NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 171 OF 2010
WITH
I.A. No. 1762 OF 2013 & I.A. No. 1810 OF 2013
(Modification of order & Direction)
1.
B.L. Joshi, 6, Braemar Avenue Alperton, Wembley, Middx London (U.K.)HAO 4
QN
2.
S.L. Joshi (since deceased) through Legal heirs B.L. Joshi and D.L. Joshi 6 and 8,
Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4 QN
3.
K.B. Joshi 6, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4
QN
4.
D.B. Joshi 19, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4
QN
5.
Krishna B. Joshi 4, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)
HAO 4 QN
6.
Bina (UMA) B. Joshi D/o B.L. Joshi 6 Braemar Avenue, Alperton, Wembley, Middx
London (U.K.)HAO 4 QN
7.
D.L. Joshi 8, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4
QN
8.
Ravindra D. Joshi, 8 Braemar Avenue, Alperton, Wembley, Middx London (U.K.)
HAO 4 QN
9.
Charulata D. Joshi, daughter of D.L. Joshi, 8 Braemar Avenue, Alperton,
… Complainants
Wembley, Middx London (U.K.)HAO 4 QN
Versus
1.
Bank of India, Kedareshwar Road, P.O. Box-18, Pobandar –360575 through its
Director,
2.
The Zonal Manager, Bank of India, Para Bazar, M.G. Road, Rajkot-360001.
3.
The Chairman, Bank of India, Star House, “G” Block Bandra Kurla Complex; Near
National Stock Exchange, Bandra (East) Mumbai-400051
… Opposite Parties
CONSUMER COMPLAINT NO. 172 OF 2010
WITH
I.A. No. 1763 OF 2013
(Modification of order)
B. L. Joshi (U.K. Limited) 212/214, Ealing Road, Alperton, Wembley, Middx London
(U.K.) HAO 4 QG Through its : Managing Director, Dayaram Liladhar Joshi And also
Through its : Directors, Ravidra D. Joshi, Dr. Mrs. Krishna G. Thanky, Daksha B. Joshi,
All through General Power of Attorney Holder Jaysukh Bhimji Modha, R/o Porbandar,
Gujarat (India)
… Complainant
Versus
1.
Bank of India, Kedareshwar Road, P.O. Box-18, Pobandar –360575 through its
Director
2.
The Zonal Manager, Bank of India, Para Bazar, M.G. Road, Rajkot-360001.
3.
The Chairman, Bank of India, Star House, “G” Block Bandra Kurla Complex; Near
National Stock Exchange, Bandra (East) Mumbai-400051
… Opposite Parties
CONSUMER COMPLAINT NO. 173 OF 2010
WITH
I.A. No. 1764 OF 2013
(Modification of order)
Glayland Ltd. S.A., 19 Braemar Avenue Alperton Wembley, Middx, London (UK) HAO
4QG, Through its Managing Directors U.B.Joshi & Dr.Girishchandra A.Thanki &

Also through its Director Daksha M.Thanki

All Through General Power of Attorney Holder

Jaysukh Bhimji Modha, Porbandar
… Complainant
Versus
1. Bank of India, Kedareshwar Road P.O.Box 18, Porbandar, Through its Director
2. The Zonal Manager, Bank of India Para Bazar, M.G. Road, Rajkot
3. The Chairman, Bank of India, Star House ‘G’ Block, Bandra, Kurla Complex, Near
… Opposite Parties
N.S.E. Bandra (East), Mumbai
CONSUMER COMPLAINT NO. 174 OF 2010
WITH
I.A. No. 1765 OF 2013
(Modification of order)
Glayland Ltd. S.A., 19 Braemar Avenue Alperton Wembley, Middx, London (UK) HAO
4QG, Through its Managing Directors

U.B.Joshi & Dr.Girishchandra A.Thanki &

Also through its Director Daksha M.Thanki

All Through General Power of Attorney Holder

Jaysukh Bhimji Modha, Porbandar
… Complainant
Versus
1. Bank of India, Kedareshwar Road P.O.Box 18, Porbandar, Through its Director
2. The Zonal Manager, Bank of India Para Bazar, M.G. Road, Rajkot
3. The Chairman, Bank of India, Star House ‘G’ Block, Bandra, Kurla Complex, Near
N.S.E. Bandra (East), Mumbai
… Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE MR.VINAY KUMAR, MEMBER
For Complainants in all cases : Mr. Deepak Aggarwal, Advocate
For Opp. Parties in all cases
: Mr. Sudarsh Menon, Advocate
PRONOUNCED ON_01.04.2013
ORDER
JUSTICE J.M. MALIK
1.
Can a Consumer Court set aside the ‘compromise’ entered into between the
parties, pursuant to the order passed by the learned DRT? Can it set aside the order
rendered by the DRT itself? Can it modify the directions given by the Hon’ble High
Court of Gujarat?
2.
This order shall decide four complaints, above mentioned, which entail the same
questions of law and fact. All the complainants, namely, B.L. Joshi, S.L.Joshi,
D.V.Joshi, (since deceased) through Legal Heirs B.L.Joshi & D.L.Joshi, K.B.Joshi,
D.B.Joshi, Krishna B.Joshi, Bina (Uma) B.Joshi, Ravindra D.Joshi and Charulata
D.Joshi, in Consumer Complaint No.171 of 2010 and again B.L. Joshi, through its
Managing Director, Dayaram Liladhar Joshi and also through its Directors, Ravindera B.
Joshi, Dr.(Mrs.) Krishna G.Thanky, Daksha B.Joshi, all through General Power of
Attorney Holder, Jaysukh Bhimji Modha in Consumer Complaint No.172 of 2010,
Glayland Ltd. (S.A.), London, U.K., through its Managing Director, U.B. Joshi and Dr.
Girshchandra A. Thanki and through its Director Daksha M. Thanki all through General
Power of Attorney Holder, Jaysukh Bhimji Modha in Consumer Complaint No.173/2010
and Glayland Ltd. (U.K.) through its Managing Director, Dayaram Liladhar Joshi and
Ravindra D.Joshi, Dr.(Mrs.) Krishna G.Thanky, Daksha B.Joshi, Directors, all through
General Power of Attorney Holder Jaysukh Bhimji Modha, filed the present four
complaints in this Commission on 17.09.2010.
3.
Case No. 171 of 2010:
All the complainants are Non-Resident Indians (NRIs). They had deposited
Rs.89,70,000/- in the monthly Income Certificates/Double Benefit Certificates with the
Bank of India, Porbandar Branch, OP1. The Zonal Manager and the Chairman, Bank of
India have been arrayed as OPs 2 & 3. Monthly interest on receipts was to be credited
in an NRE Savings Bank Account No. 2410, so that complainants may withdraw the
same. The amount was deposited on different dates. On the respective due dates, the
complainants requested the OP Bank to pay the receipts and transfer the funds to
Syndicate Bank, Porbandar Branch. The Bank did not do the needful. Consequently,
the complainants were constrained to file a Civil Suit No. 102/1999 before the Civil
Judge, Porbandar. The complainants also could not withdraw the monthly interest
amount in the sum of Rs.37,01,908.84 which was lying in their Account No.2410. On
the contrary, the OP Bank went on renewing the aforesaid receipts after original dues in
an arbitrary, illegal and negligent manner, without approval and consent of the
complainants. Finally, OP paid Rs.3,39,75,316/- to the complainants in respect of the
above said six receipts on 04.01.2008. However, the prevailing rate of interest on
original due dates was 16% p.a. on a NRE Term Deposit. The Bank should have
renewed the above said receipts at 16% p.a. from the original due dates till the date of
payment, i.e. 04.01.2008. It is contended that as a matter of fact, at the above said
rate, the amount due to the complainants came to be Rs.7,49,44,494/-. The Bank is
yet to pay a sum of Rs.4,09,69,178/-.
4.
In the meantime, the Civil Suit was withdrawn as per the settlement reached
between the parties. The above said deposits were detained by the Bank on the pretext
of default in the account of M/s.Jupiter Cement Ltd. However, the complainants
formed a separate legal entity and were in no way connected with M/s.Jupiter Cement
Ltd. The Bank vide proposal dated 01.12.2007 had given proposal for settlement of
dues concerning M/s. Jupiter Cement Ltd, as well as list of deposits under
reference. Thereafter, on acceptance of the same by the Guarantor of M/s. Jupiter
Cement Ltd., under protest, the deposits were released on 04.01.2008 and
amounts were paid as detailed above.
5.
The Bank illegally retained a sum of Rs.3,39,75,316/-. The cause of action to file
the present complaints is a recurring one. The complainants also approached the High
Court of Gujarat at Ahmedabad, vide Special Civil Application wherein the Hon’ble
High Court of Gujarat at Ahmedabad was pleased to order that “let petitioner be
approached in respect of grievances raised in all four petitions, the appropriate forum, in
accordance with law”. This order was passed on 31.07.2010. It was further ordered
that in view of the above said observations, “the petitions filed by the complainants are
disposed of by the Hon’ble High Court without expressing any opinion on merits”. The
present complaint (CC No. 171/2013) was filed with the following reliefs:(a) To grant rate of interest @ 16 percent with quarterly
compounding from original due date of amount and pay the
difference between amount payable as per the above rate and
amount already paid as per the bank’s calculations. Difference
amount comes to Rs. 4,09,69,178.00 only.
(b) to grant suitable compensation for loss of reputation,
embarrassment, harassment etc. meted out to the complainants
by the respondent Bank.
(c ) Any other relief which this Hon’ble Forum deem fit in the
circumstances of the case may also be granted in favour of the
complainant and against the respondent Bank.
6.
Complaint No. 172 of 2013:
Complainant Company, i.e. B.L. Joshi UK Ltd. Overseas Corporation Body
deposited Rs.48.00 lakhs with the OP Bank under Double Benefit Deposit Scheme,
NRE as follows:-
Sl.
Receipt No.
No.
Amount (In Date of
Maturity
Rate of
Maturity
Rs.)
value
interest
value
deposit
(In Rs.)
1.
DBD
10,00,000
19.11.87
18.11.93
13%
21,54,600/-
10,00,000
19.11.87
18.11.93
13%
21,54,600/-
10,00,000
19.11.87
18.11.93
13%
21,54,600/-
10,00,000
19.11.87
18.11.93
13%
21,54,600/-
08,00,000
05.02.88
13.01.94
13%
17,23,680/-
25/475
2.
DBD
25/476
3.
DBD
25/477
4.
DBD
25/478
5.
DBD
26/60
Total :
48,00,000
1,03,42,080
7.
On the maturity date, i.e. 13.01.1994, the complainant company asked the OP
Bank to pay the Term Deposit Receipts as per terms of the contract and remit the entire
fund to City Bank, Switzerland from whom it availed certain credit facility. The Bank
failed to comply with the request made by the complainants and continued to defy the
instructions continuously for a period of about 14 years. The deposits receipts were
finally paid on 04.01.2008 with a delay of 14 years, approximately. The Bank kept on
renewing the FDRs arbitrarily. The principal, plus interest was at 16% p.a. compounded
from 18.11.1993 to 04.01.2008, which came to Rs.8,24,72,345.10. The Bank paid a
sum
of
Rs.4,30,40,159.78. It
did
not
give
the
remaining
amount
of
Rs.3,94,32,185.32. In this case too, Civil Suit was filed and was withdrawn and in view
of the proposal/settlement given by the Bank. The deposits were detained due to the
pending Account of M/s. Jupiter Cement Ltd. The money was released after settlement
with M/s. Jupiter Cement Ltd. Ultimately, the present complainants filed the present
complaint and the following reliefs were claimed :-
(a)
To grant rate of interest @ 16 percent with quarterly
compounding from original due date of amount and pay the
difference between amount payable as per the above rate and
amount already paid as per the bank’s calculations. Difference
amount comes to Rs. 3,94,32,185.32 only.
(b)
To grant suitable compensation for loss of prestige,
harassment and credibility of the company, its Directors and
Shareholders.
(c)
Any other relief which this Hon’ble Forum deems fit in the
circumstances of the case may also be granted in favour of the
complainant and against the respondent Bank.
8.
Consumer Complaint No. 173 of 2013
In Consumer Complaint Case No. 173 of 2013, Glayland Limited S.A. (Zurich),
Overseas Corporate Body (OCB)/complainant, deposited Rs.75.00 lakhs with the OP,
Bank, Porbandar Branch on 05.06.1986 under NRE Monthly Income Certificate Deposit
Scheme for a period of 120 months at interest rate of 13% per annum. Monthly interest
on this deposit came to Rs.80,736/- which was to be credited in the current account of
the complainant company and the due date was 05.06.1996. On 05.06.1996 the
complainant asked the Bank to pay the maturity value of Rs.75.00 lakhs but the Bank
defied the said value for about 12 years and thereafter, it paid a sum of
Rs.2,27,39,683.07 on 04.01.2008. The prevailing rate of interest on foreign deposit was
16% p.a. As per calculation, there is a difference of Rs.2,29,97,417.93 which is due to
the Bank. The said amount was detained on the pretext of default of M/s.Jupiter
Cement Limited which is a separate legal entity. Consequently, the above said
complaint
was
moved
for
recovery
of
Rs.2,29,97,417.03
with
interest
and
compensation.
9.
Consumer Complaint No. 174 of 2013:
Same is the position with the last case, being CC No.174 of 2013. In this Case,
Glayland Limited (U.K) had deposited Rs.30.00 lakhs with Bank of India, OP for a
period of 72 months. Due date was 18.11.1993. The rate of interest was 13% p.a. On
the date of maturity, the Bank was asked to return the money along with interest, but it
retained the money for 14 years’ on the ground that maturity value was detained
because the account of M/s. Jupiter Cement Limited was in defulat but the complainants
were in no way connected with the same. In this case, the complainant has demanded
the remaining amount of Rs.2,58,87,172.42 and they have also demanded interest @
16% p.a. as well as compensation, etc.
10.
Defence:
The OPs have set up the following defences. First of all, the jurisdiction of this
Commission has been called into question. It is also contended that the complainants
are not the consumers as per Consumer Protection Act, 1986. It is contended that the
matter should be decided by a Civil Court. It has also been pointed out that the
disputes pending between the parties have already been resolved and compromised
before the Civil Court. The proceedings initiated by the complainant under the Act are
non-est, null and void and without jurisdiction.
