22 – 23 days of incident,
which is a violation of the terms and conditions of the policy. It is clear, therefore, that
the State Commission and the District Forum have not committed any illegality or
irregularity in arriving at the conclusion for dismissing the said complaint. There is also
no reason to agree with the contention of the petitioner that the claim should have been
allowed at least on ‘non-standard’ basis. It is quite apparent from the letters sent by the
surveyor to the petitioner that the insurance company and the surveyor tried their level
best to obtain the requisite documents from the petitioner, but he did not take adequate
interest in supplying the requisite information. We, therefore, find no justification to
amend the orders passed by the State Commission and the District Forum in any
manner. The revision petition is, therefore, ordered to be dismissed with no order as to
costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2653 OF 2012
(From the order dated 23.12.2011 in First Appeal No. 458/2009
of Madhya Pradesh State Consumer Disputes Redressal Commission)
Krinshbhan Yadav s/o late Shri Chandrbhan Yadav Village –Barodia, Post – Ratikheda
District – Ashoknagar, Madhya Pradesh
... Petitioner
Versus
1. Gandhi Vocational College Through
Kushmouda Road, Guna, M.P.
Director
Shri Harishankar Vijayvergia
2. Vice Chancellor, Jeevaji University Gwalior Madhya Pradesh
… 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. Ritesh Khare, Advocate
PRONOUNCED ON : 12th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 23.12.2011
passed by the Madhya Pradesh State Consumer Disputes Redressal Commission (for
short ‘the State Commission’) in FA No. 458/2009, “Gandhi Vocational College
& Anr. versus Krinshbhan Yadav,” vide which while allowing appeal, the order passed
by the District Consumer Disputes Redressal Forum, Guna, M.P. was set aside and the
complaint was dismissed.
2.
Brief facts of the case are that complainant, Krinshbhan Yadav took admission in
“Bachelor of Computer Applications” course in respondent no.1 college, which was
affiliated to respondent no.2, Jeevaji University, Gwalior. It has been alleged that there
were six semesters for the said course, but the respondents had not given him the
marks-sheet for the third semester, although he has been declared pass. In the
absence of the degree, he is unable to apply for a job also. The respondents have thus
committed deficiency in service by not giving him the marks-sheet for the third
semester. The petitioner/complainant filed a consumer complaint no. 196/2008 which
was allowed by the District Forum on 20.01.2009 and the respondents were directed to
pay Rs.25,000/- to the complainant jointly and severally. They were also asked to pay a
sum of Rs.25,000/- to the consumer welfare fund. An appeal against this order was
allowed by the State Commission which held that the respondent was not a consumer,
because the University while discharging the statutory functions of conducting
the examinations, does not render service and, hence, the complainant could not
seek redressal under the Consumer Protection Act, 1986. It is against this order that
the present revision petition has been filed.
3.
At the time of hearing before us, it was found that the petition has been filed in the
National Commission with a delay of 108 days. An application seeking condonation of
delay has been filed along with the petition. When asked to explain the reasons for
delay at the time of hearing, the learned counsel for the petitioner submitted that the
father of the petitioner died on 26.07.2011 and hence he was held up to perform his
family duties and responsibilities. The impugned order was passed on 23.12.2011 and
its certified copy was received by his counsel on 2.1.2012 and thereafter, it was
despatched to the petitioner through post but it was not delivered to him. The petitioner
contacted his Advocate in May 2012 and he came to know about the order passed
against him and then, he asked his Advocate to apply for duplicate certified copy of the
order which was received on 09.05.2012. The petition was within time, if the date of
receipt of the order is considered as 09.05.2012.
4.
We have examined the material on record and given a thoughtful consideration to
the arguments advanced before us. It has been admitted by the petitioner that copy of
the order was received by his counsel on 2.1.2012, i.e., after about 10 days of passing
of impugned order dated 23.12.2011. The petitioner has not been able to give any
convincing explanation as to why he waited for such a long time to contact his Advocate
and file the present revision petition. In the application for condonation of delay, the
column, ‘number of days’ has been left blank. Moreover, the petition was submitted on
18.07.2012, whereas as per the version of the petitioner, the duplicate certified copy
also was received by him on 09.05.12. No reasons have been given to explain the
further delay of more than two months after receiving the duplicate copy of the order. It
is clear, therefore, that a reasonable explanation for the delay in filing the revision
petition is not forthcoming.
5.
In a number of recent judgements/rulings Hon’ble Apex Court has held that unless
very convincing reasons are shown by a party for condonation of delay, the same should
not be condoned. In the case 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.”
6.
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.”
7.
Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as
under;
“We have considered the respective submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the
remedy within the stipulated time.”
8.
Hon’ble Apex
Court
in
(2012)
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.
9.
Hon’ble Apex
Court
in
2012
Ansul Aggarwal Vs. New Okhla Industrial
(2)
CPC
Development
3
(SC)
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”.
10. It is obvious from the facts of the case that there is no valid explanation for the
delay in filing the petition and hence, as held by theHon’ble Apex Court in the cases
quoted above, there is no ground for condonation of delay of 108 days. This revision
petition is, therefore, ordered to be dismissed on the point of limitation and the order
passed by the State Commission upheld 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. 4669 of 2009
(Against the order dated 30.09.2009 in Appeal no. 682 of 2003 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
R Venkata Krishnan Koil Street Singirkili (Post) Cuddalore District – 605007
Petitioner
Vs
Taanya Tours Travels Represented by G Stephen 16/3 Jaggannath Road
Nungambakkam Chennai – 600034
Todd International Australia Pvt. Ltd. Represented by Ms Rose Todd Suite 399 A,
Albany Highway Victoria Park, Perth Western Australia
Respondents
Before:
HON’BLE MR JUSTICE V B GUPTA
HON’BLE MRS REKHA GUPTA
For the Petitioner
PRESIDING MEMBER
MEMBER
Mr T V S R Shreyas, Advocate with
Mr M Mushtaq, Advocate
Pronounced on 13th August 2013
REKHA GUPTA
The present revision petition has been filed against the order dated
September 2009 passed by the Tamil Nadu State Consumer
Disputes RedressalCommission, Chennai (‘the State Commission’) in First Appeal no.
682 of 2003.
30th
The facts of the case as per the petitioner/complainant are that the respondents/
opposite parties are engaged in the business of extending professional services to
people in countries including India, Singapore etc., to migrate to other countries by
securing for them visas and other employment opportunities. The petitioner states that
he wished to migrate to Australia. Pursuant to this desire, in response to a newspaper
advertisement, the petitioner applied for a family visa through respondent no. 2 first
opposite party (Todd International Australia Pvt., Ltd.) through a letter dated
21.02.1994, the first opposite party rejected the application of the petitioner as he did
not have enough points. However, the communication also stated that if the points were
reduced, the petitioner would be informed through the agents of the first opposite party.
The petitioner states that he later received a communication dated 15.07.1994
from the first opposite party stating that he met the points for migration to Australia.
Pursuant to this letter on 01.08.1994, the consultants of the first opposite party advised
the petitioner to contact respondent no. 1/ the second opposite party (Taanya Tours
Travels) their local agent in Chennai and pay US $ 3000 in three instalments to get the
visa to migrate to Australia.
Subsequently, on 07.09.1994, the petitioner paid the first instalment of Rs.30,000/by demand draft in favour of the second opposite party. The petitioner received a
communication dated 23.09.1994 about the services that would be provided by the first
opposite party.
On 24.09.1994, an agreement was entered into between the petitioner on the one
hand and the first and second opposite parties on the other hand for migration to
Australia. As per clause 11 of the agreement, the first opposite party, agreed to refund
80% of the professional charges in case VISA is not issued.
On 25.10.1994, the petitioner paid the second instalment of Rs.30,000/- by a
demand draft in favour of the second opposite party. The respondents acknowledged
the receipt of the two instalments vide their receipt bearing no. 0974 and 0919 dated
01.11.1994 and 15.11.1994 respectively.
On 11.01.1995 the petitioner made a third payment of US $ 600 being the third and
final instalment by demand draft in favour of the first opposite party. The opposite
parties acknowledged the receipt of the same vide their receipt bearing no. 0986 dated
24.01.1995.
On 25.11.1995 visa fees amounting to Rs.9,577/- was paid to the Australian High
Commission, New Delhi by sending it along with all the original certificates relating to
educational qualifications and experience of the petitioner. Pursuant to the same, the
petitioner received a reply from the High Commission five months later, i.e., 21.04.1996
stating that his documents had been referred to the Australian Agencies for processing.
Meanwhile, the petitioner received lucrative offers of employment in Singapore and
New Zealand. However, as he was assured by the respondents that his migration to
Australia was imminent the petitioner did not actively pursue the offers from Singapore
and New Zealand.
The petitioner waited for almost three years during which period the visa to
Australia did not materialise. Ultimately the first opposite party sent a communication
dated 20.08.1998 stating that it was difficult to get the petitioner a job in Australia.
Thereafter, there was no further communication from the respondent to the petitioner.
In their written statement before the District Forum respondent no. 1 who were the
opposite party no. 2 submitted that the complaint was not maintainable against this
respondent since respondent no. 1 are only an agents of disclosed principal. The
respondent no. 2 was engaged in the service of providing assistance to Indians who
wish to immigrate to Australia / New Zealand. The respondent no. 2 had entered into an
agreement with the petitioner on 24.09.1994 to which this respondent no. 1 was only a
formal party with no rights, duties or obligations to perform. It is submitted that as per
this agreement the function of this respondent no. 1 was to transmit documents and
materials submitted by the petitioner to the respondent no. 2. According to this
agreement there were no duties beyond the aforementioned to be performed by
respondent no. 1 in so far as the petitioner was concerned. Therefore, it was for the
respondent no. 2 to aid and assist the petitioner in obtaining a visa for immigrating to
Australia and not respondent no. 1. Therefore the complaint is not maintainable against
respondent no. 1 for the acts or omissions of the respondent no. 2.
It is also submitted that there was no privity of contract between the respondent no.
1 and the petitioner and as such the contract does not bind respondent no. 1 and hence
not maintainable.
It is also submitted that the petitioner has not paid any consideration nor has
respondent no. 1 rendered any services towards the petitioner. In the circumstances,
the petitioner cannot allege deficiency of service against respondent no. 1.
It is submitted that the respondent no. 1 being an agent of disclosed principal there
was no obligation on the part of the respondent no. 1 to make refund of the amounts in
case visa being not granted to the petitioner. It is submitted that the function of
respondent no. 1 was that of a courier service, i.e., to forward the material received from
the petitioner to the respondent no. 2. As a matter of fact in the various correspondence
exchanged between the parties it has always been the case of the petitioner that refund
is due and payable only by the respondent no. 2. In view of the above also, the
complaint will not lie against this respondent no. 1.
Respondent no. 1 has learnt from respondent no. 2 that respondent no. 2 has done
its level best and without any delay to obtain a visa for the petitioner but for reasons
beyond the control of the respondent no. 2, the Australia High Commission in New Delhi
turned down the application of the petitioner for immigration and visa. It is respectfully
submitted that respondent no. 1 cannot be in any way held responsible for the act of the
Australia High Commission in New Delhi. Therefore, this complaint will not lie against
respondent no. 1.
Respondent no. 1 learnt that the complainant’s application was also forwarded to
High Commission by respondent no. 2. It was communicated to respondent no. 1 by
respondent no. 2 that they were using its good offices with the High Commission
Australia to see if the processing time could be reduced. It is also learnt from
respondent no. 2 that the Australia High Commission had rejected the application of the
petitioner. On learning about the rejection of his application the petitioner did not want to
proceed any further on immigration and hence opted to withdraw. Therefore, the whole
transaction involved the respondent no.2 being the one who called for the application,
the petitioner and the Australia High Commission. Respondent no. 1 submits that being
an agent of disclosed principal of respondent no. 2 it is not liable for any of the acts or
omissions committed by respondent no. 2. This was also communicated to the
petitioner.
The District Consumer Disputes Redressal Commission, Mylapore Chennai (‘the
District Forum’) while disposing of the complaint no. 354 of 2000 on 9 thSeptember 2003
directed that the “opposite parties are directed to refund Rs.80,400/- and also to pay a
sum of Rs.1,00,000/- for the loss of employment and Rs.2,00,000/- towards
compensation for mental agony and inconvenience with cost of Rs.1,000/-. Time for
payment one month, failing which the complainant is at liberty to take proceedings for
arrest of the opposite parties under section 27 of the Act”.
Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal
before the State Commission. The State Commission observed that “theevaluation of
the above materials prompt us to say that the lower forum is not justified, in granting an
order against, the appellant, who was only an agent, facilitating the transactions in
between the complainant and the 1st opposite party. As seen from the records, major
portion of the amounts were directly paid by the respondent, to the 1 st opposite party,
except one payment or two, that too paid for want of clearance by the Reserve Bank of
India, which was in turn paid to the 1st opposite party. Therefore, for the amount
received by the 1st opposite party, for the assurance given by the 1st opposite party and
accepted by the complainant, to secure a job or a visa, we are unable to see how the
agent can be held responsible as if he has also committed deficiency in service.
Ex.A6 is the agreement dt.24.9.94, wherein there is a clause for refund which
reads “Refunds are not applicable for Medical or Police Clearance problems. The
Company hereby agrees to refund 80% of charges, excluding immigration fees paid to
the Australia High Commission, should your Visa not be issued. Excluded in this refund
is failure due to Medicals, Police Clearances, or failure to pass professional
examinations relating to your qualification.” The very fact refund of the amount is
contemplated under the agreement would suggest that there is possibility of refusing
visa. Therefore, for not securing the job, as if there was loss of opportunity of
employment, claim made appears to be untenable, and unwarranted. However, the
1st opposite party has not contested and therefore, we are not going to consider the
amount awarded against the 1st opposite party. Nowhere, it is stated that the agent is
also responsible for the refund of money or in case unable to get visa for migration, the
agent is responsible. It cannot be called as tripartite agreement also, as submitted,
though the appellant also signed in the agreement, being an agent. In Ex.A6, it is
specifically stated, that the appellant is only an agent; otherwise he has nothing to do.
Therefore, on the basis of Ex.A6, the appellant cannot be held responsible, for the nonperformance of the agreement, branding the same as deficiency in service, as
incorrectly done by the lower forum.
Under Ex.B8, the complainant informed the 1st opposite party, that the complainant
is having problem with the bank in getting the draft in favour of 1stopposite party, and
that he has sent a Demand Draft for Rs.30000/- drawn in favour of the agent viz.
M/s.Tanya Tours Travels and Freight Forwarders, Madras, the 2 nd opposite party
herein. Thereafter, all the amounts were drawn in favour of the 1st opposite party and
the 2nd opposite party/ appellant has nothing to do with the transaction. At no point of
time, the 2nd opposite party/ appellant has assured or promised to get any job for the
1st respondent/complainant. As seen from the letter dt.12.8.98, when the 1st opposite
party approached the college, they have informed that they are unable to consider the
complainant, stating that they are in need for someone with considerable experience.
Thus, from the correspondence also, it is seen that there is no deficiency in service on
the part of the opposite parties, and despite the fact the 1 st opposite party is unable to
get the employment opportunity, resulting non-obtaining of visa, for which, at any stretch
of imagination, the agent of the 1st opposite party, who acted more or less as post box,
not assuring anything, to the complainant, cannot be held responsible.
The District Forum, without analyzing the role of the appellant, under the
agreement or otherwise, has erroneously, without any basis, committed an error in
ordering the payment, more or less jointly and severally, which should be set aside”.
The State Commission directed as under:
“In the result, the appeal is allowed, setting aside the order of the District Forum
in C.C.No.354/2000 dt.9.9.2003, so far as the appellant is concerned. In this appeal, the
1st respondent/ complainant is directed to pay cost of Rs.5000/- to the appellant”.
Hence, this present revision petition.
The main grounds for the revision petition are:
The State Commission erred in holding that the District Forum committed an
error in ordering payments, jointly and severally without analysing the role of the
respondent no. 1 under the agreement or otherwise.
The State Commission erred in ignoring that the respondent no. 1 and
respondent o. 2 had jointly entered into an agreement with the petitioner on
24.09.1994. The respondent no. 1 was acting along with the respondent no. 2
and had even received payments towards instalments given by the petitioner.
The State Commission failed to appreciate that both respondent no. 1 and
respondent no. 2 were guilty of deficiency in service and were jointly liable to
refund the money and pay compensation to the petitioner.
The State Commission erred in holding that the agreement dated 24.09.1994
is not a tripartite agreement when the same has admittedly been signed by both
the respondents and the petitioner.
Because without prejudice to the above submissions, section 230 of the
Indian Contract Act, 1872 clearly states that in case a principal is abroad, the
agent is personally liable. It is submitted that the order passed by the State
Commission is contrary to the law laid down by the Hon’ble Supreme Court of
India
in Cochin
Frozen
Food
Exports
(P)
Ltd., vs Vanchinad Agencies reported in (2004) 13 SCC 434.
We have heard the learned counsel for the petitioner and have gone through the
records.
Learned counsel for the petitioner drew our attention to the agreement which was
entered into between the petitioner and the respondents. However, we find that as per
the agreement dated 24.09.1994 the entire burden of performance is on the ‘company’
which is Todd International Australia Pvt., Ltd./ respondent no. 2 having its registered
office at Suite 399 A Albany Highway, Victoria Park, Perth, in the State of Western
Australia 6100. This is supported by a letter dated 23.09.1994 from the Todd
International Australia Pvt., Ltd. wherein they have enclosed a document of settlement
package which they would be extending to the petitioner, which reads as under:
Accommodation for 1 week – paid
Suggested transport
Name, address and phone number of IRN
Average payment of Social Security and where to go. How to claim and who
to see.
Name and address of support groups for new migrants
Tax file information
Medicate information
Resumes sent to employment groups
What to bring
Shipping arrangements
Education
Rental
It is also seen from the petitioner’s letter dated 26.10.1994 to respondent no. 2
that a demand draft for Rs.30,000/- was being drawn in favour of M/s Tanya Tours
Travels and Freight Forwarders, Madras because ‘the bankers are refusing to issue
demand draft in favour of you without the clearance of Reserve Bank of India, I took DD
in favour of your agents at Madras”. The receipts enclosed also shows that even for the
payments made through respondent no. 1, the final receipts were given by respondent
no. 2 - M/s Todd International Australia, Pvt. Ltd. Hence, it is apparent that all the
payments made were either to respondent no. 2 or to the Australian High Commission
at New Delhi. No payments were made to respondent no. 1 - M/s Tanya Tours travels
and Freight Forwarders, Madras, for any service the petitioner obtained from them. On
the contrary in a letter dated 11.01.1995 addressed to respondent no. 1 forwarding an
envelope containing the demand draft for US $ 680 drawn by UCO
Bank, Puducherry Main, India drawn on Bank of California International, USA in favour
of National Australia Bank, account M/s Todd International Australia Pvt, Ltd., Western
Australia, the petitioner has wrote that “I request you to take notice of the same and
.. sic.. this piece of the letter in your courier bag to Todd, Australia feel very bad to
disturbing you frequently. But due to safety of the documents I need your help”.
Learned counsel for the petitioner had drawn our attention to section 230 of the
India Contract Act, 1872 which reads as under:
Agent cannot personally enforce, nor be bound by contracts on behalf of
principal – In the absence of any contact to that effect an agent cannot
personally enforce contracts entered into by him on behalf of this principal, nor is
he personally bound by them.
Presumption of contract to contrary – such a contract shall be presumed to
exist in the following cases :(i)
(ii)
(iii)
Where the contract is made by an agent for the sale or purchase of
goods for a merchant resident abroad;
Where the agent does not disclose the name of his principal;
Where the principal, though disclosed, cannot be sued.
This section is not applicable to the case on hand because the contract was not
for sale or purchase of goods. The principal in the contract was disclosed as M/s Todd
International Pvt. Ltd. Thus, learned counsel for the petitioner has been able to establish
any deficiency in service against respondent no. 1.
In the above circumstances, we find that the State Commission has given a wellreasoned order and gave cogent reasons why the District Forum’s order was erroneous
and was without any basis and had committed an error in ordering the payment, more
or less jointly or severally.
In view of the foregoing reasons, we find that there is no jurisdictional error,
illegality or infirmity in the order passed by the State Commission warranting our
interference. The revision petition is accordingly dismissed with cost of Rs.5,000/(Rupees five thousand only).
Petitioner is directed to deposit an amount of Rs.5,000/- by way of demand draft in
the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from
today. In case the petitioner fails to deposit the said amount within the prescribed
period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 27th September 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1785 OF 2013
(From order dated 27.12.2012 in First Appeal No. 181/2010 of the Jharkhand State
Consumer Disputes Redressal Commission, Ranchi)
WITH I.A. No. 2861 OF 2013 & I.A. No. 2862 OF 2013 (Condonation of Delay, Stay)
Pradeep Kumar Agarwal, S/o Kishanlal Agarwal R/o Kishoraganj Road, PS : Sukhdev
Nagar, Ranchi At present : Biru Complex, Main Road PS : Simdega, District Simdega
… Petitioner
Versus
1. Sanjay Agarwal, S/o Ramnarayan Agarwal R/o Main Road, Simdega, PS : Simdega
2. Branch Manager State Bank of India, Simdega Branch, SBI Road PS : Simdega,
District – Simdega
… Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner : Mr. Gopal Singh, Advocate
PRONOUNCED ON 13.08.2013
ORDER
JUSTICE J.M. MALIK
1.
Shri
Pradeep Kumar
Agarwal,
petitioner/OP1,
Builder of M/s.Shanti
Construction, entered into an agreement with the Complainant, Sh. Sanjay Aggarwal,
for sale of flat No. B8, 3rd Floor, Biru Complex, Simdega. It was agreed that it will have
built-up area of about 1,500 sq.ft. @ Rs.750/- per sq.ft, along with parking space. At
the time of agreement, Pradeep Kumar Agarwal, OP1, took a sum of Rs.3,00,000/from
the
complainant. OP1,
of his
own accord and after
consultation/negotiations with State Bank of India, OP2, got a Home Loan for an
amount of Rs.10,00,000/- sanctioned in the name of the complainant. It is alleged
that OP2, while working in cahoots with OP1 issued two cheques in the name
of M/s.
Shanti Construction
for an
amount
of Rs.9,10,000/-
on
25.04.2008
and Rs.90,000/- on 14.07.2008. OP1 did not execute any Sale Deed in favour of the
complainant. It is averred that OP1, in connivance with the Bank, deposited a copy of
agreement of sale, signed only by him and got disbursed a sum of Rs.10,00,000/from the
Bank,
without disclosing
without the
these
knowledge of
facts to the
the
complainant. Again,
complainant,
the
Bank,
got his signatures, on the
disbursement form and also got signatures of complainant and his wife on two blank
papers.
2.
The complainant came to know regarding the loan transaction when the
Bank, without any notice or information, deducted an amount of Rs.11,800/- on
02.07.2009 from the account of
Rourkela Branch and an amount of Rs.95,000/-
from the account of State Bank of India, situated at Simdega, on 21.08.2009, the
total being, Rs.1,06,800/- as ‘interest’, of the above said loan.
3.
It was agreed that if the incomplete flat took more than 2 months, to complete, in
that event, the interest on the amount of the loan will be paid by OP1. Even though
there was delay of 17-18 months, OP1 did not pay the interest on the loan
amount. OP1 had promised that he will hand-over possession of the flat within 18
months, but the needful was not done. There was also no improvement in the status
of the flat. A legal notice was issued, but it did not produce the desired
result. Ultimately, this complaint was filed before the District Forum with the
prayer that OP1 be asked to return the sum of Rs.3,00,000/-, with interest @ 18% p.a.
OP2, be asked to return sum of Rs.10,00,000/- and interest in the sum of Rs.1,75,000/and interest thereon, till date. The amount of Rs.1,00,000/- was demanded for
compensation.
4.
Both the OPs contested this case. The District Forum allowed the complaint and
directed the OP1, Pradeep Kumar Agarwal, to handover possession of completed Flat
NO.B-8, as per the Agreement for Sale in the Biru Complex, Simdega, as booked by
him, within a period of two months from the date of the order, failing which, OP1,
Builder, was directed to refund the housing loan amount of Rs.10,00,000/- either to the
complainant or directly to the SBI, Simdega Branch, which amount is outstanding in
the
name
of
the
complainant in
the
SBI,
Simdega
Branch,OP2, along
with admissible interest on the said amount from the date of filing of this complaint,
i.e., 31.10.2009, till its final payment.
Secondly, Pradeep Kumar Agarwal was further directed to pay Rs.3,00,000/to the complainant, as paid by him at the time of booking of the said flat to OP1,
as admitted by OP1, in the agreement for Sale (Exb.1), along with interest @ 10% p.a.
from March, 2008, till its final payment.
Thirdly,
OP1 was further directed to pay Rs.1,75,000/- to
the
complainant on account of interest realized or realizable by the OP Bank from the
complainant, from the
date of grant of housing
the complainant till the filing of this case, which the
loan
to
complainant was forced
to bear due to non-delivery of flat by the OP1-Builder, to him.
Fourthly, Pradeep
Kumar
Agarwal,
OP1,
was
further
directed to pay compensation in the sum of Rs.17,000/- and cost of litigation in the
sum
of
Rs.4,000/- to the
complainant,
and
SBI was directed to pay compensation amount of Rs.3,000/- and
OP2cost
of litigation in the sum of Rs.1,000/- to the complainant, within a period of two
months,
from the
date
of this order, on
service and adopting unfair trade practice on
account
their
of
deficiency in
part, in
the
present
case causing mental and physical harassment and agony to him.
Lastly, it was ordered that OP2, SBI, will not be entitled to realize
any interest from the
complainant on
the
aforesaid
housing
loan
amount
from November, 2009, i.e., after filing of this case, till the possession of the Flat in
question is handed over by OP1, to the complainant or the amount of housing loan
disbursed to the OP1/Builder is not refunded by him, either to the complainant or to the
OP2
Bank, as the liability to pay the
present and future interest
on
the
housing loan was fixed upon Pradeep Kumar Agarwal, OP1.
5.
The State Commission dismissed the appeal filed by Shri Pradeep Kumar
Agarwal, OP1.
6.
This revision petition has been filed by Sh.Pradeep Kumar Agarwal, OP1.
7.
We have heard the learned counsel for the petitioner. He argued that the
view
taken
by both
the
fora below are
not
based
on
documents. The
complainant has failed to prove that both the OPs were working, cheek by jowl, in
order to
cheat the
complainant. It
was submitted that the complaint contains
criminal allegations against the parties, and as such, the consumer fora does not
have the jurisdiction.
8.
Instead
of touching
the
heart
of the problem, learned
counsel
for
the
petitioner just skirted it. Both the fora have decided the case against the OP1. The
counsel for the
petitioner could
attention that some legal questions arise
stands proved that
OP1
and
2
innocent person. It was the bounden duty
not
in
this
worked hand in
of
invite
revision
hand to
the
our
petition. It
cheat an
Bank
to inform the complainant that a loan was being sanctioned in his favour. They
should have charged interest after giving notice to the complainant. They were not
to charge interest of their own, without taking the consent of the complainant, that too,
at
two
different
Branches,
evidence proves the
case
situated
at
different
places. The
of the complainant. Exb.’1’, is
Xerox
documentary
copy
of
the
agreement to Sell, dated 16.04.2008, which bears the signature of Pradeep Kumar
Agarwal, OP1, Proprietor of M/s. Shanti Construction, only. Exb. ‘1’, is a document,
of utmost importance. It shows that the complainant had booked one flat bearing
No.
B-8, on the
third
floor
of
Biru
Complex,
in
March,
2008, on payment of earnest money of Rs.3,00,000/- to the Builder,OP1, and the
rest of the amount of the flat, was to be paid through Housing Loan, to be
granted by SBI, Simdega Branch, of the complainant to the OP1. Most importantly,
the signatures of the complainant are conspicuously missing. Exb. ‘G’ goes to reveal
that the disbursement of the loan amount was paid to OP1. It is strange to
note that OP2 disbursed the loan, on the basis of the Sale Deed, which did not
bear the signatures of the
of the agreement
in
complainant. OP1 did
dispute. The
not
file the original copy
main document was kept under
the
hat,
for the reasons best known to OP1. We cannot discuss about Exb. ‘Y’, which is not
proved, in accordance with law.
9.
The District Forum, correctly held, to this extent:
“Question of deficiency in service on the part of OP No.2, SBI,
Simdega Branch
(28). ……. He also alleged that the OP Bank never intimated
him regarding sanction of his housing loan nor any chit of paper
has been filed by the Bank in this regard, we are not inclined to
accept the above plea of the complainant, in view of the fact that
Arrangement letter of housing finance dated 23.04.2008 (ExhibitB), Deed of Undertaking dated
23.04.2008 (Exhibit-
C) and Memo of term loan agreement dated 23.04.2008 (Exhibit –
D), all are signed by both the borrowers and Exhibit-B is also signed
by the Guarantor Vijay Kumar Agarwal, after sanction of the
aforesaid housing loan. We are also not inclined to accept the plea
of the complainant that only their signatures were obtained by the
Bank
on
the
blank
forms, as
prior
to
filing
of
this
case, no such allegations have been made against the OP Bank
by the complainant or co-borrower or guarantor”.
10.
However, the following points are also note-worthy.
The said disputed letter,
Exb. ‘G’, which is a disbursement letter, was not sent, in writing, to the complainant
or his wife. No date has been mentioned by the borrowers on the said letter, except
their signatures. The endorsement and the signature of the Bank Officer, in the margin
of the said letter, reveals the date, 23.04.2008. The date of execution of
arrangement letter, Exb. B, Deed of Undertaking, Exb. C and Memo of term loan
agreement, Exb.D, are also dated 23.04.2008. Under these circumstances, there was
no question for the complainant/borrower to execute the disbursement letter Exb.-G,
on the same day, without any intimation from the Builder,OP1 that the building was
complete
in
all
respects,
and he was ready to handover the possession of the same to the purchaser. The
bulk amount of the complainant was paid by the Bank to OP1 only, after 25.04.2008
and rest on 14.07.2008. Till July, 2008, all the disbursements, made in favour of
OP1, were made, but possession of the flat was not made to him. The necessary
documents were not yet executed.
It is also interesting to note that no mortgage
deed or no other collateral security/demand was obtained by the Bank from the
Borrower, nor Deed of Conveyance of the property was purchased or executed in
favour
of
the
complainant
by
the
original
owner. In
absence of
those
documents, the Bank did not feel any hesitation to
disburse the remaining loan in favour of the OP1. OP2, Bank also did not try to
know as to who was in possession of the premises in dispute. The OP-Bank did
not inform the complainant
after
disbursement of such heavy loan amount, in
favour of the Builder. Exb.’G’ was an important document by which a heavy amount of
Rs.10,00,000/- was intended to be disbursed. The OP-Bank did not insist to inscribe
the same by the borrower and also put the date under his signatures. The Bank also
did not insist the borrower to issue withdrawal slip or cheque to disburse such a huge
housing loan amount, in favour of the complainant, than to do so by mere chit of paper,
Exb.’G’. The Bank did not insist for a Tripartite Agreement among all the three parties.
11.
The record reveals that after getting the entire money in July, 2008, the
petitioner/OP1
was
to
handover the
complainant, within two months. More
possession
than
five
of
years
the
flat
have
to
the
elapsed,
the
complainant has not yet got the possession. The filing of this revision petition is a
delaying tactic. OPs are gaining time to avoid their liabilities. We, therefore, dismiss
the
revision
petition,
with
costs
of
Rs.1,00,000/-,
which
be
paid
to
the
complainant, for wasting five years, i.e., Rs.20,000/- per year, which be paid within 30
days, from the receipt of this order, otherwise, it will carry interest @ 9% p.a. till
realization. Petitioner
is
directed
to
satisfy
the
Decree,
within two
months, after receipt of the order, otherwise, he will be liable to pay extra penalty @
Rs.25,000/-
per
month, to
the
complainant, till the
Decree stands satisfied, which will be in addition to the previous order and the order
passed by the District Forum.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
.…..…………………………
(DR.S. M. KANTIKAR)
MEMBER
dd/14
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 136 OF 2002
Smt. Raushani Devi, W/O Late Radha Kishan Garg, House No. 190/2, Village Shalimar
New Delhi
…Complainant
Versus
1.
Maharaja Agrasen Hospital Punjabi Bagh, New Delhi-26, Through its Manager.
2.
Dr. Amar Singhal, C/o Maharaja Agrasen Hospital, Punjabi Bagh, New Delhi-26.
3.
4.
Dr. Pramod Jain, C/O Maharaja Agrasen Hospital, Punjabi bagh-26.
Sri Krishan Lal Bansal, President Maharaja Agrasen Hospital Trust,
Rohtak Road, West Punjabi Bagh, New Delhi-26.
5.
Sri Tekchand Gupta, General Secretary, Maharaja Agrasen Hospital Charitable
Trust, Rohtak Road, West Punjabi Bagh, New Delhi-26.
…Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Complainant
: Mr. Vivek Tripathi, Advocate
For the Opposite Parties
: Mr. Aseem Chanda, Advocate with
Mr. Anurag Singh, Advocate.
Pronounced On 13th August , 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The complainant has filed this complaint under Section 21 & 22
of the Consumer Protection Act,
1986 alleging medical
negligence and deficiency in service on the part of opposite parties in treatment
of complainant’s deceased husband Mr. Radhakihsan Garg and has claimed
compensation of Rs.52,50,000/- from them under various heads.
2.
The facts of this case
The Complainant’s husband
Late Shri Radha Kishan Garg, a businessman about 50
years
of
age with earnings
about
Rs.
20,000/- per month.
He was the head of the family and in
sound health without any major disease.
On 09.01.2002 Shri Radha Kishan
(herein
as
Patient) went to OP-Hospital with a complaint of chest pain.
He was diagnosed
as a chronic
case of acid peptic disease and the treatment was advised.
As the patient had continued chest pain for further two days consulted the O
P2 and 3 on 11.01.2002 after laboratory and ECG investigation he was diagn
osed as Acute Inferior Wall Myocardial Infarction (
in
short AIWMI). Accordingly,
the
OP-2,
Dr. Amar Singhal advised Coronary Angiography (CAG) and continued with t
he same treatment of acid peptic disease and
also insisted the complainant to deposit Rs.2 lacs for by-pass surgery. On next
day
i.e. 12/01/2002
at
11:00am
Dr.
Amar
Signal and Dr. Prakash Jain conducted CAG and as per OP showed Triple
Vessel Disease
(TVD),
thereafter Percutaneous Trans
luminal Coronary Angioplasty (PTCA) conducted only on Rt Coronary Artery (
RCA)
despite respondent demanded
Rs.2 lacs from complainant for this
RCA. After post operation OP recorded its progress report stating the jerking
in eye, vomiting, giddiness, etc. which clearly signifies some problem in brain
of the patient.
The patient was referred to a Neurologist who diagnosed the case as “ Po
sterior Circulation Stroke” and advised for C.T. Scan
and MRI of head region.
The neurologist advised injection Clexane, if there
was no bleeding in C.T and withheld Tab. Monotrate but the OP-2 Dr. Amar
Singhal after seeing the C.T. Report, restarted the injection of Clexane . Hence,
it was against the Neurologist’s advice which was administered earlier to the C.T.
Scan
which
revealed
massive
bleeding
in
the
brain.
As
Clexane is blood thinner which results in further bleeding or hemorrhage.