11.
It is submitted that the complainants have already approached the Civil Court and
other Forums and are guilty of “forum shopping” to suit ‘his’ or ’her’/their ill-advised
wishes. The complainants have not approached this Commission with clean hands.
12.
As a matter of fact, M/s. Jupiter Cement Limited was established on
09.10.1979 and the company set up a mini cement plant at Village Mokhana,
Bhanvad, District-Jamanagar, Gujarat with installed capacity of 300 tonnes per
day. There being Principal Promoters/Directors, Mr.K.J.Modha, Mr.T.D.Nadiapara,
Mr.R.N.Seth, Mr.M.P.Bhatt, Mrs. D.B.Joshi, Mr.R.D.Joshi and Mrs.K.B.Joshi. The
original cost of the project was Rs.880.00 lakh which was revised to Rs.1320.00 lakh
which was again revised to Rs.1330.00 lakh. The source of finance was projected as
Promoters Equity Rs.290.00 lakh, Public Issue Rs.235.00 lakh and rest financed by
Financial Institutions. The ICICI Bank first commissioned the project and later joined
Bank of India, Bank of Baroda and State Bank of Saurashtra. The State Bank of
Saurashtra was subsequently was replaced by UCO Bank.
13.
The Bank of India financed term loan as well as working capital
against security of paripasu charge on 28.11.1986 and LC for Rs.68.00 lakh, lien was
marked on TDRs worth Rs.75.00 lakh of the associate company Glayland Ltd.
S.A. This was one of the considerations for the advances. The advance amount is
largely deposited, oriented and NRE Deposits of Directors, their relatives and associate
company aggregating Rs.192.08 lakh will remain with the Bank. The unit could not run
properly and incurred heavy losses and the account was classified as NPA on
01.04.1993. A suit was filed in the Court of Civil Judge, Jamkhanmbhalia, DistrictJamnagar on 31.03.1993 for recovery of Bank Dues in the sum of Rs.4,61,17,782.60
plus interest and costs, etc. Since the party was not co-operating particularly its
Director-Guarantor, Sh.B.L.Joshi, who, even had declined to execute renewal
documents. Besides, the borrowers and Guarantor, a U.K based company, M/s.
Glayland
Ltd.
S.A. which
had
also
been
promoted
by
Mr.B.L.Joshi
was
impleaded since it had deposited its Monthly Income Certificates/TDRs for Rs.75.00
lakh as security for Letter of Credit facility granted to the Company and on
development, the amount was debited to Cash Credit Account of the Company.
14.
Upon establishment of DRT, the case was transferred to DRT, Ahmedabad on
26.04.1995. There was reference to BIFR and proceedings were stayed. Mr.B.L.Joshi
demanded pre-mature payment of 3 Monthly Income Certificates vide his letter dated
01.04.1993. Consequently, the OP Bank filed a Suit on 04.10.1993 in the Court of Civil
Judge for injunction to restrain withdrawal of the money from the Bank because the
Bank properties as security pending in DRT accounts were inadequate. The suit was
dismissed on 20.05.1997.
15.
Aggrieved by that order, the Bank preferred an Appeal bearing No.5927 in the
High Court of Gujarat at Ahmedabad. The Hon’ble High Court restrained the
complainants from encashing the Monthly Income Certificates and withdrawing the
amount lying in the account No.2410 with the OP Bank. The complainant was permitted
to invoke the right of set off against the Defendant Nos. 1 to 8 in respect of the aforesaid
Monthly Income Certificates and SB A/c No. 2410.
16.
In the meantime, DRT, Ahmedabad, decided the case in favour of the Bank and
company factory, land, building and machinery were sold for a sum of Rs.217.00
lakh and 50% of the sale proceeds were deposited with ICICI Bank and 50% was given
to the OP Bank. As the entire suit amount could not be satisfied, therefore, the
proceedings were initiated against Company/Guarators. Ultimately, Mr.B.L.Joshi, in the
capacity of Guarantor, as well as the Director of the company, approached the Bank
with a compromise proposal and initially offered a sum of Rs.350.00 lakh, which was
subsequently raised to Rs.500.00 lakh and the terms and conditions of the settlement
were decided by the Bank and Borrowers, mutually. It would be worthwhile to produce
the compromise deed which runs, as under :“We hereby unconditionally agree that all the deposits in
personal
name
of
Sh.B.L.
Joshi/with
his
family
members/associates OCBs (M/s. Glayland Ltd S.S. and or
M/s. B.L.Joshi, U.K. etc.), have been renewed properly
from time to time and our representative and we have
verified and satisfied ourselves. We would also never raise
any objection to the periodic renewal of all the terms
deposits and amount of interest paid thereon, as
applicable from time to time and the treatment given to the
balance lying in our saving account by the bank as per
court order, in future. We also unconditionally agree and
undertake that we will not raise any dispute or claim with
the deposits and all objections, contentions, etc., made
whether by letter of application or otherwise pending with
the bank or in any court proceedings in connection with
the account of M/s. Jupiter Cement Ind.Ltd., stand
withdrawn and hereafter be regarded as having come to
an end without further claim in that respect against the
Bank either by way of additional interest, damages,
compensation or otherwise”.
17.
After the above said statement, the complainants, with ulterior motive and
vexatious desire also, approached the Bank’s Ombudsman, Home Minister of Gujarat
and the Hon’ble Prime Minister. Ultimately, they have filed these frivolous complaints
before this Commission.
18.
OPs also set up the similar defences in case Nos. 172/2013, 173/2013 and
174/2013, respectively.
19.
Submissions and Findings :
We have heard the learned counsel for the parties on the question of admission
of these complaints. On 06.10.2006, the learned DRT, Ahmedabad, passed a detailed
order and the operative portion of which is as under :
“OPERATIVE ORDER
“I) Transfer application is allowed with costs.
II) Defendants No. 1 to 3 do jointly and severally pay applicant
Rs.4,61,17,782.06 with simple interest @ 6% per annum from
the date of the filing of the suit, i.e. 31.03.21993, until
realization.
III) Applicant shall be entitled to appropriate the
Proceeds of MIC originally pledged by
the
defendant No.8 and thereafter came to
be
reinvested
the
from time to time towards
satisfaction of the certified dues.
IV) Applicant shall deduct the payment received in the
account of the defendant No.1, now under liquidation, during
the pendency of the Special Civil
Suit/Transfer Application.
V) Application stands disposed against the defendants
No. 4 to 7 with in order as to costs.
VI) Issue Recovery Certificate under Section 19 (22) of
the Act”.
20.
Against the order of the Learned DRT, Ahmedabad, Gujarat, a Writ Petition was
filed in the Hon’ble High Court of Gujarat, which was withdrawn.
21.
Mr. B.L.Joshi, UK, Ltd, and Director, B.Joshi wrote a letter to the Bank, which runs
as follows :“With reference to your letter No.PBR: ADV: GCN” 1010
Dt.01.12.2007 para 2 (e), we, hereby, unconditionally agree that
all the deposits in our name/s have been renewed properly from
time to time and our representative and we have verified and
satisfied ourselves in this regard. We undertake that we would
never raise any objection to the periodic renewal of all of our term
deposits and amount of interest paid thereon, as applicable from
time to time, in future.
We, also, unconditionally agree and undertake that we will not
raise any dispute or claim with respect to the interest on these
deposits or any other amount in connection with the deposits, and
all objections, contentions, etc., made whether by letter or
applications or otherwise pending with bank hereafter be
regarded as having come to an end without further claim in that
respect against the bank either by way of additional interest,
damages, compensation or otherwise.
Date :
Thanking you,
Place :
Yours faithfully
B.L.JOSHI U.K.LTD.
Sd/-
Sd/-
DIRECTOR
22.
DIRECTOR”
Thereafter, the above said ‘compromise’ took place on 12.12.2007. The
compromise was entered by Mr.B.L.Joshi in the capacity of ‘Guarantor’.
23.
The learned counsel for the complainants vehemently argued that the matter
pending between the DRT was between other parties and this case is between separate
parties. He contended that Mr.B.L.Joshi had entered into a contract/compromise with
the OPs of his own choice. He was not given authority by the other Directors too enter
into the said compromise. The counsel for the complainants has cited few authorities in
support of his case. The first authority is reported in Kiran Krishna Agro Tech Ltd. Vs.
P.V.Shantha Kumari, II (2012) CPJ 531 (NC) wherein the case regarding FDR was
entertained by the National Commission; the second authority reported in Allhabad
Bank & Anr. Vs. Paper Product Machines, IV (2012) CPJ 495 (NC), is a judgment of
this Bench. This case also pertains to a Bank. In this case, cheques were deposited,
the same were neither credited into the account nor were received back. It was held
that cause of action is continuing unless or until the complainant gets that amount. He
has also invited our attention to another authority reported inPoonam Constructions &
Ors., Vs. Manjusha Ashok Dudhane, IV (2012) CPJ 790 (NC), wherein it was held
that due to delay of 1072 days, the case was barred by time. He has also invited our
attention towards the Hon’ble Apex Courts’ authority reported in Basant Singh & Anr.,
Vs. Roman Catholic Mission,which is regarding ‘service’ of summons. He has also
cited another authority reported in Punj Lloyd Limited Vs. Corporate Risks India
Pvt.Ltd., I (2009) CPJ 10 (SC). In this case, this Commission dismissed the complaint
because the disputed questions raised were found to be beyond the purview of this
Commission. It was held that dismissal of the complaint was unjustified. The
Commission ought to have issued notice to the respondent and place pleadings on
record.
24.
The above said authorities have left no impact upon us. The aforesaid authorities
hardly apply to the present cases. We do not pick up a conflict with the law laid down in
these authorities. These authorities certainly are applicable to the Consumer Fora. It
must be borne in mind that the facts are stubborn things. The facts of these cases are
altogether different from the above cited authorities.
25.
The facts of these cases are peculiar and unique. The Order was rendered by the
learned DRT, Gujarat. Some directions were also given by the Hon’ble High Court of
Gujarat. Those have attained finality. Although the Consumer Fora, by virtue of
Section 3 of the Consumer Protection Act, 1986 has got the parallel jurisdiction, yet
when the case is decided by the Civil Court or DRT, it remains bound by that. It cannot
re-open the controversy again. It is well settled that Consumer Fora is bound by the
orders pronounced by the Civil Court. It cannot take a contrary view from that of the
Civil Court. It must be borne in mind that the Civil Court has already decided the case
and this Commission shall refrain from interfering into it. This Commission is not armed
with power to sit as an Appellate Court over the orders passed by the DRT. The DRT
has got its own Appellate authority, which is known as Debts Recovery Appellate
Tribunal.
26.
Moreover, it is difficult to fathom as to why the other Directors could not move the
application for being impleaded as parties before the learned DRT. They should have
filed an application for impleadment before the learned DRT. In case this Commission
interferes, it may lead to multiplicity of judgments, which is not desirable and not
permissible by any law.
27.
Even now, those Directors can move before the DRT or DRAT for seeking further
relief. It is also surprising to note that Mr.B.L.Joshi is one of the complainants in this
case. It is not understood as to how he can challenge his own authority. It is also
surprising to note that other Directors have joined hands with him and they are working
in cahoots with each other. All the complainants had the knowledge about the
compromise. They should have raised objection there and then. It is well settled that
“A Stitch in Time, Saves Nine”. The delay on the part of the complainants for such a
long time is unfathomable. Consequently, this Commission has no jurisdiction to
entertain these complaints. These are barred by principles of res judicata. Following
authorities go to fortify the case of OPs.
28.
In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ
174 (NC), this Commission held that “a complaint filed by the complainant
suppressing the fact that the matter was already sub judice in the Sub-Court,
Ernakulam, was dismissed by the State Commission as the case was already sub
judice before a Civil Court. In appeal, the National Commission upheld the order
of the State Commission holding that the complaint was gross abuse of the
Consumer Protection Act”.
29. In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR
386 (NC), this Commission upheld the important principle that when a matter is sub
judice before the ordinary Civil Courts of the land, the Consumer Commission cannot
and will not entertain any claim for compensation in respect of the same subject matter.
30.
Last,
but
not
the
least,
this
Commission
clearly,
specifically
and
unequivocally held in Traxpo Trading Co. Vs. The Federal Bank Ltd, I (2002) CPJ
31 (NC) that under Section 18 of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, jurisdiction of this Commission has been barred, where the Bank
has filed ‘suit for recovery’, before DRT.
31.
LIMITATION:
Moreover, this case is hopelessly barred by time. The cause of action arose
when the matter was settled on 01.12.2007. The cause of action again arose on
04.01.2008, when the alleged amount was paid to the complainants and the Bank had
refused to pay the remaining amount. Thereafter, the complainants approached the
Hon’ble High Court of Gujarat and the Hon’ble High Court of Gujarat vide its order dated
21.07.2010 passed the following order :“ORAL ORDER
Heard learned advocate Mr.Ashish M. Dagli Appearing on behalf of
petitioner for all four Petitions. petitioner may approach, in respect to Grievance raised
in all four petitions, the Appropriate forum in accordance with law. In view of the above
observation, present Petitions are disposed of by this Court without Expressing any
opinion on merits”.
32.
It is, therefore, clear that the Hon’ble High Court did not condone
the delay on the part of the complainants. The present complaints were filed on
17.09.2010.
33.
Our predecessor Bench, vide its order dated 12.09.2011, passed the following
order :“Heard. Prima facie, some of the complaints appear to be
barred by period of limitation. As per complaints, certain
deposits were made in 1987 and maturity date was 1993, in
respect of those deposits. Further, there has been civil
litigation between the parties. Complainant is directed to file
copies of the pleadings of those litigations which took place
earlier between the parties, qua the deposits made by the
complainant. Same
be
filed
within
8
weeks. List
on
05.12.2011, for admission hearing”.
34.
We also gave opportunity to the complainants to
file an
application for
condonation of delay. Our order dated 04.01.2013, runs as follows:“Heard counsel for the parties.
Counsel for the opposite party submits that there is a
question of limitation, but no application in this connection
has been filed. An opportunity is granted to the complainant
to file an application for condonation of delay. He submits
that he has filed the complaint before the Registry, but the
Registry had raised no objection. Evidence to that context be
also produced.
Stand over to 18th March, 2013”
35.