Also stopping of tablet Monotrate despite patient suffering from CAD and high blood
pressure. The complainant also complained that as the OP -1 is Heart Institute
not
taken
proper
care
to
control
the
high
pressure of patient and it was illogical to withhold Tablet Monotrate.
blood
3.
It was also alleged that OPs did
not take
opinion
of two
expert prior to angioplasty decision which is mandatory in medical practice,
and
did
unnecessary
angioplasty as the
condition could have been managed even by oral medication.
At the end, the patient died of brain hemorrhage at CCU on 13/1/2002.
4.
The complainant who was not well qualified and unaware of
complexities of the case deposited Rs two lacs on account of By-pass surgery.
But,
actual cost for angioplasty was between
Rs.20,000 to 40,000/therefore OP not performed By-Pass
surgery but charged Rs.1,50,200/for angioplasty. Thereafter on
15/1/2002,
the family members of complainant held a meeting
with one Mr. Laxmi Narain, one of the trustees of hospital along
with the OP doctors in which it was admitted that the case
was not handled properly.
5.
It is alleged that because of negligent attitude of OP doctors
the complainant lost her husband who
suffered an
irreparable
loss
as
doctors were deficient in providing the service. The complainant therefore ,
claimed a compensation of Rs. 52,50,000/- as under:
i.
Medical expenses incurred
and paid to the Respondents.
Rs.1,50,200/ii. Loss of life during the course
of treatment
Rs.15,00,000/iii. Loss of future earning
(taking net income- as Rs.20,000/-p.m.) Rs.21,00,000/iv. Loss of love and affection
of the husband
Rs.10,00,000/v. Compensation towards mental
agony and torture.
Rs.5,00,000/================
Total
Rs.52,50,000/================
6.
The opposite parties contested the complaint by filing reply and
denied the allegations of the Complainant and contended that there is no
deficiency in service in treatment of the deceased husband of Complainant.
7.
To acquire the details and other clarifications about 25 interrogatories were served
on OP-2 and OP-3. A set of about 40 interrogatories each was served by OP 1
& 2 to the Complainant and the four persons namely S.K. Sarkar, Laxmi Narain,
Rajendra Gupta and Ramdhari Goyal who attended the meeting on 15/1/2002.
Both
parties
replied
the
interrogatories.
Some
of
the interrogatories and their replies are germane to decide whether there was
deficiency in service and medical negligence by OP doctors in treating the patient.
8.
The complainant filed her affidavit evidence. Also filed the affidavit evidence on
behalf of Complainant by four witnesses named as S.K. Sarkar, Laxmi Narain,
Rajendra Gupta and Ramdhari Goyal.
9.
The complainant in her affidavit reiterated the allegations which
were made in the complaint about the negligent attitude of OPs.
The death of her husband was an irreparable loss which
was due to the doctors who were deficient in providing proper
services in following manner:
a)
Wrongly diagnosed the disease and continued treatment considering it a
case of peptic ulcer;
b)
c)
d)
e)
Without obtaining the opinion of the Senior Doctors and without even
taking the second opinion conducted the angioplasty;
Directed the Complainant to deposit a sum of Rs.2 lacs for conducting a
bypass surgery though it was not to be conducted and conduced
angioplasty which is too cheaper;
In spite of being a Heart Research Centre, no timely and proper steps
were taken, even after noticing that there was jerking in the eye, vomiting,
giddiness, etc. means something was wrong with the brain;
Without consulting the expert and against their advice, injection Clexane
was given;
f)
g)
Without even taking the proper advice Tab. Monotrate was withheld;
No proper care was taken to control the blood pressure.
10. The affidavit evidences of other four persons on behalf of complainant were in the
same line of complainant’s evidence and supported the complainant’s allegations
against Opposite Parties.
11. The Complaint filed annexure which are marked as Annexure P/1 to P/3.
Copy of Doctor’s Prescription as P/1, the Copies of
Nurses Report P/2 and Copy of Bill as P/3.
12.
Defence:
The OP-2 and OP-3 filed their affidavit evidences.
In addition to
those affidavits three separate affidavits were filed by
i) S.B. Gupta
(OP-3), the Administrative Officer of (OP-1) Maharaja Agrasen Hospital ii)
Krishnalal
Bansal
(OP
4),
the
Convenor of OP-1
Hospital and iii)
Tek Chand Gupta (OP-5) the President of OP 1 Hospital Charitable Trust.
The OP submitted
that the Complainant has not come before this Commission with clean hands.
The amendments made in the original complaint were to build the
case with malafied intentions and for illegal gain by way of misuse and abuse of
the benevolent Consumer Protection Act.
13. The doctors OP
2
&
3 placed Photocopies of Medical Record of
patient which are marked as Exhibits RW
1RW
70.
OP doctors made submissions about the line of treatment adopted by them f
or the said patient as follows:
I.
Patient attended OPD on 10/01/2002 at Gastro OPD
with
history
of
pain
3
days
(non-specific
pain)
all
over
abdomen with past history of Duodenal Ulcer
(DU)
1999.
On
examination,
advised
certain
tests
with
prescription
of
medicines and referred to Cardiology OPD for suspected Coronary H
eart Failure (CHF).
II.
On
11/01/2002 patient attended Cardiology OPD at
about 11 am. After ECG, he was diagnosed as a case –Acute Inferior
Wall Myocardial Infarction (AIWMI). Accordingly admitted in Heart
Command Centre and treatment for acute MI was started.
III.
OP denied that the patient was treated only for Acid
Peptic
Disease
as
complainant mis-quoted the facts in
progress
sheet. The progress sheet of patient shows” a known case of Acid
Peptic Disease who admitted with history of chest pain radiating to both
arms and neck and back two days ago which subsided …..”. It is the
history given by patient himself.
IV.
On 12/01/2002 at 8 am OP-2 examined patient who had again
complaints of Chest pain and giddiness, headache and anorexia.
Therefore, considering such condition of patient OP-2 advised to perform
coronary angiography at first instance. After taking informed consent OP-2
performed CAG and diagnosed the case as Triple vessel disease (TVD).
It was observed that 90% blockage in Right coronary artery (RCA) 60% in
Left coronary artery (LCA). Hence , OP-2 advised PTCA-RCA as a proper
treatment . Same was discussed with family members and risks explained;
thereafter OP-2&3 performed PTCA+ICS-RCA on the same day by and
details of procedure were mentioned in Progress Report Sheet and
thereafter general condition of the patient was stable.
14. It is further submitted by OP that after PTCA the chest pain of patient subsided
but giddiness persisted for which opinion of Neurologist was sought. Neurologist
examined the patient on the same day ie on 12/01/2002- 6:00 p.m. and
diagnosed patient as “Posterior Circulation Stroke” and advised CT scan of brain.
CT showed large cerebral infarct in the post circulation. The patient was also
examined on 13/1/2002 by Neurologist at 9 pm. Therefore, the treatment given
by OP-2 was as per recognized and accepted standard medical practice
throughout the world.
15.
As per the OP the Complainant has misrepresented the facts by quoting
prescription of Neurologists as “injection Clexane if no bleed in CT head”. It is
submitted that the Complainant has intentionally misquoted the prescription of
the Neurologist which reads as under:
“Advised: - Urgent CT Scan (Plain)
Injection Clexane 0.6 ml. SC/bd-if no
Bleed in CT Head (if no cardiac C.I.)
MRI brain when feasible
Rest CST (continue same treatment)
16. But the OP categorically stated that there was no haemorrhage as alleged by the
Complainant but there was cerebral infarct and the injection Clexane and
temporary withholding of Tab. Monotrate were as per standard of practice.
Hence, there is no medical negligence. Therefore, Op is not liable for medical
negligence and for the compensation.
17. The OPs further submission that the OP has allowed a discount of Rs.15,000/- on
the recommendations of one of the trustee. Even though Rs.21,000/- remained
unpaid as the balance due from the Complainant towards the total bill of
Rs.1,65,200/-. Therefore, the complaint is not maintainable as full consideration
was not made. Also, the Complainant has made false and concocted allegations
in her complaint. None if the allegations made in the complaint with regard to the
course of treatment given to the patient and it is not supported by any expert
opinion.
18. We have heard the Counsel and perused the evidence and medical records of
Maharaja Agrasen Hospital (OP-1), like the progress sheets in patient’s record,
progress report sheets, etc. Learned Counsels for both parties submitted written
arguments and made oral submissions.
19. Learned Counsel for
Complainant
Shri
Vivek
Tripathi
vehemently argued that there was sheer medical negligence and nonperformance of duties with due care, fairly, reasonably, exercising ordinary and
competent degree if skill and unfair trade practices by OP. The doctors that they
have not acted in accordance with standard of medical practice.
The treatment was deficient, with careless attitude and OP did not follow the
advice of Neurologist, but OP administered the Inj. Clexane which
resulted brain haemorrhages and death of patient.,
therefore,
the
Complainant is entitled to the relief claimed.
20. Learned Counsel Mr Aseem Chanda and Anurag Singh for OP centralized their
arguments on the main allegations of the Complainant on points as stated supra
in para 8 under headings (a) – (g).
Discussion:
Now the points in this case are
i)
Whether the Complainant proved there was deficiency in service on
the part of opposite parties?
ii)
Whether the Complainant has proved the elements of
negligence?
iii)
Whether the Complainant deserves for the compensation as
prayed? And to what relief the complainant is entitled?
The findings to above points are:
i)
ii)
iii)
In the Negative
In the Negative
As per final order below for following;
Reasons:
21. On perusal of medical records on file it is clearly admitted case of the parties
that husband of complainant Late Radha Kishan Garg was a known case of
Acid Peptic Disease, the doctor suspected the chest pain could be due to heart
problem also. As per advise of OP to rule out heart problem the patient
investigated on 11/01/2002 by ECG, USG and certain blood test in Cardiac OPD.
The patient was diagnosed as Acute Inferior Wall Myo-Cardial Infarction and for
treatment admitted immediately in the Heart Institute (OP-1). Patient was
subjected for Angiography on 12.01.2002 and further diagnosed as that Triple
Vessel Disease with findings as RCA was blocked up to 90% and other two
vessels were blocked to the extent of 70% and 60% respectively. Thereafter,
only the PTCA-RCA was performed as it was not advisable to intervene with noncritically blockages of the other two vessels during such acute condition of
patient. After PTCA, the chest pain of the patient subsided but the giddiness
continued for which a Neurologist was sought and CT Scan was performed to
CT that the patient was suffering from Cerebral infarct also.
22. We agree with the line of treatment adopted by the OPs in this case. OP has
performed their duties as the Standard of Medical Practice in proper diagnosis of
the disease by specific investigations, thereafter the referral to the Neurologist for
the complaints of giddiness and vomiting.
23. The complainant’s
main
grouse was that the OP did not
follow the advice of neurologist and continued injection Clexane despite the
CT
head
showed
haemorrhages. The
CT
scan showed Cerebral Infarct which is NOT a haemorrhage. The complainant
is wrong in considering and interpreting the INFARCT same as HEMORRHAGE.
Therefore, we need to read very carefully the Exhibit RW 33 the Neurologist’s
diagnosis (impression) as Posterior Circulation Stroke and advice
“Advised: - Urgent CT Scan (Plain)
Injection Clexane 0.6 ml. SC/bdif no Bleed in CT Head (if no cardiac C.I.)
MRI brain when feasible
Rest CST (continue same treatment)
The sentence “injection Clexane.. if no bleed in CT head” is
misquoted by complainant . It is necessary to read above lines collectively i.e
not in vacua. As such the CT head did not show bleed (hemorrhage) hence Inj
Clexane was continued by OP.
Hence, we do not find any deficiency by the doctors attending the patient
including the Cardiologist, Neurologist, etc. Also, giving injection Clexane to the
patients having cerebral infarct is a standard treatment. Exhibit RW 37 mention
that the OP followed the treatment of Posterior Circulation Stroke advised by
Neurologist with Inj.Mannitol, Inj Lasix as standard of practice.
24. It is pertinent to note in
this
case
that
the
OPs
have
given
entire file of medical record
containing
41
sheets
to
the
relatives of patient who had requested after death of patient. But, complainant
has not placed the entire file, but placed only few documents before this
commission. Complaint has concealed the report of two CT Scans with an
intention to mislead this Commission. But, the notes and observations made by
the treating doctors in the Progress Sheets throw light. The clinical notes on
13/1/2002 from 7 pm onwards in the progress sheet Exhibit RW
38 revealed that patient was in Poor Condition , Generalised flexion –Increased
Intracranial Tension for which CT head was done and revealed “Multiple
Infarcts”. The Exhibit RW 39 , 39 are progress report sheet dated 13/1/2002
mentioned as at 7.30 pm the patient suffered Respiratory Arrest followed by
cardiac arrest ; the OP doctors treated by all measures , done CPR ( Cardio
Pulmonary Resuscitation) , patient was put on ventilator , DC shock. Despite of
proper medical treatment and care the condition of patient deteriorated and
subsequently died on 14.01.2002 at 6:30a.m.
25. To ascertain the truth we have referred the nurses notes from 11/1/2002 to
14/1/2002 which are Exhibits RW 41 to 46 Those notes also confirmed that
the OPs acted in accordance with standards of medical practice and treated the
patient with all possible efforts.
26. For legal position What constitutes Medical Negligence? is now well established
by a plethora of rulings of the Honorable 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 it was also held that a doctor is
not negligent if he is acting in accordance with standard practice merely because
there is a body of opinion who would take a contrary view.Essentially three
principles are applied to decide negligence of doctor;
(i)
Whether the doctor in question possessed the medical skills expected of
an ordinary skilled practitioner in the field at that point of time; in this present
case it is ‘YES’ both the OP doctors are qualified as DM Cardiology and Senior
Consultants having 15 years expereince ;
(ii)
Whether the doctor adopted the practice (of clinical observation
diagnosis – including diagnostic tests and treatment) in the case that would be
adopted by such a doctor of ordinary skill in accord with (at least) one of the
responsible bodies of opinion of professional practitioners in the field.
(iii)
Whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when the events
leading to the allegation of medical negligence occurred and not of the time
when the dispute was being adjudicated. Our view on the points No (ii) & (iii)
are “ Yes” as the both respondents adopted standard of practice in proper
diagnosis, referral and further management.
27. The Hon’ble Supreme Court in Jacob Mathew V State of Punjab & Anr, (2005)
6 SSC 1= III (2005) CPJ 9 (SC) had concluded that,
“ a professional may be held liable on one of two findings : either he
was not possessed of requisite skill which he professed to have
possessed, or, he did not exercise reasonable competence in given
case, the skill which he did possess.”
Therefore in the instant case OP-2
and
3 are qualified
skilled in their specialty , hence it is not negligence.
and
28. Applying all the above principles in the instant case, we are convinced that there
is no medical negligence – admittedly, the respondents are qualified doctors and
they have used their best professional judgment and due care in treatment of
patient right from beginning.
29. In the case of Kusum Sharma Vs. Batra Hospital(2010 CPJ) culled out the
following principles:
“Negligence is the breach of a duty exercised by omission to do something
which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a
prudent and reasonable man would not do.
ii. Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the
negligence merely based upon an error of judgment.
iii. The medical professional is expected to bring a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care. Neither the
very highest nor a very low degree of care and competence judged in the light
of the particular circumstances of each case is what the law requires.
iv. A medical practitioner would be liable only where his conduct fell below that
of the standards of a reasonably competent practitioner in his field.
v. In the realm of diagnosis and treatment there is scope for genuine difference
of opinion and one professional doctor is clearly not negligent merely because
his conclusion differs from that of other professional doctor.
vi. The medical professional is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as providing
greater chances of success for the patient rather than a procedure involving
lesser risk but higher chances of failure. Just because a professional looking to
the gravity of illness has taken higher element of risk to redeem the patient out
of his/her suffering which did not yield the desired result may not amount to
negligence.
vii. Negligence cannot be attributed to a doctor so long as he performs his
duties with reasonable skill and competence. Merely because the doctor
chooses one course of action in preference to the other one available, he would
not be liable if the course of action chosen by him was acceptable to the
medical profession.
viii. It would not be conducive to the efficiency of the medical profession if no
Doctor could administer medicine without a halter round his neck.
ix. It is our bounden duty and obligation of the civil society to ensure that the
medical professionals are not unnecessary harassed or humiliated so that they
can perform their professional duties without fear and apprehension.
x. The medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurizing the medical
professionals/hospitals particularly private hospitals or clinics for extracting
uncalled for compensation. Such malicious proceedings deserve to be
discarded against the medical practitioners.
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”.
30. Further, we have referred standard medical texts and literature
which revealed that there
is lot of difference between Cerebral
Infarct and Cerebral Haemorrhage. Both entities are totally different. There is no
contraindications for use of Inj. Clexane in post PTCA – Cerebral Infarction. The
Complainant did not produce the CT reports stating as Hemorrhgaes. Therefore,
complainant’s allegation is absolutely wrong about CT showed cerebral haemorrhage
and against the advice of neurologists the OP continued the treatment by injection
Clexane and subsequently the patient died of cerebral haemorrhage.
31. Reference from Medical Text and Literature:
We have referred The text book Harrison's Principles of Internal Medicine (18th
edition) to understand the medical management of Cerebral Infarction, theAcute
Myocardial Infarction and Triple Vessel Diseases. We felt it is necessary to
distinguish the terms “HEMORRHAGE” and “INFARCTION” to decide this case of
medical negligence. Hence, it is important to know the causes of Myocardial infarction
and Cerebral Infarct. It is very clear from the angiography of patient that there was a
Triple Vessel Block almost 90% in the RCA and 60-70% in other two vessels. Such
blocks are most common due to atherosclerosis of small arteries which lead to
ischemia (loss of blood supply). Cerebral Infarction is focal brain necrosis due to
prolonged ischemia by small vessel disease and cardio embolism. It is the most
common cause of ischemic stroke in elderly patients.
Small vessel disease includes atherosclerosis of small arteries but refers more
specifically to lipohyalinosis and hyaline arteriolosclerosis, vascular lesions that
are seen primarily in hypertension and diabetes but occurs also in old age without
these predisposing conditions.
According to some authors, embolism is the most frequent cause
of ischemic infarction. Most emboli are fragments of blood clots that originate
in the heart or major vessels. Conditions causing cardiac emboli include
myocardial
infarcts,
atrial
fibrillation and other arrhythmias,
rheumatic heart disease, bacterial and non-bacterial endocarditis, prosthetic
valves, mitral valve prolapse, atrial myxoma, calcified mitral annulus, and
cardiomyopathy. An embolus cannot be distinguished grossly or microscopically
from a locally formed thrombus. An infarct is assumed to be embolic if it is
hemorrhagic, there is a source of emboli, there are multiple infarcts of the
brain and
other
organs
(kidney,
spleen),
and there is no atherosclerosis or other vascular disease. Some emboli
consist of atheromatous material that is detached from ulcerated atheromas
of the aorta or carotid arteries. Vascular manipulation (angiography, carotid
endarterectomy) may cause atheromatous embolism. Rarer causes of embolism
are fat, air, and tumor emboli. Unlike athero-thrombotic infarcts,
which may evolve within hours or days, embolic infarcts have an abrupt onset.
32. Therefore,
for the reasons stated above in our opinion the
OP doctors have treated the patient with care and caution as per standards
of medical practice. We do not find any deficiency in their services in diagnosis
and treatment. They have taken life saving measures and care during the CardioRespiratory arrest and tried to save the patient. The patient suffered Cerebral
Infarct and the death of patient was not due to Cerebral Hemorrhage as alleged
by complainant but death was due to Cardiac Arrest. Also, the complainant is
failed to prove that the patient suffered cerebral hemorrhage and death was due
to negligence of OPs in treatment.
33.
We have perused the complainant’s Annexure P/3 placed on record as a
Bill for Rs.165,200/- in which discount of Rs.15,000/- was allowed and a sum of
Rs.21,000/- remained unpaid . Also, the Exhibits RW/47 and RW/49 placed on
record by OPs clearly mention about the Schedule of Charges, hence the
contention of complainant about Rs.2 lacs paid for bypass surgery will not
sustain. We ignore this issue of short of payment.
34. To
conclude on a consideration of the entirety of the facts and circumstances
of the present case, the evidence and material brought on record,
and the different
standard medical text books, the irresistible conclusion
is that the Complainant failed to establish her case about
the medical negligence
and
/
or
deficiency in service against the
opposite parties in the treatment of her
husband(deceased).
The
complaint being devoid of any merits is accordingly dismissed,
leaving the parties to bear their own costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…
………………………
(Dr. S. M. KANTIKAR)
MEMBER
MSS/22
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2021-2022 OF 2013
(From the order dated 14.09.2012 in Appeal Nos. 43/2011 & 44/2011 of
the Uttarakhand Consumer Disputes Redressal Commission, Dehradun)
Smt. Jeevanti Devi W/o Sh. Lal Singh Nayal R/o Adarsh Colony, Kathgodam District –
Nainital Uttarakhand
… Petitioner/Complainant
Versus
1. Commercial Motors Bareilly Road,Haldwani, Distt. Nainital, Uttarakhand
Through its Partner Sh. Manik Chandra
2. Tata Motors Ltd. 26th Floor, Centre A-1, World Trade Center, Cafi Parade, Mumbai –
400005
… 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. Sandeep Malik, Advocate
For the Respondent No.1:
Mr. Sanpreet Singh, Advocate
Mr. Nikhil Jain, Advocate/Caveator
PRONOUNCED ON 14th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
These revision petitions have been filed by the Petitioner/Complainant against
the
order
dated
14.09.2012
passed
by
the Uttarakhand State
Consumer
Disputes Redressal Commission, Dehradun (in short, ‘the State Commission’) in Appeal
Nos. 43 & 44 of 2011 – Commercial Motors Vs. Smt. Jeevanti Devi &Anr. and Tata
Motors Ltd. Vs. Smt. Jeevanti Devi & Anr. by which, while allowing appeal, order of
District Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner filed complaint before District
forum and learned District Forum vide order dated 22.1.2011 allowed complaint and
directed OPs to pay Rs.5,69,085/- (cost of Tata Winger UK04-PA-0020) along with
interest and cost. Appeal filed by the OP was allowed by learned State Commission
vide impugned order and complaint was dismissed against which, this revision petition
has been filed with application forcondonation of delay of 135 days.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
In application for condonation of delay, petitioner submitted that petitioner is a
senior citizen and an old lady residing in a distant place in District Nainitaland she has a
history of prolonged illness. It was further alleged that petitioner was not aware about
the order, but respondents informed to the petitioner that State Commission has
dismissed complaint; so, petitioner may take back her vehicle from respondent’s
premises. Petitioner asked her son to enquire who confirmed that order has been
passed by State Commission. Thereafter, petitioner consulted his family friends and
well-wishers, who advised him to file appeal against the order. Thereafter, son of the
applicant contacted Counsel at New Delhi. Counsel got the documents translated in
English from Hindi and then revision petition has been filed and further submitted that
delay was neither intentional nor deliberate which may be condoned.
5.
Learned State Commission passed impugned order on 14.9.2012 and revision
petition has been filed on 17.5.2013, i.e. after 135 days. Petitioner has not disclosed in
his application when respondent informed to the petitioner about dismissal of complaint
by State Commission, when petitioner asked his Counsel to file revision petition and
when revision petition was prepared. As no details have been given by the petitioner in
application for condonation of delay about getting knowledge of the order and
consultation with the Advocate for filing revision petition, we do not find any satisfactory
explanation for inordinate delay of 135 days in filing revision petition.
6.
As there is inordinate delay of 135 days, this delay cannot be condoned in the light
of the following judgment passed by the Hon’ble Apex Court.
7.
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.”
8.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been
observed:
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
9.
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
(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”.
11.
Hon’ble Apex
Court
in
(2012)
3
SCC
563
– Post
Master
General
& Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal
even by Government department and further observed that condonation of delay is an
exception and should not be used as an anticipated benefit for the Government
departments.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of
inordinate delay of 135 days. Revision petition is liable to be dismissed on the ground of
delay alone.
12.
As application for condonation of delay has been rejected, revision petition being
barred by time is liable to be dismissed.
13.
Consequently, revision petition filed by the petitioners is dismissed at admission
stage being 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. 616 OF 2012
(From the order dated 13.01.2012 in First Appeal No. FA/162/2011
of West Bengal State Consumer Disputes Redressal Commission)
Renu Sharma r/o 11/21, R.B.C. Road, P.O. Rishra, P.S. Rishra
District Hooghly West Bengal
... Petitioner
Versus
State Bank of Patiala MID CORPORATE
8, Camac Street, P.S. Shakespeare Sarani,
Kolkata – 700017
BRANCH,
Shantiniketan Building,
… 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. Renu Sharma, In person
PRONOUNCED ON : 14th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 13.01.2012
passed by the West Bengal State Consumer Disputes Redressal Commission (for short
‘the
State
Commission’)
in
FA
No.
162/2011,
“State
Bank
of
Patiala
versus Renu Sharma” vide which while allowing appeal, the order passed by District
Consumer Disputes Redressal Forum, Kolkata allowing complaint no. 404/2009 filed by
the petitioner/complainant was set aside.
2.
Brief facts of the case are that petitioner Renu Sharma used to live in flat no. 3/c,
3rd Floor,
at Shivam Plaza apartment, premises
number
92/B,
N.K.
Banerjee
Street, Rishra, District Hooghly which was owned by late Akhil Chandra Banik, who had
purchased
the
same
in
1999
through
a
registered
sale-deed. The
owner Akhil Chandra Banik entered into an agreement dated 12.06.2001 with a
developer M/s. Glacier Constructions for the development of the said property. The
petitioner purchased the flat in question by paying a sum of Rs.20,000/- on 23.11.2002
and then Rs.90,000/- on 06.12.2002 and entered into an agreement with the owner and
the developer. On 27.12.2002, the petitioner applied for home loan from Punjab & Sind
Bank, Lindsay Street Branch. The Bank made direct payment of Rs.1,50,000/- to the
developer on 05.02.2002. The possession of the flat was delivered to the petitioner on
17.11.2003 and the Punjab & Sind Bank made direct final payment of Rs.1.83 lakh to
the developer vide pay order dated 05.12.2003. The petitioner then decided to transfer
the said loan from the Punjab & Sind Bank to the State Bank of Patiala/OP. Loan was
sanctioned by the State Bank of Patiala and they made payment of Rs.3.28 lakh to the
Punjab & Sind Bank vide pay order dated 27.01.2004. It has been alleged by the
petitioner that he continued to live in that flat, when on 19.06.2007, at about 2:30PM,
when he was in the office and his family was in the flat, some musclemen from the
Indian Bank forcibly evicted his family from the flat. He came to know that the owner of
the flat had sold the same flat to one Sital Singh, who had taken loan from Indian Bank
upon mortgage of the flat, but had not repaid the said loan. The petitioner filed criminal
case against the landowner and the developer, but subsequently, both of them
died. The petitioner has alleged that the respondent/OP State Bank of Patiala showed
negligence in not scrutinising the relevant documents of the flat at the time of giving
loan to him and hence, the respondent/OP was liable to pay compensation for
deficiency in service. The petitioner filed a consumer complaint before the District
Forum which allowed the same and directed the State Bank of Patiala to stop deduction
of EMI from the monthly salary of the complainant and also to pay him compensation of
Rs.25,000/- and litigation cost of Rs.5,000/-. An appeal against this order was allowed
by the State Commission and the complaint was ordered to be dismissed. It is against
this order that the present revision petition has been filed.
3.
Heard the petitioner in person. He stated that the flat in question had already been
sold to Sital Singh, who had raised loan form the Indian Bank but did not repay the
same. The Indian Bank had, therefore, dispossessed the petitioner and his family from
the flat and they were forced to live in a rented accommodation. He also stated that
another loan had been raised from the HSBC Bank also. He alleged that the State Bank
of Patiala had committed deficiency in service by not checking the documents at the
time of giving the loan for which the petitioner had to suffer.
4.
On examination of the material on record, it is clear that the petitioner purchased
the said flat from the owner/developer after raising loan from the Punjab & Sind
Bank. Thereafter, he decided to take another loan from State Bank of Patiala and
discharged the liability of the Punjab & Sind Bank. He is, therefore, under obligation to
repay the loan taken from State Bank of Patiala. The fact that loan had been raised
by Sital Singh for the same property from the Indian Bank does not lead to the
conclusion that the respondent/OP State Bank of Patiala has committed any deficiency
in service in any manner. We are in full agreement with the conclusion arrived at by the
State Commission that once the complainant has raised loan from the State Bank of
Patiala, they are duty bound to repay the same. It is also clear that the respondents/OP
State Bank of Patiala had no role in dispossessing the petitioner from the said flat and
hence they have not committed any deficiency in service. We, therefore, hold that the
order passed by the State Commission does not suffer from any illegality, irregularity or
jurisdictional error and the same is upheld. The revision petition is ordered to be
dismissed with no order as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
National Consumer Disputes Redressal Commission New Delhi
Revision Petition no. 628 of 2013
(Against the order dated 15.10.2012 in Appeal nos. 2166 of 2010 and 72 of 2011 of the
Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal)
Union of India Through the General Manager East Central Railway, Patna Station
Manager Muzaffarpur Railway Station Bihar
North Central Railway Through Station Manager Railway Station Gwalior
Petitioner(s)
Vs
Smt Kavita Madan Wife of Shri Ranjan Madan, H –9, Govind Puri Post Office R
K Puram Gwalior
Respondent
Before:
HON’BLE MR JUSTICE V B GUPTA
HON’BLE MRS REKHA GUPTA
For the Petitioner (s)
PRESIDING MEMBER
MEMBER
Ms Rekha Aggarwal, Advocate
Pronounced on 16th August 2013
ORDER
REKHA GUPTA
Revision petition has been filed against the order dated 15 th October 2012
passed by the Madhya Pradesh State Consumer Disputes RedressalCommission,
Bhopal in appeal nos. 72 of 2011 and 2166 of 2010 filed by the respondent whereby
both the appeals were dismissed.
The brief facts of the case as given by the respondent/complainant are that the
respondent
has
gone
to Muzaffarnagar along
with
her
two
daughtersPrachi and Bhagi and father-in-law Kishan Lal Madan to attend a wedding
ceremony. The respondent purchased tickets on 06.02.2008 from petitioner no. 3 for the
return journey from Muzaffarpur on 18.02.2008 in train no. 1123. She got reserved
tickets nos. 49, 50, 51 and 52 for herself and her family.
On 18.02.2008 respondent went to Muzaffarpur Railway Station along with her two
daughters and father-in-law for the return journey by train no. 1123 in coach no. S 3 on
reserved seats no. 49 to 52 and the journey was to start at 05.00 p m.
When the train started from Muzaffarpur and reached Sonepur Railway Station at
about 02.00 a m most of the passengers were asleep. At this time 5-6 boys boarded the
train and after sometime they broke the chains which were attached to the suit cases
and they collected the suit cases at the gate of the train. At this time, the respondent
woke up and raised a cry and other passengers also woke up. At this the boys threw the
suit cases from the running train and when the train slowed down they jumped out of the
train. Her father-in-law gave a complaint of this incident to the guard at Chapra Railway
Station. The guard told him to inform the TT. But there was no TT available in the train.
Her father-in-law tried to lodge the complaint at Chapra Junction, Lucknow junction and
Bara Banki station but as the stoppage time was less and they had children with them,
they could not lodge the complaint.
Out of the eight suit cases stolen by the boys, the respondent had three suit cases
of VIP make in blue colour. One was of 36”, the second was medium and the third of
small size. In the big suit cases there were five suits, six sarees and woolens as well as
gold jewellary which included 1 gold necklace, 2 rings, 2 tops, 2 ear rings and four
bangles weighing about 10 tolas. The second suit case contained 5 sets each of cloths
of the 2 children, 4 sweaters. The third suit case contained 4 trousers, 4 shirts, 1 coat
other clothes and the passbook of saving account no. 10504757769 of State Bank of
India, Murrar. The total value of the goods was about Rs. 1.00 lakh.
When the train reached Gwalior on 20.02.2008, the respondent’s father-in-law
gave a written complaint to the police station GRP at Gwalior. When no action was
taken on this complaint, then her father-in-law wrote letters dated 02.04.2008,
10/11.02.2009 by registered post to Mazaffarpur, Chapra, SonepurStation and on
11.11.2009 but the petitioners did not give any suitable reply. On 30.04.2008, the
Commissioner of Police, Railways Muzaffarpur informed that due to lack of any
evidence the police had filed a final closure report on the complaint.
The petitioner/ opposite party in their written statement have denied the entire
complaint stating that the alleged incident has been concocted to make a legal issue
and gain unlawful advantage. It is denied that any thief had entered the Barauni Gwalior
mail no. 1123 on 08.02.2008. No information of any such incident has been received
from any other passenger. It is also denied that there was no TT or guard in the train.
The TT was present throughout the journey and checking the tickets of the passengers
from time to time. It is also denied that due to less stoppage time of the train, the
respondent could not make report of the alleged incident as the complaint book
available in the coach itself in which any passenger can note down his complaint.
The District Consumer Disputes Redressal Forum, Gwalior (MP) vide order dated
17.08.2010, while allowing the complaint ordered that “the opposite party is directed to
pay Rs.50,000/- within 30 days to the complainant failing which they will have to pay
interest @ 9% per annum. The opposite party will also pay Rs.1,000/- towards cost of
the expenses incurred. The complaint is closed”.
Aggrieved by the order of the District Forum, two appeals were filed before the
State Commission. Appeal no. 2166 of 2010 was filed by respondent/complainant for
enhancement and the second appeal no. 72 of 2011 was filed by the petitioner for
setting aside the order of the District Forum. The State Commission “dismissed both the
appeals with no order as to costs”.
Hence, the present revision petition.
Along with the revision petition, the petitioner has filed an application
for condonation of delay of 29 days. As per the application, the certified copy of the
impugned order was delivered by the State Commission on 22.10.2012. Thereafter it
took some time for the petitioners to engage a lawyer in Delhi to file the revision petition.
Moreover all the documents are in vernacular and it took considerable time to translate
the same in English. All this exercise has taken some time and there was some
unavoidable delay beyond their control.
We have heard the learned counsel for the petitioner and have gone through the
records of the case. No cogent reasons have been given either by the counsel for the
petitioner or in the application for condonation of delay to explain and justify the day to
day delay of 29 days.
It is well settled that “sufficient cause” for condoning the delay in each case is a
question of fact:
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to
the condonation of delay in question as a matter of right. The
proof of a sufficient cause is a discretionary jurisdiction vested in
the Court by S.5. If sufficient cause is not proved nothing further
has to be done; the application for condonation has to be
dismissed on that ground alone. If sufficient cause is shown then
the Court has to enquire whether in its discretion it should
condone the delay. This aspect of the matter naturally introduces
the consideration of all relevant facts and it is at this stage that
diligence of the party or its bona fides may fall for consideration;
but the scope of the enquiry while exercising the discretionary
power after sufficient cause is shown would naturally be limited
only to such facts as the Court may regard as relevant.”
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994
Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause
should normally be construed liberally so as to advance
substantial justice but that would be in a case where no
negligence or inaction or want of bona fide is imputable to the
applicant. The discretion to condone the delay is to be exercised
judicially i.e. one of is not to be swayed by sympathy or
benevolence.”
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has
been observed:
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
Recently, Hon’ble Supreme Court in Post Master General and others vs.
Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“After referring various earlier decisions, taking very lenient view in condoning
the delay, particularly, on the part of the Government and Government
Undertaking, this Court observed as under;
“It needs no restatement at our hands that the object for fixing time-limit for
litigation is based on public policy fixing a lifespan for legal remedy for the
purpose of general welfare. They are meant to see that the parties do not
resort to dilatory tactics but avail their legal remedies promptly. Salmond in
his Jurisprudence states that the laws come to the assistance of the vigilant
and not of the sleepy.
Public interest undoubtedly is a paramount consideration in exercising the
courts' discretion wherever conferred upon it by the relevant statutes.
Pursuing stale claims and multiplicity of proceedings in no
manner subserves public interest. Prompt and timely payment of
compensation to the land losers facilitating their rehabilitation /resettlement
is equally an integral part of public policy. Public interest demands that the
State or the beneficiary of acquisition, as the case may be, should not be
allowed to indulge in any act to unsettle the settled legal rights accrued in
law by resorting to avoidable litigation unless the claimants are guilty of
deriving benefit to which they are otherwise not entitled, in any fraudulent
manner. One should not forget the basic fact that what is acquired is not
the land but the livelihood of the land losers. These public interest
parameters ought to be kept in mind by the courts while exercising the
discretion dealing with the application filed under Section 5 of the
Limitation Act. Dragging the land losers to courts of law years after the
termination of legal proceedings would not serve any public interest.
Settled rights cannot be lightly interfered with by condoning inordinate
delay without there being any proper explanation of such delay on the
ground of involvement of public revenue. It serves no public interest.”
The Court further observed;
“It is not in dispute that the person(s) concerned were well aware or
conversant with the issues involved including the prescribed period of
limitation for taking up the matter by way of filing a special leave petition in
this Court. They cannot claim that they have a separate period of limitation
when the Department was possessed with competent persons familiar with
court proceedings. In the absence of plausible and acceptable explanation,
we are posing a question why the delay is to be condoned mechanically
merely because the Government or a wing of the Government is a party
before us.
Though we are conscious of the fact that in a matter of condonation of
delay when there was no gross negligence or deliberate inaction or lack
of bonafide, a liberal concession has to be adopted to advance substantial
justice, we are of the view that in the facts and circumstances, the
Department cannot take advantage of various earlier decisions. The claim
on account of impersonal machinery and inherited bureaucratic
methodology of making several notes cannot be accepted in view of the
modern technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their
agencies and instrumentalities that unless they have reasonable and
acceptable explanation for the delay and there was bonafide effort, there is
no need to accept the usual explanation that the file was kept pending for
several months/years due to considerable degree of procedural red-tape in
the process. The government departments are under a special obligation
to ensure that they perform their duties with diligence and
commitment. Condonation of delay is an exception and should not be used
as an anticipated benefit for government departments. The law shelters
everyone under the same light and should not be swirled for the benefit of
a few.
Considering the fact that there was no proper explanation offered by the
Department for the delay except mentioning of various dates, according to
us, the Department has miserably failed to give any acceptable and cogent
reasons sufficient to condone such a huge delay.
In view of our conclusion on Issue (a), there is no need to go into the
merits of Issues (b) and (c). The question of law raised is left open to be
decided in an appropriate case.
In the light of the above discussion, the appeals fail and are dismissed on
the ground of delay. No order as to costs”.
Observations made by Apex Court in the authoritative pronouncements
discussed above are fully attracted to the facts and circumstances of the
case.
Even, after getting two adverse findings, petitioners have chosen not to
settle the claim of the respondent but have dragged him to the
highest Fora under the Act.
It is not that every order passed by Fora below is to be challenged by a
litigant even when the same are based on sound reasoning.
It is a well-known fact that Courts across the country are saddled with large
number of cases. Public Sector Undertakings indulgences further burden
them. Time and again, Courts have been expressing their displeasure at the
Government/Public Sector Undertakings compulsive litigation habit but a
solution to this alarming trend is a distant dream. The judiciary is now
imposing costs upon Government/Public Sector Undertaking not only when
it pursue cases which can be avoided but also when it forces the public to
do so.
Public Sector Undertakings spent more money on contesting cases than the
amount they might have to pay to the claimant. In addition thereto, precious
time, effort and other resources go down the drain in vain. Public Sector
Undertakings are possibly an apt example of being penny wise, poundfoolish. Rise in frivolous litigation is also due to the fact that Public Sector
Undertakings though having large number of legal personnel under
their employment, do not examine the cases properly and force poor
litigants to approach the Court.
The Apex Court, in the case State Bank of India vs B S Agricultural
Industries II (2009) SLT – 793 = (2009) 5 SCC 121 have held as under:
“As a matter of law, the Consumer Forum must deal with the complainant 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
decided 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.”
The present case is fully covered under the case laws cited above Supra.
The petitioners have failed to produce any detailed reasons to explain the delay of
29 days.
Accordingly, no sufficient grounds are made out for condonation of delay of 29
days in filing the present revision petition. The application for condonationof delay under
these circumstances is not maintainable and the present revision petition being barred
by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to pay a sum of Rs.5,000/- by way of demand draft directly in
the name of respondent and the balance amount of Rs.5,000/- be deposit by way of
demand draft in the name of “Consumer Legal Aid Account” of this Commission within
four weeks from today. In case the petitioner fails to deposit the cost within the
prescribed period, then it shall also be liable to pay interest @ 9% per annum till
its realisation.
List for compliance on 20th September 2013.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4288 OF 2012
(From order dated 16.08.2012 in First Appeal No. 265 of 2012 of the
UT Chandigarh State Consumer Disputes Redressal Commission, Chandigarh)
Rajbeer Singh S/O Shri Satya Pal Singh, House No. 36-A, Sector-51-A,
Chandigarh-160047
… Petitioner
Versus
1. The Manager, The Emaar MGF Land Ltd., SCO No. 120-122, 1st Floor,
Sector 17-C, Chandigarh-160 017
2. M/S Emaar MGF Land Ltd. Corporate Office ECE House, 28, Kasturba Gandhi
Marg 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
: Mr. Rajeev Ranjan , Advocate
: Ms. Kartika Sohag, Advocate with
Mr. Arjun Jain, Authorized Representative
Pronounced On 16th August , 2013
ORDER
PER DR. S.M. KANTIKAR
1. That the Petitioner prefers the instant Revision Petition against
the impugned order dated 16/08/2012 passed by the Hon’ble
State Consumer Disputes Redressal Commission,
Union Territory,
Chandigarh (herein after referred to as, ‘State Commission’) in First Appeal No.
265
of
2012
titled
as
“Rajbeer
Singh
vs.
The
Manager,
The Emaar MGF Land Ltd. & Anr.”.
By the final
impugned order dated 16/08/2012 the Hon’ble State Commission
dismissed the Appeal and
upheld the order dated 27/06/2012
passed by the Hon’ble District Consumer Disputes Redressal Forum-1, UT,
Chandigarh
(
herein after
referred
to
as,
‘District
Forum’) in Consumer Complaint No.
130
of
2012.
It is submitted that the Hon’ble State Commission as well as Hon’ble District
Forum
dismissed
the
case
without
considering the factual as well as legal aspect of the dispute.
2. The Facts in Brief:
That the Complainant, booked a residential floor in “The Terraces” at Mohali
Hills, in Sector 108, S.A.S. Nagar, Mohali, Punjab, and paid a sum of Rs.3 lacs,
vide cheque dated 04.09.2008. The OPs, vide communication dated 13.04.2009,
Annexure
C-1,
informed
about
the
provisional
allotment
of
unit
No.574/GF, in Mohali Hills, aforesaid. The Complainant was given assurance,
by the OPs, that the Scheme would be launched, within one month and
construction would start, but they failed to abide by their commitments. The
Complainant, sent letters dated 05.10.2009, Annexure C-2 and 30.10.2009
Annexure
C-4,
to
OP
No.1, with a request to
refund
the earnest money of Rs.3 lacs, within 15 days, but all in vain. Ultimately, a legal
notice dated 23.12.2009, Annexure C-5, was issued to the OPs, for refund of
the amount, but no positive response was received. It was stated by OP
that the Complainant was asked to sign the Buyer’s Agreement, failing which,
the deposited amount shall stand forfeited,
but the
Complainant never signed the same and,
as such,
the terms and
conditions were not applicable to him.
It was further stated that,
by not refunding the earnest money, deposited by the Complainant, the OPs,
were not only deficient, in rendering service, but also indulged into unfair trade
practice. When the grievance of the Complainant, was not redressed, left with no
alternative, a complaint, under Section 12 of the Consumer Protection Act, 1986
(herein after to be called as the Act only), was filed.
3. OPs No. 1 and 2, in their joint written version, pleaded that the District Forum,
at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint.
It was admitted that the Complainant, booked the apartment, in question,
and paid the earnest money, to the tune of Rs.3 lacs, against the total sale
consideration of Rs.46 lacs, but he failed to sign the Buyer’s Agreement,
till the date of filing the complaint.
It was stated that
as per the terms and conditions
of
Advance
Registration
Application Form for Allotment,
duly signed by the Complainant
and
Meenakshi, co-applicant, in the event of non-signing of the Buyer’s Agreement, by
the
Complainant,
and
returning
the
same,
within 30 days,
from the date of receipt of the same from the OPs, the earnest money
deposited by the Complainant, stood forfeited, without any notice/reminder.
4. After hearing the Counsel for the parties, and, on going through the evidence,
and record of the case, the District Forum, dismissed the complaint.
5. Aggrieved by the order of the District Forum,
the Complainant
filed an Appeal before
the
State
Commission.
The
State
Commission heard the counsel for both the parties and through
the evidence and records in this case and dismissed the Appeal
as it was deferred on merits.
6. Aggrieved by this order the Complainant filed
Petition in National Consumer Disputes Redressal Commission.
this Revision
7. We have heard the Counsel for both the parties and perused the evidence on
record. The Counsel for the Petitioner submitted that the Complainant booked the
apartment by paying Rs.3 lacs and the provisional allotment letter Annexure-C.
But the Complainant never received the buyers agreement. Hence, the question
of signing and returning the agreement within 30 days from the date of receipt
did
not
arise
at
all.
Further,
submitted
that
the
OP
unilaterally changed to the construction linked installment plan.
The Complainant wrote numerous letters and requested for
refund of advance money deposited but the OP did not respond.
We have
perused the “Details and Broad Terms and
Conditions” mentioned alongwith advance registration application form for
allotment issued by OP.
In
those
conditions,
Under Para 8 reproduced as follows:
8. Surrender/Cancellation
8.1)
In case the refund of the initial deposit is sought after acceptance of
application/registration within_____ months of issue of Allotment Letters,
shall be refunded after forfeiting 20% of the registration amount.
8.2)
The Applicant hereby authorizes the Company to forfeit the
earnest money along with
the interest paid,
due or payable,
along with any other amounts of non-refundable nature, in case of
failure by the Applicant to sign and return to the company the Buyer’s
Agreement within thirty (30) days of its dispatch by the company.
Therefore, as per condition number 8.1 Complainant’s stand is a valid one.
Counsel for OP Ms. Kartika Sohag relied upon only the clause 8.2 and stated that
forfeiting
of
earnest
money
was
correct. The
Counsel
for
the
OP contended that the Complainant
cannot
take advantage of
his own wrong with intention of causing wrongful laws to the Respondent.
The Complainant as under the
terms of advance application registration form was obliged to
return the executive buyers agreement within 30 days of dispatch from the R
espondent’s
company
i.e.
24.04.2009.
Therefore,
the OP was agreeing the forfeiting the earnest money.
8.
Counsel for OP relied upon an authority of Hon’ble Apex Court in V. Lakshmanan
v. B.R. Mangalgiri and Ors. (1995) Suppli. (2) SCC 33. It was held as follows:
“The question then is whether the Respondents are entitled to forfeit the
entire amount. It is seen that a specific covenant under the contract was
that Respondents are entitled to forfeit the money paid under the
contract. So when the contract fell through by the default committed by
the Appellant, as part of the contract, they are entitled to forfeit the entire
amount”.
She also relied upon another case Videocon Properties Ltd. v. Dr.
Bhalchandra laboratories and others (2004)
3 SCC
711,
dealt
with a case of sale of immovable property. It was held by Hon’ble Supreme
Court as follows:
“It was a case where the plaintiff-Appellants had entered into an
agreement with the Respondents-Defecndents on 13.05.1994 to sell the
landed property owned by the Respondents and a sum of Rs.38,00,000/was paid by the Appellants as deposit or earnest money on the execution
of the agreement. In that case, this Court examined the nature and
character of the earnest money deposit and took thed view that the words
used in the agreement alone would not be determinative of the character
of the “earnest money ” but really the intention of the parties and
surrounding circumstances. The Court held that the earnest money
serves two purposes of being part-payment of the purchase money and
security for the performance of the contract by the party concerned. In
that case, on facts, after interpreting various clauses of the agreement.
9.
The Petitioner’s Counsel argued that it was not the earnest
money but it was the advance towards the initial payment of the payment.
10. The arguments of OP was that the Petitioner deposited the initial deposit.
It is equal in nature of earnest money and referred few authorities of Hon’ble
Supreme
Court but in our
opinion those authorities are not applicable to this case on hand.
11. Therefore, it is very clear that the OP failed to pay the amount
of Rs.3 lacs but forfeited on the ground as stated above.
The
Complainant never signed the buyers agreement therefore, the condition no.
8.2 will not apply.
Hence the company has no right
to forfeit the amount deposited by the Complainant on account
of booking residential floor in “The Terrace” at Mohali Hills.
It is
the deficiency in service and unfair trade practice.
12. Both the Fora below have not appreciated the Para
8.1
and only
relied upon Para 8.2. Therefore, the Petitioner / Complainant is entitled for the
refund as per Para 8.1 i.e., after deducting 20% of the Registration amount.
13. In view of the above discussion we set aside the order passed by
both the Foras below and pass the
order that
the OPs are directed to refund
Rs.
240000/only
to
the
complainant from the date of filing of the Complaint within 60 days otherwise, it
will carry interest at 9% per annum till recovery. No order as to costs.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(Dr. S.M. KANTIKAR)
MEMBER
Mss
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.4684 OF 2012
(From the order dated 12.09.2012 in First Appeal No.238/2005 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
WITH IA/1/2012 IA/2/2012 (C/COPY & STAY)
1. Sun Flag Hospital Research Centre Sector – 16A Faridabad Through its Authorise
Representative
2. Dr. Prem Kumar Consultant/Medical Officer Sun Flag Hospital Research Centre
Sector 16A, Faridabad
..…. Petitioners
Versus
Shri Raghubir Singh Poswal S/o Sh. Pehlad Singh R/o village Fulwarian Tehsil Palwal
District Faridabad
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners : Shri Rajesh Chhabra, Advocate
Pronounced on : 16th August, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition is directed against the order dated 12.09.2012 passed by
the
Haryana
State
Consumer
Disputes Redressal Commission, Panchkula (‘State
Commission’ for short) in First Appeal No.238 of 2005 by which the State Commission
dismissed the first appeal of the petitioners filed against the order dated 05.07.2004
passed by the District Consumer Forum, Faridabad in CC No.399. Vide its order, the
District Forum allowed the complaint of the respondent and granted the following relief:“…..In the circumstances, the complaint of the complainant
succeeds and to satisfy the grouse of the complainant, following
order is passed
1.
The respondents are ordered to pay Rs.Two Lakhs along
with interest @ 12% p.a. w.e.f. the filing of the present complaint
till its realization.
2.
The respondents are also ordered to pay Rs.5000/- on
account of mental agony and Rs.500/- as litigation expenses.
The respondents are ordered to comply with the order of the
Forum within 30 days after receiving the copy of the present
order……….”
2.
The brief facts of this case which are relevant for its decision are that Vikas aged
about 10 years, son of the respondent / complainant, was suffering from fever and was
brought to Dr.Rahul Verma at the Verma Children Hospital, Palwal. Dr. Verma noticed
symptoms
of
Dengue
fever
and
hence
he
referred
the
patient
to
the
OPs/petitioners. Vikas was admitted in the hospital of the petitioners on 14.10.1998
where he was kept in the ICU and tests were carried out on him. However, Vikas was
declared dead at 9.40 a.m. on 15.10.1998 due to cardiac arrest. Alleging negligence
during course of treatment and carrying of tests as well as blood transfusion, the
complainant/respondent filed the consumer complaint before the District Forum in which
allegations of wrong diagnosis leading to incorrect line of treatment were also made. On
the other hand, according to the petitioners/OPs, the patient was brought to their
hospital on 14.10.1998 at 5.40 p.m. and after his admission, he was examined by doctor
on duty who indicated possibility of Dengue but when the patient was checked
by Dr. Prem Kumar, OP No.2, it was noticed that the patientwas having acute
breathlessness and air hunger and hence tests were carried out in the hospital lab. The
blood test reports indicated the following results:Found in the patient as per Normal requirement of this age
tests
group
Normal values
3.
Blood (HB) 2.5. grams
12 to 14 grams
White blood 3600
4,000 – 11,000
Platelets 40,000
1,50,000 to 4,00,000 lac
Nutro Pahils 26%
45-75
According to the petitioners, the tests results ruled out the possibility of Dengue
fever. The reports pointed towards “aplastic anaemia” which is called blood cancer in
common language and not Dengue as claimed by the complainant/respondent. It was
submitted by the OPs in their written statement that the patient could not be improved in
spite of their best efforts and unfortunately died on 15.10.1998.
4.
Both the parties adduced their evidence before the District Forum by way of
affidavits. After hearing the parties and considering the evidence before it, the District
Forum allowed the complaint in terms of its order reproduced above. The State
Commission also upheld the same and dismissed the appeal filed by the petitioners
both on grounds of delay as well as on meritsvide its impugned order.
5.
We have heard learned Shri Rajesh Chhabra, Advocate for the petitioners.
Learned counsel has submitted that the impugned orders of the Fora below are
perverse
and
against
the well
established principles
of
law
and
hence
not
sustainable. He said that the State Commission has not applied its judicious mind while
passing the impugned order and contended that as the first appellate court it has failed
to appreciate the fact that the treatment given to the patient was on the basis of the
investigation reports. He pointed out that neither the complainant/respondent had led
any documentary evidence which could be suggestive of the fact that the patient was
suffering from dengue nor any test/investigation of dengue was conducted on the
patient or any such report was produced before the attending doctor i.e. petitioner no.
2. Since the first investigation report of the deceased patient was suggesting acute
blood anaemia/blood cancer, the attending doctor had no other alternative but to start
the treatment on the basis of this report. Learned counsel argued that both
the Fora below did not appreciate the fact that no specific negligence was proved by the
respondent in the trial court by leading evidence of a medical expert. On the other
hand, he submitted that the reply filed by the petitioners before the District Forum
clearly indicates that the deceased patient was rightly treated by the petitioners by
giving
immediate
blood
transfusion
to
improve
the
H.B.
level
and
other
symptoms. Learned counsel, therefore, pleaded that in these circumstances, no liability
could be fastened on the petitioners for the alleged negligence for which there was no
proof before the Fora below and hence the revision petition should be allowed and the
impugned order be set aside.
7.
We have considered the submissions made by learned counsel for the
petitioners and perused the record. We may note that this revision petition has been
filed against the concurrent orders passed of the Fora below holding the petitioners
guilty of negligence. The main contention of learned counsel for the petitioners is that
treatment of the deceased patient given by the petitioners was in accordance with the
requirement of the patient based on the initial investigation reports and there is no
expert evidence to establish any negligence on the part of the petitioners in this
regard. No
doubt
that
there
is
no
expert
opinion
produced
by
the
respondent/complainant before the Fora below to establish the negligence on the part of
the petitioners. However, it is not in dispute that the patient was admitted in
the petitioners hospital
on
14.10.1998
and
died
on
the
next
day
i.e.
on
15.10.1998. Such a sudden death of the patient within 24 hours of his admission into
the hospital of the petitioners by itself raises suspicion about the line of treatment
adopted by the petitioners while treating the deceased patient and would necessarily
call for submission of further details in respect of the treatment and reasons for the
sudden death of the patient in spite of the treatment. This also raises a question, if the
condition of the patient was really so serious as was likely to result into his death so
soon, was the hospital of the petitioners well-equipped to deal with such an
emergency? If not, the question would arise as to whether the petitioners briefed the
respondent/complainant about the condition of the patient and to refer him to a better
equipped hospital? It is here that we find that the fora below came to the conclusion
about negligence on the part of the petitioners. In this context, the State Commission
while upholding the order of the District Forum has observed as under:“It is admitted case of the opposite parties that as per the above tests,
the disease suffered by the patient is known as ‘Aplastic Anemia’ which is
called Blood Cancer in common language and not Dengue. It is not the
case of the opposite parties that the patient was given the treatment of
cancer or that the complainant was advised to shift his minor son (patient) to
some other hospital for better treatment of cancer where the treatment of
cancer was available. The patient was brought to the hospital of the
opposite parties on 14.10.1998 and died on 15.10.1998. Thus, the opposite
parties have rightly been held negligent and deficient in service while
treating the minor son of the complainant. Though the opposite parties have
taken the plea that they had given proper treatment to the patient, but before
the District Forum the opposite parties failed to produce the treatment chart
of the patient which proves the act and conduct of the opposite parties with
respect to the treatment given to the patient. It is the case where the
complainant has lost his hope due to death of his son aged about 10
years.”
8.
In view of the facts and circumstances of this case, the State Commission
referring to the ratio laid down by the Apex Court in the case of V. Kishan Rao Vs. Nikhil
Super Speciality Hospital And Another (2010) CTJ 868/2010 5 Supreme Court Cases
513 has rightly concluded that expert opinion is not necessary in all cases where the
negligence and deficiency in service of the treating doctor is established from the facts
and circumstances of the case. Treating doctor can be involved in a criminal offence of
medical negligence when there is some evidence of higher degree but the civil liability
of the treating doctor for the wrong treatment given to a patient can be fastened on the
basis of the facts and circumstances of the case.
9.
Following observations of the Apex Court in the case of V. Kishan Rao (Supra)
may be reproduced to clarify this aspect further:-
“50. In a case where negligence is evident, the principle of
res ipsa loquitur operates and the complainant does not have to prove
anything as the thing (res) proves itself. In such a case it is for the
respondent to prove that he has taken care and done his duty to repel
the charge of negligence.”
10.
In view of the above enumerated position in law, the least that can be expected
of the petitioner / opposite parties was to produce the treatment record of the deceased
child so as to enable the foras below to conclude if the petitioners had taken a
reasonable care of the deceased patient or they were negligent in their duty to treat the
child. From the observations of the State Commission reproduced above, it is evident
that the petitioners failed to produce the treatment chart of the deceased patient in their
evidence. In the absence of the treatment record, which could have thrown light on the
issue of medical negligence, we are of the view that the foras below have rightly
concluded that the petitioners were negligent in the treatment of the deceased
child. Thus, we do not find any illegality or infirmity in the impugned order which may
call for interference by this Commission in exercise of the revisional jurisdiction. The
revision petition is accordingly dismissed in liminie with no order as to costs.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…………Sd/-…….……………
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3013 OF 2012
(From the order dated 31.10.2011 in F.A. No.543/2008 of the
State Consumer Disputes Redressal Commission, Delhi)
1. G.B. PANT HOSPITAL THROUGH ITS MEDICAL SUPERITENDENT ASAF ALI
ROAD, NEW DELHI.
2. THE CHIEF SECRETARY GOVT. OF NCT OF DELHI, NEW DELHI.
.….. PETITIONERS
Versus
1. AVTAR KISHAN 359, SUBHASH NAGAR, JAMMU TAWI.
2. RAVI KUMAR PEER, B-14/78, HIMGIRI APARTMENTS, SECTOR-34, NOIDA.
....... RESPONDENTS
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: Ms. Bindya Savara, Advocate
For the Respondents : Mr.Madhurendra Kumar, Advocate
PRONOUNCED ON: 19th
August, 2013
ORDER
PER SURESH CHANDRA, MEMBER
I.A. No.3 of 2012
This revision petition challenges the order dated 31.10.2011 passed by the
State Consumer Disputes Redressal Commission, Delhi (for short, ‘the State
Commission’) in F.A. no.08/543 by which the State Commission dismissed the
appeal filed by the petitioners against the order dated 05.02.2008 passed by the
District Forum (Central), Kashmere Gate, Delhi by which the complaint filed by the
respondents was allowed directing the petitioners no.1 and 2 jointly or severally to
pay a sum of Rs.3 Lakhs (including the charges taken by the petitioners) as
compensation to the respondents and also to pay them a sum of Rs.5,000/- as cost
of litigation. The State Commission vide its impugned order also imposed cost of
Rs.10,000/- on the petitioners while dismissing their appeal. The petitioners, thus,
have approached this Commission challenging the concurrent finding of the District
Forum and the State Commission holding the petitioners no.1 and 2 guilty of
deficiency in service and directing them to pay compensation/cost as per the
impugned order. There is a delay of 153 days in filing the revision petition for which
the petitioners have filed an application for condonation of delay. Notices were,
therefore, issued to the respondents on the application for condonation of delay as
well as on the revision petition.
2.
We have heard learned Ms.Bindya Savara, Advocate for the petitioners and
learned Mr.Madhurendra Kumar, Advocate for the respondents on the request of the
petitioners for condonation of delay in filing this revision petition.
3.
The report submitted by the Registry shows that the impugned order was
passed by the State Commission on 31.10.2011 and it was received by the
petitioners on 15.12.2011. The revision petition came to be filed on 14.08.2012.
Thus there is a delay of 153 days after deducting the period taken for obtaining the
certified copy and the prescribed period of 90 days for filing the revision
petition. The application filed by the petitioners for condonation of delay, however,
does not indicate the period of delay in filing the revision petition. In support of the
request for condonation of delay, it is submitted by the petitioners that the impugned
order was received on 15.12.2011 and the decision to challenge this order was
taken and a brief note was prepared in December itself for seeking the approval of
the Health and the Law Department of the State Government to file the present
revision petition. However, since initially the request was turned down by the Law
Department, it was resubmitted with more details and grounds of challenge including
relevant literature on the subject. Finally, the approval for filing the revision petition
was granted and the same was received on 25.05.2012 and the permission to
engage lawyer was received on 08.06.2012. However, because of the courts being
closed for the summer vacation, the case file was assigned to the counsel for
preparing the revision petition on 09.07.2012. Thereafter, the counsel was quite
busy in arranging her cases as the courts were opened after the vacation and it took
quite some time for preparing the revision petition and hence, there was delay in
filing the same. After preparing the draft of the revision petition, it is submitted that
the same was sent to the Hospital for finalization thereof and the final revision
petition was then handed over to the counsel on 27.07.2012 who filed it on
14.08.2012. Learned counsel for the petitioners has submitted that the delay is
neither intentional nor deliberate but due to the reasons submitted in the
application. She has further submitted that since the delay in question occurred
because of the procedure which is required to be followed by the government
institution/department and the delay in question was neither intentional nor
deliberate, the same may be condoned. Learned counsel for the respondents, on
the other hand, has opposed the application for condonation of delay and has
submitted that the delay of 153 days in filing the revision petition beyond the period
of limitation prescribed for the purpose is inordinate and cannot be condoned in the
given facts and circumstances. He submitted that the petitioners have failed to give
any satisfactory explanation to justify the period of delay and hence, the application
deserves to be rejected.
4.
We have considered the submissions of learned counsel for the parties and
perused the record.
5.
As indicated above, the petitioners have failed to even mention the period of
delay in filing the revision petition. That itself is an indication of casual approach
adopted by the petitioners while drafting and submitting the application for
condoning the inordinate delay of 153 days. Coming to the explanation given in
support of the delay, we may note that after the preparation in December, 2011 of
the proposal for seeking approval of the government, it is not indicated as to when
the proposal was actually sent to the government for its approval and where and
why the delay took place from the beginning of January, 2012 till 25 th May, 2012
when approval is stated to have been granted by the government for filing the
revision petition. Day to day explanation is required in support of the period of
delay. Between the preparation of the proposal for seeking approval and the grant
of approval, there is a gap of about 145 days for which no explanation, much less
satisfactory, has been offered. Even after the grant of approval of the government
which was received on 25.05.2012, further time of 13 days was taken to engage the
counsel by which time, it is submitted that the courts were closed for summer
vacation. This explanation is nothing but a sham since it is common knowledge that
in spite of courts being on vacation, the Registry remains open during the summer
vacation and the revision petition could have been filed without further loss of
time. Be that as it may, again more than a month’s time was taken to assign the
case to the counsel on 09.07.2012 and here again without explanation in support of
delay on day to day basis, it has simply been indicated that the final approval to the
draft of the revision petition was given to the counsel on 27.07.2012. As if this was
not enough, in spite of final approval of draft revision petition and its being handed
over to the counsel on 27.07.2012, further delay was caused and the revision
petition was actually filed only on 14.08.2012. Considering the contents of the
application for condonation of delay, we have no manner of doubt that the petitioners
have given vague and general explanation and have miserably failed to demonstrate
any sense of urgency on their part at any stage after the receipt of the impugned
order and till the revision petition was actually filed on 14.08.2012 challenging the
same. We are, therefore, convinced that the explanation given by the petitioners
cannot be regarded as satisfactory or sufficient which would persuade us to condone
the inordinate delay of 153 days in filing this revision petition.
6.
While dealing with the question of condonation of delay, it would be pertinent to
refer to the following observations of the Apex Court in the matter of Anshul Aggarwal
vs. New Okhla Industrial Development Authority IV (2011) CPJ 65 (SC)
“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.”
7.
Decision of Anshul Aggarwal (supra) has been reiterated in the case of Cicily
Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme
Court observed thus:“4
5.
This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ
63 (SC) has explained the scope of condonation of delay
in a matter where the special Courts/Tribunals have been
constituted in order to provide expeditious remedies to the
person aggrieved and Consumer Protection Act, 1986 is
one of them. Therefore, this Court held that while dealing
with the application for condonation of delay in such cases
the Court must keep in mind the special period of limitation
prescribed under the statute (s).
In the instant case, condoning such an inordinate delay
without any sufficient cause would amount to substituting
the period of limitation by this Court in place of the period
prescribed by the Legislature for filing the special leave
petition. Therefore, we do not see any cogent reason to
condone the delay.
6.
Hence, in the facts and circumstance of the case as
explained hereinabove, we are not inclined to entertain
these petitions. The same are dismissed on the ground of
delay”.
8.
The Apex Court has also highlighted that while dealing with an application for
condonation of delay, the Court must bear in mind the object of expeditious disposal
of consumer disputes which would get defeated if the Court was to entertain highly
belated petitions.
9.
Keeping in view the aforesaid settled position in law and the fact that the
petitioners have miserably failed to offer any reasonable and cogent explanation in
support of the delay which could constitute sufficient cause as envisaged under law
to condone the inordinate period of 153 days of delay in filing this revision
petition, we are not inclined to allow the application and hence, the same stands
dismissed. In view of the dismissal of the application for condonation of delay, the
revision petition also stands dismissed as barred by limitation with no order as to
costs.
………………….sd/-.………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………….…sd/-………
MEMBER
bs
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3142 and 3143 OF 2012
(Against order dated 18.05.2012 in First Appeal No. 828/2007 of the
Punjab State Consumer Disputes Redressal Commission,
Chandigarh)
The New India Assurance Co. Ltd. Gurdaspur Road, Pathankot Through Manager,
Regional Office-I, Jeevan Bharti Building, 124, Connaught Circus, New Delhi-110001.
…Petitioner
Versus
M/S Satpal & Co., Lamini Pathankot, District Gurdaspur Through its Partner
…Respondent
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
in both cases
For the Respondent in both cases
PRONOUNCED ON
: Mr. Kishore Rawat, Advocate
: Mr. K.P.S. Dalal, Advocate with
Mr. Ranjit Singh, Advocate
August , 2013
ORDER
PER DR. S.M. KANTIKAR
1.
This
common
order
will
decide
two Revision Petitions filed against the order passed by the State
the
Consumer
Disputes Redressal Commission, Chandigarh, Punjab (in short, ‘State Commission’)
in First Appeal No. 828 of 2007 (New India Assurance Co. Ltd. Vs. Satpal & Co) and
First Appeal No. 1049 of 2007( M/S Satpal & Co. Vs. New India Assurance Co. Ltd.),
whereby the Hon’ble State Commission dismissed the FA No. 828/2007 and allowed
the
FA
No.
appeals were filed in the State Commission against
1049/2007. Those two
the orders of the
District
Consumer Disputes Redressal Forum, Gurudaspur (in short, ‘District Forum’).
2.
Brief facts:
The facts are similar in both revision petitions. M/s Satpal & Company,
the complainant got insured its L & T machine from the OP vide policy No.
361601/31/05/00334,w.e.f. 30.06.2005 to 29.06.2006.
On 23.10.2005, the machine was working on hill and cleaning the surface on the hill
top.
It caused landslide due to which, the machine overturned and was totally dam
aged. The OP was duly intimated regarding the accident and loss to the mac
hine.
The
OP
appointed
a
surveyor.
The complainant submitted all the claim papers to the surveyor and replied all the
queries,
but
the
claim was not settled by the
OP. OP
submitted
that 1st surveyor Mr. Vikas Gupta conducted spot survey and gave the report on
9/11/2005 with details regarding damage to the machine. Thereafter, the OP-1
deputed another Surveyor and Loss Assessor M/S R.P. Bhasin & Co. to conduct
survey and to assess the loss. The surveyor produced report on 12.03.2006 as
assessed the loss to the tune of Rs.2,20,610/- and the value of salvage @
mentioning that ‘loader was not
Rs.7,000/-. In reply the OP refused to pay,
at the time of loss’,
working
of the complainant as ‘no claim’.
and filed the claim
Aggrieved
by
the
decision
of the insurance company on 28.03.2006 a legal notice was also served upon OP.
The
complainant
filed
a
complaint for deficiency in service
and prayed for payment
by
of
OP
amount
of claim at Rs.13.50 lacs for which the said machine was insured along with
interest @ 12% p.a. from the date of loss till payment and to pay Rs.1lac as
compensation on account of harassment, loss of business and litigation expenses.
3.
The District Forum held that the said machine runs into tons and it is not possible
that the machine can overturn as the base of the machine is very heavy. Referring to
the
site
survey
report
Panchayat and claim form it was further held that the said
that
the
machine
was
when the earth below gave way
clearing
the
land
at
of
Gram
documents
show
the
Hill
and the said machine rolled down in
Top
the
Khud. The District Forum thus concluded that the repudiation of the claim was not
justified and the claim of the Complainant falls within the scope of the policy. As
against the amount of Rs.2,20,610/- assessed by the surveyor, the District forum
awarded a sum of Rs.5,02,081/- along with interest @ 9% from the date of
repudiation and cost of Rs.2000/-
4.
The order of the District Forum was challenged by both parties before the State
Commission. The Complainant filed an appeal FA No.1049/2007 for enhancement of
the amount awarded by the District Forum. The Petitioner /OP Insurance Company
also filed appeal FA 828/2007 for dismissal of complaint. The OP contended about
the correct repudiation of claim under IMT - 47 and also the District Forum could
not have awarded any amount over and above the amount assessed by the surveyor.
The State Commission held that it was not a case of overturning but it was the land
slide by which the said machine was damaged due to fell down from the Hill Top.
Hence the IMT- 47 cause is not applicable. The State Commission dismissed the
appeal FA 828/2007 and allowed the Appeal FA 1049/2007 filed by the Complainant.
The State Commission held that the surveyor had whimsically and without reasons
reduced the estimated loss and estimate of loss can be taken as actual loss
therefore, amount of estimated loss of Rs.7, 38,500.76 was allowed with interest @
9% from the date of repudiation.by the holding that. The estimate of loss can be taken
as the actual loss.