However, the needful was not done. Application for condonation of delay was
never moved despite opportunities granted to the complainants. It is thus clear that the
present complaints are barred under Section 24-A of the Consumer Protection Act,
1986. There is not an iota of evidence that cause of action has arisen two years prior
to the above said case. Consequently, we dismiss the complaints with punitive costs of
Rs.15,000/- in each case, total being Rs.60,000/- to be deposited with the
Consumer Welfare Fund established by the Central Government under Section 12 (3)
read with Rule 10 (a) of the Consumer Protection Act, 1986, of the Central Excise Act,
1944, within one month from the date of the order, failing which it will carry interest @
10% p.a. Registrar to submit compliance report immediately, after the expiry of two
months.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
……………………………...
(VINAY KUMAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 685 OF 2013
(From order dated 26.11.2012 in First Appeal No.1173 of 2011 of the
State Consumer Disputes Redressal Commission, HARYANA, PANCHKULA)
1. Masih Hospital Through its Incharge, Dr.R.Masih 1, Sarojani Colony, Phase-I,
Yamuna Nagar
2. Dr.R.Masih, Masih Hospital 1, Sarojani Colony, Phase-I, Yamuna Nagar
3. Dr.Suman Masih, Masih Hospital 1, Sarojani Colony, Phase-I, Yamuna Nagar
… Petitioners
Versus
1. Kuleep, S/o. Sh.Mam Chand
2. Miss Kitu (Minor) D/o Sh. Kuldeep Both R/o Village – Karerakhurd, Post Office –
Karerakhurd Tehsil – Jagadhri, District Yamuna Nagar
3. United India Insurance Co.Ltd. Through its Divisional Manager 54, Janpath,
Connaught Place, New Delhi
… Respondents
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the petitioner
s : Mr. Naveen Pandey, Advocate
PRONOUNCED ON 01.04.2013
ORDER
JUSTICE J.M. MALIK
1.
In this revision petition, we are dealing with the allegation of medical negligence
on the part of the petitioners/OPs, i.e. Masih Hospital through its Incharge, Dr. R.Masih,
Yamuna Nagar, No.1, Dr.R.Masih, No.2 and Dr.Suman Masih, No.3. For the purpose of
reimbursement of any compensation amount, United India Insurance Co.Ltd. has been
arrayed as Respondent No.3, in this case.
2.
The facts germane to the present case are these. Smt.Geeta Devi, since
deceased, was the wife of Sh. Kuldeep, complainant No.1. Smt.Gita Devi was in a
family way. The patient was a primigravida (pregnant with first child) She felt labour
pains. She was admitted in the hospital/OP1 on 16.12.2007. The Doctor assured her
that the delivery would be normal. Subsequently, she was told that cesarean
operation was required. The patient was asked to deposit a sum of Rs.12,000/- on
account of operation fee and hospitalization. The said amount was accordingly
deposited.
3.
On the same day, cesarean operation was conducted and Smt.Geeta Devi gave
birth to a female child. However, the condition of Smt.Geeta Devi did not improve. As
per advise given by the OPs, Smt.Geeta Devi got the ultrasound of whole abdomen and
X-Ray Ultrasound from Dr.Mehta’s X-Ray & Ultrasound, on 24.12.2007. After perusing
the ultrasound report, the OPs referred Smt.Geeta Devi to Government Medical
College & Hospital, Sector-32, Chandigarh, for further treatment. She was admitted in
the Chandigarh Hospital where operation was conducted again. However, the
condition of Smt.Geeta Devi did not improve and ultimately, she unfortunately, passed
away on 28.12.2007.
4.
The Autopsy of the dead body was conducted and it transpired that the death was
caused due to puerperal sepsis. The Doctors at Chandigarh Hospital informed them
that Smt.Geeta Devi was suffering from septic due to the negligence of the OPs
while conducting operation on her at the time of delivery of the child. They also
explained that the she was referred to them at a very late stage.
5.
The complainants spent an amount of Rs.24,000/- at the Hospital of the OPs and
incurred a sum of Rs.30,000/- at Chandigarh Hospital. A complaint was filed by her
husband Sh.Kuldeep and her minor daughter, Baby Kitu, with the District Forum that the
OPs were negligent and deficient in discharge of their duty.
6.
The OPs enumerated the defences as follows. The patient was attended by a mid-
wife who was trying to deliver her baby, but failed. On 23.12.2007 at 11.00PM, she
was recovering, when she started having abdominal cramps, vomiting and loose
motions after eating ‘paneer’, at night, from a ‘Dhaba’. Immediately, decision for LSCS
was given to the patient. Moreover, the Husband of the patient wanted a normal delivery
and so refused for cesarean operation and took away the patient for 2nd opinion and
came back after one hour, agreeing for the surgery as the other doctor also had given
the same opinion.
7.
District Forum, after hearing the parties, allowed the complaint and granted
compensation in the sum of Rs.9,11,000/-, jointly and severally against all the four OPs.
8.
Aggrieved by that order, OPs preferred
an appeal before the State
Commission. The State Commission too, dismissed the appeal vide order dated
26.11.2012.
9.
We have heard the learned counsel for the petitioners at the time of admission of
this case who made the following submissions. He stressed that Doctors were not
negligent. The above said incident took place because the deceased had taken
‘paneer’ from a ‘Dhaba’, which resulted in infection. It is contended that the delivery
was normally affected. The deceased herself spoiled her condition which caused all
the problems. The mid-wife had further increased the problems. She handled her by
doing multiple aseptic per vagina examination while trying to deliver her and immediate
decision for LSCS was given. A female baby was delivered at 1.29 PM weighing 1.75
Kgs. It was argued that the wound was sutured, uterus sutured in two layers and
visceral peritonisation was done. The abdomen sutured in layers and skin sutured with
barber cotton thread. LSCS operation was performed by Dr.Suman Masih and
Dr.R.Masih with the help of Anaesthetist Dr.Shubham and other qualified and trained
staff of the hospital. The baby was seen by Dr.Sachin Garg, Paediatrician. The postoperative condition of the patient was stable with BP 118/76, Pulse 114/minute and
SPO2-99%, patient was alright and recovering well till 23.12.2007, 11.00PM, when she
started having abdominal cramps, vomiting and loose motion after eating ‘paneer’ at
night from ‘Dhaba’. All the treatment was given. Since the patient did not recover, she
was referred to the Government Medical College Hospital, Chandigarh.
10.
All these arguments lack conviction. This is an admitted fact that in the record
produced before the District Forum by the OPs, nowhere it is mentioned that the patient
was carrying any genito urinal infection or bad pelvic hygienic and it is not mentioned in
the record that Smt.Geeta Devi was examined by a mid-wife, before she was admitted
in the OPs Hospital. The cesarean operation was conducted on the same day. A
healthy female child was delivered. The treatment record shows that the patient was
recovering normally till 23.12.2007, but suddenly became serious. It is not understood
why the patient was allowed to take ‘paneer’ from a ‘Dhaba’. The patient was not still
discharged. She was supposed to take the food from the Hospital itself. There is no
proof that she had consumed ‘paneer’ as alleged. There is no such report. In case the
allegation made by the OPs is correct, then they should have shown to the Fora that
the ‘paneer’ contained same bacteria, which was found in the body of the
deceased. The pieces of ‘paneer’ should have been examined and preserved, in order
to save their own skin. As per the orders passed by the Fora below, it is also difficult
to understand as to how ‘paneer’ can cause frank pus in the abdominal cavity, in such
a short period. It is clear that the deceased suffered post-operative excessive bleeding
resulting into septicemia shock, resulting into renal functional impairment along with
liver damage. The record from the Government Hospital reveals that the patient was
diagnosed as acute peritonitis/post LSCS and septic shock. The deceased was
transferred to surgery department for exploratory laparotomy. She was operated on
27.08.2007 and approximately 700 ml pus was drained from abdominal cavity and inter
bowel loops pus was also present. She had been bleeding post-operatively for which
she was operated again and bleeding was stopped. On 27.12.2007, she was shifted to
ICU and put on ventilator. Her condition gradually deteriorated and she expired on
28.12.2007. Such a big quantity of pus cannot crop up in a jiffy.
11.
The District Forum has placed reliance on the Hon’ble Apex Court’s authority
reported in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 (5)
SCC, 513. The facts speak for themselves and there is no need to call for an expert
evidence.
12.
Res Ipsa Loquitor is one form of circumstantial evidence that permits a
reasonable person to surmise that the most probable cause of an accident was the
OPs negligence. Negligence is a breach of duty to take care resulting in damage to
one’s person or property. However, the Black’s Law Dictionary defines negligence as
under:“Negligence per se – Conduct, whether of action or omission,
which may be declared and treated as negligence without any
argument
or
proof
as
to
the
particular
surrounding
circumstances, either because it is in violation of a statute or
valid municipal ordinance, or because it is so palpably opposed
to the dictates of common prudence that it can be said without
hesitation or doubt that no careful person would have been
guilty of it. As a general rule, the violation of a public duty,
enjoined by law for the protection of person or property, so
constitutes”.
13.
The District Forum has meticulously kept in mind that the patient died when she
was young. She left behind her, a small baby who was just 3 months’ old, at the time of
filing of this complaint. Keeping all the facts and circumstances of the case, the
compensation was rightly granted.
14.
The State Commission has also placed reliance on Achutrao Haribhau Khodwa
& Ors. Vs.State of Maharashtra & Ors. 1 (1996) CLT 532 (SC).
15.
The revision petition is without merit and the same is dismissed with costs in the
sum of Rs. 10,000/-, to be deposited with the Consumer Welfare Fund established by
the Central Government under Section 12 (3) read with Rule 10 (a) of the Consumer
Protection Act, 1986, of the Central Excise Act, 1944, within one month from the date of
the order, otherwise, it will carry interest at the rate of 10% p.a.
.…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………………………
(VINAY KUMAR)
MEMBER
dd/11
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 721 OF 2013
(From order dated 26.11.2012 in Appeal No. 201/2012 of the
State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow )
With
IA/1315/2013
(STAY)
Standard Chartered Bank Through its Authorised Officer, Mr.Ajay Rana 10, Parliament
Street, New Delhi
… Petitioner
Versus
Virendra Rai, S/o Late Sh.Patu Rai R/o 3/83, Sanjay Gandhi Nagar P.N.Road, Tehsil &
Dist. Lucknow
… Respondent
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the petitioner
: Mr. Sanjeev Sagar, Advocate
For the Respondent : N E M O
PRONOUNCED ON 01.04.2013
ORDER
JUSTICE J.M. MALIK
1.
The Civil Court or any other authority can not arrogate to itself the right to make
decisions or interfere with the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (in short ‘SARFAESI Act’). Here lies the rub
in Section 34 of SARFAESI Act which reads as follows:-
“34. Civil court not to have jurisdiction. – No civil court shall have
jurisdiction to entertain any suit or proceeding in respect of any matter
which a Debts Recovery Tribunal or the Appellate Tribunal is
empowered by or under this Act to determine and no injunction shall
be granted by any court or other authority in respect of
any action taken in pursuance of any power conferred by or under
this Act or under the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993)”.
2.
The State Commission, Lucknow, presided over by S/Sh. Rampal Singh, Presiding
Member and Jugal Kishore, Member, passed the following order:“… The petitioner states that in order dated 24.07.2011
the Consumer Forum has ordered the petitioner bank that
during the pendency of this case, the petitioner shall not take
possession
of
property
of
complainant
bearing No.Plot No.14, Gaurbhith,Fazulahganj, Lucknow. The
Consumer Forum has also given next date as 25.08.2012 for
further proceedings.
The petitioner has prayed before this Forum for setting aside
of order dated 24.07.2012 by this Forum. Further, after the
passing of the date fixed by the Consumer Forum, i.e.
25.08.2012, the petitioner has not informed us about the
orders passed by the Consumer Forum. After hearing the
counsel for petitioner in detail, it is found that the appeal of
the petitioner is merit-less and hence liable to be dismissed.
ORDER
Present appeal does not have any force and hence is
dismissed. The order passed by the Consumer Forum dated
24.07.2011 in case No. 780/11 is hereby confirmed. The cost
of this appeal shall be borne by the petitioner himself.
The certified copy of the order be supplied accordingly
to rules”.
3.
We have also seen the order passed by the District Forum-II, Lucknow, which
has observed as under :“…… The complainant on the other hand objected to
objection of respondent and stated that this Forum has
jurisdiction to hear the present case. From their side an
order
by Hon’ble State
passed
Consumer
Disputes Redressal Forum, U.P. in appeal No.694/09 titled
“Gaya
Prasad
Vs.
GIC
Housing
Finance
Limited” and order dated 01.05.09 has been relied upon,
we have gone through the said order from which it is clear
that only the Civil Court has been barred from hearing and
thus only civil court does not have jurisdiction to hear the
present case and not the consumer fourm. Into this order,
the Hon’ble State
Consumer
Forum,
U.P.
has
also
mentioned Section 3 of the Consumer Protection Act,
1986, wherein it has been specifically stated that the
provisions of this Act shall be in addition to and not in
derogation of provisions of any other law for the time being
in force. Referring to this provision, the Hon’ble State
Consumer Forum, U.P. has stated that the powers given to
the Consumer Court are not in derogation of the provisions
of SARFAESI Act. Hon’ble State Consumer Forum, U.P.
and its order in case titled “Kishori LalVs. ESI Corporation
has stated clearly that the Consumer Forum has the
jurisdiction to hear such cases and section 34 of the
SARFAESI Act does not bar the said jurisdiction and in
such circumstances, the objection of respondent bank
does not have any force”.
4.
Counsel
for
the
petitioner
present. Respondent
has
not
appeared. However, his written submissions have been placed on record. We have
gone through the same. Instead of touching the heart of the problem, the complainant
has just skirted it. He has countenanced the deficiency on the part of the Bank. He has
not spoken about the jurisdiction of this case.
5.
The learned counsel for the petitioner vehemently argued that the Bank had cited
before the State Commission, the order passed by this Bench, titled as “Bank of
Baroda Vs. M/s. Geeta Foods”, decided on 08.11.2012 (RP No. 3499 of 2012). The
counsel for the petitioner alleges that this order was not discussed by the State
Commission. He contended that the State Commission should have mustered the
courage to mention about this order which otherwisetantamounts to Contempt of Court.
6.
We have already held that as per Section 34 of the SARFAESI Act, 2002, the
District Forum or the State Commission have no power to interfere with the SARFAESI
Act. The District Forum and State Commission are under the misconception that the
Consumer Court is not a civil court. In Patel Roadways Vs. Birla Yamaha Limited,
2000 (4) SCC 91, AIR 2000 SC 461, the Hon’ble Apex court has held :
“The contention that the use of the term ‘suit’ in Section 9 of
the Carriers Act shows that the provision is applicable only to
the cases filed in a civil Court and does not extend to
proceedings before the National Commission which is a forum
to decide complaints by Consumers following a summary
procedure cannot be accepted. The term ‘suit’ is a generic
term taking within its sweeps all proceedings, initiated
by, a party for realization of a right vested in him under
law. The meaning of the term ‘suit’ also depends on the
context of its use which in turn, amongst other things, depends
on the Act or the rule in which it is used. No doubt the
proceeding before a National Commission is ordinarily a
summary proceeding and in an appropriate case where the
Commission feels that the issues raised by the parties are too
contentious to be decided in a summary proceeding it may
refer the parties to a civil Court. That does not mean that the
proceeding before the Commission is to be decided ignoring
the express statutory provisions of the Carriers Act (Section 8)
in a proceeding in which a claim is made against a common
carrier as defined in the said Act. Accepting such a contention
would defeat the object and purpose for which the Consumer
Protection Act was enacted. A proceeding before the National
Commission comes within the term ‘suit’.
7.
In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ
174 (NC), this Commission held that “a complaint filed by the complainant
suppressing the fact that the matter was already sub judice in the SubCourt, Ernakulam, was dismissed by the State Commission as the case was
already sub judice before a Civil Court. In appeal, the National Commission
upheld the order of the State Commission holding that the complaint was gross
abuse of the Consumer Protection Act”.
8.
In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR
386 (NC), this Commission upheld the important principle that when a matter is
sub judice before the ordinary Civil Courts of the land, the Consumer Commission
cannot and will not entertain any claim for compensation in respect of the same subject
matter.
9.
It must be borne in mind that under Section 6 of the Indian Post Office Act, the
Consumer Fora have got limited jurisdiction.
10.
Again, in Southern Railways Vs. M.Chidambaram, 2002 (1) CPJ 34: (2002) 1
CPJ 342 (NC), it was held that since it was not disputed that untoward incident as
mentioned in Section 124-A of the Act has occurred the proper forum of adjudication
would only be before the Railway Claim Tribunal under Section 15 of the Railway Claims
Tribunal Act, 1987. The consumer court had no jurisdiction in this respect.
11.
The consumer court cannot deal with the directions given to a Company declared
‘sick’ by BIFR.
12.
In Dinesh Kumar Vs. Railway Station Master, Raipur Station, IV (2004) CPJ
136 (Chhattisgarh), it was held that as Section 15 of the Railways Act, clearly bars
jurisdiction of any other Court authority, consequently, remedy under Consumer
Protection Act, 1986 stands barred and was not available to the complainant.
13.
Last,
but
not
the
least,
this
Commission
clearly,
specifically
and unequivocally held in Traxpo Trading Co. Vs. The Federal Bank Ltd, I (2002)
CPJ 31 (NC) that under Section 18 of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, jurisdiction of this Commission has been barred, where
the Bank has filed ‘suit for recovery’, before DRT.
14.
Under these circumstances, the proceedings pending before the District Forum are
hereby quashed and the revision petition is accepted. The complaint is dismissed. Copy
of this order be sent to the State Commission and District Forum to follow the order
passed by this Commission, time and again, without caring whatever their personal
views are.
...…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
…..…..…………………………
(VINAY KUMAR)
MEMBER
dd/7
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 473 OF 2013
(From the order dated 30.10.2012 in First Appeal No. 1422/2008 of State Consumer
Disputes Redressal Commission, Punjab, Chandigarh, 2nd Bench)
WITH
IA/828/2013
(FOR STAY)
United India Insurance Co.Ltd. Through its Dy.Manager, Regional Office No.1 8th Floor,
Kanchan Junga Building 18, Barakhamba Road, New Delhi
…Petitioner
Versus
Bhupinder Singh, S/o Sh.Ranjit Singh R/o 1210, Sector-33C, Chandigarh Presently at :
Village Mairan, Tehsil Bassi Pathanam District Fatehgarh Sahib
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. A.K. De, Advocate
For the Caveator/Respondent : Mr. Charan Pal Singh Bagri, Advocate
PRONOUNCED ON 01.04.2013
ORDER
JUSTICE J.M. MALIK
1.
On 18.01.2006, Shri Bhupinder Singh, Complainant/respondent in this revision
petition, purchased a 2004 Model, Second Hand Elantra Car from its previous owner,
United Auto Wheels and got the registration and insurance transfer in his own
name. The complainant obtained insurance from petitioner/OP, United India Insurance
Co. Ltd., for the period running from 25.08.2006 to 24.08.2007 and he availed benefit of
25% of ‘No-Claim’ Bonus from the OP/petitioner while taking the policy.
2.
On 22.09.2006, the complainant lodged claim for damage with the OP on
29.09.2006. The OP, vide its letter dated 01.02.2007, repudiated the claim of the
respondent on the ground of wrongly availing ‘No-Claim’ Bonus @ 25% on renewal of
policy.
3.
Thereafter, on 02.06.2007, the said car was stolen and the complainant lodged
FIR and intimated the OP/respondent. The complainant also lodged claim with the
OP. However, OP repudiated the claim vide letter dated 11.02.2008 in which it was
explained that the previous claim lodged by the respondent with regard to own damage
reported on 29.09.2006 in respect of the same car was repudiated by the OP Company
vide their letter dated 01.02.2008 on the ground of wrongly availing of ‘No-Claim’ Bonus
@ 25% on renewal of policy due to which Section 24VB was violated by the
respondent. Consequently, they also repudiated the 2nd claim as well.
4.
On 13.03.2008, the complainant filed a complaint before the District Forum,
Fathegarh Sahib. The District Forum allowed the complaint and directed the petitioner
for payment of cost of the car, i.e., Rs.7,00,000/- with interest @ 9% p.a. from the date
of theft of the car and Rs.40,000/- as compensation for mental agony and harassment
and Rs.1,000/- as litigation costs.
5.
An Appeal was preferred before the State Commission. The State Commission
partly allowed the Appeal and reduced the interest rate from 9% to 6% p.a. from the
date of repudiation, till realisation. It also set aside the order awarding compensation of
Rs.40,000/-.
6.
Aggrieved by that order, the present revision petition has been filed by the
respondent/OP. The learned counsel for the petitioner vehemently argued that prior to
lodging the present theft claim, the complainant also lodged one ‘own-damage claim’
reported on 29.09.2006 in respect of the same vehicle which was repudiated by OP vide
their letter dated 01.02.2007 on the ground of wrongly availing ‘No-Claim’ Bonus @
25% on renewal of policy, whereas it was clear that after the previous cover note, the
vehicle had been transferred and as such, the respondent was not entitled for any ‘NoClaim’ Bonus on renewal of policy as he had misrepresented the policy facts to avail the
benefit. Counsel for the petitioner has also invited our attention towards repudiation
letter dated 01.02.2007, which runs as follows:“UNITED INDIA INSURANCE CO.LTD.
DIVISIONAL OFFICE
OPP.MAIN BUS STOP, KHANNA
PH 01628-227708 FAX. 01628-226122
“WITHOUT PREJUDICE”
Ref : Motor Claims : 2006 Dated: 1st Feb., 2007
Sh. Bhupinder Singh
H.No. 1210/1, Sector 33C
Chandigarh (UT)
Sir,
Reg : Accident of vehicle No.CH-03Q-0145 Insured
Under Policy no. 200600/31/06/01/00001010 A/c
yourselves.
Your above-said claim reported on dated 29.09.2006 in which
M/s. Lajpat Rai & Co. were deputed for the assessment of the
loss. You have availed the NCB @ 25% on renewal of policy
whereas it is observed that after the submission of previous
cover note/insurance that the vehicle has been transferred &
you are not entitled for NCB on renewal of policy & have misrepresented the policy facts to avail the benefit of NCB.
So, keeping in view of the above, we are Repudiated your
claim as the compliance of 64VB is not confirmed herewith.
Sd/Authorised Signatory”.
7.
The learned counsel for the respondent did not pick up a conflict with this
letter. He also did not dispute that he had availed ‘No-Claim’ Bonus @ 25%. The
people must speak truth while making claim before the insurance company. They are
supposed not to suppress the facts, like in the present case. However, in National
Insurance Co.Ltd. Vs. Nitin Khandelwal, 2008 CTJ 680 (Supreme Court) (CP), there
was a case of ‘theft’ and the consumer had violated the terms of the policy by insuring
the car for ‘personal’ use, but actually, used the same for ‘commercial’ purpose, as a
‘Taxi’. The State Commission directed the insurance company to settle the claim on
‘non-standard’ basis. The Hon’ble Apex Court has in same case laid down that in case
of theft of a vehicle, the breach of condition is not germane and the insurance company
is liable to indemnify the respondent.
9.
Consequently, we follow this authority and modify the order of the State
Commission and direct the insurance Company to settle the claim on ‘non-standard’
basis and pay 75% of the amount of Rs.7,00,000/- minus No Claim Basis. The
complainant will pay 9% interest on “No Claim Basis’. The complainant is granted no
interest at all for the said misrepresentation. The OP/petitioner is directed to pay the
residue amount, within 45 days, otherwise, it will carry interest @ 9% p.a, till the date of
realization.
..…………………..………
(J.M. MALIK, J.)
PRESIDING MEMBER
……………….……………
(VINAY KUMAR)
MEMBER
dd/15
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 39 OF 2007
(Against the order dated 01.12.2006 in OP No.17/2001 of the
Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)
St. Antony Hospital Rep. by its Administrator Madhavaram High Road Chennai-60
…
Appellant
Versus
C.L. D’Silva No. 31 (Old No. 54) Arul Nagar, Madhavaram Chennai-60
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellant
:
Mr. S. Vijayakumar, Advocate &
Mr. Sumit Kumar, Advocate
For Respondent
:
NEMO
Pronounced on 2nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by St. Antony Hospital, Appellant herein and
Opposite
Party before
the Tamil Nadu
State
Consumer Disputes Redressal
Commission, Chennai (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission, which had partly allowed the complaint of
C.L. D’Silva, Respondent herein and Complainant before the State Commission alleging
medical negligence against the Appellant.
2.
FACTS :
In his complaint before the State Commission, Respondent-Complainant had
stated that his wife Corrine D’Silva (hereinafter referred to as the Patient), who was
gainfully employed in a foreign company in Chennai, complained of pain in the lower
abdomen on the right side. Suspecting it to be a case of Appendicitis, RespondentComplainant took her to Pavithra Hospital, Erukkanchery, Chennai, wherein an
ultrasound scan indicated that she had a small cyst on her right ovary and fibroid uterus
was suspected. Respondent-Complainant took a second opinion from St. Thomas
Hospital where removal of ovaries was advised, which required surgery and 10 to 15
days’ hospitalization. Since Respondent-Complainant and the Patient were living
in Madhavaram, they decided to go to the nearby Appellant in April, 2000 for fixing a
date for admission and surgery. Appellant conducted preliminary tests like Chest X-ray,
ECG etc., the results of which were normal. The Assistant Administrator of the
Appellant advised the Patient to postpone the surgery till 12.05.2000, as a reputed and
experienced Doctor from USA, one Dr. Samuel Parra, was visiting their Hospital to
demonstrate his skills. Patient, therefore, applied for medical leave for 4 weeks from
12.05.2000 and was examined by Dr. Samuel Parra on that date, who after diagnosis
stated that he would remove the cyst by Laparoscopy method and, if required,
thereafter a surgery would also be done. Since the Appellant did not have the
Laparoscopy instrument required by Dr. Parra, it was arranged from a hospital
in Tuticorin and the surgery was fixed for 24.05.2000. Patient got admitted on
23.05.2000 and was thereafter allotted a room which was very unhygienic as sewage
water was stagnating nearby. At 8.30 a.m. on 24.05.2000 Patient was taken to the
operation theater for surgery and on its completion, she was brought back to the room
at 12.45 p.m. Same night, she developed high fever and also later complained of
discomfort and severe pain in the abdomen. She was assured by Dr. Parra that this
was a routine pain after surgery. However, when her condition worsened, she was
again examined on 26.05.2000 by Dr. Parra who asked the Respondent-Complainant to
arrange for 2 Pints of blood. Patient’s condition continued to deteriorate and breathing
became belabored and, therefore, she was put on oxygen. When RespondentComplainant returned with the blood required for transfusion, he found that the Patient
had been taken to the operation theater for the second surgery. Thereafter at 11.20
p.m. Dr. Parra informed the Respondent-Complainant that by mistake, colon of the
Patient was ruptured during the first surgery, as a result of which her body fluids
and faecal matters had leaked into her system, but this was cleaned up and the mistake
rectified during the second surgery. Respondent-Complainant was also informed that
both ovaries had been removed and sent to the laboratory for tissue culture. Patient
was breathing with great difficulty and the external incisions following her surgery were
also not fully closed, which according to the Doctor was necessary in case another
emergency surgery was required. Respondent-Complainant stated that he was fully
confused with these sudden developments and on 27.05.2000 when he was permitted
to see the Patient, he found her in semi-conscious state. He also reliably understood
from discussions among Doctors that his wife’s first surgery was an experimental one
and the equipments used were not functioning properly. On 27.05.2000 at 7.00 p.m. Dr.
Parra and other Doctors from Appellant informed the Respondent-Complainant that they
were not equipped to cope with Patient’s critical condition since there were no intensive
care facilities and advised him to transfer her to Sri Ramachandra Medical College
Hospital
at Porur. When
the
Patient
was
shifted
late
at
night
to
SriRamachandra Medical College Hospital, she was taken to ICCU and put on ventilator
there and Doctors informed the Respondent-Complainant that his wife’s recovery
chances were only 5% as the internal organs were in septic condition due to presence
of faecal matter
etc.
causing
severe
internal
damage. The
Doctors
at
SriRamachandra Medical College Hospital also advised that the wounds may have to
be reopened and cleaned but this was very risky procedure, for which the RespondentComplainant was required to sign a consent form. However, despite all efforts Patient
passed away on 16.05.2000 at 2.20 a.m. As per the medical record, the cause of death
was Septicemia leading to multi organ failure. Being aggrieved by the medical
negligence and deficiency on the part of the Appellant and Doctors therein, including Dr.