5.
Aggrieved by the order of state commission the Petitioner preferred these two
Revision Petitions.
6.
We have heard the counsels for both the parties, perused the documents on file and
the IMT- 47 clause.
7.
The L & T machine(Excavator Loader) was insured by complainant with the
Petitioner and at the time of accident the policy was in force. The State Commission
made following observations
11..... as per the evidence led by the Respondent through Affidavit
Ex.C-11,
supported by the certificate of Sarpanch of the
Gram
Panchayat Ex.C-6, the L & T machine while excavating the land, fell
down due to the landslide in the ditch. The Appellant filed the claim
as ‘ no claim’ for the reasons :“Loader was not working at the time of loss.”
The Appellant deputed
Mr. Vikas Gupta, surveyor who gave his
report Ex.R-3 and under the head ‘Cause & Circumstances of
Loss’, he reported as follows:“While clearing the surface near the hill top, all of a sudden a
portion of land slide & the machine rolled down into the Khud, causing
multiple damages”.
8.
We have perused the evidence on record and noted that the surveyor Vikas
Gupta submitted the details of the damage caused, but did not assess the
value of loss. The Petitioner appointed 2 nd Surveyor/Accessor M/S R.P. Bhasin
& Co. who assessed the loss to the tune of Rs.2,20,609.99/-. The surveyor
made reduction in the loss assessed and labour charges for which he did not
give any reasons.
9.
The
petitioner
repudiated
the
claim
as per IMT
–
47
i.e.,
the
loss or damage resulted by overturning arising out of the operation as a
tool, is not payable. Also extra premium was not charged in the present case.
We don’t find any force in argument of Counsel for Petitioner. We are in
considered
view
that it was the
landslide which caused the said L
&
T machine to fall down from the hill top and the damage was caused .It
is evident from the certificate of Sarpanch of the Gram Panchayat Ex.C-6.
The damage was not caused due to overturning and, therefore IMT-47 is not
applicable.
10. The Report as mentioned in 2nd surveyor’s report is “The parts mentioned as
to be checked after dismantling and hence not considered”;. Even though the
district forum made additions of value of those parts in the 1st surveyor’s
assessment and arrived a sum of Rs.502081/- .
11. We need to consider another point that the complainant sold the machine as
scrap without any repairs or dismantling for Rs.250000/-As per policy the
machine was insured for Rs.945000/-. As, no repairs were undertaken;
calculating the claim on repair basis inclusive of labour charges will be wrong
one. Therefore, it will be just and proper to calculate the complainant’s claim by
deducting the applicable depreciation and the salvage value from the insured
value. As follows:
Insured Value (IDV)
Less Depreciation(15%)
Rs.945000/Rs.141750/Rs.803250/-
Less Salvage Value
Net loss payable:
Rs.250000/Rs.553250/-
12. Therefore, we are of considered view that, there is deficiency in service on part
of Petitioner/OP who repudiated the claim. Accordingly, we modify the order of
State Commission of that OP the insurance company directed to pay
Rs.553250/- instead of 738500.76/- with interest @ 9% per annum from the
4/4/2006 i.e. the date of repudiation till payment. OP is further directed to pay
Rs.10,000/- as litigation charges. This order should be complied within 45 days
otherwise it will carry interest of 9% p.a. till the payment.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(Dr. S. M. KANTIKAR)
MEMBER
Mss/7-8
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2024 OF 2013
(From the Order dated 31.1.2013 in Appeal No. 1315/2010 of
Punjab State Consumer Disputes Redressal Commission, Chandigarh)
M/s Shiv Confectionary House Though its Sole
Amloh Road Mandi, Gobindgarh Punjab.
Proprietor
Shri Jagdish Kumar
Petitioner
Versus
1. Bajaj Allianz General Insurance Co. Through its Incharge Feroz Gandhi Market
Ludhiana Punjab.
2. HDFC Bank Through its Manager Incharge Mandi, Gobindgarh Punjab
Respondents
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
:
Shri Ram Ekbal Roy, Advocate
Pronounced on : 22nd August, 2013
ORDER
PER SURESH CHANDRA, MEMBER
The petitioner who is the original complainant in this case has filed this revision
petition challenging the order dated 31.1.2013 passed by the Punjab State Consumer
Disputes RedressalCommission, Chandigarh in FA No.1315 of 2010 whereby learned
State Commission allowed the first appeal filed by respondent No.1/opposite party No.1
and
set
aside
the
order
dated
23.4.2010
passed
by
learned
District
Consumer Redressal Forum, Fatehgarh Sahib in complaint No.88-A. The District Forum
vide its order had allowed the complaint of the petitioner. By itsimpugned order in
appeal, the State Commission reversed it by holding that it is proved that the premises
where the fire took place were not covered under the policy and hence the claim of the
petitioner was rightly repudiated by respondent No.1. Respondent No.2 is HDFC Bank
which was OP No.2 before the District Forum.
2.
Briefly put, the facts of this case which are relevant for disposal of this revision
petition are that the petitioner had obtained a cash credit limit from respondent No.2
Bank against the stock and the entire stock of the petitioner was hypothecated with
respondent No.2 Bank. It was pleaded that respondent No.2 Bank had arranged one
insurance policy from respondent No.1 insurance co. w.e.f. 26.4.2008 to 25.4.2009
covering the stock of the petitioner hypothecated with respondent No.2. A fire broke out
at the premises of the petitioner on 31.10.2008 and the stock of the premises got
damaged. The petitioner lodged claim with respondent No.1 for Rs.11 lakhs which came
to be repudiated by the respondent insurance co. on the ground that the location where
the stock was kept and where the fire took place was not covered under the insurance
policy.
According
to
the
complainant/petitioner,
the
respondent
No.2
Bank
had given the cash credit limit against the stock stored in the premises where the fire
broke up and thus the stock was clearly insured. It was also pleaded that the shop
which the respondent insurance co. is supposed to have insured is not capable of
holding the stock of the value of Rs.16 lakhs. It could hold stocks worth only Rs.2 lakhs.
Since the claim was repudiated, the petitioner filed a consumer complaint before the
District
Forum
alleging
deficiency
in
service
on
the
part
of
respondent
No.1 seeking directions to pay a sum of Rs.11 lakhs along with interest @ 18% p.a.
from 31.10.2008 besides cost and compensation.
3.
Upon notice, the respondents filed their written statement and contested the
complaint. Respondent No.1 pleaded that the liability of the insurance co. shall be as
per the terms and conditions of the policy as agreed to by the parties only if the property
insured described in the schedule, or any part of such property, is destroyed by any of
the specified perils during the period of insurance mentioned in the schedule. Admitting
the incident of fire having taken place and also receiving intimation about it, the
contention of the respondent insurance co. was that the location where the stock
damaged by the fire was kept was not covered by the insurance policy and as such the
insurance co. would not be liable to accept the claim and hence dismissal of the
complaint was prayed. Respondent No.2 Bank prayed that the complaint be dismissed
qua the respondent Bank because it had given only cash credit limit against the stock
but there is no liability of the bank and hence it cannot be burdened with any
compensation. The parties adduced evidence in support of their contentions and after
going through the pleadings and the material placed before it, the District Forum
allowed the complaint of the petitioner by directing respondent No.1/opposite party
No.1 to pay an amount of Rs.7,42,000/- with interest @ 7% from the date of filing of the
complaint till its realization. On appeal filed by the respondent insurance co., the State
Commission reversed the order of the District Forum and dismissed the complaint.
4.
The short issue which has arisen before us for our consideration is as to
whether the claim of the petitioner in respect of damage to the stock in fire stored at the
location not covered by the insurance policy can be allowed.
5.
We
have
heard
learned
petitioner and perused the record.
counsel Shri Ram Ekbal Roy, Advocate for the
6.
Learned counsel has submitted that the State Commission failed to appreciate
that the contention of the respondent/opposite party regarding non-covering of the
premised is not tenable. He pointed out that the State Commission should have
appreciated that the shop which the respondent No.1 purports to have insured is not
capable of holding the stock to the tune of Rs.16 lakhs. He further submitted that the
State Commission also ignored the fact that the respondent bank had given the limit
against the stock stored in the premises where the fire broke out and thus the stock was
clearly insured and hence the allegation of the insurance co. against the petitioner in
this regard was false. To support his contention, he submitted that monthly statement of
the stock was also given to the respondent bank with regard to the stock in question.
He, therefore, contended the premises insured was actually “M/s Shiv Confectionary
House Amloh Road, Mandi,Gobindgarh” and the fire which broke out in the premises
damage the goods therein and hence the claim should have been admitted by the State
Commission.
7.
We have given our anxious thought to the submissions of learned counsel. We
may note that the incident of fire and the assessment of loss on account of this fire as
reported by the surveyor are not under dispute. The main ground on which the State
Commission has reversed the finding of the District Forum is that under the policy in
question, a copy of which is placed at page 46 of the paper-book, only the shop of the
petitioner at Amloh Road, Mandi Gobindgarh, District Fetehgarh Sahib was covered by
the insurance policy. In view of this, the State Commission allowed the appeal because
it found that the location of the stock which got damaged in the fire was different from
the one covered by the policy. Perusal of the policy indicates that the location
description of the covered place is mentioned in the following terms:“Shop
AMLOH ROAD, MANDI GOBINDGARH, DIST. FETEHGARH SAHIB (PUNJAB)”
8.
The plea of the respondents Insurance Co. to the effect that only the shop
at Amloh Road, Mandi Gobindgarh, Dist. Fetehgarh Sahib is covered by the insurance
policy is further corroborated by the statement made by the respondent Bank to which
the petitioner was furnishing the stock statements because in these stock statements
there was no mention of location of the stock made by the petitioner. No evidence is
put up by the petitioner to dispute or contradict this aspect. In view of these aspects, the
State Commission, relying on the ratio of judgements of the Apex Court in the cases
of Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. [II (2009) CPJ
34 (SC) and General Assurance Society Ltd. Vs. Chandumull Jain &Anr. [AIR 1966
State Commission 1644], accepted the appeal and dismissed the complaint by its
impugned order.
9.
We agree with the view taken by the State Commission. As stated above, the
location description of the place covered does indicate that it is the shop
at Amloh Road, Mandi Gobindgarhwhich is covered and not any other place. The plea
of the petitioner regarding the damaged stocks being part of the stock statements
regularly submitted to the respondent Bank cannot provide any relief to the
petitioner because the respondent Bank itself has clarified that the stock statements did
not indicate the location of the stocks covered by the statements. We may note that
even if it is accepted for the sake of arguments that location was mentioned in the
statements submitted by the petitioner to the OP bank, this by itself cannot entitle the
petitioner to get the amount of his claim unless it is established that the stock damaged
was stored at the place covered by the policy. In the circumstances, the view taken by
the State Commission is in line with the law laid down by the Apex Court. The Apex
Court in the case of Vikram Greentech (I) Ltd. & Anr.(supra) has held thus:“16. 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.
17. 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 the
insurance policy, the insurer undertakes to indemnify the loss
suffered by the insured on account of the risks covered by the
insurance policy, its terms have to be strictly construed to
determine the extent of liability of the insurer.
18. 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 re-writing 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.”
(Emphasis provided by us)
10.
In the other case of General Assurance Society Ltd. (supra) also the Apex
Court has made similar observations which may be reproduced below:-
“……..In interpreting documents relating to a contract
of insurance, the duty of the court is to interpret the words in
which the contract is expressed by the parties because it is
not for the court to make a new contract, however
reasonable,
if
the
parties
have not made it themselves……………”
11.
In view of the aforesaid discussion and the settled position in law, we do not find
any infirmity in the impugned order which would call for our interference with it under
section 21(b) of the C.P. Act, 1986 which confers very limited powers on this
Commission while exercising its revisional jurisdiction under this section. We, therefore,
dismiss the revision petition in limine with no order as to costs.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………Sd/-….……………
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1645 OF 2008
(From the order dated 25.01.2008 in Appeal No.485 of 2004 of the Punjab State
Consumer Disputes Redressal Commission, Chandigarh)
State Bank of India Nabha Branch Distt. Patiala
… Petitioner/Opp. Parties (OP)
Versus
Smt. Sita Devi W/o Sh. Sham Lal House No. 43, Bank Street, Nabha, Distt. Patiala
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Sushil Kr. Singh, Proxy Advocate
For the Respondent
:
For Mr. S.L. Gupta, Advocate
Mrs. Radha, Amicus Curiae
PRONOUNCED ON 22nd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
25.01.2008 passed by the Punjab State Consumer Disputes RedressalCommission,
Chandigarh (in short, ‘the State Commission’) in Appeal No. 485 of 2004 – State Bank
of India Vs. Smt. Sita Devi by which, while deciding appeal, order of District Forum
allowing complaint was upheld, but some liberty was given to the petitioner.
2.
Brief facts of the case are that complainant/respondent received cheque No.41648
dated 16.3.2002 for an amount of Rs.30,952/-. Complainant deposited cheque with
OP/petitioner for encashment, but amount was not credited in complainant’s account for
long time. On 5.7.2002, complainant made written request to OP/petitioner to look into
the matter and credit the amount in her bank account and OP/petitioner assured that
cheque amount shall be credited in her Bank Account. On 19.9.2002, OP/petitioner
informed the complainant that cheque was lost in transit. Alleging deficiency on the part
of OP/petitioner, complainant filed complaint before District Forum. OP/petitioner
resisted complaint, but admitted presentation of cheque by complainant and submitted
that cheque was sent through courier for collection and after sometime, OP/petitioner
received communication from Hardoi Branch where cheque was sent for collection, that
cheque in question was lost in transit and intimation was given to the complainant vide
letter dated 19.9.2002. It was further submitted that there was no deficiency on the part
of OP; hence, complaint be dismissed. Learned District Forum after hearing both
the parties, allowed complaint and directed OP to credit the cheque amount in
complainant’s SB A/c. along with Rs.500/- as cost. It was further observed by District
Forum that OP will be at liberty to initiate proceedings against postal authorities or may
approach drawer of the cheque for issuance of duplicate cheque in the name of
complainant. Appeal filed by OP was dismissed by leaned State Commission vide
impugned order and petitioner was given liberty to recover cheque amount from Food
and Supplies Department of U.P., Lucknow who had issued cheque against which, this
revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that, as there was no deficiency on
the part of petitioner, learned State Commission has committed error in dismissing
appeal and learned District forum committed error in allowing complaint; hence, revision
petition be allowed and impugned order be set aside. On the other hand, learned
Counsel for the respondent submitted that impugned order is consent order passed on
the request of petitioner, which cannot be assailed and order passed by learned State
Commission is in accordance with law; hence, revision petition be dismissed.
5.
It is admitted case of the parties that complainant deposited cheque for collection
with the OP and OP sent cheque for collection, which was lost in transit. Cheque dated
16.3.2002 was presented for encashment on 28.3.2002, but OP intimated to the
petitioner about loss of cheque in transit by letter dated 19.9.2002 by which time validity
of period of cheque had already expired.
6.
Learned Counsel for the petitioner submitted that inspite of deficiency in not
crediting amount of cheque in respondent’s account, petitioner can be held liable for
some compensation, but cannot be directed to credit the amount of cheque. In support
of
his
arguments,
he
has
placed
reliance
on
R.P.
No.
5
of
2005
–
Shri A.P. Bopanna Vs. Kodagu District Co.OP. Central Bank decided on 17.12.2008
by this Commission in which it was held that if a cheque is lost in transit, bank cannot be
held liable for the cheque amount. We agree with this view and in normal course, bank
cannot be directed to credit cheque amount, but looking to the facts and circumstances
of the case, this revision petition is liable to be dismissed on the following grounds:
i)
Firstly, validity of cheque expired before 19.9.2002 when petitioner
informed to the respondent about loss of cheque in transit.
ii)
Secondly, impugned order has been passed by learned State Commission
as per request of their Counsel, which runs as under:
“The learned counsel for the appellants further submits that
the cheque no. 41648 dated 16.3.2002 for an amount of
Rs.30,952/- was issued by the Secretary, Food & Supplies,
Government of U.P., Lucknow, and therefore, the appellants be
permitted to get the said amount from the department. It was
further submitted that the appellants have already deposited a sum
of Rs.17,016.50 with this Commission at the time of filing the appeal
and the judgment of the District Forum be modified accordingly by
which the appellants have been directed to credit the cheque
amount in the bank account of the respondent.
After hearing the submission of the learned counsel for the
parties, we modify the judgment of the learned District Forum dated
17.3.2004 to the extent that the amount of Rs.17,016.50 would be
taken out of the cheque amount of Rs.30,952/- and remaining
amount would be credited in the account of the respondent within
45 days after the receipt of copy of this order. The amount of
Rs.17,016.50deposited by the appellants with this Commission be
remitted to the complainant with interest, if any, by way of crossed
cheque/bank draft. The appellants would be at liberty to recover the
said amount from the Food & Supplies Department, Government of
U.P., Lucknowwho had issued cheque no. 41648 dated 16.3.2002
for an amount of Rs.30,952/- in favour of Sita Devi as the appellants
have made the payment of this cheque to Sita Devi and they have
stepped into the shoes of Sita Devi. A copy of this order be also
sent to the Secretary, Food & Supplies Department, Government of
U.P., Lucknow for necessary compliance”.
Apparently, this is consent order passed by learned State Commission on
the request of petitioner’s counsel, which cannot be assailed in revision
petition.
Thirdly, cheque has been issued by Food and Supplies Department,
Government of U.P., Lucknow and petitioner has already been permitted
to recover the cheque amount from the aforesaid Government Department
and in such circumstances, merely by making payment of cheque amount
to complainant who is an old lady, petitioner will not suffer any loss
because petitioner has stepped into the shoes of respondent and can
easily get duplicate cheque from aforesaid Food and Supplies Department
and recover money.
7.
In the light of aforesaid discussion, we do not find any illegality, irregularity or
jurisdictional error in the impugned order and revision petition is liable to be dismissed
and payment may be credited as directed by District Forum subject to submitting
affidavit by complainant that he has so far not received money against the disputed
cheque.
8.
Consequently, revision petition filed by the petitioner is dismissed with no order as
to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1300 OF 2012
(From the order dated 17.08.2011 in First Appeal No. 964/2007
of Haryana State Consumer Disputes Redressal Commission)
WITH
I.A. No. 1/ 2012
(FOR CONDONATION OF DELAY)
Sh. Jai Singh s/o Sh. Munshi Singh r/o V. & P.O. Luhari Jatu District Bhiwani Haryana
... Petitioner
Versus
Dr. Satish Khurana c/o M/s Khurana Hospital Loharu Road, Bhiwani District Bhiwani
Haryana
… 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. Yashwant Singh, Advocate
PRONOUNCED ON : 22nd AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 17.08.2011
passed by the Haryana State Consumer Disputes Redressal Commission (for short ‘the
State Commission’) in FA No. 964/2007, “Dr. Satish Khurana versus Jai Singh” vide
which, while allowing appeal, the order passed by the District Consumer Disputes
Redressal Forum, Bhiwani, allowing the complaint was set aside and consumer
complaint no. 603/2003 filed by the present petitioner/complainant was ordered to be
dismissed.
2.
Brief facts of the case are that respondent/OP Dr. Satish Khurana held an eye
camp in village Luhari Jatu, District Bhiwani, Haryana, where the complainant was
advised by the OP Doctor to visit his hospital at Bhiwani for operation of his eye and
implanting lens in the eye. The very next day, the complainant visited the hospital of OP
No. 1 Bhiwani and got himself operated and paid a sum of Rs.1,550/- to the Doctor. It
has been alleged by the complainant that the lens was implanted during the operation of
the eye, but after this procedure, his eye was totally damaged. The complainant filed
consumer complaint no. 603/2003 before the District Forum, claiming a compensation
of Rs.5 lakh from the respondent/OP. The OP took the stand that the complainant had
never been operated by him nor did he implant lens in his eye. The District Forum vide
their order dated 06.03.2007 allowed the complaint and directed the OP Doctor to pay a
sum of Rs.1.5 lakh, along with litigation fee of Rs.1,000/-. An appeal filed against this
order was, however, allowed by the State Commission vide their order dated
17.08.2011 and the complaint was ordered to be dismissed. It is against this order that
the present revision petition has been filed.
3.
At the time of hearing before us, the learned counsel for the petitioner was asked
to explain the delay of 97 days in filing the revision petition. The learned counsel has
drawn our attention to the application for condonation of delay filed under section 5 of
the Limitation Act along with the revision petition, in which it has been stated that the
petitioner is an old-age person and that he lost his right eye due to the negligence of the
Doctor and now he is living in hardship due to lack of vision and lack of physical
strength. The petitioner could not contact his counsel at Chandigarh due to old-age
ailments. When he came to know about the fate of the case decided by the State
Commission, he tried to obtain certified copy of the order passed by the State
Commission. It has further been stated that the petitioner took time to arrange money
for filing the revision petition and under these circumstances, the said delay occurred.
4.
We have given a thoughtful consideration to the arguments advanced before us
and perused the record. The reasons cited by the petitioner in his application for
condonation of delay, or at the time of arguments, do not appear to be convincing by
any yardstick. The impugned order was passed in the presence of the counsel for the
petitioner/complainant and hence he is supposed to be in knowledge of the said
order. It has been stated in the copy of the order of the State Commission, filed with the
revision petition that the certified copy of the order was given free of cost to the counsel
of the party on 21.09.2011. Another duplicate copy was given on 16.1.2012. It is clear,
therefore, that after receiving the copy of the order on 21.09.2011, the petitioner did not
file his revision petition within the prescribed time.
5.
It has been observed by the Hon’ble Apex Court in a number of recent judgements
that unless cogent and convincing reasons are given for condonation of delay in filing a
revision petition, the same should not be condoned. Reference may be given to the
orders passed by the Apex Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009
(2) Scale 108, where 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.”
6.
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.”
7.
Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as
under;
“We have considered the respective submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the
remedy within the stipulated time.”
8.
Hon’ble Apex
Court
in
(2012)
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.
9.
Hon’ble Apex
Court
in
2012
Ansul Aggarwal Vs. New Okhla Industrial
(2)
CPC
Development
3
(SC)
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”.
10. As discussed above, in the present case, no convincing explanation has been
given for the inordinate delay in filing the revision petition. The reason given that the
petitioner could not arrange funds in time for filing the revision petition does not appear
to be a valid reason at all. Under the circumstances, the application for condonation of
delay is ordered to be rejected and consequently, the revision petition is also 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. 2668 OF 2011
(From the order dated 03.06.2011 in First Appeal No. 224/2010
of Rajasthan State Consumer Disputes Redressal Commission)
TATA AIG General Insurance Co. Ltd. 104, Brij Anukampa, Ashok Marg, C-Scheme,
Jaipur Rajasthan
... Petitioner(s)
Versus
Narender Kumar s/o Shri Ganesh Verma r/o Near Railway Line, Naya Bans Takarda,
Tehsil Chowmud District Jaipur 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 ARGUMENTS
For the Petitioner(s)
Mr. K.L. Nandwani, Advocate
For the Respondent
NEMO
PRONOUNCED ON : 22nd AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 03.06.2011
passed by the Rajasthan State Consumer Disputes Redressal Commission (for short
‘the State Commission’) in FA No. 224/2010, ‘TATA AIG General Insurance Co. Ltd.
versus Narender Kumar’ vide which, while dismissing appeal, the order dated
27.11.2009, passed by the District Consumer Disputes Redressal Forum, Jaipur in
consumer complaint no. 888/2009, allowing the complaint was upheld.
2.
Brief facts of the case are that the complainant Narender Kumar insured his cow
for a sum of Rs.25,000/- under the scheme launched by the petitioner/OP, Tata AIG
General Insurance Co. in the month of February 2008. The cow was tagged vide no. B34779/-. The said cow got sick on 4.09.2008, but could not recover and expired on
06.09.2008. The complainant informed Mr. Lalit Sharma, an employee of the OP and
handed over tag no. B-34779 to him. He also filed his claim along with the documents,
but despite many telephone calls and personal visits, the claim was not
sanctioned. The complainant filed a complaint before the District Forum. The District
Forum vide their order dated 27.11.2008, allowed the complaint and ordered the OP to
pay a sum of Rs.25,000/- along with Rs.2,000/- as damages for mental agony and
Rs.1,000/- as cost of litigation. An appeal against this order was dismissed by the State
Commission vide their order dated 03.06.2011. The present revision petition has been
filed against this order.
3.
At the time of hearing before us, learned counsel for the petitioner contended that
the impugned order dated 03.06.2011 was not a speaking order and seems to have
been passed without due application of mind. It was the duty of the State Commission
to have analysed the facts of the case and then give reasons for coming to their
conclusion. The matter, therefore, required a re-look by the State Commission and their
plea should be properly heard and decided.
4.
An examination of the order passed by the State Commission reveals that the said
Commission has not given any reasons for coming to the conclusion for dismissing the
appeal. The order passed by the State Commission reads as follows:“Heard arguments. Records perused. Keeping in view the facts
and circumstances of the case, we do not find any necessity to
interfere with the order dated 27.11.2009 passed by the District
Forum in complaint No. 888/2009 and thus the appeal of the
appellant is liable to be dismissed.
Resultantly, the order dated 27.11.2009 passed by the District
Forum in complaint No. 888/2009 is hereby up-held and appeal
of the appellant is hereby dismissed.”
5.
Under the Consumer Protection Act, 1986, the right of appeal has been given
under section 15 of the Act. It is the duty of the appellate authority to provide proper
hearing to the parties in question and then give cogent reasons after analysing the facts
and circumstances of the case for coming to a conclusion. In the present case, no such
reasons have been advanced by the State Commission and the appeal has been
dismissed without discussing the merits of the case.
6.
In the light of these facts, there is no alternative but to set aside the order passed
by the State Commission and we order accordingly. The revision petition is allowed and
the case is remanded to the State Commission with the directions that the parties
should be heard again and a detailed speaking order passed after giving detailed
reasons for coming to the conclusion. 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. 2770 OF 2006
(From the order dated 23.06.2006 in Appeal No.226 of 2005 of the Chhattisgarh State
Consumer Disputes Redressal Commission, Raipur)
1. Smt. Laxmania Prajapati W/o Late Shri Kailash Prajapati
2. Shri Shesh Kumar
3. Master Gore Lal Both Sons of Late Shri Kailash Prajapati All R/o Karanji,
PO: Karanji Tehsil-Surajpur, Sarguja, Chattisgarh.
… Petitioners/Complainants
Versus
1. The Oriental Insurance Co. Ltd. Div. Office, Behind Normal School,
Bilkaspur (Chhatisgarh) And also at: The Oriental Insurance Co. Ltd. Div. Office
No.1, Madina Manzil, Jail Road, Raipur, Chattisgarh
2. Sub Area Manager S.E.C.L. Bhatgaon, P.O. Bhatgaon, Tehsil Surajpur, Sarguja,
Chhattisgarh.
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
Advocate
For the Respondents
:
Mr. Mohd. Anis Ur. Rehman,
:
NEMO
PRONOUNCED ON 23rd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/Complainants against the
order dated 23.6.2006 passed by the State Consumer DisputesRedressal Commission,
Chhattisgarh (in short, ‘the State Commission’) in Appeal No. 226/05 – Oriental Ins. Co.
Ltd. Vs. Kailash Prajapati by which, while allowing appeal, order of District Forum
allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner Kailash Prajapati was an
employee OP No. 2/Respondent No.2 and joined group Janata accident personal policy
issued by OP-1/Respondent No.1 for Rs.2,50,000/-. Premium was deducted from
complainant’s salary on 31.10.2001. Complainant sustained head injury in an accident
and lost one eye. Complainant lodged claim with OPs which was repudiated by OP
No.1. Alleging deficiency on the part of OPs, complainant filed complaint before District
Forum. OPs contested complaint and OP No. 1 submitted that intimation of accident
was given to it belatedly on 8.3.2002. OP No. 2 submitted that no intimation of accident
was given to it and prayed for dismissal of complaint. Learned District forum after
hearing both the parties, allowed complaint and directed OP No. 1 to pay Rs.2,50,000/along with interest and cost of Rs.1,000/-. OP No. 1 filed appeal before the State
Commission and learned State Commission vide impugned order allowed appeal and
dismissed complaint against which, this revision petition has been filed. During
pendency of revision petition, petitioner- Kailash Prajapati died and his wife and children
being legal representative of Kailash Prajapati were taken on record.
3.
None appeared for the respondent even after service. Heard learned Counsel for
the petitioner who submitted that as deceased Kailash Prajapati was covered by the
insurance policy and lost one eye in the accident, District Forum rightly allowed
complaint and learned State Commission has committed error in allowing appeal;
hence, revision petition be allowed and impugned order be set aside.
4.
Perusal of record clearly reveals that complainant Kailash Prajapati was covered
by group Janata personal insurance policy finalised between OP No. 1 & 2 for
Rs.5,00,000/- and complainant’s risk was covered to the extent of Rs.2,50,000/- on loss
of one limb or one eye.
5.
Perusal of disability certificate issued by District Medical Board clearly reveals
that Kailash Prajapati sustained 30% disability in his eye and complainant could not
prove the fact that he lost complete vision in one eye due to accident. As per terms and
conditions of the policy, Kailash Prajapati was entitled to benefits of the insurance
coverage only on loss of one eye, whereas Kailash Prajapati’s loss of vision was only
30% and as such, he was not entitled to get any insurance benefits under the
policy. Learned Counsel for the petitioner could not draw our attention to any other
medical report on account of which, it can be held that Kailash Prajapati suffered
complete loss of vision in one eye and in such circumstances; order passed by learned
State Commission is in accordance with law, which does not call for any interference.
6.
Consequently, revision petition filed by the petitioner is dismissed with no order as
to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 67 OF 2011
(From the order dated 25.08.2010 in Appeal No.136 of 2010 of the State Consumer
Disputes Redressal Commission, U.T. Chandigarh)
National Insurance Company Ltd. Delhi Regional Office – 1, Jiwan Bharti Building
Tower II Level-IV,124, Connaught Circus New Delhi – 110001
Also at National Insurance Co. Ltd. Divisional Office No. 1, 2nd Floor, SCO No.133-134135 Sector 17-C, Chandigarh
… Petitioner/Opposite Parties (OP)
Versus
Sanjeev Kumar S/o Sh. Tek Chand R/at House No. 1122 Sector 49-B Pushpac
Complex Chandigarh
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Hetu Arora Sethi, Advocate
For the Respondent
:
In person
PRONOUNCED ON
23rd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
25.08.2010 passed by the State Consumer Disputes Redressal Commission, U.T.
Chandigarh (in short, ‘the State Commission’) in Appeal No. 136/10 – Sanjeev Kumar
Vs. National Ins. 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 No. CH04-B-4076
was insured by OP/respondent for one year commencing from 21.6.2008 to
20.6.2009. Car met with an accident on the intervening night of 20/21.8.2009 and
vehicle was damaged in the accident. As compromise was entered into between the
complainant and other offending vehicle, no FIR was lodged, but intimation was given to
the OP. OP appointed surveyor, but claim of the complainant was repudiated on the
ground that licence of the complainant was not valid for car/jeep who was driving
vehicle at the time of accident. Alleging deficiency on the part of OP, complainant filed
complaint before District Forum. OP contested complaint and submitted that on
verification, the licence was not found valid for driving car; hence, claim was rightly
repudiated and prayed for dismissal of the complaint. Learned District Forum after
hearing both the parties dismissed complaint and gave opportunity to the complainant to
agitate the matter before civil court. On appeal filed by the complainant, learned State
Commission vide impugned order allowed complaint and directed OP to make payment
of Rs.55,875/- being 75% of the total claim on sub-standard basis against which this
revision petition has been filed.
3.
Heard learned Counsel for the petitioner and respondent in person finally at
admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as complainant was not
possessing driving licence for driving car at the time of accident, learned District Forum
rightly dismissed complaint, but learned State Commission has committed error in
allowing complaint; hence, revision petition be accepted and impugned order be set
aside. On the other hand, respondent submitted that his driving licence is valid for
driving Scooter/motor cycle/car/jeep and order passed by learned State Commission is
in accordance with law; hence, revision petition be dismissed.
5.
The short question to be decided in this revision petition is whether complainant
was possessing valid driving licence for driving car at the time of accident or
not. Petitioner has filed copy of duplicate licence issued by Licensing Authority,
Chandigarh in favour of complainant on 11.8.1997 and his Licence No. is
290501. Complainant himself made certain queries from Licensing Authority,
Chandigarh vide application dated 3.2.2010 regarding verification of his aforesaid
licence issued on 11.8.1997 and Licensing Authority informed to the complainant on
11.2.2010 that his licence was only for scooter/motor cycle. It appears that OP also
obtained verification certificate of complainant’s driving licence from Licensing Authority
and Licensing Authority vide letter dated 17.9.2009 apprised that licence no. 290501
dated 11.8.1997 issued in the name of Sanjeev Kumar has been issued only for
scooter/Motor cycle. In such circumstances, it cannot be held that disputed driving
licence was granted for driving car/jeep also. Respondent during the course of
arguments submitted that he has not forged driving licence, but verification certificate
issued by the Licensing Authority and reply to queries of complainant made by
Licensing Authority based on their record can also not be disputed and in such
circumstances, it can be held that complainant was not having licence for driving
car/jeep on the date of accident.
6.
When complainant was not possessing valid driving licence at the time of
accident, OP/petitioner has not committed any deficiency in repudiating claim in the light
of judgment of this Commission in III (2008) CPJ 191 (NC) – United India Insurance
Company Vs. Arjun Kumar, III (2010) CPJ 256 (NC) –National Insurance
Company Vs. Sansar Chand and as held by Hon’ble Apex Court in II (2006) CPJ 8
(SC) – National Insurance Co. Ltd. Vs. Kusum Rai & Ors.
7.
Learned State Commission has allowed claim on non-standard basis which is not
in accordance with law in the light of aforesaid judgements. If complainant was not
possessing valid driving licence at the time of accident, the complainant is not entitled to
get any compensation in respect of damages to the vehicle even on sub-standard basis.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 25.8.2010 passed by leaned State Commission in Appeal No. 136 of 2010
– Sanjeev Kumar Vs. Natinal Ins. Co. Ltd. is set aside and order of District Forum dated
23.2.2010 is affirmed.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4030 OF 2012
(From the order dated 07.08.2012 in Appeal No.12/2012 of the State Consumer
Disputes Redressal Commission, Haryana)
1. Lucky Mittal
2. Rajnish Mittal Both S/o Sh. Nathi Ram R/o House No. 67, Ward No.3 Civil
Hospital, Ladwa Tehsil Thanesar, Distt. Kurukshetra (Haryana)
… Petitioners/Complainants
Versus
Oriental Insurance Company Ltd. Regional Office LIC Building, 2nd Floor,
Jagadhri Road, Ambala Cantt., (Haryana) (Through its Regional Manager)
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Mr. Anil Mittal, Advocate
For the Respondent
: Mr. Rajesh K. Gupta, Advocate
PRONOUNCED ON
23rd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/complainants against the
order
dated
07.08.2012
passed
by
the
State
Consumer
DisputesRedressal Commission, Haryana (in short, ‘the State Commission’) in Appeal
No. 12 of 2012 – The Oriental Ins. Co. Ltd. Vs. Lucky Mittal & Anr. by which, while
allowing appeal, order of District Forum allowing complaint was set aside.
2.