Parra who used the Patient as a guinea pig, in conducting a Laparoscopy with ill
equipped equipments, which resulted in the rupturing of the colon of the Patient,
Respondent-Complainant issued a legal notice to the Appellant claiming Rs.15 Lakhs
as compensation. However, since no reply was received from them, Respondent filed a
complaint before the State Commission on grounds of medical negligence and
deficiency in service and requested that the Appellant be directed to pay him (i) Rs.15
Lakhs as compensation towards loss, hardships and mental agony suffered by him on
account of gross deficiency in service and the medical negligence on the part of
Appellant and its Doctors; (ii) Rs.1,81,911/- being the refund in respect of medical
treatment; and (iii) Rs.10,000/- as litigation costs, as also any other relief as deemed
appropriate in the interest of justice.
3.
Appellant on being served filed a written rejoinder denying that there was any
medical negligence on their part. It was stated that the Appellant is a charitable hospital
which
was
rendering
service
to
deserving
and
poor
patients. Respondent-
Complainant’s wife had been admitted in the Appellant hospital where after examination
she was diagnosed with Endometrial Cyst and fibromas of the uterus. Patient had
agreed to the Laparoscopy after she was clearly informed about the pros and cons of
the same, including the possible complications, which could require converting it into an
open procedure. On 24.05.2000 after conducting all the pre-operative tests, the
Laparoscopy
Endometriosis,
was
conducted,
inflammatory
which
confirmed
changes
and
that
also
Patient
pelvic
had
extensive
inflammatory
disease. There was extensive adhesions and some fibrinous fluid. All these were
attended to through a time consuming procedure. At 8.00 p.m. on the same day,
Patient’s haemoglobin dropped to 9.3 and she complained of shoulder pain which was
common after Laparoscopy. However, there were no other problems. She was given
IV fluids and antibiotics. The next day when she was not responding to conservative
management and was showing systemic sepsis and peritonitis, Respondent-
Complainant was advised about the need for exploratory surgery. It was denied that Dr.
Parra had informed the Patient or the Respondent that her colon had ruptured during
the first surgery and faecal matter and other body fluids had leaked into the system
which needed to be immediately rectified. The second surgery was conducted by Dr.
Parra assisted by other qualified Doctors and it was found that she had severe sepsis
with peritonitis endometriosis associated with pelvic inflammatory disease, from which
she had been suffering prior to the surgery. Because Patient required prolonged
ventilator support and other intensive care facilities, which were not available in the
Appellant hospital, she was in her own interest advised admission in an advanced
medical centre for which necessary arrangements were made by the Appellant and she
was transferred to Sri Ramchandra Medical College Hospital at about 9.00 p.m.
accompanied by Dr. Parra, an Anaesthetist and a nurse. It was reiterated that there
was no medical negligence or deficiency in the treatment of the Patient and the entire
medical expenses came to only Rs.25,330/- which was borne by the Appellant.
4.
The State Commission after hearing the parties and on the basis of evidence filed
before it, particularly the statement of Dr. Parra, who admitted that there were some
technical problems and defects with the Laparoscopy equipments which he had faced
while conducting the Laparoscopy, concluded that medical negligence and deficiency in
service was clearly established. In this connection, the State Commission, inter alia,
observed as follows :
“So far as the present case is concerned, there is concrete
unimpeachable evidence in the shape of the report of Dr. Parra. The
equipment was not in good shape; the person who were assisting him
were novices and had no previous experience with the use of laproscope;
during the surgery, there was some malfunctioning of the equipment; there
was a tear in the colon and as to how it happened Dr. Parra could not
explain; the opposite party hospital was unhygienic. There is least doubt
that the opposite party had been negligent and there was deficiency in
service..”
The State Commission while recording that it would be difficult to quantify the amount of
compensation in the case of death of one’s spouse, after taking into account all the
facts of the case, held that a compensation of Rs.5,00,000/- would be just and
reasonable and accordingly directed the Appellant to pay the Respondent-Complainant
the said amount together with Rs.5000/- as litigation costs within a period of two
months.
5.
Aggrieved by the order of the State Commission, the present first appeal has
been filed.
6.
Learned Counsel for the Appellant made oral submissions. Learned Counsel for
the Respondent-Complainant was not present but written submissions were taken on
record.
7.
Counsel for the Appellant stated that the medical records filed in evidence clearly
indicated that there was no deficiency or negligence on the part of the Appellant in the
treatment of the Patient, including the Laparoscopy as also the surgery. It was stated
that the Patient had been brought to the Appellant with Endometrial Cysts and fibromas
of the uterus, for which a diagnostic Laparoscopy was necessary, and the procedure
was conducted after all the pre-operative tests. It was found during the Laparoscopy
that the Patient also had pelvic inflammatory disease which caused complications
leading to sepsis and peritonitis. This was not the result of any negligence as alleged,
including accidental perforation of the colon, and despite the best medical care and
treatment, including a second surgery, these complications persisted. No payment was
taken from the Patient by Appellant which was a charitable institution and which also
paid for her entire treatment at Sri RamachandraMedical College Hospital, where she
expired. All the Doctors, including Dr. Parra, were well qualified and professional
Doctors and, therefore, the findings of the State Commission were not based on correct
appreciation of the facts as also the evidence on record.
8.
Counsel for the Respondent-Complainant in the written arguments contended
that from the statement of Dr. Samuel Parra before the State Commission it was clear
that the Laparoscopy procedure conducted by him was totally botched up. There was
malfunctioning of the equipments and during the procedure colon of the Patient got
ruptured resulting in the faecal matters entering into her system, because of which
another emergency surgery had to be conducted on 27.05.2000, which was also not
conducted properly and even the surgical wounds were not properly incised and
closed. These facts were confirmed by the Doctors in Sri RamachandraMedical College
Hospital, who despite their best efforts could not save the Patient because by then the
whole system of the Patient had collapsed. The State Commission had, therefore,
rightly concluded in its well-reasoned order that during the surgery there was a mistake
which resulted in the tearing of the colon and subsequent complications which could not
be managed and rectified by the Appellant and its Doctors.
9.
During the pendency of the present first appeal before this Commission
Respondent-Complainant died and his legal representatives were brought on record.
10.
We have considered the oral and written submissions made by learned Counsels
for the Appellant and the Respondent-Complainant respectively. Patient’s admission in
the Appellant hospital with a diagnosis of ovarian cyst and her examination by a Doctor
from USA, Dr. Samuel Parra, who confirmed the diagnosis and offered to remove the
cyst by Laparoscopic method, is not in dispute. It is further a fact that following this
procedure, complications developed, because of which a second surgery became
necessary, during which it was found that body fluids and faecal matters had leaked into
the system and also that both ovaries had to be removed and sent to a laboratory for
tissue culture. It is further a fact that on the Appellant’s own advice Patient was shifted
to a higher health facility i.e. SriRamachandra Medical College Hospital, where despite
her being in the ICCU, she could not be saved. Dr. Parra while denying that there was
any medical negligence and deficiency in service on Appellant’s part in conducting the
Laparoscopy as also the subsequent surgery had also admitted on oath before the
State Commission that the Laparoscopy equipment was not available in the Appellant
hospital and had to be obtained from another hospital just two days prior to the
surgery. It was further admitted by Dr. Parra that right from the beginning there were
technical difficulties while conducting the procedure since the insulator needle was not
working properly so the umbilical trochar was placed by open technique. Further, there
were problems with the suction irrigation system as the “rubber tubing of the suction
were collapsing when applying the suction” which was time consuming. Dr. Parra has
also admitted that on 26.05.2000 there were intra-abdominal infections and there was
also
possibility
of
Peritonitis,
which
was
not
responding
to
conservative
management. Therefore, a second exploratory surgery was conducted, wherein Dr.
Parra stated that the Patient was explored with the finding of a small tear of the sigmoid
colon and there was also a residual fluid from the irrigation during the
Laparoscopy. However, despite stating all these facts, Dr. Parra concluded that
Patient’s death was not because of any complications that can arose in such surgeries
and was because of pelvic inflammatory disease. We are not able to accept this
contention of Dr. Parra in view of the fact that he has clearly stated that there were
serious technical difficulties while conducting the Laparoscopy which confirmed the
Respondent-Complainant’s contention that the Patient was used as a guinea
pig. Further, the Appellant and Dr. Parra were not able to satisfactory explain the tear in
the colon which led to the sepsis and peritonitis, except to say that “a non-fault
irreparable damage had occurred”. From the evidence of Dr. Parra, it is also clear that
soon after the surgery, the Patient continued to face a number of medical problems and
blood was also transfused to her. These facts are confirmed from the medical records
of both Appellant hospital and Sri Ramachandra Medical College Hospital filed in
evidence by the Appellant. The State Commission after considering the evidence on
record had, therefore, concluded that there was medical negligence and had specifically
stated in Para-9 of its order as follows :
“It is thus clear that during the surgery, there was a mistake done which
resulted in the tearing of the colon. We have also noticed that the
equipment was also defective. When even according to Dr. Parra, the
equipment was defective it is a moot question whether Dr. Parra and his
associate doctors and assistants should have proceeded further and done
the operation. Even, according to Dr. Parra, there was a concealed nonnoticeable injury of the colon that manifested itself in the postoperative
course. He had also realised that a non-fault irreparable damage had
occurred. In such a situation, the one and only conclusion that could be
reached is that there was negligence which resulted in serious
complications. The patient had to be shifted to the tertiary for
management and of course, things had become unmanageable and
ultimately the patient collapsed and died.”
11.
We are in agreement with the finding of the State Commission that Appellant was
guilty of medical negligence and deficiency in service right from the beginning in not
checking whether the Laparoscopy equipments were working, because of which
admittedly several problems arose during the Laparoscopic procedure, including a tear
in the colon. If indeed the Laparoscopy had gone smoothly as contended by Appellant,
then there would not have been need for a second surgery, which was done to redress
the deficiency of the first surgery. Further, Doctors in the Appellant hospital themselves
admitted that they were unable to treat the Patient in their hospital, which clearly
indicates that by the time she was referred to higher medical facility, her condition was
very critical and could not be reversed. Sri RamachandraMedical College Hospital
where she was transferred has also confirmed that the Patient’s condition at the time of
admission was very critical.
12.
The principles of what constitutes medical negligence is now well established by
a number of judgments of this Commission as also the Hon’ble Supreme Court of India,
including in Indian Medical Association v. V.P. Shantha [(1995) 6 SCC 651]. One of
the principles is that a medical practitioner is expected to bring a reasonable degree of
skill and knowledge and must also exercise a reasonable degree of care and caution in
treating a patient (emphasis provided). In the instant case, it is very clear from the facts
stated in the foregoing paragraphs that a reasonable degree of care was not taken in
the treatment of the Patient. This is apparent, as stated earlier, from the fact that even
the Laproscopy equipments were not checked before they were used because of which
several problems arose with its functioning during the procedure as admitted by the
Doctor who conducted the procedure. Apart from this, the Doctors from the Appellant
hospital have not been able to explain how the colon tear occurred and why a third
surgery may have been necessary because of which even the surgical wounds were not
properly sutured. The instant case is a case of res ipsa loquitur where medical
negligence is clearly established.
12.
We, therefore, agree with the order of the State Commission and uphold the
same in toto. The present first appeal is dismissed. Appellant is directed to pay to the
Respondent-Complainant a sum of Rs.5,00,000/- as compensation together with
litigation costs of Rs.10,000/- within a period of two months. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 628 OF 2007
(Against the order dated 02.08.2007 in Complaint No. 27/1999 (RBT No.79/07) of the
State Consumer Disputes Redressal Commission, UT Chandigarh)
New India Assurance Co. Ltd. Having its head office at 87, M.G. Road, Fort Mumbai400001
…
Appellant
Versus
Balbir Singh S/o Shri Umed Singh R/o Shakti Nagar Near Nahar Colony Jhajjar Road,
Bahadurgarh
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellant
: Mr. Bhaskar Tiwari, Advocate
For Respondent
: Mr. S.M. Tripathi, Advocate
Pronounced on 2nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by New India Assurance Co. Ltd. being aggrieved
by the order of the State Consumer Disputes Redressal Commission, U.T. Chandigarh
(hereinafter referred to as the State Commission) which had allowed the complaint of
deficiency in service filed by Balbir Singh, Complainant before the State Commission
and Respondent herein.
2.
FACTS :
Respondent-Complainant, who is engaged in the business of selling tyres and
tubes and is also the Authorized Dealer of Modi Continental Tyres, had got his shop Jai
Bharat Tyre Co. situated at Bahadurgarh, District Jhajjar insured with the AppellantInsurance Company against a wide range of risks, including fire, theft, burglary etc., for
the period from 29.05.1996 to 28.05.1997 for which the premium was also paid. On the
night intervening 27th – 28th November, 1996 during the validity period of the policy, a
theft occurred in the Respondent-Complainant’s shop, in which tyres amounting to
Rs.7,45,400/- were stolen. Respondent-Complainant immediately informed the Police
and an FIR was registered. He also reported the matter to the Branch Office of the
Appellant-Insurance Company at Bahadurgarh and lodged a formal claim. A Surveyor
was duly appointed by the Appellant-Insurance Company, who assessed the loss at
Rs.7,10,000/- approximately. It was stated that Respondent-Complainant had supplied
all the necessary documents to the Surveyor. Despite this, Appellant-Insurance
Company did not pay the said amount and instead deputed one Mr. Chawla to
investigate the loss/claim and thereafter appointed a second Surveyor who assessed
the loss at Rs.4,94,500/-. Respondent-Complainant on account of his financial
obligation accepted this lesser amount under protest but even then Appellant-Insurance
Company failed to pay the amount assessed by the second Surveyor. Aggrieved by
this, Respondent filed a complaint before the State Commission on grounds of
deficiency in service because of non-settlement/payment of the claim and requested
that Appellant-Insurance Company be directed to pay the Respondent-Complainant the
following amounts:
(a)
Rs.7,45,400/- to the Complainant being the loss assessed by the first
Surveyor.
(b)
Interest @ 21% per annum on the above claimed amount with quarterly
rests from 29.11.1996 to 31.03.1999 which comes to approximately
Rs.3,82,000/-.
(c)
Rs.5,00,000/- on account of compensation for undue and unwarranted
harassment, mental agony and loss of business etc.
3.
(d)
Future interest on the total awarded amount @ 24%.
(e)
Rs.1,00,000/- as cost of litigation.
Appellant-Insurance Company on being served filed a written rejoinder denying
that there was any deficiency in service on their part. While no explanation was given in
the written rejoinder for appointing a second Surveyor, Appellant-Insurance Company
stated that the second Surveyor correctly assessed the loss at Rs.4,94,500/- after
thoroughly scrutinizing all the documents. However, there was delay in settling this
amount because the Respondent-Complainant himself failed to produce certain
information sought from him. It was further stated that the complaint is not maintainable
as Respondent-Complainant himself had given a letter of consent agreeing to accept
Rs.4,94,500/- as full and final payment in respect of the burglary insurance claim.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it allowed the complaint by inter alia observing as follows:
“16. From the evidence available on record, we find that the survey
report given by the first surveyor i.e. M/s Lokendra Claims Care
Corporation, New Delhi is a detailed report and the OPs have filed no
evidence or given any reasons to disbelieve the same and have also put
forward no cogent reasons for subsequently appointing the second
surveyor and thereafter the third surveyor. This act of the OPs smacks of
their ulterior motive and is not only illegal but is also a clear deficiency in
service as well as unfair trade practice on their part.
17.
In our considered view, therefore and in view of the law settled by
the Hon’ble National Commission in the case of M/s Hundi Lal Jain Cold
Storage and Ice Factory Pvt. Ltd. vs. Oriental Insurance Company Ltd.
(supra), it was the duty of the OPs to settle the claim of the Complainant
on the basis of the report of the first surveyor, who had submitted the
same on 25.5.1997 (Annexure P10). Non payment of the claim on the
basis of this survey report of the surveyor clearly amounts to deficiency in
service on the part of the OPs and the Complainant needs to be
compensated for the same. …
19.
We do not find any merit in the contention of the OPs that the
Complainant has no reason to file the complaint because he had agreed
to the payment of Rs.4,94,500/- as full and final payment, as the same
amount stands already paid. This is because the Complainant has been
able to fully satisfy us that due to delay in the settlement of the claim, he
was put to severe financial loss and strain and therefore, by coercive
bargaining of the OPs, he was compelled by the circumstances to sign this
consent letter dated 29.4.1998. The contention of the OPs could have
had some merit, had the OPs paid this consent amount to the
Complainant immediately after the signing of the consent letter. However,
it is clear from the records that the OPs had no intention of paying even
this amount to the Complainant as subsequently vide their letter dated
13.10.1999 they offered to pay him only a sum of Rs.4,86,400/-. It is
further deplorable that OPs paid the Complainant no amount till they were
so directed by the order of the Haryana State Commission consequent to
the order of Hon’ble National Commission six years after the consent letter
had been signed.”
(emphasis provided)
The State Commission, therefore, directed the Appellant-Insurance Company to pay the
Respondent-Complainant as under :
(a)
Rs.7,10,307/- towards the insurance claim less Rs.4,94,500/- already
paid on 19.12.2004.
(b)
Interest @ 12% per annum on the total amount of Rs.7,10,307/- w.e.f.
25.7.1997 i.e. two months after filing of the first surveyor report till
19.12.2004 when an amount of Rs.4,94,500/- was paid to the Complainant
as part of the claim.
(c)
Interest @ 12% per annum on the balance unpaid amount of claim
amounting to Rs.2,15,807/- from 20.12.2004 till payment.
(d)
Rs.5,000/- as costs of litigation.
However, no separate compensation was granted as the rate of interest allowed was to
cater for both the loss of interest as also compensation on account of mental agony etc.
5.
Aggrieved by the order of the State Commission, the present first appeal has been
filed.
6.
Learned Counsels for both parties made oral submissions.
7.
Counsel for the Appellant-Insurance Company stated that the State Commission
erred in allowing Respondent’s complaint. From a perusal of the report of the second
Surveyor, it is clear that the Respondent-Complainant could not have suffered a loss of
Rs.7,45,400/- because in the commercial space available in the insured shop, which
was 16½ x 8.2 ft. and 9.10 ft. in height, not more than 64 tyres of big size could be
stored upto a height of 10 tyres, after deducting 25% from this area as space required
for
storing
tables,
counters
and
chairs. Therefore,
Respondent-Complainant’s
contention that he had stocks of 254 tyreswhich were stolen and that out of the said
258 tyres,
158 tyres were
of
big size, is
obviously not
correct
and
obviously
these tyres were lying at some other place, which was not covered under the insurance
policy. Counsel for the Appellant-Insurance Company while admitting that it took about
six years to finally settle the claim as assessed by the second Surveyor, stated that the
delay was attributable to the non-cooperative attitude of the Respondent-Complainant
even after he had given his written consent to accept this amount. When specifically
asked by us why a second Surveyor was appointed without giving any reasons for
rejecting the report of the first Surveyor, Counsel for the Appellant-Insurance Company
was not able to adequately explain the reasons for the same except to state that
Appellant-Insurance Company was not satisfied with the correctness of the report of the
first Surveyor. It was, therefore, justified in appointing a second Surveyor. Counsel for
the Appellant-Insurance Company again contended that once the RespondentComplainant had accepted the amount assessed by the second Surveyor in writing, he
was not justified in filing the complaint before the State commission.
8.
Counsel for the Respondent-Complainant on the other hand stated that the State
Commission had rightly and through a well-reasoned order allowed his complaint. It was
stated that the Respondent-Complainant had fully cooperated with the first Surveyor
and given him all the required information on the basis of which the loss had been
correctly assessed. However, the Appellant-Insurance Company without informing the
Respondent-Complainant decided to appoint a second Surveyor. When Respondent-
Complainant wrote to the Appellant-Insurance Company on 02.03.1998 as to why a
second Surveyor had been appointed, there was no response to this letter. Counsel for
the Respondent-Complainant further stated that apart from the second Surveyor, two
other Surveyors had also been appointed by the Appellant-Insurance Company in the
instant case and without any justification. This fact was also recorded by the State
Commission in its detailed order. Learned Counsel for the Respondent-Complainant
further stated that the National Commission as also Hon’bleSupreme Court of India
have come down heavily on the practice adopted by the Insurance Companies in
appointing one Surveyor after another without recording reasons for doing so and in this
connection he cited the judgment of this Commission in M/s Hundi Lal Jain Cold
Storage and Ice Factory Pvt. Ltd. v. Oriental Insurance Company Ltd. [2004 (3)
CPR 3 (NC)] and that of the Apex Court in Sikka Papers Limited v. National
Insurance Co. Ltd. & Others [(2009) 7 SCC 777].
9.
We have heard learned Counsels for both parties and have also carefully gone
through the evidence on record. The fact that Respondent-Complainant had insured his
shop with the Appellant-Insurance Company covering the risks of fire, theft, burglary
etc. for the period from 29.05.1996 to 28.05.1997, for which the premium was also paid,
is not in dispute. It is further admitted that following a burglary in the insured premises,
Respondent-Complainant filed a claim with the Appellant-Insurance Company, who
appointed a Surveyor, who assessed the loss at Rs.7,10,000/-, which admittedly was
not accepted by the Appellant-Insurance Company, who then appointed a second
Surveyor without recording any reasons for rejecting the report of the first Surveyor. As
pointed out by the Counsel for the Respondent-Complainant and as recorded by the
State Commission in its detailed order, this Commission as also Hon’ble Supreme Court
of India have adversely commented on the practice of some Insurance Companies in
appointing one Surveyor after another without giving reasons for not accepting the
report
of
the
first
Surveyor. Specifically Hon’ble Supreme
Court
in Sri Venkateswara Syndicate v. Oriental Insurance Co. Ltd. & Anr. [II (2010) CPJ
1 (SC)] has inter alia observed as follows :
“We may also add, that, under this Section the insurance company cannot
go on appointing Surveyors one after another so as to get a tailor made
report to the satisfaction of the concerned officer of the insurance
company, if for any reason, the report of the Surveyors is not acceptable,
the insurer has to give valid reason for not accepting the report. Scheme
of Section 64-UM particularly, of sub-sections (2), (3) and (4) would show
that the insurer cannot appoint a second surveyor just as a matter of
course (emphasis supplied by us). If for any valid reason the report of
the Surveyor is not acceptable to the insurer may be for the reason if there
are inherent defects, if it is found to be arbitrary, excessive, exaggerated
etc., it must specify cogent reasons, without which it is not free to appoint
second Surveyor or Surveyors till it gets a report which would satisfy its
interest.”
10.
Counsel for the Appellant-Insurance Company during the course of his oral
submissions stated that judgment of the Hon’ble Supreme Court in SikkaPapers
Limited (supra) would not be relevant in the instant case since it pertains to a date
prior to the delivery of this judgment by the Hon’ble Apex Court. We are unable to
accept this contention in view of the fact that Hon’ble Supreme Court of India
in Sikka Papers Limited (supra) has only interpreted Section 64-UM of the Insurance
Act, 1938 and has nowhere observed that this order would have prospective effect.
11.
Apart from this serious deficiency on the part of the Appellant-Insurance Company
in appointing a second Surveyor without giving any reasons for rejecting the report of its
own first Surveyor, we note that the Appellant-Insurance Company is also guilty of
deficiency in service in taking six long years to settle the Respondent-Complainant’s
claim as per the report of the second Surveyor. Appellant’s contention that
Respondent-Complainant had not been cooperating with it is not backed by any
evidence on record. We, therefore, see no infirmity in the order of the State
Commission, which had allowed the Respondent-Complainant’s complaint in toto and
had directed the Appellant-Insurance Company to settle the Respondent-Complainant’s
claim in terms of the findings of the first Surveyor i.e. for an amount of Rs.7,10,307/-.
11.
Keeping in view the facts of this case and respectfully following the judgments of
the Hon’ble Supreme
Court
in Sikka Papers
Limited
(Supra)
and
SriVenkateswara Syndicate (supra), we uphold the order of the State Commission
and dismiss the present first appeal. We note that as per the order of this Commission,
on 19.12.2004 Respondent-Complainant had already been paid a sum of Rs.4,94,500/against bank guarantee. In that case, this amount be retained by the RespondentComplainant and the bank guarantee accordingly stands discharged. AppellantInsurance Company is directed to comply with the order of the State Commission and
pay the Respondent-Complainant the remaining amount within a period of two months
from the date of this order.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/-
(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 58 OF 2008
(Against the order dated 18.12.2007 in Complaint No. 38/2003(Hry)/RBT No.124/2007
of the State Consumer Disputes Redressal Commission, UT Chandigarh)
1. Dakshini Haryana Bijli Vitran Nigam Ltd. Through its Managing Director Shakti
Bhawan, Sector-6 Panchkula, Haryana
2. Sub Divisional Officer (Operations) Dakshini Haryana Bijli Vitran Nigam Limited
Pataudi, District Gurgaon Haryana
…
Appellants
Versus
1. Parmila Devi Wife of Late Shri Ranbir Singh
2. Master Kuldeep Son of Late Shri Ranbir Singh
3. Ms. Priya Daughter of Late Shri Ranbir Singh
4. Katini Devi Mother of Late Shri Ranbir Singh
5. Kartar Singh Father of Late Shri Ranbir Singh All residents of Village Khandewala
District Gurgaon, Haryana
…
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellants
: Mr. Sanjay Singh, Advocate
For Respondents
: Mr. Dharam Raj Ohlan, Advocate
Pronounced on 2nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
Respondents
1.
This first appeal has been filed by Dakshini Haryana Bijli Vitran Nigam Limited
& Anr., Appellants herein and Opposite Parties before the State Consumer
Disputes Redressal Commission, UT Chandigarh (hereinafter referred to as the State
Commission) being aggrieved by the order of that Commission which had allowed the
complaint filed on grounds of negligence and deficiency in service by Parmila Devi,
Respondent No.1 herein and Complainant before the State Commission.
2.
In her complaint before the State Commission, Respondent No.1 had stated that
her late husband Ranbir Singh (hereinafter referred to as the Deceased), who was
Commando Head Constable with Haryana Police, had accidentally come into contact
with a stay (live) wire attached to an electric pole installed near the tube-well of his field
and since the said wire was not fitted with an insulator, he got electrocuted and died on
the spot. A report to this effect was lodged with the Police and post mortem conducted
confirmed that death was due to electrocution. Respondent No.1 filed a representation
to this effect before the Appellants stating that since she lost her husband due to
negligence on the part of the Appellants in not insulating the wire, a compensation of
Rs.20 Lakhs be paid to the Respondents. Since no response was received by
Respondent No.1 to her representation in this respect, she filed a complaint before the
State Commission on grounds of negligence and deficiency in service on the part of the
Appellants and requested that Appellants be directed to pay the Respondents
compensation of Rs.20 Lakhs.
3.
Appellants on being served filed a written reply contesting the complaint. It was
stated that the allegations made by the Respondents were wrong since there was no
electric supply at 6.00 p.m. on 27.03.2000 when the Deceased reportedly came into
contact with the stay/live wire and got electrocuted. It was also stated that the wire was
properly insulated. In fact, the Respondents did not immediately inform the Appellants
about the accident and on receipt of information on 28.03.2000 officers from AppellantDepartment immediately rushed to the site for inspection/inquiry and a Chief Electrical
Inspector also investigated the matter and submitted a report on 14.03.2001, according
to which it appears that the Deceased got an electric shock when he tried to get
electricity supply to his tube-well by fiddling with the transformer. It was also submitted
that the transformer was damaged on 25.03.2000 and replaced on 29.03.2000 and
during this period the GO switch was cut off from the main line but Deceased tried to
operate and mishandle the GO switch resulting in the main contact wire getting broken
and 11 KVA current flowing into the handle of the GO switch and causing the fatal
accident. Appellants also stated that the Respondents had no locus standi to file the
complaint since the tube-well was not in the name of the Deceased but was in the name
of one Maha Singh s/oKartar Singh.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it allowed the complaint by observing as under:“13. It hardly matters that the tubewell was in the name of Maha Singh
S/o Kartar Singh because Maha Singh is the real brother of RanbirSingh
and they were seven brothers. They were joint and had joint agricultural
land, so, Ranbir Singh as a beneficiary of the tubewell was also a
consumer.