Brief
facts
of
the
case
are
that
complainant/petitioner
got
his
vehicle Toyata Qualis HR-51-J-0537 insured from OP/respondent for a period of one
year commencing from 15.7.2006 to 14.7.2007. On the intervening night of
15/16.4.2007, vehicle was stolen and FIR was lodged. Intimation was given to
OP. Required documents were submitted to OP, but OP repudiated claim. Alleging
deficiency on the part of OP, complainant filed complaint before District forum. OP
resisted complaint and submitted that as vehicle has been recovered by police, the
claim was not payable and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties, allowed complaint and directed OP to pay Rs.2,00,000/as value of the vehicle and Rs.5,000/- for mental harassment along with 6% p.a.
interest. Appeal filed by the OP was allowed by learned District Forum vide impugned
order against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that first complaint was filed within
limitation; even then, learned State Commission has committed error in allowing appeal
and dismissing complaint on the ground that complaint was time barred; 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, which does not call for any interference; hence, revision
petition be dismissed.
5.
Perusal of record reveals that insured vehicle was stolen on 15/16.4.2007 and
claim was repudiated by OP on 3.5.2008. Complainant filed first complaint on
23.5.2008. Complainant moved application before District forum on 27.9.2010 and
prayed that on technical grounds he wants to withdraw the complaint and he may be
permitted to file fresh complaint. On the same day, learned District forum dismissed
complaint as withdrawn in view of the submission of Counsel for the complainant. Later
on, complainant filed present complaint on 23.11.2010, which was held to be barred by
limitation by learned State Commission.
6.
Learned Counsel for the petitioner submitted that as first complaint was filed within
period of limitation and that complaint was withdrawn with permission to file fresh
complaint; hence, subsequent complaint filed on 23.11.2010 is well within limitation. On
the other hand, learned counsel for the respondent submitted that as per order dated
27.9.2010 permission was not granted to the complainant to file fresh complaint; hence,
subsequent complaint filed on 23.11.2010 cannot be constituted a complaint filed with
permission.
7.
Learned Counsel for the petitioner placed reliance on AIR 2009 SC 806 –
Vimlesh Kumari Kulshrestha Vs. Sambhajirao & Anr. in which it was observed as
under:
“An application for withdrawal of suit was made, seeking liberty to
file a fresh suit. The order passed by the court was that 'The
application is, therefore, allowed while permitting the plaintiff to
withdraw the suit'. It was held that this should be construed as an
order also granting liberty, as prayed. The court cannot split the
prayer made by the applicant."
8.
In the light of aforesaid citation, it becomes clear that District Forum allowed
complainant to withdraw the complaint and impliedly permitted complainant to file fresh
complaint and subsequent complaint dated 23.11.2010, in compliance to order dated
27.9.2010 cannot be treated a fresh complaint as first complaint was filed on 23.5.2008
well within limitation from the date of repudiation and learned State Commission has
committed error in allowing appeal and dismissing complaint being barred by limitation.
9.
In the light of aforesaid discussion, revision petition is to be allowed and matter
has to be remanded back to learned State Commission for deciding appeal on other
grounds submitted in Memo of Appeal.
10.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 7.8.2012 passed by the learned State Commission in Appeal No. 12 of
2012 – Lucky Mittal & Anr. Vs. Oriental Ins. Co. Ltd. is set aside and matter is remanded
back to learned State Commission to decide the matter fresh after giving an opportunity
of being heard to both the parties treating complaint within limitation.
11.
Parties
are
directed
to
appear
before
Haryana
State
Consumer
Disputes Redressal Commission at Panchkula on 23.9.2013
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2614 OF 2013
With
IA/4417/2013 (For stay)
(From the order dated 03.05.2013 in Appeal No. A/10/1304 Maharashtra State
Consumer Disputes Redressal Commission, Mumbai)
1. M/s. S.S. Construction A Partnership firm having its place of business At Sushanti,
54/55, 50A, D’souza Colony College Road, Nasik -5
2. M/s. Shibu Gopalkrishnan Nair Partner of M/s. S.S. Construction Age:39, Occupation
: Business Sona, Plot No. 57, D’souza Colony Gangapur Road, Nasik
… Petitioners/Opposite Parties(OP)
Versus
1. Mr. Mathew Varghese Aged: 43 years, Occupation: Service Residing at 12, Ebenzer
Bldg., 13th Road, Chembur, Mumbai – 71 Through its Power of attorney holder Shri
Eapen Mathew aged 38 years of Mumbai Indian Inhabitant Residing at 1/11, Nityanan
Nagar No. 4, S.N. Marg, Andheri East Mumbai - 69.
2. Mr.Shailender Arvind Sukhatankar Age: 50, Occupation: Business R/o Sushanti,
54,55, 56A, D’souza Colony College Road, Nasik
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Mr. Rajesh Kumar Verma, Advocate
PRONOUNCED ON
23rd August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioners/OP against the order dated
03.05.2013 passed by the Maharashtra State Consumer Disputes Redressal
Commission, Mumbai (in short, ‘the State Commission’) in Appeal No. A/10/1304 –
Mathew Varghese & Anr. Vs. M/s. S.S. Construction & Anr. by which, while allowing
appeal, order of District Forum dismissing complaint was set aside and complaint was
allowed.
2.
Brief facts of the case are that complainants/respondent No.1 purchased two flats
bearing Nos. 6 & 8 in a building constructed and developed by OPs. Complainant paid a
sum of Rs.9,43,000/- from time to time and balance of Rs.26,676/- was to be paid at the
time of possession along with Rs.30,000/- for the terrace. It was further alleged that
OPs failed to execute written agreement and also failed to deliver possession. Alleging
deficiency on the part of OPs, complainant filed complaint. OP contested that
agreement had been terminated vide letter dated 10.2.2004 and complainant was asked
to collect the money and prayed for dismissal of complaint. Ld. District Forum after
hearing both parties dismissed complaint. Appeal filed by the complainant was allowed
by State Commission vide impugned order and Ld. State Commission directed OP to
handover possession of Flat Nos. 6 & 8 after taking Rs.26,676/- towards balance
amount and Rs.30,000/- for terrace or in the alternate, to refund Rs.9,69,676/- to the
complainant along with interest @ 24% p.a. from 20.10.2008 i.e. date of filing of the
complaint till its realization.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Ld. Counsel for the petitioner submitted that he presses revision petition only to
the extent of award of interest @ 24% p.a. from 20.10.08 and petitioner is ready to
refund original amount as ordered by learned State Commission.
5.
Perusal of record clearly reveals that complainant made last payment in June,
2000 and later on as per statement of OPs agreement was terminated in 2001 and
asked complainant to collect the money paid by him. Learned Counsel for the petitioner
during the course of arguments submitted that petitioner has sold these flats to other
persons in 2006. In such circumstances, it becomes clear that petitioner was enjoying
fund of the respondent/complainant from 2000 to 2008 and at the same time, also
enjoyed fund received from sale of flats in 2006. Learned State Commission has
directed petitioner to refund money along with 24% p.a. interest only from 20.10.2008
and has not granted interest from the date of making payment. As no interest has been
awarded from June, 2000 to 19.10.2008, grant of 24% p.a. interest from 20.10.2008 till
realization cannot be said to be unreasonable.
6.
We do not find any infirmity, irregularity, illegality or jurisdictional error in the
impugned order and revision petition is liable to be dismissed at admission stage.
7.
Consequently, revision petition filed by the petitioner is dismissed 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. 1025 OF 2012
(From the Order dated 11.05.2011 in F.A. No. 2544/2004 of
the Haryana State Consumer Disputes Redressal Commission, Panchkula)
Shri Ram Kumar S/o Sh. Mange Ram R/o House No.1247, Sector-09 Urban Estate
Karnal
Petitioner
Versus
1. Uttari Haryana Bijili Vitran Nigam Through its Sub Divisional Officer S/U Division,
Near Satian Wala Mandir Model Town Karnal
2. U.H.B.V.N.L Through its Shakti Bhawan Sector-06, Panchkula
Respondents
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
:
In Person
Pronounced on : 23rd August, 2013
PER SURESH CHANDRA, MEMBER
Challenge in this revision petition is to the order dated 11.5.2011 passed by the
State Consumer Disputes Redressal Commission, Haryana, Panchkula (‘State
Commission’ for short) in F.A. No.2544 of 2004 by which the State Commission
reversed the order of the District Forum, Karnal, allowed the appeal of the respondents
and dismissed the complaint. The impugned order of the State Commission may be
reproduced thus:-
“From the documents produced on record, it is a well proved case
of theft of energy in a novel way adopted by the complainant and
as such the penalty imposed upon the complainant by the opposite
parties for committing theft of energy causing loss to the State
Exchequer, cannot be termed as “deficiency of service”. The
District Forum at the time of passing the order dated 30.6.2004 has
not considered all these aspects and as such the impugned order
is not sustainable in the eyes of law.”
2.
We have heard the petitioner who appeared in person and perused the record.
We may note that in this case, on the basis of a checking report, a notice of
assessment vide memo No.4167/CA dated 1.9.2013 after assessing an amount of
Rs.32,170/- for theft of electricity energy was sent to the petitioner / complainant. The
petitioner after allegedly accepting his liability in the matter, deposited 70% of the
penalty amount as per Sales Circular No.U-16/2003 (theft case) after which the
respondents treated the offence of theft against the petitioner as compounded and the
matter stood settled as per the rules and regulations of the respondents. However, later
on he chose to file a consumer complaint in the matter against the respondents before
the District Forum which was allowed by the District Forum vide its order dated
30.6.2004. This order of the District Forum, as stated above, came to be set aside in
appeal by the State Commission vide its impugned order by which the consumer
complaint was dismissed.
3.
In view of the order passed by the Hon’ble Supreme Court in U.P. Power
Corporation Ltd.and Ors. Vs. Anis Ahmad (Civil Appeal No.5466 of 2012 decided
on 1.7.2013), the complaint filed in the present case before the District Forum under the
Consumer Protection Act, 1986 is not maintainable. Accordingly, without going into the
merits of the revision petition, we dismiss the consumer complaint with liberty to the
petitioner to seek appropriate remedy available to him before the appropriate Forum.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………Sd/-……..………..
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1672 OF 2012
(From the order dated 31.10.2011 in R.P. No.43/2010 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
HARMINDER KAUR D/O S. NIHAL SINGH R/O H. NO.255, SECTOR-35A,
CHANDIGARH.
.….. PETITIONER
Versus
1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEFADMINISTRATOR, SECTOR-6, PANCHKULA.
2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,
SECTOR-6, PANCHKULA.
....... RESPONDENTS
REVISION PETITION NO.1673 OF 2012
(From the order dated 31.10.2011 in R.P. No.44/2010 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
MANDEEP KAUR D/O S. GURMUKH SINGH R/O H. NO.255, SECTOR-35A,
CHANDIGARH.
.….. PETITIONER
Versus
1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEFADMINISTRATOR, SECTOR-6, PANCHKULA.
2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,
SECTOR-6, PANCHKULA.
....... RESPONDENTS
REVISION PETITION NO.1697 OF 2012
(From the order dated 31.10.2011 in F.A. No743/2009 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
HARMINDER KAUR S/O S. NIHAL SINGH R/O H. NO.255, SECTOR-35A,
CHANDIGARH.
.….. PETITIONER
Versus
1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEFADMINISTRATOR, SECTOR-6, PANCHKULA.
2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,
SECTOR-6, PANCHKULA.
....... RESPONDENTS
AND
REVISION PETITION NO.1698 OF 2012
(From the order dated 31.10.2011 in F.A. No.744/2009 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
MANDEEP KAUR D/O S. GURMUKH SINGHR/O H. NO.255, SECTOR-35A,
CHANDIGARH.
.….. PETITIONER
Versus
1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS CHIEFADMINISTRATOR, SECTOR-6, PANCHKULA.
2. ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY,
SECTOR-6, PANCHKULA.
....... RESPONDENTS
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: Mr.Gurmukh Singh, A.R. of the petitioner
For the Respondents : Mr.Sudhir Bisla, Advocate
PRONOUNCED ON: 26th AUGUST, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
By this order we propose to dispose of above noted four revision petitions
involving similar question of law and facts.
2.
Briefly put facts relevant for the disposal of these revision petitions are that the
petitioners Harminder Kuar and Mandeep Kaur moved two applications each for
allotment of plot in Sector 28, Panchkula, Haryana under the scheme floated by the
OPs in the year 2006. Along with the application forms, the requisite earnest money
was deposited. As per the scheme, the allotment was to be done by draw of lot. The
draw of lot took place on 19.06.2006. Both the petitioners were not successful in the
draw of lot. It is alleged that the OPs failed to refund the earnest money despite of
several letters written to them. Ultimately, the earnest money was refunded without
interest on 26.06.2008. The petitioners thus filed separate consumer complaints
claiming that the failure of the OPs to pay interest on the earnest money retained for
almost two years to be deficiency in service.
3.
The OPs/respondents admitted that the petitioners applied for the allotment of
plots and deposited the earnest money. However, according to the OPs, they have
not committed any deficiency in service because the cheques for refund after the
draw of lot were sent to the petitioners at their address H.No. 255, Sector 35-A,
Chandigarh by Registered A.D. Post but the cheques received back unclaimed. The
OPs also raised a preliminary objection that the complainants have no locus standi
to file the consumer complaints.
4.
The District Forum, Panchkula rejected the pleas of the OPs and allowed the
complaints. The OPs were directed to pay the respective complainants interest @
9% w.e.f. 20.09.2006 to 20.06.2008 when the refund was actually made.
5.
Shri Gurumukh Singh, A.R. of the petitioners has contended that the State
Commission has fallen a grave error by holding that the petitioners are not the
consumers as envisaged in the definition under Section 2 (1) (d) of the Consumer
Protection Act, 1986. Expanding on the arguments of A.R. for the petitioners that
the State Commission failed to appreciate that pursuant to the advertisement of the
OPs, the petitioners had applied for allotment of plot and deposited earnest money
along with their respective applications and therefore, it is clear case of hiring the
service of the OPs and the petitioners squarely fall within the definition of
‘consumer’. Regarding the finding of the State Commission that there is no
deficiency in service because the refund could not be made in time due to wrong
address. It is argued that the aforesaid evidence is without any basis.
6.
Learned Shri Sudhir Bisla, Advocate for the OPs on the contrary has argued in
support of the impugned order. Learned counsel argued that the State Commission
has rightly relied upon the judgment of the National Commission in the matter
of Punjab Urban Development Authority & Anr. Vs. Krishan Pal Chander, 2010
(CTJ) 415 (CP) and the judgment of the State Commission in the matter
of Rourkela Development Authority Vs. Rourkela Consumers’ Front, 2009 CTJ
1166 (CP) (SCDRC to conclude that the complainants are not covered by the
definition of consumer as provided in Section 2(1) (d) of the Consumer Protection
Act.
7.
The first issue for determination in these revision petitions is whether or not the
petitioners fall within the definition of ‘consumer’ as defined under Section 2(1)(d) of
the Consumer Protection Act?
8.
From the pleadings of the parties, it is evident that the complaints in question
have been filed claiming deficiency in service on the part of the OPs. The definition
of consumer availing or hiring service is given in Section 2 (1) (d) (ii) of the
Consumer Protection Act, which is reproduced thus:“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 purposes;
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;”
9.
On reading of the above, it is clear that consumer is a person who hires or
avails any service for consideration. In the instant case, admittedly pursuant to the
scheme floated by the OPs, the petitioners applied for allotment of flats in Sector 28,
Panchkula. They
admittedly
deposited
earnest
money
along
with
the
applications. The purpose of depositing earnest money was to ensure that the OPs
would include the names of the petitioners in the draw of lot and if they were found
successful, they would be allotted the plots otherwise their earnest money would be
refunded to them within a reasonable period. Admittedly, the OPs accepted the
earnest money, meaning thereby that they had agreed to provide aforesaid service
to the petitioners for consideration, i.e. the earnest money deposited with
them. Thus, in our considered view, the petitioners are squarely covered under the
definition of the ‘consumer’ as defined under Section 2 (1) (d) (ii) of the Consumer
Protection Act, 1986 and the State Commission has committed a grave error holding
that they are not the consumers. The above noted judgments relied upon by learned
Shri Bisla are of no avail to the respondents as aforesaid judgments are based upon
the distinct facts of those matters. In our view the State Commission has fallen in
grave error by failing to appreciate that acceptance of the earnest money along with
the applications for including the name of the complainant in the draw of lot amounts
to agreeing to provide the service to the complainants.
10.
The State Commission has also held that there is no deficiency in service on
the part of the OPs because the refund cheques were sent at the address of the
complainants/petitioners but could not be delivered to them because of the wrong
address. In our considered view, the aforesaid finding of the State Commission is
without any basis. There is no evidence on record to show that the cheques of
refund were actually dispatched to the respondents by registered A.D. post and were
received back unclaimed. No doubt the OPs/respondents have placed on record
photocopies of the refund orders dated 20.09.2006 but this alone is of no avail to the
OPs unless it is shown those refund orders were actually delivered to the
comlainants/petitioners in person or dispatched to them at the correct address
mentioned in their respective applications. The OPs has failed to file a cogent
evidence of dispatch of the refund orders. It is not bothered to place on record the
so called unclaimed registered envelope, vide which the refund orders were
sent. Vide proceedings dated 25.04.2013 we directed the Chief Administrator of the
respondent authority to file specific affidavit after verification of facts. Pursuant to
the said order, the OPs filed an affidavit of Sh. A.K. Singh, Chief Administrator,
HUDA wherein it is claimed that the refund orders were prepared on 20.09.2006 and
dispatched at the correct address of the complainants through registered A.D.
post. Though, it is mentioned in the affidavit that postal receipts are attached but we
do not find any postal receipts annexed with the affidavit. The OPs however has
annexed to the affidavit the copy of the dispatch register entry dated 30.09.2006
whereby the refund orders are claimed to have been sent to the complainants. This
entry only mention of the dispatch of the refund orders without mentioning the
names and address of the person to whom refund orders were sent. In absence of
aforesaid details, it is difficult to conclude that the refund orders were actually sent to
the addresses of the complainants by registered A.D. post. Onus of proving the
dispatch of refund order within reasonable time was on the OPs, which onus OPs
have miserable failed to discharge. Therefore, we are of the opinion that the State
Commission has committed a grave error in holding that the deposit amount could
not be refunded due to wrong address.
11.
In view of the discussion above, we are of the opinion that the orders of the
State Commission suffer from material infirmity. Accordingly the revision petitions
are allowed and the impugned orders of the State Commission are set aside and the
orders of the District Forum are restored. The revision petitions disposed of
accordingly.
………sd/-…………..…
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…………sd/-…….………
MEMBER
bs
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2207 OF 2012
(Against the order dated 27.04.2012 in F.A. No. 1214/2010
of the State Commission Punjab, Chandigarh)
SBI Life Insurance Co. Ltd. Regd. Office situated at State Bank Bhawan
Corporate Centre, Madame Cama Road Nariman Point, Mumbai – 400021
........ Petitioner
Vs.
Ashwani Kumar Juneja s/o Shri Narinder Singh r/o Gali Chaudhrian Wali
Fazilka, District Ferozepur Punjab
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
:
Mr.Rakesh Malhotra, Advocate
For the Respondent
:
Mr. Prabhoo Dayal Tiwari, Advocate
PRONOUNCED ON : 26th AUGUST, 2013
ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1.
This revision is directed against the order of the State Commission, Punjab,
Chandigarh dated 27.12.2004 by which the State Commission dismissed the appeal
preferred by the petitioner / opposite party with cost of Rs.5000/- against the order of
the District Forum to the following effect:
“So in view of the above noted facts, the present complaint is allowed
and the opposite party is directed to pay to the complainant the sum
assured i.e. Rs.1,00,000/- (Rupees one lac only) alongwith interest at
the rate of 6% per annum from the date of complaint i.e. 24.06.2009 till
realization. The opposite party is further directed to pay to the
complainant a sum of Rs.1000/- (Rupees One Thousand only) as
litigation expenses. Orders be complied within a period of thirty days
from the date of receipt of a copy of this order. File be consigned to
record room”.
2.
The relevant facts for the disposal of this revision petition are that complainant /
respondent Ashwani Kumar filed a consumer complaint under 12 of the Consumer
Protection Act, 1986 against the petitioner alleging that he obtained SBI Life Insurance
Policy from the petitioner commencing from 08.11.2004. The date of the maturity was
08.11.2019. As per the terms and conditions of the policy, the respondent / complainant
was provided basic life cover for Rs.1.00 lac besides the critical illness rider and
accidental death and accident total disability rider for Rs.1.00 each. The critical illness
rider also included the risk benefit from heart attack. It is alleged that the respondent
suffered a heart attack in January 2009 and angiography was done on 05.01.2009
which confirmed 95 % & 50% blockage in Left Axis Deviation (LAD) and Left Circumflex
Artery (LCX). Thus, on the advice of the doctors, the respondent underwent coronary
angioplasty on 09.01.2009. He spent a sum of Rs.3.00 lac on the treatment. The
respondent filed the claim for Rs.1.00 lac under critical illness clause of the insurance
policy. The claim was repudiated by the petitioner on the ground that angioplasty and /
or any other intra-arterial procedures were excluded from the insurance cover. Claiming
the repudiation to be deficient in service, the petitioner approached the District Forum.
3.
The petitioner in its written reply claimed that there was no deficiency in service
and insurance claim of the respondent / complainant was rightly repudiated.
4.
The District Forum on consideration of evidence took the view that angioplasty
treatment taken by the respondent / complainant was covered under the critical illness
clause of the insurance policy. As such, holding the petitioner to be deficient
in service, allowed the complaint and passed the above noted order.
5.
Being aggrieved of the order of the District Forum, the petitioner preferred an
appeal before the State Commission Chandigarh. The State Commission concurred
with the order of the District Forum and dismissed the appeal with the following
observations:
“We have considered this submission also, but we are not in agreement
with the argument of the learned counsel for the appellant, because
critical illness rider was obtained by the respondent vide proposal Ex.C5 and at the time of accepting the proposal, no such condition was
mentioned in the proposal and the District Forum has rightly observed
that the critical illness of heart attack and other diseases are covered
and not the procedure. The procedure to be adopted to cure a particular
disease is the judgment of the doctor and not of the patient or the
assured. The Coronary Artery Bypass Surgery is also one of the
methods to remove the blockage and Angioplasty is also one of the
methods to remove the blockage by introducing the stent. A prudent
man will not understand the medical procedures to be followed by the
doctor at the time of taking the policy, but the policy is taken to cover
critical illness which as per the policy, included kidney problems, cancer
etc., including the heart attack. The respondent in the present case
suffered heart attack and took treatment from the hospital, having
specialization to cure this illness and the procedure is not covered under
the policy, but it is the disease. In case, the appellant insurance
company wanted to take the benefit of the clause of procedures, then it
was incumbent upon the appellant to minutely explain the details of the
policy and the procedures which are excluded, but there is no such
evidence that the procedures were also explained. A prudent man takes
the policy and pays the premium, believing that in the event of any
critical illness, he will be covered and the medical expenses will be
borne by the insurance company, but the insurance company, on
technical and inhuman grounds, tried to repudiate the claim by taking
shelter of one clause or the other, which amounts to cheating the
innocent public under the garb of insurance cover”.
6.
Shri Rakesh Malhotra, Advocate, learned counsel for the petitioner has
contended that the orders of the fora below are not sustainable in law because the
orders are based on wrong reading of the insurance contract between the
parties. Expanding on the argument, learned counsel for the petitioner has taken us
through the critical illness benefit clause dealing with the heart disease and submitted
that the aforesaid clause specifically exclude the angioplasty and / or any other intrA
arterial procedure from the insurance cover. It is argued that since the angioplasty
procedure is specifically excluded from the insurance cover, both the foras below have
exceeded their jurisdiction in allowing the complaint of the respondent.
7.
Shri R.K.Tripathi, learned counsel for the respondent on the contrary has argued
in support of the impugned order and contended that the approach adopted by the State
Commission in the above noted observations cannot be faulted. He has thus urged us
to dismiss the revision petition.
8.
The controversy which needs determination in this revision petition is whether or
not the claim of the complainant / respondent is covered under the critical illness rider of
the insurance policy?. In order to find answer to the above question, it would be useful
to have a look on relevant critical illness rider clause in the insurance policy which is
reproduced thus”
“Critical Illness Benefits:
The following benefit is available provided Critical Illness Rider is
opted for and this rider is in force:
If at any time after six months from the Date of Commencement of
Risk and before the expiry of the rider term and the Life Assured is
diagnosed by any of the Critical Illness /Diseases as defined below, and
the same is proved to the satisfaction of the Company, the Company
agrees to pay the Sum Assured under this rider. Upon payment of the
rider Sum Assured, the liability of the Company to the policy holder shall
extinguish all other rights, benefits and interests to the policy holder or
whomsoever it may belong under the Policy in respect of Critical Illness.
There is no benefit payable in case of any event other than the one
mentioned above.
Once a claim under this rider is accepted the Life Assured exists from all
other riders (viz. term assurance rider, accidental death and TPD rider
and premium waiver benefit rider) which she / he has availed.
Critical Illness / disease:
a.
xxxxxxxxxxxxxxxxxx.
b.
Coronary Artery (Bypass) Surgery:
The actual undergoing of open chest surgery for the
correction of two or more coronary arteries, which are narrowed or
blocked, by coronary artery bypass graft. The surgery must have been
proven to be necessary by means of coronary angiography. Angioplasty
and / or any other intro-arterial procedure are excluded from the cover.
9.
c.
xxxxxxxxxxxxxxxxx.
d.
xxxxxxxxxxxxxxxxx.
e.
xxxxxxxxxxxxxxxxx.
f.
xxxxxxxxxxxxxxxxx”.
On reading of the above, we find that as per the insurance contract between the
parties, Coronary Artery Bypass surgery forms part of the critical illness / diseases
covered under the insurance policy. However, on careful reading of the clause
under the heading ‘critical illness / diseases (b)’, we find that angioplasty and / or any
other intra-arterial procedure are specifically excluded from the cover. Admittedly, in the
instant case, the respondent / complainant had undergone angioplasty which is
excluded from the insurance cover. Therefore, in our view, the impugned order of
the fora below in favour of the complainant / respondent are based upon the incorrect
reading of the relevant condition of the insurance contract. Thus, we are of the view
thatfora below have exceeded their jurisdiction in allowing the complaint by misreading
the contract. Accordingly, the impugned order of the State Commission as also the
order of the District Forum cannot be sustained. Revision petition, is, therefore
accepted and orders of the fora below are set aside and the complaint filed by the
respondent is dismissed. No order as to costs.
Sd/………………………….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
Sd/…………………………
(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2325 OF 2013
(From the order dated 07.05.2013 in Appeal No.180 of 2013 of the State Consumer
Disputes Redressal Commission, UT, Chandigarh)
Surinder Jathaul # 5201-1, Modern Housing Complex Manimajra Chandigarh
–
160101
… Petitioner/Complainant
Versus
Emirates India/Nicolete 03 Mittal Chambers, Ground Floor 228, Nariman Point
Mumbai – 400021
… Respondent/Opposite Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Petitioner
: In person
PRONOUNCED ON 26th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order dated 07.05.2013 passed by the State Consumer Disputes Redressal
Commission, UT, Chandigarh (in short, ‘the State Commission’) in Appeal No. 180/13 –
Surinder Jathaul Vs. Emirates India by which, while dismissing appeal, order of District
Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner took OP/Emirates Flight from
Dubai on 29.9.2009. While complainant was sitting on seat 31K, a heavy suitcase
placed in a hatch above, fell on his head and caused injury. Air Hostess advised
complainant to get admitted in the hospital immediately, but complainant refused and
after landing at Indira Gandhi International Airport, complainant managed to reach
Chandigarh. Later on, complainant asked OP to pay 5000 Canadian dollars to enable
complainant to get expert medical advice and care, which was refused. Alleging
deficiency on the part of OP, complainant filed complaint before District Forum. OP
contested complaint and raised objection of jurisdiction and other objections that
complainant had not suffered any significant injury and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties, allowed complaint
and directed OP to pay Rs.50,000/- as compensation to the complainant along with
Rs.11,000/- as litigation cost. Complainant filed appeal before learned State
Commission for enhancement of compensation which was dismissed against which; this
revision petition has been filed.
3.
Heard petitioner in person and perused record.
4.
Petitioner submitted that petitioner is entitled to get additional amount as per
Montreal Convention of 1999, implemented by the Carriage by Air (Amendment) Act,
2009 and learned State Commission has committed error in dismissing appeal and
learned District Forum has committed error in not allowing compensation, as per
aforesaid Act; hence, revision petition be admitted.
5.
Perusal of record clearly reveals that learned District Forum granted
adequate compensation of Rs.50,000/-. Learned State Commission while dismissing
appeal observed in paragraph 10 as under:
“Admittedly, soon after boarding the flight, but prior to take off from Dubai,
the complainant reported to the cabin crew namely Ms.Jessica Ann De
Costa that he was hit on the head, due to fall of a suitcase, from the hat
rack/overhead storage for cabin baggage. It is evident, from the record
that the complainant declined to avail of any medical assistance, stating
that he was fine and that the small bump on his said doctor (Annexure 3 to
5) at pages 158 to 160 of the District Forum file reveals that due to fall of
heavy object overhead-8 days ago, some symptoms of restlessness,
headache and giddiness were reported and head could be effectively
treated with an icepack. Accordingly, an ice pack was applied on his head
and the staff, on duty, regularly visited the complainant to ensure about his
well-being, but he never complained and ultimately, he landed at his
destination safely. However, the complainant visited Dr.Gauri Joshi after 9
days of the said incident. The prescription slip issued by the under the
heading of examination, it was mentioned as vitals-stable. Thus, no
inference could be drawn, from the prescription slip that the complainant
received fatal/serious head injury, due to fall of the suitcase. The onus
was, thus, upon the complainant to prove the same but he neither filed the
affidavit of the concerned doctor nor placed, on record, any documentary
evidence, in the form of MRI/CT Scan report etc. to establish the fact that
he suffered any fatal/serious head injury. No doubt, the complainant did
not suffer any fatal/serious injury, but this fact could not be denied that a
suitcase had fallen from the hat rack/overhead storage for cabin baggage
over his head which caused a lot of mental agony and physical
harassment to him. The District Forum, while appreciating this fact rightly
awarded the compensation and litigation costs. Taking into consideration
the nature of injury, the District Forum was also right in holding that the
compensation of CAD 5000 claimed by the complainant was on the higher
side. Thus, the order of the District Forum is just, adequate and
reasonable and no interference of this Commission is called for. The
appeal filed by the complainant is devoid of any merit, as no ground,
whatsoever, is made out, for the enhancement of the compensation, in
accordance with the Rule 21 (1) of the Act ibid.
6.
We do not find any infirmity, irregularity or jurisdiction error in the impugned order
and revision petition is liable to be dismissed at admission stage.
7.
Petitioner is free to initiate other proceedings under Carriage by Air Act, 2009
against the respondent if law so permits.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 65 OF 2013
(From the order dated 03.08.2012 in Appeal No. 1100 of 2011 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
State Bank of Bikaner & Jaipur Rampur, Tehsil Bansur Distt. Alwar, Rajasthan
… Petitioner/Opp. Party (OP)
Versus
1. Shri Bhanwar Singh S/o Sh. Bagsingh Village Balwa, Tehsil Bansur
Distt. Alwar (Rajasthan)
2. Shri Narayan Singh S/o Shri Bhanwar Singh Village Balwa, Tehsil Bansur,
Distt. Alwar (Rajasthan)
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner
:
Ms. Kittu Bajaj, Advocate
For the Respondents : Mr. Chander Prakash, Advocate
PRONOUNCED ON 26th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
03.08.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission,
Jaipur (in short, ‘the State Commission’) in Appeal No. 1100/2011 – State Bank of
Bikaner & Jaipur & Ors. Vs. Bhanwar Singh & Ors.by which, while dismissing appeal,
order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/respondent availed loan of Rs.
2,30,000/- from the OP/petitioner and purchased a tractor. Complainant could not repay loan in time. In 2008, Central Government introduced Prime Minister Debt Waiver
Scheme and under that scheme, OP asked complainant to deposit amount under
waiver scheme to get substantial relief. Complainant deposited amount with the OP
and complainant asked OP to issue waiver certificate, but that was not issued and
illegal demand of Rs.20,000/- was made from him. Alleging deficiency on the part of
OP, complainant filed complaint before District Forum. OP resisted complaint and
submitted that complainant did not fall under the scheme and OP has not committed
any deficiency and prayed for dismissal of complaint. Learned District Forum after
hearing both the parties allowed complaint and directed OP-1 to issue ‘no due
certificate’ to the complainant within one month in reference to closed loan account
along with litigation expenses. Appeal filed by the petitioner was dismissed by learned
State Commission vide impugned order against which, this revision petition has been
filed along with application for condonation of delay of 57 days.
3.
Heard learned Counsel for the parties finally at admission stage and perused
record.
4.
Petitioner has filed application for condonation of delay of 57 days on the ground
that Advocate Sadaf Naaz, who was entrusted to file revision, suffered from acute
typhoid and in such circumstances, she could not file revision petition within limitation;
hence,
delay
may
be
condoned.
Petitioner
has
filed
affidavit
of
Advocate Sadaf Naaz along with medical certificate of 61 days from 7.11.2012 to
6.1.2013. This revision petition has been filed on 7.1.2013. We deem it proper to allow
application for condonation of delay of 57 days, subject to cost of Rs.5000/- to be paid
by the petitioner to the respondent.
5.
Learned Counsel for the petitioner submitted that impugned order is not a
speaking order and learned State Commission has not dealt with the arguments
submitted by the petitioner; hence, petition be allowed and matter may be remanded
back to the learned State Commission for disposal by speaking order. On the other
hand, learned Counsel for the respondent submitted that District Forum has elaborately
discussed submissions of the parties and order passed by learned State Commission is
in accordance with law; hence, petition be dismissed.
6.
Perusal of impugned order reveals that it is not a speaking order and learned
State Commission has observed as under:
“The District Forum has passed the order after detailed discussion
on the facts and evidence of the complaint. Thus we do not find
any justification in discussing the facts and evidence again. Looking
into the facts and circumstances, we find no illegality in the order
passed by the Ld. District Forum, Alwar in Complaint No. 25/2010.
Since the District Forum has considerately dealt with the facts on
record, it does not call for interference. Besides, we do not find any
justification in appeal on its merits/demerits”.
7.
Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as
under:
“1.In a number of cases coming up in appeal in this Court, we find
that the State Consumer Disputes Redressal Commission, Haryana
at Chandigarh is passing a standard order in the following terms:
‘We have heard the Law Officer of HVPN – appellant and
have also perused the impugned order. We do not find any
legal infirmity in the detailed and well-reasoned order passed
by District Forum, Kaithal. Accordingly, we uphold the
impugned order and dismiss the appeal’.
2. We may point out that while dealing with a first appeal, this is not
the way to dispose of the matter. The appellate forum is bound to
refer to the pleadings of the case, the submissions of the counsel,
necessary points for consideration, discuss the evidence and
dispose of the matter by giving valid reasons. It is very easy to
dispose of any appeal in this fashion and the higher courts would
not know whether learned State Commission had applied its mind
to the case. We hope that such orders will not be passed by the
State Consumer Disputes Redressal Commission, Haryana at
Chandigarh in future. A copy of this order may be communicated to
the Commission”.
8.
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.
9.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 03.08.2012 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.
10.
Parties are directed to appear before the learned State Commission on
04.10.2013. A copy of this order be sent to the Rajasthan State Commission, Jaipur.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 198 OF 2007
(Against the order dated 15.02.2007 in Complaint No. 105/1997 of the
Gujarat State Consumer Disputes Redressal Commission)
Dr. Mohanbhai S. Patel Navjeevan Maternity Hospital Opp. Chaturbhuj Baug Patan
(N.G.)
…
Appellant
Versus
1. Thakkar Baldevbhai Keshavlal
2. Minor Jankkumar Baldevbhai Thakkar
3. Minor Hiralban Baldevbhai Thakkar
4. Minor Jaydeepkumar Baldevbhai Thakkar
Respondents 2 to 4 being minors through their father and natural guardian Respondent
No.1 All residents of Harij, Taluka Paten District Mehsana
5. Dr. Shaileshbhai Patel Shivamani Surgical Hospital & Endoscopy Clinic ‘A’ Raliya
Chambers, 1st Floor Opp. S.T. Stand, Patan (N.G.)
6. Dr. Hamidbhai Mansuri Sanjeevani Hospital Opp. Wageshwar Mahadev Railway
Station Road Patan (N.G.)
7. Dr. Rajesh B. Patel, M.D. (Path.) Keval Pathology Laboratory Subhadranagar, Opp.
Technical High School Patan (N.G.) Pin-384265
8. Subashbhai Patel Proprietor, Sarvodaya Medical Stores Nr. Navjeevan Hospital
Patan (N.G.)
…
Respondents
BEFORE:
HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE VINAY KUMAR, MEMBER
For Appellant
: Mr. Ashutosh Kumar, Proxy Counsel for
Mr. Sumeet Bhatia, Advocate
For Respondents
: Mr. P.K. Manohar, Advocate
Pronounced : 27th August, 2013
ORDER
PER VINEETA RAI
1.
This First Appeal has been filed by Dr. Mohanbhai S. Patel, Opposite Party No.1
before the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad
(hereinafter referred to as the State Commission) and Appellant herein being aggrieved
by the order of that Commission which had partly allowed the complaint of medical
negligence filed against him and others by Thakkar Baldevbhai Keshavlal, Original
Complainant No.1 before the State Commission and Respondent No.1 herein and
others (his minor children).
2.
FACTS :
In his complaint before the State Commission, Thakkar Baldevbhai Keshavlal
(Respondent/Complainant) had stated that he had taken his wife Gitaben (hereinafter
referred to as the Patient) on 06.05.1997 for a medical check-up from his village Harij to
Patan as she was having irregular menstruation and pain in the uterus. She was
examined by Dr. Mohanbhai S. Patel (Appellant) at Navjeevan Maternity Home, who
advised an x-ray and sonography and on the basis of that report informed that Patient
was three months’ pregnant and that D&C procedure was required to be
conducted. Respondent/Complainant told Appellant that whatever was required may be
done in the interest of the Patient’s health and thereafter a D&C procedure was
conducted on 06.05.1997 and Patient was prescribed some medicines. After the
operation was over at about 4.00 p.m., Patient again continued to complain of severe
pain and Respondent/Complainant was informed by Appellant that this was normal
following
such
an
operation
and
there
was
no
reason
for
worry. Respondent/Complainant and Patient remained in the Maternity Home till about
8.30 p.m. after which Appellant advised that she may be taken back to their village in
Harij after paying Rs.450/- as fees. On 07.05.1997 at about 3.00 a.m. Patient again felt
severe pain and took pain killers. However, since the pain continued, a local doctor (Dr.
Bhagwandas Patel) was called, who had in the first place referred the Patient to
Appellant and who after examining the Patient told Respondent/Complainant that the
uterus of the Patient had been punctured and, therefore, it was necessary to take her
back to Patan for treatment. A referral letter was also given by Dr. Bhagwandas Patel
for Appellant. Appellant again prescribed some medicines to Patient but her health
continued to deteriorate and, therefore, Appellant sought the help of two other Doctors
i.e. Dr. Shaileshbhai Patel and Dr. Hamidbhai Mansuri who were also practicing at
Patan. Thereafter, Respondent/Complainant was informed that it was necessary to
conduct
another
operation
which
would
last
for
10
minutes
and
Respondent/Complainant was also asked to arrange for blood and medicines. The
operation,
however,
lasted
for
2½
hours
and
Appellant
informed
Respondent/Complainant that the operation was successful. However, Dr. Mansuri
informed the Appellant that in fact Patient’s condition was very serious and she was not
likely to survive. Despite this, Appellant continued to maintain that there was no cause
for worry. Patient expired on 09.05.1997 at about 2.00 p.m. Appellant thereafter told
Respondent/Complainant to take away her dead body as nothing was required to be
done at Patan. 15 days after her death, Respondent/Complainant approached the
Appellant with the request to furnish him necessary case papers in respect of the
treatment of the Patient so as to satisfy himself that there was no medical negligence or
deficiency in the treatment. However, Appellant refused to give him the papers. Being
aggrieved by the death of his wife which he attributed to medical negligence on the part
of Appellant while performing the D&C operation, during which the uterus of the Patient
was punctured, terminating the pregnancy without consent and thereafter in not taking
proper care to check the severe pain and bleeding before discharging her on
06.05.1997 and later after the Laparotomy on 07.05.1997, Respondent/Complainant
filed a complaint before the State Commission against Appellant and other Doctors, who
had attended to the Patient, and also against the Proprietor of Sarvodaya Medical
Stores on grounds of medical negligence and deficiency in service and requested that
Appellant be directed to pay (i) Rs.5.00 Lakhs to Respondent/Complainant for the loss
of company of his wife who was only 30 years of age at the time of her death; (ii) a total
of Rs.12.00 Lakhs to his young children for being deprived of love, care and affection of
their mother at the tender age; (iii) Rs.2.00 Lakhs for mental tension, agony and
inconvenience; and (iv) Rs.10,000/- as litigation costs. It was requested that Opposite
Party No.2 (Dr. Shaileshbhai Patel) be directed to pay Respondent/Complainant
Rs.50,000/- for his deficiency in service and Opposite Parties No. 4 and 5 (Dr. Rajesh
B. Patel and Subhashbhai Patel respectively) Rs.5000/- each for their deficiency in
service.
3.
The above allegations were refuted by Opposite Parties No. 1 and 2 (Appellant
and Dr. Shaileshbhai Patel respectively). Appellant contended that when the Patient
was admitted to the Maternity Home with complaints of irregular menstruation and pain
in the uterus, on examination it was found that she was 3 months’ pregnant with
threatened
abortion. Appellant
denied
that
he
had
conducted
a
D&C
procedure. However, since there was a threat of abortion, Patient was given option to
either undergo conservative treatment or to abort the pregnancy. Patient opted for
termination of the pregnancy and was, therefore, given medical treatment for the same,
namely, Prostadin injection and cervi prime gel to facilitate the abortion. Since the
Patient herself volunteered for termination of pregnancy, no written consent from her
was taken. However, in her medical case history a noting to this effect was
made. Patient was thereafter advised to stay in the Maternity Home as indoor patient
but she left without permission and without even informing the staff of the Maternity
Home. She, however, came back next day on 07.05.1997 at about 11.30 a.m. with a
reference from her family doctor with severe abdominal pain. She was immediately
examined by the Appellant and further treatment commenced. In the interest of her
health, Laparotomy operation was conducted with the help of Opposite Party No.2 (Dr.
Shaileshbhai Patel) after obtaining written consent. The operation was successful and
the
Patient’s
condition
was
improving
till
the
third
day
when
her
health
deteriorated. Although all the necessary treatment was given as per standard medical
procedure, unfortunately she expired on 09.05.1997 at about 2.00 p.m. It was
specifically denied that the uterus of the Patient was punctured during the alleged D&C
operation on 06.05.1997 because no such surgery was ever performed and further she
left the hospital at her own risk. Appellant further contended that he had advised the
Respondent/Complainant and other relatives to get a postmortem done of the Patient,
so that the real cause of death could be ascertained but they refused to get the
postmortem done. There was no medical negligence on the part of the Appellant who
being a qualified doctor and using his best professional judgment and in consultation
with other expert doctors tried his best to treat and save the Patient. It was contended
that Patient’s death occurred because against medical advice, she left the hospital
without permission, which aggravated her condition.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it partly allowed the complaint and found only Dr. Mohanbhai S. Patel
(the Appellant) guilty of medical negligence and deficiency in service. In its detailed
order, the State Commission had concluded that the termination of the pregnancy was
carried out without the consent for the same and the Patient and her relatives were also
not kept informed about the progress of her condition. After administration of Prostadin
injection and cervi prime gel, Patient was not advised about the possible side effects
and the possible complications. Further, the Patient was left under the care of a woman
called Gangaben who may not have had the necessary skills and competency to
supervise the effects of the medication/injection given. Although there was no evidence
that any D&C was done and her pregnancy was terminated by giving Prostadin injection
and cervi prime gel, this led to complications, including rupture of uterus and bleeding,
to which Patient ultimately succumbed. The State Commission’s specific observation in
respect of the lack of care and negligence is reproduced :
“18. Opponent no.1 when used drugs or procedure to terminate the
pregnancy ought to have known the inherent danger of using the drugs
and taken enough safeguard to either prevent those complications or at
least should have remedied them recognizing them as they came (in this
case since starting of initial treatment; danger signals had already started
appearing). The lack of recognizing and no treating them in time amounts
to negligence, more so when opponent no.1 is claimed to be senior, highly
qualified and experienced gynaecologist and obstetrician.
19. Complications occurring during the treatment cannot be said to be
negligence but not recognizing them in time and not treating them or
treating them too late when patient had reached end stage where results
were certainly to the detriment to the patient certainly amounts to
negligence. The patient who has reposed full trust and faith in the hands
of treating doctor for his or her life and if that trust and faith is negative, it
is not only negligence but also deficiency in service.”
Keeping
in
view
all
facts,
including
the
remarriage
of
the
Respondent/Complainant, the State Commission directed the Appellant to pay a sum of
Rs.3.00 Lakhs as compensation to be invested in fixed deposit till the three children
attain the age of majority after which this amount would be equally divided among all the
four
complainants
i.e.
25%
to
each
of
the
three
children
and
the
Respondent/Complainant. This amount was directed to be paid with 6% interest per
annum from the date of complaint i.e. 17.10.1997 till realization of the amount as also
Rs.5000/- as litigation costs.
5.
Being aggrieved by the order of the State Commission, the present First Appeal
has been filed.
6.
Counsels for both parties made oral submissions.
7.
Counsel for the Appellant contended that the State Commission erred in
concluding that there was medical negligence and deficiency in service on the part of
Appellant by not taking cognizance of the fact that when the Patient was brought for
treatment to Appellant, she was threatened with imminent abortion and wanted
termination
of
the
pregnancy,
for
which
she
was
given
necessary
medicines/injection. No D&C procedure was conducted. It was specifically stated by
Counsel for the Appellant that since the Patient herself wanted the pregnancy to be
terminated and further since her life was at risk because of the immediate threatened
abortion, as per provisions of Section 3(2)(i) of the Medical Termination of Pregnancy
Act, 1971, which provides that a pregnancy may be terminated by a registered medical
practitioner if the continuance of the pregnancy involves a risk to the life of the
pregnancy woman or grave injury physical or mental health, no consent was required. It
was also emphasized that the Patient unauthorizedly left the Maternity Home on the
night of 06.05.1997 and in this connection the medical attendant had also written this
fact in the medical case history of the Patient which was also filed in evidence before
the State Commission. The allegation that the uterus got punctured during the D&C
procedure did not arise since even the State Commission had concluded that no D&C
operation was conducted. Counsel for the Appellant further stated that as a diligent
medical professional even though the Patient had left unauthorizedly, when she came
back next day with complaints of severe abdominal pain he immediately examined her
and conducted a Laparotomy which was necessary. Two other Doctors assisted him in
the procedure. Appellant had also produced expert opinion of a Physician and an
Anesthetist in support of his case but unfortunately their statement was disregarded by
the State Commission on the ground that they were not Specialists in Gynaecology and,
therefore, their statement did not amount to expert opinion. It was also highlighted by
Counsel for the Appellant that the State Commission itself had observed that there was
no medical negligence per se in the actual treatment of the Appellant and he was being
penalized on the ground that Patient and her relatives’ consent was not taken prior to
termination of the pregnancy and proper follow up and treatment was not given to check
the bleeding. However, these facts are not borne out by the case history of the Patient
on record. The finding of the State Commission was, therefore, against the settled
principles of the law with regard to medical negligence.
8.
Counsel for the Respondent/Complainant has reiterated in his oral submissions
that there was no evidence to support Appellant’s contention that the Patient, who was
three months pregnant at the time of visiting the Appellant, wanted the termination of
the pregnancy. She had come with complaints of pain in the uterus and although a
provisional diagnosis of threatened abortion was made, after due examination the
medical history does not indicate that there was imminent threat of abortion. Further,
after the clinical tests nowhere was it mentioned that the abortion was inevitable. In fact
as per the clinical notes, it was confirmed that the Patient was 14 weeks pregnant and
the advice given was “Os tightening and complete bed rest”. Thereafter in the same
case sheet, it was recorded “Pt. (Patient) refuses for conservative treatment and wants
to undergo termination”. Patient never wanted to terminate the pregnancy and she was
administered medicines/injection to terminate the same without her knowledge or
consent. Appellant’s contention that as per the provisions of the Medical Termination of
Pregnancy Act, 1971 no consent was required is not correct. Except when the life of
the Patient is at extreme risk, the Doctor is statutorily bound under the provisions of the
above Act to obtain the written consent of the pregnant woman. Further, with respect to
termination of pregnancy, which exceeds 12 weeks, the opinion of two registered
medical practitioners is necessary to opine that continuance of pregnancy involves a
risk to the life of the pregnant woman. In the instant case, as per the medical records of
the Patient, it has nowhere been indicated that the life of the Patient was at
risk. Therefore, merely recording in the medical case history that the Patient wanted
medical termination of the pregnancy does not in any way amount to consent nor does it
give the medical practitioner the right to have terminated the pregnancy.
9.
Counsel for the Respondent/Complainant further stated that it is incorrect that the
Patient left the Maternity Home unauthorizedly and without medical permission. In fact,
after taking his fees from the Respondent/Complainant, Appellant himself discharged
the Patient even though she continued to complain of severe abdominal pain at that
time. When the Patient was brought back on 07.05.1997 and the Laparotomy was
conducted on her, Patient’s relatives were never informed about the seriousness of her
condition by the Appellant, who kept assuring that the Patient was recovering
satisfactorily. Had the Respondent/Complainant known that her condition was serious,
he would have taken her to Ahmedabad where better medical facilities were
available. The fact that the Appellant was making false assurances was contradicted by
one of the attendant doctor (Dr. Hamidbhai Mansuri) who had informed the
Respondent/Complainant that the Patient’s condition was serious and had also deposed
accordingly before the State Commission. The same doctor had also deposed that
there was a perforation in the uterus. Counsel for the Respondent/Complainant also
denied that Appellant had ever advised him to get a postmortem conducted after his
wife expired.
10.
We have heard learned Counsels for both parties and have also carefully gone
through the evidence on record. Essentially, Appellant and his Counsel made the
following contentions in support of their case:
(i)
Since the pregnancy was terminated on the request of the Patient herself
and since the abortion was imminent and posed a risk to the Patient’s life,
under Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971
the Patient’s consent was not necessary;
(ii)
The Patient left the Maternity Home without permission and against the
medical advice, because of which her condition deteriorated; and
(iii)
When the Patient came back to the Maternity Home the next day with
complaint of severe abdominal pain, after duly examining her, a
Laparotomy was conducted and her condition became satisfactory till the
third day following the Laparotomy when it suddenly deteriorated and she
passed away. Since the Patient had been treated as per standard
medical procedure with utmost professional care, her death though
unfortunate could not be attributed to any medical negligence on
Appellant’s part.
11.
We have considered these submissions and are unable to agree with the same
since these are not supported by any credible evidence on record. It is an admitted fact
that no written consent of the Patient was taken by the Appellant before terminating the
pregnancy. Appellant’s explanation for the same, namely, that the Patient herself had
volunteered for termination of pregnancy and that under the Medical Termination of
Pregnancy Act, 1971 if the Patient’s life is at a risk, the Doctor can terminate the
pregnancy without seeking consent, are not supported by the evidence on
record. There is, for example, no clinical indication that the Patient’s life was at a
risk. In fact, as recorded in the medical case history of the Patient, the Appellant
himself had recorded after the x-ray and the ultrasound that the Patient required bed
rest and conservative treatment. If abortion was indeed imminent or threatened, a
recording to this effect should have been made in the final diagnosis i.e. after x-ray and
ultrasound tests. In any case, even if the Patient herself had volunteered for termination
of the pregnancy, under the Medical Termination of Pregnancy Act, 1971 her written
consent was necessary. Merely recording the same by a Doctor in her medical records
is not adequate in such cases. This is also confirmed by a ruling of the Hon’ble
Supreme Court of India in Samira Kohli Vs. Dr. Prabha Manchanda [(2008) 2 SCC
1], wherein the Hon’ble Apex Court has categorically ruled that unless it is necessary to
save the life or preserve the health of a patient, valid consent is a must. In the instant
case, in the absence of any credible independent evidence that there was immediate
risk to the life of the Patient and also that she herself had volunteered to undergo
termination of the pregnancy, not taking written consent of the Patient clearly amounted
to negligence and deficiency in service.
12.
Regarding the contention of the Appellant relating to Patient leaving the Maternity
Home unauthorizedly, we agree with the finding of the State Commission that the
Patient was duly discharged after she had paid the medical fees for her treatment. A
recording on her medical sheet to the contrary on the basis of information given by a
non-medical attendant is not conclusive evidence of the same, particularly since the
Patient was still experiencing severe pain on that day and had no reason to want to
leave. Also as noted by the State Commission, the Patient would not have come back
within a few hours to the same medical facility and readmitted by the Appellant for
further treatment, if she had left unauthorizedly a few hours earlier.
13.
We are also unable to agree with the contention of the Appellant that following the
Laparotomy, Patient’s condition was satisfactory and stable, particularly since one of the
other Doctors, who had attended the Patient and assisted in the Laparotomy, in his
evidence before the State Commission clearly stated that the Patient’s condition was
serious/critical and he had informed the Respondent/Complainant about the same. The
same witness has further deposed that he had observed during the Laparotomy that
there was bleeding and a hole in the uterus of the Patient, which further confirms the
seriousness of the Patient’s condition. It is well established as per medical literature
that the drugs Prostadin injection and cervi prime gel can have serious side effects and
complications and a patient need to be cautioned about the same. As observed by the
State Commission, there is no evidence that the Appellant had informed the Patient
about these risks, which as a prudent medical professional he was expected to
do. Therefore, while the Appellant may have used standard case treatment in
terminating the pregnancy as also conducting the Laparotomy, as stated above, he was
clearly guilty of deficiency in service and negligence in not taking written consent of the
Patient before terminating the pregnancy, in not informing her about the possible side
effects of the drugs/injection given to terminate the pregnancy and in not keeping the
Respondent/Complainant informed of the Patient’s critical condition following the
Laparotomy, thus, depriving him of the possibility of taking the Patient to a higher
medical health institution to manage the case.
14.
In view of above facts, we agree with the finding of the State Commission that
there was deficiency in service on the above counts and the compensation of Rs.3.00
Lakhs with interest awarded in this case is just and reasonable. We, therefore, uphold
the order of the State Commission and dismiss this First Appeal.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2313 OF 2008
(From the order dated 06.02.2008 in Appeal No.854 of 2006 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
1. Life Insurance Corporation of India Branch Manager Jeevan Jyoti, Sector5, Madra Road, Nohar, Hanumangarh
2. Life Insurance Corporation of India Divisional Manager Jeevan Prakash, P.O. Box 16
Jaipur Road, Bikaner through Asstt. Secretary Northern Zonal Office, LIC Jeevan Bharti,
Connaught Circus New Delhi
… Petitioner/Opposite Parties (OP)
Versus
Smt. Vinod Devi W/o Late Radhey Shyam Saharan R/o Barvali Village, Tehsil Nohar
Distt. Hanumangarh Rajasathan
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
For the Respondent
PRONOUNCED ON
:
:
Mr. Ashok Kashyap, Advocate
Mr. B.S. Sharma, Advocate
27th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/OP against the order dated
06.02.2008 passed by the Rajasthan State Consumer DisputesRedressal Commission,
Jaipur (in short, ‘the State Commission’) in Appeal No. 854/06 – LIC of India & Ors. Vs.
Smt. Vinod Devi by which, while dismissing appeal, order of District Forum allowing
complaint was upheld.
2.
Brief
facts
of
the
case
are
that
complainant/respondent’s
husband Radhey Shyam Saharan now deceased obtained two LIC policies for a sum of
Rs.25,000/- each on 15.12.2000. On account of non-payment of premium policies had
lapsed
but
both
the
policies
were
by RadheyShyam Saharan. Radhey Shyam Saharan
revived
died
on
on
6.10.2004
16.11.2004
and
complainant preferred claim before OP/petitioner, but that was repudiated by OP
through letter dated 21.3.2005 on the ground that on the date of revival of the policies, a
fresh declaration form was submitted by Radhey Shyam Saharan and in that declaration
he had stated that he was not suffering from any kind of disease whereas he was
suffering from the disease of cancer and had taken the treatment. Alleging deficiency on
the part of OP, complainant filed complaint before District Forum. OP/Petitioner
contested complaint and submitted that Radhey ShyamSaharan was admitted in the
hospital on 14.7.2004 and was discharged on 19.7.2004 and Malignant round
cell tumor was
found
and
chemotherapy
was
recommended
and Radhey Shyam Saharan was suffering from cancer at the time of revival of policy;
hence, denied deficiency and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties, allowed complaint against which, 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 and perused record.
4.
Learned Counsel for the petitioner submitted that Learned Counsel for the
petitioner submitted that at the time of revival, the assured suppressed fact of
undergoing treatment and also falsely answered the questions in personal statement
regarding his health; even then, learned District Forum committed error in allowing
complaint and learned State Commission further committed error in dismissing appeal;
hence, revision petition be allowed and order of State Commission be set aside and
complaint be dismissed.
5.
On the other hand, learned Counsel for the respondent submitted that deceased
was never admitted in the hospital for more than a week; hence, order passed by
learned State Commission is in accordance with law, which does not call for any
interference and revision petition be dismissed.
6.
It is admitted case of the parties that Radhey Shyam Saharan, deceased
obtained two insurance policies from the petitioner on 28.3.2000 and both the policies
lapsed which were revived on 6.10.2004 after submitting fresh declaration. It is also
admitted that Radhey Shyam Saharan died on 16.11.2004. It is also not disputed that
as per record of the hospital, Radhey Shyam Saharan remained in the hospital from
14.7.2004 to 19.7.2004 and as per record of SMS hospital, Malignant round
cell tumor was found and chemotherapy was recommended.
7.
Learned State Commission has rightly held that if the policy is revived, fresh
declaration form is filled by the insured, it amounts to fresh contract.
8.
It is also admitted position that deceased was not hospitalized for a week or
more, but at the time of revival of policy, Radhey Shyam Saharan declared his health to
be good in the personal declaration form which is apparently not correct because before
about 3 months of declaration, Radhey Shyam Saharan was admitted in SMS hospital
and
Malignant
round
cell tumor was
found
and
chemotherapy
was
recommended. Thus, it becomes clear that Radhey Shyam Saharan was suffering from
cancer at the time of revival of policy and he has given false declaration about his
health. In P.C. Chacko & Anr. Vs. Chairman, Life Insurance Corporation of India
and Others – (2008) 1 SCC 321, Hon’ble Apex Court observed as under:
Misstatement by itself is not material for repudiation of the policy
unless the same is material in nature. But, a deliberate wrong
answer which has a great bearing on the contract of insurance, if
discovered may lead to the policy being vitiated in law. The
purpose for taking a policy of insurance is not very material. It may
serve the purpose of social security but then the same should not
be obtained with a fraudulent act by the insured. Proposal can be
repudiated if a fraudulent act is discovered”.
9.
In the light of above observations, policy can be assailed on the ground of
deliberate wrong answers on material issues as per hospital record before
revival. Radhey Shyam Saharan was suffering from cancer and he was recommended
chemotherapy and no such document has been placed on record to prove the fact that
after taking treatment of cancer, he was
perfectly healthy. After deducting
cancer, Radhey Shyam Saharan died within 4 months and in such circumstances, it can
very well be inferred that on account of cancer, Radhey Shyam Saharan died.
10.
As Radhey Shyam Saharan at the time of revival of lapsed insurance policies
suppressed material fact regarding Malignant round cell tumor and furnished false
answers regarding his health, petitioner has not committed any deficiency in repudiating
claim and learned District Forum committed error in allowing complaint and learned
State
Commission
further
committed
error
in
dismissing
appeal
and
in such circumstances, revision petition is to be allowed.
11.
Consequently, revision petition filed by the petitioner is allowed and impugned
order 06.02.2008
passed
by
the
Rajasthan
State
Consumer
DisputesRedressal Commission, Jaipur in Appeal No. 854/06 – LIC of India & Ors. Vs.
Smt. Vinod Devi is set aside and complaint is dismissed. There shall be no order as to
costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1679 OF 2012
(From the order dated 30.03.2011 in Appeal No.4125 of 2010 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
1. The Chief Postmaster General Karnataka Circle, Bangalore – 560001
2. Superintendent of Post Offices Udupi Division, Udupi
3. The Post Master Kundapur – 576201
… Petitioners/Opp. Parties (OP)
Versus
1. K. Gopalakrishna Nayak S/o Late K. Parameshwara Nayak Car Street, Gnagolli,
Kundapura Taluk Udupi District
2. Ms. Swati D/o K. Gopalkrishna Nayak Car Street, Gnagolli, Kundapura Taluk
Udupi District
3. Mr. Akshaya Nayak S/o K. Gopalkrishna Nayak Car Street, Gnagolli, Kundapura
Taluk Udupi District
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Mr. Baldev Malik, Advocate with
Mr. Arjun Malik, Advocate
PRONOUNCED ON 27th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/OPs against the order
dated
30.03.2011
passed
by
the
Karnataka
State
Consumer
DisputesRedressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal
No. 4125 of 2010 – The Chief Post Master General, Karnataka Circle & Ors.Vs.
K. Gopalakrishna Nayak & Ors. by which, while dismissing appeal, order of District
Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant no.1/respondent no.1 opened PPF
Accounts (Minor Accounts) in the names of his son and daughter complainant nos.2 &
3/respondent nos. 2 & 3 with OP No.1. Complainant nos. 2 & 3 attained majority on
30.6.2006 and 30.3.2008, respectively. It was further submitted that complainants were
entitled to interest @ 11% p.a. and other tax benefits as per terms & conditions as on
the date of opening of accounts, but OP by letter dated 13.7.2009 asked complainant
no. 1 to regularise PPF account and further apprised that deposits exceed the limits
during 2002-03 & 2004-05 and further asked complainant no. 1 to refund interest of
Rs.1,30,000/- and Rs.99,001/-, respectively. Complainant protested, but OP apprised
that amount has to be recovered from the complainant to regularise the
transactions. Alleging deficiency on the part of OP, complainants filed complaints
before District forum. OP contested complaints. Learned District Forum after hearing
both the parties allowed complaint and directed OP to approach Government under
power of relax recommending for payment of interest to the excess deposits in minor
accounts and refund the excess deposits along with Rs. 5,000/- as compensation
and Rs. 3,000/- as costs. Appeal filed by the petitioner was dismissed by learned State
Commission vide impugned order against which, this revision petition has been filed
along with application for condonation of delay.
3.
Heard learned Counsel for the petitioners at admission stage and perused record.
4.
Learned Counsel for the petitioners submitted that delay in filing revision petition
be condoned. He has not mentioned period of delay to be condoned in the application
as well as in the affidavit, but as per office report, there is delay of 280 days in filing
revision petition.
5.
Petitioner along with revision petition filed application under Section 5 of the
Limitation Act for condonation of delay and submitted as under:
“That the delay was caused due to the time taken to take the
sanction for filing of this revision petition as for the same the office
of Chief Postmaster General, Bangalore, Post Master General
South Karnataka Region and the Director of Post services was
contacted. Also a legal opinion of Branch Secretariat was sort for
and the Ministry of Finance sought some clarifications, which
resulted in delay”.
6.
Later on, petitioner filed detailed affidavit for condonation of delay in which, delay
has been explained as under:
“That on 26.4.2011 the case was processed at the office of the
Chief Postmaster General, Bangalore and directed PMG SK Region
to decide the case and take action vide letter dated 26.4.2011.
That the decision was taken on 18.8.2011 to implement the order
partially by the Director of Postal Services. The aspect of
regularization of excess deposits was referred to Postal Directorate
after implementing the Ld. District Consumer’s order partially.
That on 19.10.2011 the Post Directorate (FS Section) vide letter
dated 19.10.2011 directed the PMG SK to obtain legal opinion of
branch Secretariat and furnish the same to directorate since
Ministry of Finance sought some clarifications (DEA).
That on 27.10.2011 the SPO’s Udupi was addressed to send reply
immediately vide PMG SK letter.
That SPO Udupi replied to some of the queries raised by the
directorate vide their letter dated 18.11.2011.
That the Law Ministry was addressed seeking their opinion in the
case on 26.12.2011.
That the Law Ministry offered its opinion on 30.12.2011 stating that
it
is
a
fit
case
to
file
revision
petition
before
this Hon’ble Commission.
That the PMG SK Region replied the queries and also sent the
opinion of Law Ministry to ADG (FS) on 3.01.12. The FS Section
asked PMG SK Region to send Law Ministry opinion by return Fax.
That on 16.1.2012 the copy of the opinion of Law Ministry was sent
to ADG (FS) along with replies to queries.
That the Postal Directorate, New Delhi FS Section vide their letter
dated 21.2.2012 intimated that Revisionist Department have taken
the proposal of filing the revisionist Department have taken the
proposal of filing the revision petition against the order dated
30.3.2011 of KSCDRC Bangalore in the present case and further
referred the matter to Ministry of Law and Justice to nominate a
counsel from its panel.
That the nomination of the counsel was received from the Postal
Directorate, New Delhi on 5.3.12.
That Shri Rajashekara, Senior Superintendent of Post Offices,
Mysore Division, Mysore was appointed on 7.3.12, by the
Revisionist Department to assist the Counsel in filing the Present
Revision Petition and for signing the documents, etc.
That on 24.4.12 the present Revision Petition was filed before
this Hon’ble Commission.
7.
Learned Counsel for the petitioners submitted that on account of official
correspondence, delay occurred which may be condoned in the interest of justice. He
has placed reliance on LPA 531/2012 – Union of India & Ors. Vs. Kamal Kumar in
which Hon’ble Delhi High Court condoned delay of 136 days in filing appeal by Union of
India.
8.
Hon’ble Apex Court in 2012 STPL (Web) 132 SC – Office of the Chief Post
Master General & Ors. Vs. Living Media India Ltd. & Anr. whileelaborately dealing
with delay in filing revision petition by the Chief Post Master General, declined to
condone delay of 475 days in filing Special Leave Petition and observed as under :
“11. There is no explanation for not applying for certified copy of the
impugned judgment on 11.09.2009 or at least within a reasonable
time. The fact remains that the certified copy was applied only on
08.01.2010, i.e. after a period of nearly four months. In spite of
affording another opportunity to file better affidavit by placing
adequate material, neither the Department nor the person in-charge
has filed any explanation for not applying the certified copy within
the prescribed period. The other dates mentioned in the affidavit
which we have already extracted, clearly show that there was delay
at every stage and except mentioning the dates of receipt of the file
and the decision taken, there is no explanation as to why such
delay had occasioned. Though it was stated by the Department that
the delay was due to unavoidable circumstances and genuine
difficulties, the fact remains that from day one the Department or
the person/persons concerned have not evinced diligence in
prosecuting the matter to this Court by taking appropriate steps.
9.
In the present case, impugned order dated 30.3.2011 was received by petitioner
on 20.4.2011 and as per affidavit the case was processed at the office of Chief Post
Master General, Bangalore on 26.4.2011 and directed Post Master General SK Region
to take action and decision was taken on 18.8.2011 to implement the order partially by
the Director of Postal Services meaning thereby after almost 4 months decision was
taken to implement the order of District Forum partially, but later on decided to
challenge the impugned order. Perusal of affidavit further reveals that vide letter dated
21.2.2012, Postal Directorate directed the petitioner to file revision petition
and Shri Rajashekara, Senior Superintendent of Post Offices was appointed to assist
the Counsel in filing the present revision petition, but revision petition was filed on
24.4.2012 meaning thereby again almost 2 months’ time was taken in preparing and
filing revision petition after direction to file revision petition. Petitioner has not given any
cogent explanation for condonation of delay between 26.4.2011 to 18.8.2011 and
21.2.2012 to 24.4.2012 and in such circumstances, in the light of Hon’ble Apex Court’s
judgment in Office of the Chief Post Master General & Ors. (Supra), we do not find it
appropriate to condone the inordinate delay of 280 days.
10.
As there is inordinate delay of 280 days, this delay cannot be condoned in the light
of the following judgment passed by the Hon’ble Apex Court.
11.
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.”
12.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd.,
AIR 1962
Supreme
Court 361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to
the condonation of delay in question as a matter of right. The
proof of a sufficient cause is a discretionary jurisdiction vested in
the Court by S.5. If sufficient cause is not proved nothing further
has to be done; the application for condonation has to be
dismissed on that ground alone. If sufficient cause is shown then
the Court has to enquire whether in its discretion it should
condone the delay. This aspect of the matter naturally introduces
the consideration of all relevant facts and it is at this stage that
diligence of the party or its bona fides may fall for consideration;
but the scope of the enquiry while exercising the discretionary
power after sufficient cause is shown would naturally be limited
only to such facts as the Court may regard as relevant.”
13.
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.”
14.
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 280 days. Revision petition is liable to be dismissed on the ground of
delay alone.
15.
In the light of aforesaid judgements, we do not find it appropriate to condone the
inordinate delay of 280 days. As application for condonation of delay has been
rejected, revision petition being barred by time is liable to be dismissed.
17.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage being 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
FIRST APPEAL NO. 702 OF 2007
(Against the order dated 23.10.2007 in Complaint Case No.31/2003 of the State
Commission, Rajasthan)
The Rajasthan Tourism Development Corporation through Senior Manager
Hotel Gangaur, Jaipur (Rajasthan)
…..Appellant
Versus
1. Aakanshi Satellite Programmers, 83. Gopal Bari, Jaipur (Rajasthan)
2. M/s. Cable Net Service, 83, Gopal Bari, Jaipur (Rajasthan)
3. Shri Anurag Khanna, Properitor Cable Net Service, 83, Gopal Bari,
Jaipur (Rajasthan)
.....Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant
: Mr. Shaliesh Prakash Sharma, Advocate
For the Respondent
Nos.1 & 3
: Mr. Alankar Khanna, Advocate
For the Respondent No.2: Mr. S.K.Sharma, Advocate
PRONOUNCED ON: 29th August, 2013
ORDER
PER MR. VINAY KUMAR, MEMBER
Two identical complaints, on the same issue, were filed by the Rajasthan Tourism
Development Corporation (hereinafter referred to as RTDC) before the Rajasthan State
Consumer Disputes Redressal Commission. As the issues and the parties involved
were the same, they were disposed of by a common order of 23.10.2007. The RTDC
has now filed a single appeal in both the matters against dismissal of the complaint by
the Rajasthan State Consumer Disputes Redressal Commission.