14.
It is further stated in the affidavit of Sh.A.S. Jaiswal, SDO
‘OP’ Pataudi that as per statement of villagers, Ranbir Singh died when he
was forcibly operating the handle of GO Switch of 63 KVA T/F SOP but he
further stated that no one was ready to state the facts in writing. The
version as stated in the affidavit of A.S. Jaiswal is not correct. The
transformer may not be in working condition but it does not mean that no
current was flowing in the transformer. No documentary evidence has
been led that insulation of the stay wires was done. The lineman Sh. Ram
Kishore, Ram Dhan, A.L.M. and Mohinder A.L.M. also filed a joint affidavit
stating that they had checked the L.T. Line connected to the transformer
and found O.K. They further stated that they had removed the outgoing
jumper of the transformer, so, that no one can try to operate the GO
switch and had intimated the feeder incharge Mahavir Singh, AFM. If
jumper had been removed then there was no question of the current
flowing even if Ranbir Singh had tried to mishandle the GO Switch in order
to operate the same. This only shows that it is a made up story that
jumper had been removed. In the written reply dated 3.10.2002 it is not
mentioned that the jumper had been removed. It is further stated in the
written reply that deceased was in drunken state and there was no supply
to the LT system. The postmortem of the dead body ofRanbir Singh was
conducted on 28.3.2000 but the doctors did not find that he was
drunk. Thus, story of O.Ps is not believable. In fact the current was
flowing in the said stay wire and by accident, Ranbir Singh came into
contact with stay wire fixed with the pole from where electricity was being
supplied to tubewell and was electrocuted. O.Ps did not take proper
precaution to insulate the said stay wire and further it is all a made up
story that he had tried to mishandle the GO switch forcibly and in that
process 11 KVA current lowed in the handle of GO switch which caused
fatal accident.”
The State Commission after taking into account the salary of the Deceased, his age and
future prospects was of the view that the loss to the family and estate would be
Rs.48,000/- per annum and after applying the multiplier of 16, the total amount was
calculated at Rs.7,68,000/-. In addition to this amount, the State Commission
concluded that Respondents are entitled to compensation of Rs.50,000/- for loss of
companionship and fatherly love. The State Commission, therefore, directed the
Appellants to pay the Respondents a sum of Rs.8,18,000/-, which included cost of
Rs.10,000/- with interest @ 12% per annum six months after the date of death of the
Deceased on 27.03.2000 i.e. from 27.09.2000 till payment.
5.
Being aggrieved by the order of State Commission, Appellants/Opposite Parties
have filed this First Appeal.
6.
Learned Counsels for both parties made oral submissions.
7.
Counsel for the Appellants contended that the complaint was not maintainable
because the Deceased was not a ‘consumer’ of the Appellants since he had not hired or
availed of Appellants’ service by taking electricity connection from them. Apart from
this, the State Commission erred in not accepting Appellants’ contention that the LT line
was damaged on 25.03.2000 and replaced only on 29.03.2000 and during this period
the outgoing jumper of the transformer was removed so that no one could operate the
GO switch but during inspection it was found that the GO switch was broken and,
therefore, it was clear that the Deceased had forcibly tried to operate the GO switch of
the transformer and during this process current had flown in the handle of the switch
and caused the fatal accident. In fact insulator was provided on the stay wire and this
insulator was broken intentionally by the Respondents to establish their case that the
deceased had accidentally touched the live wire and died. Apart from this, the State
Commission failed to appreciate the report/findings of the Chief Electrical Inspector
dated 14.03.2001, wherein it was revealed as per the statement of employees of the
Appellants as also villagers that there was no electricity on 25.03.2000 and there were
also no eye witnesses regarding this accident.
8.
Counsel for the Respondents on the other hand stated that the Deceased had
died following electrocution and this fact had been confirmed by the post mortem
report. Further, proceedings under Section 174 Cr.PC, which were conducted following
the death of the Deceased, confirmed that on 27.03.2000 the Deceased who had come
to his village on leave had gone at about 6.00 p.m. to his field to inspect the crop and
that he accidentally came into contact with a stay wire, which was not insulated and he
got electrocuted. Photographs were also filed in evidence clearly indicating the
presence of an electric pole near thetubewell belonging to the family of the
deceased. This fact was also recorded in the report of the Chief Electrical Inspector in
his report dated 14.03.2001. However, other facts reported in the said report of Chief
Electrical Inspector were wrong, including his statement that the Deceased died on
07.03.2000. Report of the Chief Electrical Inspector as also the statements of the
witnesses, who are reported to have denied that any accident took place, have not been
placed on file. Further, even though the tubewell was not in the name of the Deceased
and was in the name of his brother Maha Singh, there was documentary evidence filed
before the State Commission i.e. the agricultural record that the Deceased
and Maha Singh alongwith their other brothers were all joint owners of the agricultural
land and, therefore, it is clear that the Deceased as a beneficiary of the service provided
by the Appellants was a ‘consumer’ of the Appellant-Nigam. No documentary evidence
had been filed to support Appellants’ contention that proper insulation of the stay wire
had been done. The State Commission giving detailed reasons has, therefore, rightly
concluded that there was negligence and deficiency in service on the part of
Appellants.
9.
We have heard learned Counsels for both parties and have also considered the
evidence on record. The death of Respondent No.1’s husband through electrocution
when he came into contact with stay wire in the agricultural fields on 27.03.2000 is not
in dispute. Appellants’ contention is that this electrocution was caused because
Deceased tried to tamper with the transformer and wiring etc. while trying to restore
electricity to the tubewell connection and, therefore, his death occurred because of his
own fault and not due to any negligence or deficiency on the part of the Appellants who
had properly insulated the wire and further on that day electricity was not available. We
are unable to accept these contentions because Appellants have not filed any evidence
to support their contentions. Even the report of the Chief Electrical Inspector who had
inquired into the incident was not filed in evidence before the State Commission nor
have the affidavits of any witnesses to prove Appellants’ case been produced before the
State Commission. On the other hand, proceedings under Section 174 Cr.PC which
had been conducted following Deceased’s death reached a finding on the basis of the
statements of witnesses that the Deceased got electrocuted when the accidentally
came into contact with the stay wire which was not insulated. Photographs filed in
evidence (Exhibit P-3 and P-4) also clearly indicate that there is an electric pole near
the tubewell belonging to the family of the deceased to which the stay wires were
fixed. The State Commission, which is a first court of fact, in this case had also
concluded that the version of the Appellants that they had removed the outgoing jumper
of the transformer so that no one could operate the GO switch is not correct because if
the jumper had been removed, then there was no question of flowing of current even if
the Deceased had tried to mishandle the GO switch in order to operate the same. The
relevant observations of the State Commission in this respect have already been
reproduced in this Order. Keeping in view these facts, we are in agreement with the
finding of the State Commission that the death of Respondent No.1’s husband occurred
because of his accidentally touching a stay wire which was not properly insulated, for
which the Appellant-Nigam are clearly responsible since they are required to ensure
that such installations are properly and securely maintained so that there are no safety
hazards to consumers/public.
10.
We, therefore, uphold the order of the State Commission in toto. The present First
Appeal having no merit is dismissed. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 461 OF 2007
(Against the order dated 06.06.2007 in Complaint No. 342/1998 of the
Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)
Oriental Insurance Co. Ltd. Head Office, Oriental House A-25/27, Asaf Ali Road New
Delhi-110002 And also Branch Office Oriental Insurance Co. Ltd. Shreeji House, Nr.
M.J. Library Ellisbridge, Ahmedabad-380006
…
Appellant
Versus
M/s Mangal Textile Mills (India) Pvt. Ltd. 63, New Cloth Market Ahmedabad-380002
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellant
: Mr. Pradeep Gaur, Advocate
For Respondent
: Mr. S.J. Mehta, Advocate
Pronounced on 2nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Oriental Insurance Company Limited, Appellant
herein and Opposite Party before the Gujarat State Consumer Disputes Redressal
Commission, Ahmedabad (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission which had partly allowed the complaint filed
against it by M/s Mangal Textile Mills (India) Pvt. Ltd., Respondent herein and
Complainant before the State Commission.
2.
FACTS :
Respondent-Complainant had taken a Fire Policy ‘C’ from the Appellant-
Insurance Company for the period 02.05.1996 to 01.05.1997 to cover the risks of
damage to its Boiler and chimney pipe fittings. During the validity period of the policy,
on 18.08.1996 the Boiler was damaged to the tune of Rs.8,97,481/- by the Contractor
and his staff who was entrusted with the cleaning and servicing of the Boiler. Since the
Boiler and the fusible plug were intentionally damaged, Respondent-Complainant
lodged a complaint with Vatva Police Station and also intimated the Appellant-Insurance
Company, which registered the claim and appointed a Surveyor M/s Mehta Padamsey
Surveyors (Bombay) Pvt. Ltd. to assess the loss. Respondent-Complainant contended
that the Surveyor was given all the documents required by him. RespondentComplainant had also appointed a Surveyor and Loss Assessor to look into the incident,
who had clearly concluded that the Respondent-Complainant had suffered a net loss
amounting
to
Rs.5,72,500/-
due
to
damage
to
the
Boiler
with
‘malicious
intent’. However, the Appellant-Insurance Company vide letter dated 19.12.1997
arbitrarily repudiated the claim though it was squarely covered by the insurance policy
since the Boiler and the fusible plug were intentionally damaged because of the
malicious act on the part of the Contractor and his staff, who had tampered with the
Mobrey level switch which resulted in water starvation leading to damage to the
Boiler. Despite issue of legal notice to the Appellant-Insurance Company to settle the
claim, this was not accepted. Respondent, therefore, filed a complaint before the State
Commission on grounds of gross negligence and deficiency in service on the part of the
Appellant-Insurance Company in arbitrarily and wrongly rejecting their valid claim and
requested that the Appellant-Insurance Company be directed to settle the claim for
Rs.8,97,481/- with interest @ 18% per annum from 01.01.1997 till realization as also
Rs.50,000/- as compensation for mental agony, hardship and harassment caused to the
Respondent-Complainant and Rs.10,000/- as litigation costs.
3.
Appellant-Insurance Company on being served filed a written rejoinder denying
that there was any deficiency on their part. It was stated that the claim was thoroughly
investigated by the Surveyor, who vide his report dated 21.04.1997 stated that the
Mobrey level switch had not sustained any visible physical damage by external violent
means. Therefore, there was no evidence to support Respondent-Complainant’s
allegation that the Mobrey level switch had been tampered and damaged with malicious
intent by the Contractor or his workers. In view of these facts, the claim was not covered
as per the terms and conditions of the insurance policy and, therefore, RespondentComplainant was not entitled to the damages as claimed by him. The Police had also in
its report stated that the involvement of the workers in causing damage to the Boiler
could not be proved.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it partly allowed the complaint and directed the Appellant-Insurance
Company to settle the claim of the Respondent-Complainant for Rs.5,00,000/- by
observing as follows :
“… admittedly the steam boiler in question got damaged because of
starvation (lack of water supply inside the boiler). It is a settled legal
position that the jurisdiction to be exercised under the provisions of the
Consumer Protection Act, 1986 is an equitable jurisdiction and the strict
proof of evidence would not be necessary to adjudicate the claim of the
consumer. Simply because there is no evidence found against the
workers of the contractor to implicate them with the incident as per the
police certificate that cannot baffle the claim of the consumer which is
otherwise established in the instant case i.e. damage to the steam boiler
because of starvation is an admitted position. Looking to the facts
revealed as pointed above the damage to the steam boiler in question
because of starvation could be possible only by the intervention of some
human agency and the proof of the identity of the miscreant is not
essential. It may be seen that damage caused to the boiler by any act
would be a violence to the boiler and the intention of the miscreants would
be to cause damage maliciously in as much as damage intended to be
caused to the boiler of the complainant.”
5.
Aggrieved by the order of State Commission, the present first appeal has been
filed.
6.
Learned Counsels for both parties made oral submissions.
7.
Learned Counsel for the Appellant-Insurance Company stated that the State
Commission erred in concluding that the damage to the Boiler was caused due to a
malicious act since there was no evidence to prove the same. On the other hand, as
per the detailed report of the Surveyor appointed by the Appellant-Insurance Company
it was clearly established that the damage to the Boiler was not caused because of any
malicious act. The Police had also confirmed after investigation that it could not be
established that the workers of the Contractor had intentionally and maliciously caused
damage to the Boiler. Further, there was no evidence or past history of any labour
disaffection or dispute which could have prompted the workers of the Contractor to
maliciously damage the Boiler by starving it of water. The report of the Surveyor is an
important document and has to be relied upon unless otherwise contradicted by cogent
evidence. In the instant case, Respondent-Complainant was not able to produce any
evidence to show that the report of the Surveyor as also the Police investigation was
wrong. The terms and conditions of an insurance policy are binding on both parties and
in the instant case the insurance claim pursuant to damage caused to the Boiler not
being covered as per the terms and conditions of the insurance policy, was rightly
repudiated.
8.
Counsel for the Respondent-Complainant stated that admittedly there was no
damage to the Boiler when it had been sent for cleaning to the Contractor. Further, the
Boiler in question was fitted with a number of safety devices, including the Mobrey dual
control switch, which worked as a control switch for the feed water pump to work
depending on the water level in the Boiler. In addition, a steam injector had been
provided with the Boiler as an alternative feed water supply device and it was used for
pumping water to the Boiler in case the water pump failed to work. A steam pressure
switch had also been provided with which the pressure switch operated and
automatically shut down the system to control fuel combustion. On 18.08.1996 when it
was noted that the Boiler got damaged because of water starvation, it was found on
examination that all the safety valves installed in the Boiler were in safe operating
condition and had not been disturbed. The fact that damage was caused to the Boiler
admittedly due to starvation of water clearly indicated that this had been done manually
through human intervention, bypassing the safety devices. This fact by itself clearly
indicated that damage was caused to the Boiler maliciously since it was not in the
normal course on account of mechanical failure of the several safety devices installed in
the Boiler. The private Surveyor appointed by the Respondent-Complainant had also
reached the conclusion that all the safety mountings and accessories were operational
prior to the date of damage as also thereafter concluding that the damage was by
external violent means by bypassing the various safety devices in the Boiler.