2.
The facts in brief are that in 1998, OP-1 had submitted a proposal to the
Complainant offering to provide cable T.V. connections to Hotel Gangaur of the
RTDC. The proposal was accepted and the service was provided continuously till
25.7.2002. Thereafter, OP-1 informed through a letter that it would not be able to
continue the cable T.V. service beyond 30.8.2002, for certain technical reasons. It was
also informed that further service could be provided by OP-2. Apparently, the rate
demanded by the OP-2 was higher than the existing rate and therefore not
accepted. The cable TV service was eventually discontinued by OP-1. Considering it
to be a deficiency of service, the RTDC filed the consumer complaints. The
Complainant claimed total compensation of Rs.26.90 lakhs from the OPs.
3.
Per contra, the case of OP-1 was that there was no agreement or commitment to
continue the service at the originally agreed rate without any time frame. The terms and
conditions offered at the commencement of the service were agreed and it was not the
case of the Complainant that they were not agreed. Overtime, the business of OP-1 was
taken over by OP-2 and therefore, the service could not have been continued by OP1. The original agreement between the parties was for a period of one year from
August 1998 and had thereafter been continued from year to year.
4.
The State Commission has held that the contract between the Complainant and
OP-1 was in the nature of an annual contract which was continued. OP-1 had informed
the Complainant on 25.7.2002 itself that it would be concluded on 30.8.2002. Therefore,
there was no deficiency of service on the part of OP-1. The Commission also held that
in so far OP-2 was considered, no contract existed between the Complainant and OP2. Therefore, the question of deficiency of service did not arise at all. Consequently,
the complaint was dismissed against both, OP-1 as well as OP-2.
5.
We
have
carefully
perused
the
record
and
heard
the
two
counsels. Mr. Shailesh Prakash Sharma , Advocate was heard on behalf of the
Appellant RTDC and Mr. Alankar Khanna and Mr. S.K.Sharma, Advocates for the
Respondents.
6.
During the course of the arguments, learned counsel for the Appellant agreed that
there was no privity of contract between the appellant-RTDC and OP-2. Counsel for the
respondent forcefully argued that there is nothing in the records to show that OP-1 was
under any contractual obligation to continue the service indefinitely.
As a matter of
fact, the document relied upon by the Complainant clearly shows that the arrangement
began as annual contract in August 1998 and ended in August, 2002. It needs to be
noted here that in the pleadings before the State Commission, the contention in para 3
of the complaint that the arrangement of 1998 was without any time frame was
challenged in the written response of OP-1 in the following terms:“That annexture -1 is self explanatory and it is totally false that any
offer was ever given by Respondent No.1 vide annexture -1 to provide cable
connections to the corporation at the rate of Rs.2,700/- per month without
any time frame for all times of come nor any such thing was ever
negotiated or accepted by the Respondent No.1.”
7.
The appellant, as already noted, has not been able to produce any evidence that
it was meant to be an open ended contract to continue to provide cable T.V service at
Rs.2700/- per month for all times. The State Commission has referred to proposal of
OP-1 in their letter of 1.8.1998 to the Manager HotelGanguar RTDC, Jaipur. A perusal
of this letter shows that it provided for enhancement of charges on the basis of
imposition of new taxes by the government. It also provided for annual enhancement in
monthly rental. It is therefore, clear that it was in the nature of an agreement which was
open to renewal from year to year. Therefore, the terms of renewal of such an
agreement would, by its very nature, need to be agreed by both sides. It cannot be
automatic continuation at unilateral demand or discretion of either party.
8.
We therefore, agree with the State Commission that no case of deficiency of
service has been made out against OP-1 and OP-3. We also agree that there was
no privity of contract between the Complainant/RTDC and OP-2. Consequently, no
case is made out against any of the OPs. In our view, the decision of the State
Commission is based on correct appreciation of the evidence on record. We therefore
find no merits in this appeal. It is dismissed for the same reason with no order as to
costs.
…..…………….Sd/-…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………Sd/-….…….……
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2117 OF 2013
(From the order dated 21.03.2013 in Appeal No. 172 of 2013 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
With IA/3474/2013 (Stay)
The Hisar Scholars Co-op. Housing Building Society Ltd., Through its Mrs. Kapila
Daughter of Narain Singh having its office at Kaimari Road, Amardeep Colony, Hisar
… Petitioner/Opp. Party (OP)
Versus
Dr. K. Lakshminarayana S/o Sh. Adinarayana R/o 59A/8/1-4, Plot No. 14, Road No.
1, Vasvinagar Vijayawada, Andhra Pradesh
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Sanchar Anand, Advocate
PRONOUNCED ON 29th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
21.03.2013
passed
by
the
Haryana
State
Consumer
Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal
No.172/2013
–
The Hisar Scholars
Co-op.
House
Bldg.
Soc.
Ltd.
Vs. Dr. K.Lakshminarayana/ by which, appeal was dismissed as barred by 566 days.
2.
Learned District Forum vide its order dated 18.7.2011 while allowing complaint
directed OP/Petitioner as under:
“As a result of above discussion, we are of the considered view that
there is ‘Deficiency in Service’ on the part of the OP society and
they have illegally cancelled the allotment of the plot of the
complainant. Hence, we set aside the cancellation order and direct
the OP society to restore the plot in question i.e. Plot No. B-97 to
the complainant and offer the possession of the plot in question to
the complainant after completing the development work. At the
same time, we direct the complainant to deposit the development
charges, if any. The opposite parties are further directed to pay
Rs.5000/- (Rupees Five thousand only) to the complainant as
litigation
expenses.
However,
the
opposite
partiessociety have admitted in their reply that plot in question
were reallotted further, so the reallottees are at liberty to take legal
recourse against the opposite parties-society. Order of this
forum be complied with within one month from the date of receipt of
copy of this order. A copy of this order be supplied to both the
parties free of cost as required under Sub Rule 10 Rule 4 of the
Haryana Consumer Protection Rules, 1988. File be consigned after
due compliance”.
3.
Petitioner filed appeal before State Commission which was dismissed as barred
by 566 days against which, this revision petition has been filed.
4.
Heard learned Counsel for the petitioner at admission stage and perused record.
5.
Learned Counsel for the petitioner submitted that learned District Forum
entertained complaint without jurisdiction and inspite of sufficient cause shown for not
filing appeal within limitation, learned State Commission has committed error in
dismissing appeal as barred by limitation; hence, revision petition be admitted.
6.
Petitioner, along with appeal, filed application for condonation of delay filed before
learned State Commission, which runs as under:
“That although the copy was prepared by the District Consumer
Forum on 18.7.2011 but it was never supplied to the
appellant. That only on 20.12.2012 when applicant asked his
counsel at Hisar with regard to the status of the case then he
informed that case has already been decided long back against
them. The appellant asked the counsel about the remedy
available to him against the dismissal of this case. He was
informed that now the appeal can filed in the Hon’ble State
Commission, Haryana. That in between there is a delay of 566
days which is inadvertent and beyond the control of the applicant
therefore, the same may kindly be condoned, in the interest of
justice, other the applicant will suffer an irreparable loss”.
7.
Petitioner has not given any satisfactory explanation for not getting information
regarding order of District Forum from 18.7.2011 to 20.12.2012. Order of District Forum
clearly reveals that order was passed after hearing Counsel for the petitioner. No
reasons have been given by the petitioner why no inquiry was made by the petitioner
from his Counsel or from office of the District Forum regarding disposal of complaint for
a long period of 17 months. Not only this, when petitioner came to know about
judgment of District Forum on 20.12.2012, petitioner should have filed appeal
immediately, whereas appeal was filed before State Commission on 21.3.2013 meaning
thereby, after 3 months and no explanation explaining delay of 3 months was given after
getting knowledge of the order. Learned State Commission has rightly dismissed
appeal as barred by 566 days and we do not find any illegality, irregularity or
jurisdictional error in the impugned order.
8.
As
there
was
inordinate
delay
of
566
days,
this
delay
could
not
have bene condoned in the light of the judgments passed by the Hon’ble Apex Court
and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical
Industries
Ltd.
Vs.
Gujarat
Industrial
Development
Corporation
and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General
and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State
Commission) – AnshulAggarwal Vs. New Okhla Industrial Development Authority.
9.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2100 OF 2013
(From the order dated 21.03.2013 in Appeal No. 174 of 2013 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
With
IA/3460/2013 (Stay)
The Hisar Scholars Co-op. Housing Building Society Ltd., Through its Mrs. Kapila
Daughter of Narain Singh having its office at Kaimari Road, Amardeep Colony, Hisar
… Petitioner/Opp. Party (OP)
Versus
1. Mohinder Kumar Jain S/o Sh. R.L. Jain, Microbiologist, C.C.S., H.A.U., Hisar
2. Jasbir Singh S/o Sh. Hari Singh R/o 147/7, Jawahar Nagar, Hisar
3. Sunil Kumar S/o Sh. Chhotu Ram R/o 597/38, Krishna Nagar, Hisar
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
:
Mr. Sanchar Anand, Advocate
29th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
21.03.2013
passed
by
the
Haryana
State
Consumer
Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal
No. 174/2013 – The Hisar Scholars Co-op. House Bldg. Soc. Ltd. Vs. Mohinder Kumar
Jain & Ors. by which, appeal was dismissed as barred by 566 days.
2.
Learned District Forum vide its order dated 18.7.2011 while allowing complaint
directed OP/Petitioner as under:
“As a result of above discussion, we are of the considered view that
there is ‘Deficiency in Service’ on the part of the OP society and
they have illegally cancelled the allotment of the plot of the
complainant. Hence, we set aside the cancellation order and direct
the OP society to restore the plot in question i.e. Plot No. 158-B to
the complainant and offer the possession of the plot in question to
the complainant after completing the development work. At the
same time, we direct the complainant to deposit the development
charges, if any. The OP No.1-society is further directed to pay
Rs.5000/- (Rupees Five thousand only) to the complainant as
litigation expenses. However, the OP No. 1-society has admitted in
its reply that plot in question were allotted to Jasbir Singh son
of Shri Hari Singh, R/o 147/7, Jawahar Nagar, Hisar and further
transferred the plot in question to Sunil Kumar son
of Shri Chhotu Ram, R/o 597/38, Krishna Nagar, Hisar. Hence the
opposite party No. 4 & 5 is at liberty to take legal recourse against
the OP No. 1-society. Order of this forum becomplied with within
one month from the date of receipt of copy of this order. A copy of
this order be supplied to both the parties free of cost as required
under Sub Rule 10 Rule 4 of the Haryana Consumer Protection
Rules, 1988. File be consigned after due compliance”.
3.
Petitioner filed appeal before State Commission which was dismissed as barred
by 566 days against which, this revision petition has been filed.
4.
Heard learned Counsel for the petitioner at admission stage and perused record.
5.
Learned Counsel for the petitioner submitted that learned District Forum
entertained complaint without jurisdiction and inspite of sufficient cause shown for not
filing appeal within limitation, learned State Commission has committed error in
dismissing appeal as barred by limitation; hence, revision petition be admitted.
6.
Petitioner, along with appeal, filed application for condonation of delay filed before
learned State Commission, which runs as under:
“That although the copy was prepared by the District Consumer
Forum on 18.7.2011 but it was never supplied to the
appellant. That only on 20.12.2012 when applicant asked his
counsel at Hisar with regard to the status of the case then he
informed that case has already been decided long back against
them. The appellant asked the counsel about the remedy
available to him against the dismissal of this case. He was
informed that now the appeal can filed in the Hon’ble State
Commission, Haryana. That in between there is a delay of 566
days which is inadvertent and beyond the control of the applicant
therefore, the same may kindly be condoned, in the interest of
justice, other the applicant will suffer an irreparable loss”.
7.
Petitioner has not given any satisfactory explanation for not getting information
regarding order of District Forum from 18.7.2011 to 20.12.2012. Order of District Forum
clearly reveals that order was passed after hearing Counsel for the petitioner. No
reasons have been given by the petitioner why no inquiry was made by the petitioner
from his Counsel or from office of the District Forum regarding disposal of complaint for
a long period of 17 months. Not only this, when petitioner came to know about
judgment of District Forum on 20.12.2012, petitioner should have filed appeal
immediately, whereas appeal was filed before State Commission on 21.3.2013 meaning
thereby, after 3 months and no explanation explaining delay of 3 months was given after
getting knowledge of the order. Learned State Commission has rightly dismissed
appeal as barred by 566 days and we do not find any illegality, irregularity or
jurisdictional error in the impugned order.
8.
As there was inordinate delay of 566 days, this delay could not have been
condoned in the light of the judgments passed by the Hon’ble Apex Court and the
National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries
Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC
563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd.
and Anr. and (3) 2012
(2)
CPC
3
(State
Commission)
–
AnshulAggarwal Vs. New Okhla Industrial Development Authority.
9.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2068 OF 2013
(From the order dated 02.04.2013 in Appeal No. 153/08 Haryana State Consumer
Disputes Redressal Commission, Panchkula)
With IA/3403/2013
(For condonation of Delay)
Satpal S/o Sh. Chhabil Dass R/o VPO Bhuna, Teh & Distt. Fatehabad
… Petitioner/Complainant
Versus
1. United India Insurance Co. Ltd. Through its Deputy Manager, Regional Office, SCO
No. 123-24, Sector 17-B, Chandigarh
2. United India Insurance Co. Ltd. 75, Anaj Mandi, Fatehabad Through its Branch
Manager
3. United India Insurance Co. Ltd. Branch Apolo Chowk, Dr. Singla Wali Gali, Railway
Road Narwana District Jind Through its Branch Manager
4. United India Insurance Co. Ltd. Head Office 24 Winstant Road, Chennai through its
General Manager
… 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. Deepak Aggarwal, Advocate
PRONOUNCED ON 29th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the
order dated 21.09.2012 passed by the Haryana State Consumer Disputes Redressal
Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 628/2012 –
United India Ins. Co. Ltd. Vs. Satpal by which, while allowing appeal, order of District
Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner’s vehicle bolero jeep HR-62-
1761 was insured by OP/respondent for the period 5.9.2008 to 4.9.2009. Vehicle was
stolen on 13.12.2008 and FIR was lodged on the same day with the Police Station and
intimation was also given to OP, but OP failed to settle the claim. Alleging deficiency on
the part of OP, complainant filed complaint with the District Forum. OP contested
complaint and submitted that complainant informed OP on 15.1.2009, i.e. after more
than 30 days from the alleged theft and has violated terms and conditions of the
policy. It was further submitted that inspite of repeated letters, petitioner did not supply
relevant documents; so, claim was repudiated in August, 2009 and prayed for dismissal
of complaint. Learned District Forum after hearing both the parties allowed complaint
against which, appeal filed by the OP was allowed against which, this revision petition
has been filed along with application for condonation of delay of 140 days.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
In application for condonation of delay, learned Counsel for the petitioner
submitted that as petitioner was involved in FIR No.98/2000 under Sections 420, 467,
468, 471, 120-B IPC and was in acute depression and was not in a fit state of mind,
delay of 140 days occurred in filing revision petition which may be condoned. Learned
Counsel for the petitioner submitted that delay occurred due to involvement in false FIR
which may be condoned and revision petition be admitted.
5.
Petitioner simply mentioned in the application for condonation of delay that he was
falsely implicated in FIR No. 98/2000 under Sections 420, 467, 468, 471, 120-B IPC, but
he has not filed copy of FIR or challan and has also not shown result of criminal
case. He has mentioned in the application that FIR and detention of the petitioner in
custody is not a disputed fact, but admitted by both the parties before learned District
Forum. Perusal of order of District Forum which was passed on 16.4.2012 reveals that
Counsel for the complainant during the course of arguments submitted that complainant
could not submit documents in time due to custody in jail, but later on he submitted all
the documents meaning thereby before filing complaint, which was filed on
19.4.2011, petitioner must have come out of jail. Learned State Commission passed
impugned order on 16.4.2012 and petitioner has not pleaded any circumstance showing
that he was in jail after passing of the impugned order and in such circumstances, there
is no explanation for condonation of 133 days delay (as per Registry report). Learned
Counsel for the petitioner has placed reliance on 2008 (4) RCR (Criminal) – State (NCT
of Delhi) Vs. Ahmed Jaan in which it was observed that law of limitation is same for
private citizen as for State, but certain amount of latitude is not impermissible. In the
aforesaid case, delay of 5 years in filing revision was condoned as it was explained by
Counsel that file was misplaced in his office due to paucity of space. In the case in hand
petitioner has not placed any material to show that petitioner was restrained by any
sufficient cause from filing revision petition in time. When he had already come out of
jail before more than 2 years, there was no reason for not filing revision petition in time
and delay in filing revision petition cannot be condoned in routine. He has also placed
reliance on (2005) 3 SCC 752 – State of Nagaland Vs. POK AO and Ors. in which it
was observed that sufficient cause should be considered with pragmatism in a justiceoriented approach. We agree with the view expressed by Hon’ble Apex Court, but in the
light of aforesaid observation, we do not find any sufficient cause for condonation of
delay.
6.
As there is inordinate delay of 133 days, this delay cannot be condoned in the light
of the following judgment passed by the 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 133 days. Revision petition is liable to be dismissed on the ground of
delay alone.
12.
As far as merits of the case are concerned, learned State Commission rightly
allowed appeal as there was delay of more than 30 days in intimation to Insurance
Company and thus, petitioner violated terms and conditions of the policy. Learned
State Commission rightly placed reliance on New India Assurance Co. Ltd. Vs.
Trilochan Jane and Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance
Co. Ltd. & Anr. and rightly allowed appeal.
13.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order and revision petition is liable to be dismissed on merits also.
14.
Consequently, revision petition filed by the petitioner is dismissed on the ground of
limitation as well as on merits 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. 3124 OF 2012
(From the order dated 24.07.2012 in Appeal No. 2087/11 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
Hindustan Coca Cola Beverages Pvt. Ltd. 3rd Floor, Orchid Centre Golf Course Road
Sector 53, Gurgaon Haryana And have one of its factories/ Filling Plants at
S.P. 39-40 RIICO Industrial Area Village Kala Dera District Jaipur – 303801
… Petitioner/Opp. Party (OP)
Versus
1. Kamlesh Kumar Parikh House No. 131-132 Shriram Nagar Kalwad Road, Jhotwara
Jaipur – 303012
2. Lall’s Departmental Store S-7, Yatharth, Kabir Marg, Bani Park Jaipur – 302016
(Rajasthan)
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Rajiv Tyagi, Advocate
For the Respondents :
PRONOUNCED ON
Mr. Ajay Kumar, Advocate
NEMO/Ex-parte
29th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the order dated
24.07.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission,
Jaipur (in short, ‘the State Commission’) in Appeal No. 2087/11 – M/s. Hindustan Coco
Cola Beverage Pvt. Ltd. Vs. Kamlesh KumarParik & Ors. by which, while dismissing
appeal, order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant/Respondent No. 1 purchased two soft
drink bottles of 600 ml. for a sum of Rs.40/- from OP No.1/Respondent No. 2
manufactured by OP No. 2/petitioner. Complainant/Respondent No.1 consumed one
bottle and then started vomiting and had complained of stomach-ache. He then found
ants and fungus in second bottle and took treatment for the disease sustained due to
consumption of soft drink. Complainant contacted OP No. 1, who told that he sells
bottles as received from the manufacturer. Complainant alleging deficiency on the part
of the OPs, filed complaint with District Forum. OP No.1 submitted that OP No. 1
apprised complainant that bottles sold by him were received from the manufacturing
company, but admitted that second bottle contained ants and fungus and prayed for
dismissal of complaint. OP No. 2 remained ex-parte. Learned District Forum after
hearing both the parties, allowed complaint and directed OPs jointly and severally liable
to pay Rs.40/- along with compensation of Rs.1,00,000/- out of which, Rs.25,000/- to be
paid to the complainant and Rs.75,000/- to be deposited with State Consumer Welfare
Fund and awarded Rs.3,000/- as litigation expenses. Appeal filed by the petitioner was
dismissed by learned State Commission vide impugned order against which, this
revision petition has been filed.
3.
None appeared for the respondents even after service and they were proceeded
ex-parte.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that impugned order is not a
speaking order and learned State Commission has not dealt with the arguments
submitted by the petitioner; hence, petition be allowed and matter may be remanded
back to the learned State Commission for disposal by speaking order. On the other
hand, learned Counsel for the respondent submitted that District Forum has elaborately
discussed submissions of the parties and order passed by learned State Commission is
in accordance with law; hence, petition be dismissed.
6.
Perusal of impugned order reveals that it is not a speaking order and learned
State Commission has observed as under:
“The District Forum below has passed the order after appreciating
all the facts of the case and the evidence. Hence, we do not find to
appraise the evidence and re-evaluate the evidence. In view of the
facts and circumstances we do not find any error in the order dated
19.9.2011 passed by the District Forum, Jaipur-II, Jaipur. Since,
the District Forum, as per record, has rightfully appreciated the facts
and hence there is no ground for interference. This apart the appeal
seems to be devoid of merits”.
7.
Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as
under:
“1.In a number of cases coming up in appeal in this Court, we find
that the State Consumer Disputes Redressal Commission, Haryana
at Chandigarh is passing a standard order in the following terms:
‘We have heard the Law Officer of HVPN – appellant and
have also perused the impugned order. We do not find any
legal infirmity in the detailed and well-reasoned order passed
by District Forum, Kaithal. Accordingly, we uphold the
impugned order and dismiss the appeal’.
2. We may point out that while dealing with a first appeal, this is not
the way to dispose of the matter. The appellate forum is bound to
refer to the pleadings of the case, the submissions of the counsel,
necessary points for consideration, discuss the evidence and
dispose of the matter by giving valid reasons. It is very easy to
dispose of any appeal in this fashion and the higher courts would
not know whether learned State Commission had applied its mind
to the case. We hope that such orders will not be passed by the
State Consumer Disputes Redressal Commission, Haryana at
Chandigarh in future. A copy of this order may be communicated to
the Commission”.
8.
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.
9.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 24.07.2012 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.
10.
Parties are directed to appear before the learned State Commission on
04.10.2012. 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
REVISION PETITION NO. 1569 OF 2013
(From the order dated 02.04.2013 in Appeal No. 153/08 Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Rama Nand Dhaka S/o Shree Chand, R/o Village Seurli P.O. Jakhauli, Distt. Sonepat
(Haryana) Through GPA Sat Pal Singh S/o Sh. Albail Singh, R/o VPO Pahnwa
Distt. Kaithal (Haryana)
… Petitioner/Complainant
Versus
1. Haryana Urban Development Authority Through its Chief Administrator Sector6, Panchkula (Haryana)
2. The Administrator Haryana Urban Development Authority Rohtak (Haryana)
3. The Estate Officer Haryana Urban Development Authority Panipat (Haryana)
… 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. Madhurendra Kumar, Advocate
PRONOUNCED ON
29th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the
order
dated
02.04.2013
passed
by
the
Haryana
State
Consumer
DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal
No. 153/08 –HUDA Vs. Rama Nand Dhaka by which, while allowing appeal, order of
District Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner was allotted plot no. 2632 in
Sector 18, Panipat vide Memo dated 30.07.1998. As the OP/respondent failed to
develop the area and deliver actual physical possession, complainant filed complaint
No.61/2002 before District Forum, Panchkulaseeking refund of the deposited amount
along with interest and compensation. OP contested complaint, but learned District
Forum vide order dated 25.3.2003 allowed complaint and directed OP to refund
deposited amount with 10% p.a. interest along with Rs.1,000/- as costs. Order of
District Forum was challenged before State Commission in Appeal No.1578/2003 which
was dismissed as withdrawn being infructuous vide order dated 6.1.2006, as parties
compromised the matter and complainant agreed to receive payment with 9% p.a.
interest instead of 10% per annum interest allowed by the District Forum. Complainant
withdrew Execution Petition filed before District Forum on 25.3.2003 and OP sent
cheque of Rs.4,86,125/- to the complainant, but complainant instead of receiving the
amount filed second complaint No. 82/2007 and claimed relief to retain the plot in
question on the ground that financial position of the complainant had improved. OP
contested complaint and submitted that complaint was not maintainable in view of
principle of res judicata and further submitted that in the earlier complaint order for
refund of amount had already been passed; the question of retaining the plot by the
complainant by taking ‘U’ turn does not lie and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties allowed complaint and
directed OP to receive due payment towards plot no. 2632 and pay Rs.2,000/- as
costs. OP filed appeal against the order of District Forum which was allowed vide order
dated 15.7.2011 and complaint was dismissed. Complainant filed Revision Petition No.
3023/2011 before National Commission and this Commission vide order dated
26.2.2013 set aside order of State Commission and matter was remanded back to the
State Commission to decide the appeal on merits in accordance with law. After
remand, learned State Commission vide impugned order allowed appeal and complaint
was dismissed with cost of Rs.50,000/- against which, this revision petition has been
filed.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as Appeal No. 153/2008 was
filed with delay of 90 days and as earlier order dated 15.7.2011 of State Commission
was set aside by National Commission, it was obligatory on the part of State
Commission to pass fresh order on application for condonation of delay and learned
State Commission has not condoned delay by the impugned order. It was further
submitted that learned State Commission has committed error in allowing appeal and
dismissing complaint on the ground of res adjudicata; hence, revision petition be
admitted.
5.
Perusal of order dated 15.7.2011 passed by learned State Commission in Appeal
No.153 of 2008 clearly reveals that after hearing both the parties, delay of 90 days in
filing appeal was condoned and by the same order, appeal was allowed on merits on
the ground of want of territorial jurisdiction of the District Forum. This Commission vide
order dated 26.2.2013 allowed revision petition holding that District Forum had
jurisdiction to deal with the complaint and in such circumstances, order dated 15.7.2011
passed by learned State Commission was set aside and case was remanded back to
the State Commission to decide the appeal on merits in accordance with law.
6.
Perusal of order of this Commission clearly reveals that this Commission has not
given any finding contrary to the order of State Commission regardingcondonation of
delay meaning thereby, condonation of delay by State Commission has not been set
aside by this Commission vide order dated 26.2.2013 and matter was remanded back to
State Commission to decide the appeal on merits in accordance with law. In such
circumstances, no fresh order was required to be passed by State Commission
regarding condonation of delay merely because order condoning delay in filing appeal is
also part of order dated 15.7.2011 passed by learned State Commission.
7.
Learned State Commission vide impugned order has rightly held that after
acceptance of first Complaint No. 61/2002 and the order being complied with, the
complainant ceases to be a ‘consumer’ and no cause survived for the complainant to
file second complaint. It was rightly observed that once the grievance of the
complainant was redressed in earlier complaint, complainant should not have asked for
allotment of plot on the ground of improved financial position. Learned State
Commission also rightly observed that merely because order of District Forum dated
16.1.2008 has been complied with due to non-grant of stay by the State Commission,
the same does not confer any right to the complainant when validity of the order of
District Forum was under challenge before the State Commission.
8.
Learned Counsel for the petitioner submitted that learned State Commission has
committed error in allowing appeal on the ground of res judicata. He has also placed
reliance on (1985) 3 SCC 648 – Jaswant Singh and Anr. Vs. Custodian of Evacuee
Property, New Delhi in which it was held that “In order to decide the question whether a subsequent proceeding
is barred by res judicata it is necessary to examine the question
with reference to the (i) forum or the competence of the Court, (ii)
parties and their representatives, (iii) matters in issue, (iv) matters
which ought to have been made ground for defence or attack in the
former suit and (v) the final decision.
In order that a defence of res judicata may succeed it is necessary
to show that not only the cause of action was the same but also that
the plaintiff had an opportunity of getting the relief which he is now
seeking in the former proceedings. The test is whether the claim in
the subsequent suit or proceedings is in fact founded upon the
same cause of action which was the foundation of the former suit or
proceedings”.
This citation rather supports the case of OP/respondent because in both the complaints
District Forum was competent forum and same parties were before the District
Forum. Matter in issue was the same and complainant had an opportunity of claiming
possession of the plot, but instead of that he prayed for refund of the amount which was
refunded to him as per compromise entered between the parties in State Commission
and execution petition filed by the complainant before District Forum was disposed of in
the light of compromise arrived at between the parties. In such circumstances,
subsequent complaint fell within the purview of res judicata and subsequent complaint
was not maintainable.
9.
In the light of above discussion, we do not find any illegality, irregularity or
jurisdictional error in the impugned order and revision petition is liable to be dismissed at
admission stage.
10.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 51 OF 2008
(Against the order dated 03.12.2007 in CD Case No. 197/2003 of the
Orissa State Consumer Disputes Redressal Commission)
Branch Manager Oriental Insurance Co. Ltd. Bhadrak Branch Burma By-pass At/P.O.
District Bhadrak Orissa Through Manager Oriental Insurance Co. Ltd. Oriental House A25/27, Asaf Ali Road New Delhi-110002
…
Appellant
Versus
Yashowanta Narayan Dixit S/o Late Gadadhar Dixit Prop. Of M/s Dixit Oil Industries At
Dahanigadia, Charampa PO Bhadrak – 756101 District Bhadrak Orissa
…
Respondent
BEFORE:
HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Appellant
:
Mr. Kishore Rawat, Advocate
For Respondent
:
Mr. Shibhashish Misra, Advocate
Pronounced : 29th August, 2013
ORDER
PER VINEETA RAI
1.
This First Appeal has been filed by Oriental Insurance Co. Ltd., Opposite Party
before the Orissa State Consumer Disputes Redressal Commission (hereinafter
referred to as the State Commission) and Appellant herein being aggrieved by the order
of that Commission which had allowed the complaint of deficiency in service filed
against it in not settling the claim as per the insurance policy and unjustifiably offering a
lesser amount which was not acceptable to Yashowanta Narayan Dixit, Complainant
before the State Commission and Respondent herein.
2.
Facts of the case as per the Respondent/Complainant are that he was engaged
in the business of oil extraction in the name and style of Dixit Oil Industries for self-
employment and had taken an insurance policy from the Appellant/Insurance Company
to cover loss or damage to his unit for a sum of Rs.33 lakhs by paying a premium of
Rs.5280/- and Rs.2475/- for special peril of Floods for the period 04.09.1999 to
03.09.2000 vide Policy No. 2000/192 dated 06.09.1999. On 29.10.1999 during the
validity of this policy, there was a super cyclone followed by heavy torrential rain in the
entire
coastal
area
of
Orissa,
including
Bhadrak
town
where
the
Respondent/Complainant’s business was located. Because of the cyclone and heavy
rains and due to overflowing of the river Salandi the entire business premises of the
Respondent/Complainant was flooded and remained under 4 to 6 feet of water for about
four days and as a result raw material (mustard seeds), mustard oil in tanks and it’s byproduct i.e. Khal (de-oiled cakes) were washed away or spoiled. The entire stock
became unfit for human consumption. When the situation improved after some days,
Respondent/Complainant vide letter dated 02.11.1999 informed the Appellant/Insurance
Company giving a brief picture of the damage which was roughly estimated to be
Rs.27.21 Lakhs. It was contended that four Surveyors were appointed one after the
other,
namely,
M/s
R.P.
More
And
Associates,
who
visited
the
Respondent/Complainant’s premises and also asked him to send some oil for laboratory
tests. Thereafter another Surveyor - M/s D.S. Consolt & Network Pvt. Ltd.,
Bhubaneswar was appointed who confirmed that the water had entered into the godown
causing damage to the mustard seeds etc. but instead of settling the claim,
Appellant/Insurance Company appointed yet another Surveyor - M/s S. Soni & Co. who
again inspected the premises and sought certain clarifications which were
supplied. However, even after this, instead of settling the claim Appellant/Insurance
Company appointed a fourth Surveyor - M/s Sanjeeb Kumar Mohanty And
Associates. As per the assessment of this Surveyor which was based on the survey
reports of the three earlier Surveyors, Appellant/Insurance Company offered the
Respondent/Complainant a sum of Rs.2,98,145/- in settlement of the insurance claim
which was not accepted since it was well below the actual loss caused due to damaged
goods. Being aggrieved by the deficiency in service on the part of Appellant/Insurance
Company, Respondent/Complainant filed a complaint before the State Commission and
requested that Insurance Company be directed to settle the claim for a total amount of
Rs.69,06,685/- as per the following break up :
“1.
Loss sustained due to super cyclone &
flood covered under the policy
Rs.27,21,685.00
2.
Business loss
Rs.05,00,000.00
3.
Loss of business goodwill
Rs.05,00,000.00
4.
Payment of interest to the bank + Interest
to be paid in future
Rs.07,00,000.00
5.
Expenses incurred for writing letter, going
to the offices of the OPs etc.
Rs.00.25,000.00
6.
Damages / Compensations for sufferings
/ harassment / humiliation / psychological
trauma
Rs.10,00,000.00
7.
Interest @ 18% on the amount to be
awarded from 29&30/10/1999 till the date
of payment pendent lite and future
interest
Rs.14,60,000.00
Rs.69,06,685.00”
3.
Appellant/Insurance Company on being served filed a written rejoinder refuting
the allegations made by the Respondent/Complainant. It was contended that in order to
settle the claim of the Respondent/Complainant, with his knowledge and consent three
Surveyors were appointed and based on the report of the final Surveyor, whose
assessment was based on the earlier three survey reports as also examination of
relevant documents, the insurable loss was rightly assessed at Rs.3,74,167/-. In fact,
Respondent/Complainant had highly inflated his loss by placing reliance on various
purchase bills stating that there was extensive damage to not only raw material but to
the finished goods, including those stored in the oil tanks. However, this extensive
damage
was
not
backed
by
credible
evidence. The
contention
of
the
Respondent/Complainant regarding the loss and also seeking an insurance claim
amount which was much higher than the amount insured as per the insurance policy
itself indicates that the Respondent/Complainant’s complaint/allegation lacks credibility.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it allowed the complaint by observing as follows:
“7. It is relevant to mention here that the complainant in support of his claim placed
reliance on the purchase bills which are as follows :-
Sl.
No.
1.
Date
Party Name
21.08.99 Rajendra
Prasad
Qty.
(Kg)
Bill
Amount
Freight
in word
Net Cost Rate/Kg
Rs.
15895 303034/- 23,246/- 326080/- 20.52
Dinesh Ku. Jain
2.
18.08.99 Ravi
Corporation
9010
160020/- 5767/-
165787/- 18.40
3.
22.08.99 Abhay Kr.
9010
179388/- 4866
181254/- 20.44
Champalal Jain
4.
01.09.99 Ravi
Corporation
9010
174201/- 2846/-
177087/- 19.65
5.
03.09.99 Abhay Kr.
9010
174201/- 2860/-
177061/- 19.65
Champalal Jain
6.
26.09.99 Ravi
Corporation
15385 289167/- 15800/-
304967/- 19.82
7.
28.09.99 Balaji
Enterprises
5970
118265/- 19.80
8.
01.10.99 Akodiya Inds.
16000 299042
118265/-
17830/-
316872/- 19.80
158.08
He has calculated the damage as follows :-
“Average
158.08/8
639.35 Qtl X 1976
=
19.76 (1976 per Qtl.)
=
12,63,355.00”
The last surveyor having relied on the reports of the previous surveyors reduced the
quantum of damage without any justification. There is nothing on record to disbelieve
the details of purchase bills furnished by the complainant. Taking into consideration
totality of the circumstances, we are of the view that the offer of rupees 2,98,145/- by
the opposite parties was rightly rejected by the complainant. The occurrence took place
in October, 1999. More than eight years have elapsed. As the complainant had taken
cash credit loan, he must be paying interest to the financing Bank. The opposite parties
have arbitrarily and illegally withheld the legitimate amount. Therefore, his entitlement to
interest and compensation cannot be denied. We, accordingly, direct the opposite
parties to pay a consolidated amount of rupees 16,00,000/- (sixteen lakhs) to the
complainant by 31.01.2008, failing which interest at the rate of 9 percent per annum
shall be paid from 01.11.1999.”
5.
Being aggrieved by the order of the State Commission, the present First Appeal
has been filed.
6.
Counsels for both parties made detailed oral submissions.
7.
Counsel for the Appellant/Insurance Company explaining the reason for
appointing four Surveyors stated that the first two Surveyors were essentially
preliminary Surveyors who had been deputed to assess the physical condition and not
assess the actual loss. While admitting that the third Surveyor – M/s S. Soni And
Company assessed the net loss at Rs.11,83,000/-, Counsel for the Appellant/Insurance
Company stated that there were inherent contradictions in this survey report vis-à-vis
the earlier two survey reports. For example the second Surveyor after an on the spot
inspection had categorically stated that inundation did not cause damage to the finished
goods, including 29 bags of deoiled cakes as well as the mustard oil in tanks. Apart
from this, the third Surveyor had not gone into some important questions raised by the
earlier two Surveyors. For example, the second Surveyor – D.S. Consolt Pvt. Ltd. had
stated that Respondent/Complainant to explain the higher amount of stocks stored and
damaged had reported that the mill was closed from 03.10.1999 to 29.10.1999 because
of which stocks had accumulated but this point needed further investigation. No finding
was given on the same by the third Surveyor. Because of this and some other
contradictions in the report, it was necessary to appoint the fourth Surveyor to give a
correct assessment of the actual loss. Counsel for the Appellant/Insurance Company
while admitting that the fourth Surveyor was appointed without the consent or
knowledge of the Respondent/Complainant, stated that the fourth Surveyor, while
agreeing that the amount of raw material damaged was 199.48 quintals has concluded
that there was no loss to the finished goods. The fourth Surveyor further concluded that
the third Surveyor had only relied on the version of the Respondent/Complainant while
assessing the loss and had not considered the actual physical damage or any credible
document. Regarding the closure of the factory to explain the higher amount of stocks
in the godowns just prior to the cyclone vis-à-vis other months/years, the fourth
Surveyor
concluded
that
the
factory
was
not
closed
as
alleged
by
the
Respondent/Complainant since the electricity bills for the months of September and
October, 1999 were higher than the electricity bills for the same months of the
preceding years. The fourth Surveyor assessed the loss as follows :“AFFECTED AMOUNT
4,84,797.48
SALVAGE
28,130.00
ASSESSED LOSS
4,56,667.48
UNDER INSURANCE
Not applicable
POLICY EXCESS (2.5% of Sum
82,500/Insured)
NET
3,74,167.48
SAY
3,74,167/-”
8.
Counsel for the Respondent/Complainant challenged the above contentions of
Counsel for the Appellant/Insurance Company. In the first place, it was pointed out that
since
the
fourth
Surveyor
was
appointed
behind
the
back
of
the
Respondent/Complainant and his report was submitted in 2000 i.e. four months after
the occurrence of the incident, no correct assessment of the actual damage was
possible and, therefore, as admitted by the Appellant/Insurance Company, it was the
third Surveyor who essentially went into the details of the actual loss incurred after
physical
verification
and
examination
of
the
stock
register
and
related
documents. Counsel for the Respondent further stated that Appellant’s contention that
the two preliminary Surveyors had found that the finished goods were not affected by
the inundation is not factually correct. He brought to our notice the report of the second
Surveyor – M/s D.S. Consolt Networks Pvt. Ltd. which clearly stated that the oil kept in
the oil tanks had a bad smell and the by-products kept in the separate godown were
also found damaged due to inundation.
Counsel for the Respondent/Complainant also challenged the finding of the fourth
Surveyor that the factory had not been closed in October, 1999 by relying on the
electricity consumption, which, according to the Surveyor, indicated that the average
units consumed as per the electricity bill of October, 1999 was higher than the electricity
bill for the corresponding period of preceding years. This sort of calculation is
erroneous and should not be the basis of settling the insurance claim, inasmuch as a
perusal of the electricity bills for preceding months would indicate that the units
consumed in April, May, June, July, August and September, 1999 were higher than in
October, 1999. If an average is taken from April, 1999 to October, 1999 it would
indicate the average unit consumed per quintal. The exercise should have been to add
all the units consumed from April, 1999 to September, 1999, divided by the total quintals
of materials sent for milling to arrive at the average unit consumed per quintal. Further
the units consumed in October 1999 should be divided by the average unit as obtained
hereinabove. The resultant will be the amount/quintal milled in the month of October,
1999. The assessment of loss based on the report of the fourth Surveyor was made
purely to suit the convenience of Appellant/Insurance Company and without taking into
account the various stock registers maintained by the Respondent/Complainant as also
the fortnightly stock statements sent by the Respondent/Complainant to the Civil
Supplies Department of the Government of Odisha as required under the Essential
Commodities Act. Apart from this, the long and dilatory procedure adopted by the
Appellant/Insurance Company in this case was in contradiction of a joint decision of the
Government of India, Government of Odisha and the Insurance Companies taken in a
meeting on 25.11.1999 that insurance claims of all those affected in the super cyclone
should be settled within a period of 45 days.
9.
We have heard learned Counsels for both parties and have also gone through the
evidence on record. In the first place, we find substance in the contention of Counsel
for the Respondent/Complainant that the Appellant/Insurance Company was not
justified in appointing one Surveyor after another and in appointing the final Surveyor
without the consent and behind the back of the Respondent/Complainant. As per
Section 64-UM of the Insurance Act the Insurance Companies can appoint another
Surveyor only after recording reasons for not accepting the earlier survey report and
after informing the Insuree. The Hon’ble Supreme Court in a catena of decisions,
including in Sikka Papers Limited Vs. National Insurance Company Ltd. [(2009) 7
SCC 777], has condemned the practice of some Insurance Companies in appointing
one Surveyor after another without recording reasons for the same and behind the back
of the Insuree. In the instant case, it is an admitted fact that the four Surveyors were
appointed and even if three Surveyors were appointed with the knowledge and consent
of the Respondent/Complainant, the fact remains that the fourth Surveyor was
appointed without the knowledge of the Respondent/Complainant and without the
Appellant/Insurance Company recording reasons for the same. In view of these facts,
we are not inclined to consider the report of the fourth Surveyor particularly since this
Surveyor was appointed several months after the reported incident and, therefore, no
meaningful physical verification of the actual damage caused would have been
assessed by them. Apart from this, a number of facts recorded by the fourth Surveyor
are not supported by the earlier three survey reports particularly in respect of the
damage to the finished goods. On a perusal of reports of the three Surveyors, we note
that the third Surveyor had confirmed that there was extensive damage not only to the
mustard seeds but also to the finished goods, including the oil stored in the tanks. The
first Surveyor had also stated that so far as the finished goods are concerned, even
though they were found intact but a bad smell was coming out of the oil kept in the oil
tanks. It was further stated that the by-product was also found damaged in
inundation. The second Surveyor gave a somewhat ambiguous report stating that
although there was 1 ft. of water in the oil storage room and impurities were found at the
bottom of the tanks, flood water entering the tanks is ruled out. The third Surveyor, who
has given a much more detailed report, has given a clear finding that there was damage
not only to the mustard seeds but also to the finished goods. The third Surveyor also
conducted a very detailed survey after examining the stock registers, sales tax records,
fortnightly statements of the stocks sent to the Civil Supplies Department as per the
provisions of Essential Commodities Act and other books and concluded that the actual
loss suffered was Rs.12,83,955/- and after deducting the less loss clause (Rs.1,00,000/) as per policy the net insurable loss was assessed at Rs.11,83,955/-.
10.
Taking into account the above facts, we are in agreement with the order of the
State Commission that the third Surveyor had rightly calculated the damage on the
basis of the actual loss suffered at Rs.12,83,955/- and recommended that an amount of
Rs.11,83,955/- be paid. In addition, since more than 8 years have elapsed for which the
Respondent/Complainant is paying interest to the financing bank, he is entitled to
interest and compensation also for the delay caused by the Appellant/Insurance
Company in the settlement of the insurance claim for the various reasons as cited
above.
11.
We, therefore, uphold the order of the State Commission and dismiss the present
First Appeal. Appellant/Insurance Company is directed to comply with the order of the
State Commission and pay the awarded amount to the Respondent/Complainant within
a period of 3 months.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 471 OF 2013
(From the Order dated 09.11.2012 in Appeal No. 456/2012 of
Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)
The New India Assurance Co. Ltd. Regd. & Head Office 87, Mahatma Gandhi Road
Fort, Mumbai (M.H.)-400001Through Its Regional Office No.1 Level-5 Tower-II
Jeevan Bharati Bldg. Connaught Circus New Delhi-110001
Petitioner
Versus
M/s B. Mangatram & Co. Bhuj, Madhapur Highway Post Madhapur, Tehsil-Bhuj
Kachchh, Gujarat
Respondent
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
:
Shri V.S. Chopra, Advocate with
Shri Neeraj Sharma, Regional Manager
Pronounced on : 30th August, 2013
ORDER
PER SURESH CHANDA, MEMBER
This revision petition is directed against the impugned order dated 9.11.2012 of
Gujarat State Consumer Disputes Redressal Commission, Ahmedabad passed in
appeal No.456 of 2012 by which the State Commission dismissed the appeal of the
petitioner Co. and upheld the order dated 28.7.2010 of the District Forum, Bhuj in
complaint No.228 of 2008. By its order, the District Forum partly allowed the complaint
filed by the respondent in terms of the following directions:“The complaint of the complainant is partly allowed. The
opponent are ordered to pay a sum of Rs.5,62,000/-(Rupees
Five Lac Sixty Two Thousand Only) being 75% of the insured
value on non-standard base, Rs.5,000/- (Rupees Five
Thousand Only) against Mental Harassment and Rs.3000/(Rupees Three Thousand Only) against Cost.”
2.
Briefly put, the factual matrix of this case are that the respondent who is the
original complainant in this case is the authorized dealer of Mahindra and Mahindra Co.
manufacturers of Scorpio Jeep. Being the dealer, the complainant would purchase the
new manufactured Scorpio Jeeps in bulk. As the dealer of the co., the complainant
became the owner of the jeep in question bearing Engine No.BS64L71432
and Chasis No.62L97789. The vehicle had automatic registration in complainant’s name
with Trade Plate No.GJ-12-TC-28A. This jeep was insured with the petitioner insurance
co. under Motor Trade (Road Risk) Policy B-Package for the period from 1.2.2006 to
31.1.2007 covering the risk of theft and other perils as per the contract. It is alleged that
while the vehicle (Scorpio Jeep No.GH-12 TC-28A) was coming from Vadodara
Manufacturer’s Store-yard to Madhapar-Bhuj Showroom on 5.12.2006, it was stolen
near Karjan on NH No.8-A. The incident of theft of the vehicle in question was
immediately intimated to the petitioner insurance co. besides lodging of FIR
No.213/2006 with the Karjan Police Station on 6.12.2006. The complainant thereafter
filed necessary claim in respect of the loss of new jeep for Rs.7,50,000/- which was the
sum insured in respect of the vehicle. Even after submission of the necessary
documents by the complainant, the petitioner Co. did not reimburse the amount of loss
and repudiated the claim on the grounds that the vehicle did not carry Trade Plate while
in travel, the vehicle was travelling beyond 80 kms limit and so violated condition I.M.T.
Endorsement no. 41 and the vehicle was carrying passengers. Alleging repudiation of
its claim by the petitioner Co. as baseless and illegal, the respondent filed a consumer
complaint in question before the District Forum.
3.
On notice, the petitioner insurance co. filed its written statement along with
documents including copy of the policy with terms and conditions, affidavit of the driver,
repudiation letter, surveyor’s report etc. In its written statement, the petitioner/opposite
party denied any deficiency in service on its part and submitted that the repudiation of
the claim was justified for the reasons mentioned in the repudiation letter. While not
denying the insurance cover to the vehicle in question, the OP submitted that since
there was serious violation of conditions of the policy and Motor Vehicles Rules, the
complainant was not entitled to get any claim in respect of the vehicle. After examining
the documentary evidence and hearing the parties, the District Forum held that it was
proved from the investigation report and the statements made by the driver and others
that the vehicle was carrying passengers and there was no reason to believe that the
passengers did not pay for their travel and as such there was violation of the terms of
the policy inasmuch as the vehicle was not meant to be used for commercial purpose.
The District Forum noted that the insurance policy was subject to I.M.T. Endorsement
No.41 regarding the limit of 80 kms within which the vehicle in question could have been
driven and since it was going beyond this limit, there was violation of this condition as
well. However, the District Forum held that keeping in view the nature of violations
committed in this case, they could not be considered as fundamental violation of terms
and conditions of the policy. Relying on the ratio laid down in the judgement of the
National Commission in the case of New India Assurance Co. Vs. Narayan Prasad
(2006 CPJ 144 NC), the District Forum partially accepted the complaint in terms of its
order reproduced above. As stated, this order was upheld by the State Commission
while dismissing the appeal of the petitioner by its impugned order.
4.
We have heard learned Shri V.S. Chopra for the petitioner- Company and
perused the record. Learned counsel has argued that the fora below have erred in
ignoring that the claim of the respondent could not have been allowed because of the
violations of the conditions of the policy as also the Motor Vehicles Rules. He submitted
that the State Commission and the District Forum failed to appreciate the fact that in the
present case there was violation of the contract of insurance and the Motor Vehicles
Rules because at the time of the loss, the vehicle, which was yet to be registered with
the Registering Authority under the provisions of Motor Vehicles Act, was being used for
commercial purpose and was also plying beyond the limit of geographical area of
120kms. and was not carrying the trade plate. He, therefore, contended that the present
case does not fall within the ambit of the instructions to treat it on non-standard basis
since it is a clear case of gross violation of the terms and conditions of the policy. Thus,
he pleaded that the revision petition be allowed and the impugned order be set aside.
5.
Perusal of the record would show that it is established from the evidence before
the Fora below that at the time of the robbery, the driver of the vehicle was carrying
passengers in the vehicle on hire which amounted to violation of the terms of the policy
inasmuch as the vehicle was not meant to be used for commercial purpose. The District
Forum taking note of the nature of violation of the conditions of the insurance policy
allowed the claim as non-standard for the reason that there is no direct nexus with the
violation of the terms of the policy and the robbery. This decision was upheld by the
State Commission. The view taken by the Fora below is in line with the view taken by
this Commission in Narayan Prasad’s case (Supra) and other similar cases. In the case
of Niharika Maurya Vs. New India Insurance Co. & Ors.(RP No. 3687 of 2010 decided
on 21/04/2011) , this Commission has observed thus:
“Even if it is assumed for the sake of argument that the vehicle
was being used for commercial purpose in violation of the terms of the
policy, it is of no avail to the respondents as the Supreme Court
in Nitin Khandelwal’s case (supra) has held that in the case of theft of
vehicle breach of condition is not germane and the insurance company
is liable to indemnify the owner of the vehicle in the case of a
comprehensive policy for the loss caused to the vehicle. Para 13 of the
said judgment reads as under:
“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.”
6.
In view of the above discussion, we do not find any infirmity with the impugned
order which would call for our interference. We, therefore, dismiss the revision petition
in limine with the parties bearing their own costs.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…………Sd/-…….……………
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2127 OF 2008
(From the order dated 07.02.2008 in Appeal No.707/2006 of the M.P. State Consumer
Disputes Redressal Commission, Bhopal)
Rajesh Jain S/o Late Shri Vimal Kumar Jain R/o Indira Complex Vidisha,
M.P.
… Petitioner/Complainant
Versus
National Insurance Co. Ltd. Branch at Vidhisha (M.P.)
… 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. H.D. Thanvi, Advocate
For the Respondent : Mr. Ajay Majithia, Advocate
PRONOUNCED ON 30th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the
order
dated
7.02.2008
passed
by
the
M.P.
State
Consumer
Disputes RedressalCommission, Bhopal (in short, ‘the State Commission’) in Appeal
No. 707/2006 – National Insurance Co. Ltd. Vs. Rajesh Jain by which, while allowing
appeal, order of District Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner’s car MP-40C 0251 was
insured by OP/respondent for a period of one year commencing from 29.6.2003 to
28.6.2004. On 12.7.2003, car met with an accident and report was lodged with the
Police
Station. OP
also
conducted
inquiry
and
loss
of
Rs.1,17,787/-
was
assessed. Complainant was holding licence which was valid upto 24.1.2020, but after
investigation, OP repudiated claim of the complainant on the ground that driving licence
of the complainant was not in force on the date of accident. Alleging deficiency on the
part of OP, complainant filed complainant before District Forum. OP resisted complaint
and submitted that validity of complainant’s licence was only upto 21.1.2000 and claim
was rightly repudiated and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties, allowed complaint and directed OP to pay Rs.44,451/- to
the complainant along with 6% p.a. interest. Appeal filed by the respondent 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 was under
the bonafide impression that his licence was valid upto 24.1.2020; though, in fact, it was
valid only upto 21.1.2000 and in such circumstances, learned District Forum rightly
allowed complaint, but learned State Commission has committed error in dismissing
complaint; hence, revision petition be allowed. On the other hand, learned Counsel for
the respondent submitted that order passed by learned State Commission is in
accordance with law; hence, revision petition be dismissed.
5.
Perusal of record clearly reveals that licence of the petitioner was valid
only upto 21.1.2000, whereas accident took place on 12.7.2003. Thus, it becomes clear
that at the time of accident, petitioner was not having valid licence. Learned State
Commission has rightly allowed appeal and dismissed complaint as complainant was
not possessing valid driving licence at the time of accident. Merely because petitioner
was under an impression that his licence was valid upto 24.1.2020, petitioner cannot get
any benefit.
6.
Learned State Commission has wrongly mentioned that learned District Forum
allowed claim on non-standard basis because perusal of order of District Forum reveals
that complaint was not allowed on the basis of non-standard basis. The order passed by
learned State Commission is in accordance with law, which does not call for any
interference and revision petition is liable to be dismissed.
7.
Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2504 OF 2008
(From the order dated 11.04.2008 in Appeal No.961/2006 of the M.P. State Consumer
Disputes Redressal Commission, Bhopal)
J.P. Dwellings Pvt. Ltd. Through Director Jitendra Singh Parihar S/o Shri R.B. Prihar
R/o B-7, Chhatrasal Nagar, Phase I, Raisen Road, Bhopal
… Petitioner/Opp. Party (OP)
Versus
P.K. Raikwar S/o Dr. L.P. Raikwar R/o J-93, Harshwardhan Nagar, Bhopal
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: NEMO
For the Respondent : Mr. Ravindra Bana, Advocate
PRONOUNCED ON
30th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the order dated
11.4.2008 passed by the M.P. State Consumer Disputes Redressal Commission,
Bhopal (in short, ‘the State Commission’) in Appeal No. 961/2006 – P.K. Raikwar Vs.
J.P. Dwellings Pvt. 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 entered into an
agreement with OP/petitioner for purchase of a duplex Bungalow and paid Rs.25,000/on 17.11.2003 and Rs.3,00,000/- on 20.12.2003 and rest of the amount of Rs.3,75,000/was to be paid later on. As OP neither completed the construction, nor returned money,
alleging deficiency on the part of OP, complainant filed complaint before District
Forum. OP resisted complaint and submitted that after completion of structure, OP
contacted complainant, but he did not show any interest in taking possession and
denying any deficiency in service, prayed for dismissal of complaint. Learned District
Forum after hearing both the parties dismissed complaint and further opined that if the
complainant wants to get his money back with interest then District Forum has no
jurisdiction for grant of such relief. Respondent filed appeal before State Commission
and learned State Commission vide impugned order allowed appeal and directed
petitioner to refund Rs.3,25,000/- along with 9% p.a. interest from the date of complaint
till payment against which, this revision petition has been filed.
3.
Neither petitioner nor his Counsel appeared even after service. Heard learned
Counsel for the respondent and perused record.
4.
Order sheet dated 4.7.2008 of this Commission reveals that revision petition was
admitted only to the extent of award of interest. It further revealed that Counsel for the
petitioner apprised that amount of Rs.3,25,000/- will be remitted to respondent by bank
draft within 4 weeks and learned Counsel for the respondent admitted that this amount
has been received by respondent on 23.12.2008. Now, the short question to be
decided in this case is whether; award of 9% p.a. interest from the date of filing
complaint i.e. 7.6.2005 till realization is proper or not.
5.
Perusal of record clearly reveals that respondent deposited Rs.25,000/- on
17.11.2003 and Rs.3,00,000/- on 20.12.2003 and learned State Commission has
allowed 9% p.a. interest on this amount from 7.6.2005 i.e. from the date of filing
complaint. Thus, it becomes clear that learned State Commission has not even allowed
interest from the date of making payment and already complainant/respondent has
suffered loss of interest from the date of making payment till date of filing of
complaint. Learned State Commission has allowed interest only @ 9% p.a., which
cannot be said to be excessive and in such circumstances; impugned order does not
call for any interference, as we do not find any illegality, irregularity or jurisdictional error
in the impugned order.
6.
Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3801 OF 2012
(From the order dated 05.07.2012 in Appeal No. 135/2009 of the Bihar State Consumer
Disputes Redressal Commission, Patna)
Dr. Jai Bharat Sinha S/o Late Puran Singh Village: Senduari District Vaishali, Bihar
… Petitioner/Complainant
Versus
1. Chairman Bihar State Electricity Board Vidyut Bhawan, Beli Road, Patna
2. Executive Engineer Electrical Electricity Department Hazipur (Vaishali) Bihar
3. Asstt. Electrical Engineer, Supply Sub Division Hazipur (Vaishali) Bihar
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
: In person
30th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the
order
dated
05.07.2012
passed
by
the
Bihar
State
Consumer
DisputesRedressal Commission, Patna (in short, ‘the State Commission’) in Appeal No.
135
of
2009
– Dr. Jai
Bharat Sinha Vs.
Chairman,
Bihar
State
Electricity
BoardVidyut Bhawan & Ors. by which, while dismissing appeal, order of District Forum
dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner has electrical connection
bearing NO.SD-13 provided by OP/Respondent and was paying bills, but the
transformer of the village concerned was burnt on 25.8.2006, which was replaced on
25.9.2007. Complainant along with other consumers filed application for revision of bill
on 4.10.2007 and again on 3.3.2008, but the bills were not revised. Alleging deficiency
on the part of OP, complainant filed complaint before District Forum. OP contested
complaint and admitted burning of transformer and its replacement and further
submitted that bill of the complainant was revised and prayed for dismissal of complaint.
District Forum after hearing both the parties, dismissed complaint against which appeal
filed by the petitioner was dismissed against which, this revision petition has been filed.
3.
Heard petitioner in person at admission stage and perused record.
4.
Petitioner submitted that inspite of replacement of transformer bill was not revised;
even then, learned District Forum committed error in dismissing complaint and learned
State Commission committed error in dismissing appeal; hence, revision petition be
admitted.
5.
Perusal of impugned order reveals that bill of the petitioner was revised vide letter
No. 78 dated 24.1.2008 and Rs.274/- were adjusted towards electricity charges and
Rs.18.44 were adjusted towards electricity duty and no D.P.S. has been charged during
the period transformer remained burnt. Thus, it becomes clear that during the period
transformer remained burnt, respondent revised petitioner’s bill and reduced the
charges and in such circumstances, there was no deficiency on the part of
OP/respondent. Learned State Commission has not committed error in dismissing
appeal and revision petition is liable to be dismissed.
6.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4306 OF 2012
(From the order dated 17.08.2012 in Appeal No. 206/2011 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
Mr. P.J. Joseph S/o Late Mr. P.P. Joseph R/at No.866, 5th Cross, Vijaya Bank
Layout, Bilekahalli Bangalore – 560076 Karnataka
… Petitioner/Complainant
Versus
1. M/s. Aratukulam A Regd. Partnership Firm No.739, Singasandra Hosur Road,
Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068
Karnataka State
2. Smt. Sunitha Tony, Partner A Regd. Partnership Firm No.739, Singasandra
Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore –
560068 Karnataka State
3. M/s. Tony Vincent, Partner M/s M/s. Aratukulam, A partnership Firm No.739,
Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM,
Bangalore – 560068 Karnataka State
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: Mr. B.S. Sharma, Advocate
PRONOUNCED ON 30th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the
order
dated
17.08.2012
passed
by
the
Karnataka
State
Consumer
DisputesRedressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal
No. 206/2011 – P.J. Joseph Vs. M/s. Aratukulam & Ors. by which, while dismissing
appeal, order of District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner entered into an agreement
with OP/Respondent-builder for purchase of a flat and paid a sum of Rs. 13,00,000/. As per agreement, OP was to give possession of the flat within 24 months’ time i.e.
before 31.7.2007 and as there was delay in delivering the possession, complainant
suffered loss of Rs.15,000/- per month and claimed Rs.5,10,000/- from the OP. It was
further submitted that complainant is ready to pay balance amount of Rs.1,60,000/-, but
OP has not come forward to get the sale deed registered and in such circumstances,
alleging deficiency on the part of OP, complainant filed complaint before District Forum.
OP resisted complaint and admitted that possession was to be delivered to the
complainant within 24 months, but complainant did not pay amount of sale
consideration as per time schedule mentioned in the agreement and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties dismissed
complaint against which, 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 petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as there was delay in handing
over possession of the flat, petitioner was entitled to receive compensation, but learned
District Forum committed error in dismissing complaint and learned State Commission
further committed error in dismissing appeal; hence, revision petition be admitted.
5.
Perusal of District Forum order reveals that petitioner was to make payment as
per time schedule mentioned in the agreement, but petitioner has not filed proof of
payment of amount as per time schedule when petitioner himself has committed default
in making payment as per time schedule, respondent was not under an obligation to
handover possession within the stipulated period and in such circumstances, petitioner
was rightly held not entitled to get compensation @ 15,000/- per month on account of
late delivery of possession. Learned District Forum has not committed any error in
dismissing complaint and learned State Commission has not committed error in
dismissing appeal.
6.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order, which calls for any interference 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
d
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1554 to 1566 OF 2013
(From the order dated 03.10.2012 in Appeal No.A/08/591 of the Maharashtra State
Consumer Disputes Redressal Commission, Nagpur)
WITH 1A/2705/2013 IA/2706/2013
(Stay & Condonation of Delay)
National Insurance Co. Ltd. Regional Office “Mangalam Arcade”, 2nd Floor, North Bazar
Road, Gokulpeth Nagpur – 440010 through: Manager Regional Office – 1,
Jeevan Bharti Building 124, Connaught Circus New Delhi
… Petitioner/ Opp. Party (OP)
Versus
M/s. Richardson & Cruddas (1997) Ltd. F-3, MIDC Industrial Estate Hingna Road,
Nagpur – 440016
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Kishore Rawat, Advocate
For the Respondent
:
Mr. Kaushik Mandal, Advocate
PRONOUNCED ON
30th August, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
All these revision petitions arise out of common order dated 3.10.2012 passed by
learned State Commission in appeals; hence, all these revision petitions are disposed of
by common order.
These revision petitions have been filed by the petitioner/OP against the order
dated
03.10.2012
passed
by
the
Maharashtra
State
Consumer
DisputesRedressal Commission, Circuit Bench at Nagpur (in short, ‘the State
Commission’) in Appeal Nos. A/08/591, A/08/709 to A/08/720 – National Ins. Co. Ltd.
Vs. M/s. Richardson & Cruddas (1997) Ltd. by which, while dismissing all the appeals,
separate orders of District Forum allowing complaints were upheld.
2.
Brief facts of the case are that complainant/respondent obtained contract to erect
400 K.V. of transmission line from Durgapur to Jamshedpur covering distance of 159
Km in the year 1988. Complainant obtained insurance coverage from OP/petitioner for
different articles, electrical appliances and materials for the period commencing from
29.12.1988 to 28.07.1991. During subsistence of the policy, different insured articles;
namely, ACSR “Moose” conductors were stolen away. Complainant informed OP and
also lodged report with the police. Complainant submitted claim before OP. OP
deputed surveyor and, though, surveyor submitted report showing loss of articles due to
theft, the claim was not settled by OP for about 4 years. Alleging deficiency on the part
of OP, complainant filed separate complaints before State Commission which were later
on
transferred
to
District
Forum
on
account
of
change
of
pecuniary
jurisdiction. OP/Petitioner resisted complaints and submitted that complainants did not
accept amount offered by OP and, as such, there was no deficiency and prayed for
dismissal of complaints. Learned District forum after hearing both the parties allowed
complaints and awarded amount as shown in Schedule ‘A’ of the impugned order
against which, these revision petitions have been filed.
3.
Heard learned Counsel for the parties at admission stage finally and perused
record.
4.
Learned Counsel for the petitioner submitted that learned State Commission has
not considered grounds of appeal in the impugned order; hence, revision petitions be
accepted and impugned order be set aside and matter may be remanded back to
learned State Commission. On the other hand, learned Counsel for the respondent
submitted that order passed by learned State Commission is in accordance with law;
hence, revision petitions be dismissed.
5.
Learned Counsel for the petitioner submitted that there was similar exclusion
clause in the policies except in Complaint No. 35 of 2008 (R.P. No. 1565 of2013) in
which there was separate exclusion clause, but learned State Commission has
committed error in not considering exclusion clause and further submitted that learned
State Commission has not considered grounds taken in memo of appeal, but has
decided appeals on other grounds which were not raised before learned State
Commission.
6.
Perusal of memo of appeal filed before State Commission in R.P. No. 1554 of
2013 reveals that petitioner took following grounds in memo of appeal:
“C. The Learned Forum manifestly erred in not appreciating that
the second report sought by the appellants was only restricted to
ascertain the reasons for collapse of the structure giving rise to the
claim. The Learned Forum failed to appreciate the recorded findings
that the towers with FOS for 1.5 as in the case of the respondents
had inherent defect and were not designed for any impact load,
which may result due theft/snapping;
D.
The Learned Forum manifestly erred not appreciating the
documents on record and their contents. The learned Forum failed
to apply its mind to the very fact that despite their being inherent
defect in the towers the appellants offered to indemnify the
respondents by paying an amount of Rs.03,13,796/- as per the
calculations made available to the respondents as well as filed on
record. The Ld. Forum also failed to appreciate that the respondent
was only entitled to the said amount and that; it was the
respondent, who refused the said amount. Hence, the findings
recorded in the Ld. Forum and directing the appellants to pay an
amount of Rs.5,50,711/- along with interest @ 9% p.a. from
05.02.2008 to the respondent is per se bad in law and is therefore
required to be quashed and set aside”.
7.
Similar ground taken in paragraph ‘D’ of this memo of appeal had been taken in
other appeals before State Commission except change of figure of amount awarded by
District Forum. In memo of appeals, no grounds have been taken regarding
maintainability of the complaint, non-joinder of necessary parties and jurisdiction of the
District Forum, but State Commission has dealt with all these grounds in memo of
appeal which were not called for. These grounds were taken by the petitioner in written
statement filed before District Forum, but learned District Forum rejected all these
objections and allowed complaints and petitioner did not choose to assail order of
District Forum on these grounds. In such circumstances, State Commission should not
have considered all these grounds in the impugned order and should have decided
appeals on the grounds mentioned in memo of appeal which have not been considered
and in such circumstances, matters are to be remanded back to the State Commission
for deciding appeals on the grounds taken in memo of appeal.
8.
Consequently, revision petitions are allowed and impugned order dated
03.10.2012 passed by learned State Commission in Appeal Nos. A/08/591, A/08/709 to
A/08/720 – National Ins. Co. Ltd. Vs. M/s. Richardson & Cruddas (1997) Ltd. is set
aside and appeals are remanded back to learned State Commission to confine its order
only to the extent of grounds taken in memo of appeal and to consider all the grounds
raised in memo of appeal.
9.
Parties are directed to appear before the learned State Commission on 23.9.2013.
..…………………Sd/-…………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2462 OF 2011
(From the order dated 03.05.2011 in First Appeal No. 928/2010
of Rajasthan State Consumer Disputes Redressal Commission)
Rajasthan Housing Board Through Housing Commissioner Rajasthan Housing Board
Vaishali Nagar Ajmer, Rajasthan
... Petitioner
Versus
Smt. Prem Devi w/o Raghunath Bhakar r/o House No. 447, Jat Mohalla Naserabad
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)
For the Respondent(s)
Mr. Vinay Kumar, Advocate
Mr. Dharmender Kr. Jain, Advocate
PRONOUNCED ON : 30th AUGUST 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by Rajasthan Housing Board (hereinafter referred to as ‘Board’)
against the impugned order dated 03.05.2011 passed by the Rajasthan State
Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.
928/2010, “Rajasthan Housing Board versus Smt. Prem Devi”, vide which, while
dismissing the appeal, order dated 23.04.2010 passed by District Consumer Disputes
Redressal Forum, Ajmer allowing the consumer complaint no. 33/2010 filed by the
complainant/respondent was upheld.
2.
Brief facts of the case are that the Board allotted house no. 5/138 to the
complainant/respondent Smt. Prem Devi in Naseerabad in the financially weaker
section category. She deposited a sum of Rs.23,716/- on 29.03.2006 for the house, but
when she went to the spot for taking possession of the said house, she found a number
of shortcomings in the construction of the house including sanitary and electrical
fittings. She pointed out the defects to the notice of the Board and also made a
complaint in writing on 20.02.2007, but no action was taken on the said complaint. On
the other hand, the Board demanded a sum of Rs.26,844/- from her as lease amount
along with interest, but the complainant requested for handing over the possession after
rectifying the defects. She filed consumer complaint in question before the District
Forum which was allowed vide order dated 23.04.2010 and the Board was directed to
remove the defects in the house and deliver possession of the house to her without
charging any extra amount and also to pay Rs.10,000/- to the complainant as
compensation for mental agony and Rs.1,500/- as legal expenses. An appeal made
against this order was dismissed by the State Commission vide impugned order and it
was directed that a sum of Rs.5,750/- deposited with the District Forum by the Board
shall be paid to the complainant along with the acquired profit. It is against this order
that the Board has preferred the present revision petition.
3.
At the time of hearing before us, it came to notice that the impugned order passed
by the State Commission has been issued without making proper analysis of the facts
and circumstances on record. On the face of it, it is a vague/sketchy order, because no
reasons have been given for the observation that there was no error in the order passed
by the District Forum and no interference in the same was required.
4.
Further, during proceedings before this Commission, it was revealed that the
Board had made the necessary repairs and asked the respondent to take possession of
the house after depositing the outstanding dues of Rs.83,108/-. However, in reply to the
revision petition filed by the respondent, it has been stated that the Board has no right to
impose any penalty on the complainant. The complainant is ready and willing to take
possession of the house, if the penalty imposed by the Board is waived off and the
house is handed over in proper condition. It has also been stated that the house in
question is still incomplete.
5.
After examining the entire material on record, it becomes clear that the State
Commission should have decided the appeal after carrying out a detailed analysis of all
facts and circumstances on record and then arrived at the requisite conclusion. In view
of this situation, there is no alternative but to set aside the impugned order and remand
the case to the State Commission with the direction that they should give proper
opportunity to both the parties to state the factual position and then give their verdict,
mentioning detailed reasons for the same. The revision petition is, therefore, allowed
and the impugned order is set aside and the case remanded to the State Commission
for decision afresh. There shall be no order as to costs. The parties are directed to
appear before the State Commission on 10.10.2013.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/