9.
We have heard learned Counsels for both parties and have also carefully gone
through the evidence on record. The fact that the Boiler which was insured with the
Appellant-Insurance Company had been sent for servicing and cleaning to a Contractor
is not in dispute. It is also an admitted fact that on 18.08.1996 it was noted that the
Boiler and the fusible plugs had got damaged because of water starvation i.e. lack of
water supply inside the Boiler. As per the undisputed evidence, there was no record of
any malfunctioning or defect in the various safety devices installed in the Boiler to
prevent water starvation either on 17.08.1996 or thereafter. Even the AppellantInsurance Company’s own Surveyor has recorded in his report that all the safety valves
were working normally and a letter dated 22.08.1996 from Thermax Limited, the
manufacturer of the Boiler, also confirmed that there was no damage to any of the
safety devices. However, since admittedly the Boiler had been damaged due to water
starvation, we find force in the contention of Respondent-Complainant that this damage
could only have occurred due to human intervention and by bypassing the various
safety devices installed in the Boiler. Obviously, this damage could have been caused
by the persons to whom the Boiler was entrusted for servicing and who were well aware
that the water starvation would lead to damaging the Boiler. The Surveyor appointed by
the Appellant-Insurance Company in his report, we note, has not been able to provide
any credible evidence to counter this fact. Consequently, Appellant-Insurance
Company on whom there was onus to do so also has not been able to prove that the
damage caused to the Boiler was not because of any malicious intent while repudiating
the claim. On the other hand, Respondent-Complainant has been able to adequately
establish the fact that damage to the Boiler was caused due to water starvation when
the Boiler was entrusted to the Contractor and his workers for cleaning and servicing
because they knowingly permitted this water starvation by skillfully bypassing the
various safety devices installed in the Boiler. This action on the part of the Contractor
and his staff could not have been done except with malicious intent and knowing fully
well that this intervention would damage the Boiler. The State Commission after taking
into consideration all these facts, as a first Court of fact, had, therefore, concluded that
the damage to the Boiler in question because of water starvation had occurred by the
intervention of the Contractor and his staff with malicious intent. For the reasons
discussed above, we agree with this finding of the State Commission that this case is
fully covered under the provisions of the insurance policy which had insured the Boiler
and the fusible plugs against damage with malicious intent, which occurred in this case.
10.
To sum up, we uphold the order of the State Commission. Appellant-Insurance is
directed to settle the insurance claim of the Respondent-Complainant in respect of
loss/damage to the Boiler under the insurance policy and pay Rs.5,00,000/- to the
Respondent-Complainant with 9% interest from the date of the complaint i.e.
19.10.1998 till realization.
11.
The present first appeal stands dismissed. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 1341 of 2010
(From the order dated 29.01.2010 of the West Bengal State Consumer
Disputes Redressal Commission, Kolkata in Appeal no. 406 of 2009)
Dr Tarunjit Dutta Roy Son of Late J L Dutta Residing at 5/4 D L Roy Road Post
Office Krishnagar Police Station Kotwali District Nadia
Petitioner
Versus
1. The Branch Manger The New India Assurance Company Ltd. Krishnagar Branch
Office 38 L M Ghosh Road Post Office Krishnagar, District Nadia
2. The Divisional Manager The New India Assurance Company Ltd. Barasat Division
68 K N C Road, Barasat
3. The Regional Manager New India Assurance Company Ltd Regional Office
4 Mangoe Lane Kolkata 700 001
4. Sri Narayan Chandra Saha Son of Late Nani Gopal Saha Residing at Manasatala
Para Amullya Parmanik Road Post Office and Police Station Ranaghat District Nadia
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Sanjoy Kumar Ghosh, Advocate
For the Respondent
Mr Nikunj Dayal, Advocate
Pronounced on 2nd April 2013
ORDER
REKHA GUPTA
This revision petition is against the order dated 29th January 2010 passed by the
West Bengal State Consumer Disputes Redressal Commission, Kolkata (‘the State
Commission’) in First Appeal no. 406 of 2009 which was filed against the final order
dated 26th June 2009 passed by the District Consumer Disputes Redressal Forum,
Nadia (‘the District Forum’) in C F Case no. CC/ 08/ 65.
The petitioner in his complaint before the District Forum has stated that he had
purchased a Professional Indemnity Policy for Doctors and Medical Practitioners, policy
no. 4651240301334/589/49177 valid from 12.03.1998 to 11.03.1999 and continued up
to 2003 and the indemnity limit was Rs.10 lakh. After receiving the notice of EA/08/15,
the petitioner immediately informed the respondent to pay the awarded amount and to
indemnify the claim vide his letter dated 17.11.2008 but the respondents failed to take
any steps to indemnify the policy. As per the information gleaned from the District
Forum’s order in CC/08/ 65 it transpires that in 1999 the petitioner was attached to
Nadia District Hospital at Krishnagar as an Orthopaedic Surgeon. One Mr Narayan
Chandra Saha filed a case against him and two others in the Consumer Forum vide C F
case no. 39/99 whereon the Forum has awarded compensation of Rs.2,67,750/- for
medical
negligence
which
occurred
in
the
course
of
treatment
by
the
petitioner. Narayan Chandra Saha filed the execution case no. EA/08/15 before the
District Forum, Nadia for realisation of the sum of Rs.2,67,750/-. It is only after receiving
the notice of the execution case no. EA 08/15, the petitioner vide his letter dated
17.11.2008 informed the respondent for making payment of the awarded amount. The
respondents did not pay the said amount.
The respondents in their written version stated that the petition was barred by law
of Special Law of Limitation.
They further averred that all the statements made in the petition were not true.
That the respondents were not a party in C F Case no. 39/1999 which was filed by one
Narayan Chandra Saha before the District Forum even they were not a party in the
appeal case no. 233/A/2005 before the State Forum nor in the execution proceeding no.
EA/08-15 filed by Narayan Chandra Saha before the District Forum for realisation of the
awarded amount in C F Case no. 39/ 1999. The respondents were totally in the dark
about the facts mentioned in the claim petition.
They admitted that that the petitioner purchased a professional indemnity policy
for Doctors and Medical Practitioners from the respondent being policy no.
465124030/33/589/40177 for the period of 12.03.1999 to 11.03.1999. The terms and
conditions of the policy and which was attached with the said policy are follows:
“the insured shall give written notice to the company as soon as reasonably
practicable of any claims made against the insured or any specific event or
circumstances that may give rise to a claim being made against the insured and which
forms the subject of indemnity under this policy and shall give all such additional
information as the company may require. Every claim, writ, summons or process and all
documents relating to the event shall be forwarded to the company immediately they
are received by the insured”.
They further said that the petitioner had not informed regarding the claim of the C
F Case 39/99 to the respondent as per terms and conditions of the policy and/or he did
not disclose before the District Forum regarding his insurance and/ or did not try to
make the insurance company a party in C F case no. 39/99. The alleged dispute had
been settled in C F Case no. 39/99 in the court of the District Forum, Nadia
at Krishnagar as well as State Forum at Kolkata in SC Case no. 333/A/2005 and as
such the present C C08/65 case is barred by principles of res-judicata.
The District Forum in C F Case no. 39/99 and the State Forum in appeal case no.
SC 233/A/2005 did not pass any order against the respondent and as such the District
Forum has got no jurisdiction to pass any order over the dispute regarding the same
cause of action.
Before the District Forum, the counsel for the petitioner “argued that the previous
case filed by the proforma opposite party Narayan Chandra Saha against the present
complainant was not informed to the present Respondents no. 1 and 2 as they were not
the party of the case as the findings might not be in favour of the then petitioner. After
final order of that case when the decision went against this petitioner and execution
case was filed then the petitioner informed the fact to the respondents no. 1 and 2 to
indemnify his claim pursuant to the provisions of his policy. Thus there caused no
violation of the terms and conditions as embodied in the policy”.
The District Forum in their order stated that; “we find much substance in his
above submissions. We see eye to eye with the argument of the lawyer of the
complainant
that
after
final
finding
of
the
earlier
case
filed
by Narayana Chandra Saha and after decision in the appeal giving information to the
OP nos. 1 and 2 by the complainant to indemnify the award and to issue a cheque for
the awarded amount is not the violation of the terms and conditions of the policy.
The respondents nos. 2 & 3 in spite of receiving information of the case no. CF
39/99 remained silent without taking any action and thereby caused deficiency in
service on their part.
It is settled principle that considering the facts and circumstances of each case,
the compensation should be awarded to initiate the grievance of the complainant. In the
instant case we are of the view considering the facts and circumstances of the case that
if Rs.20,000/- only is awarded as compensation that may alleviate the grievances of the
complainant. This case thus, succeeds. Hence, the District Forum directed as under:
“The case is allowed on contest against the OP nos. 1, 2 & 4 and ex parte
against OP no. 3 with cost of Rs.5,000/- only payable by OP nos. 1 and 3 either
jointly or severally, not by OP no. 4.
The OP nos. 1 to 3 are further directed to pay the sum of Rs.2,67,750/- only to
the complainant either jointly or severally as per order of this Forum passed in
case no. CF/ 39/99 within 40 days from the date of this order failing which the
amount shall accrue interest @ 10% per annum from the date of this order till
making payment of the entire amount.
The OP nos. 1 to 3 are further directed to pay the sum of Rs. 5,000/- as cost
sited above and Rs.20,000/- as compensation, in all Rs. 25,000/- only either
jointly or severally to the complainant within the stipulated period failing which the
amount of Rs.25,000/- will accrue interest @ 10% per annum from the date of
this order till the date of making entire payment.
We pass no order as to further interest. We pass no order against
the proforma opposite party, Narayan Chandra Saha”.
Aggrieved by the order of the District Forum, the respondents filed an appeal
before the State Commission. The learned counsel for the petitioner while admitting that
no written notice was given to the company prior to 17.11.2008 contended that
“satisfaction of clause 8.1 is a mere formality and the complainant/ respondent no. 1
had duly communicated the insurance company as soon as the award was passed and
therefore, there is no failure on the part of the complainant/ respondent no. 1 in
substantially complying with the requirements of the policy. The advocate further
contended that in the previous complaint case filed by Shri Narayan Chandra Shah the
award was sought to be executed in Execution Case being EA/08/15 wherein the
complainant/respondent no. 1 paid the entire amount of award in instalments and,
therefore, he is entitled to be reimbursed in respect of the said amount of award paid by
the complainant/ respondent no. 1 in the Execution Case in terms of the previous award
in the complaint case filed byShri Narayan Chandra Saha”.
The State Commission opined that “the question is required to be decided as to
whether there is any deficiency in service of the insurer. If the insurer has refused to
indemnify the claim for non-satisfaction of the policy condition by the insured, it cannot
be held that the action of the insurance company was deficient in service. The condition
which has been violated is not a mere procedural redundant requirements. Apparently
the said condition gave opportunity to the insurer to have not only notice but also an
opportunity to control if possible, any claim or proceeding against the insured.
In the circumstances, as we find that there is no deficiency in service by the
insurer, the complaint cannot be successful. Accordingly, the judgment impugned
cannot stand and the same is hereby set aside. Appeal is allowed and the complaint is
dismissed. There will be no order as to costs”.
Hence, this revision petition.
The grounds of the appeal in the revision petition are as follows:
- that the petitioner being pressurised by several orders from the executing court/
forum, was compelled to pay the amount of Rs.2,67,750/- and the other amounts as
decided by the District Forum below to the proforma opposite party no.4; thereby the
petitioner herein paid the entire awarded amount to the proforma opposite party no. 4
from his own pocket and put a demand from the respondents herein that the same
amount should be reimbursed to the petitioner by the respondents, but the respondents
herein did not take any step.
- the fact remains that the petitioner was duly covered under the Medical
Indemnity Policy when the cause of action arose and the policy was valid without any
doubt. The learned State Commission, West Bengal simply considered the condition of
the policy regarding responsibility of the insured in communicating the development of a
case and the learned State Commission, West Bengal observed further that there was
no communication and, as such, there was no liability of the opposite parties in paying
awarded amount.
- that the learned State Commission, West Bengal did not make any observation
as regards the fact that the opposite parties were duly communicated by the petitioner
through his Agent, verbally and by personal representation and, moreover, there was a
letter dated 12.06.2005 written by his advocate demanding necessary actin with regard
to the compliance of the order of the District Forum, Nadia, passed in C F Case no.
39/1999 and also there was another letter written by the petitioner dated 17 th November
2008. This fact was admitted by the opposite parties and the same is reflected in the
judgment of the District Forum date 26th June 2009.
- that the learned State Commission, West Bengal, did not make any observation
as regards the effect of the above intimations, letters and demand of justice. The
learned State Commission also did not consider as to the extent of application of the
Clause 8.1 of the indemnity policy, whether delay in communication of the incident or
the litigation will empower the opposite parties to repudiate the genuine claim of the
petitioner or not.
- that the learned State Consumer Disputes Redressal Commission, West
Bengal did not consider the contents of the letter of the petitioner received by the
Insurance Company on 13th June 2005 wherein the petitioner clearly mentioned that on
the consent of Insurance Company, Mr Pradip Banerjee, the learned Advocate was
contesting the case before the District Forum, Nadia on behalf of the petitioner
pertaining to development of the case from the very beginning of the case under C F
Case no. 39/1999 was in the knowledge of the insurance company.
- that the learned State Commission below failed to appreciate that the petitioner
intimated the consumer case filed by the preform opposite party no. 4 under C F Case
no. 39/1999 from time to time, through verbal representation, personal representation
and further over phone to the authorities of the opposite parties.
- that the learned State Commission failed to appreciate that admittedly, the
written representation of the petitioner dated 17th November 2008 was received by the
authorities of the opposite parties on 18th November 2008 for taking action and/or for
payment of the awarded amount in the judgment passed by the District Forum, Nadia in
the case vide C F case no. 39/199 filed by the prpforma opposite party no. 4 and also
there was a letter written by the learned counsel of the petitioner dated 12 th June 2005,
communicating the developments in the said case along with the judgment passed by
the District Forum, Nadia, in C F Case no. 39/1999.
We have heard the learned counsels for the petitioner as well as for the
respondents and have carefully gone through the records.
Both the counsels have given citations in support of their case.
Learned counsel for the petitioner has drawn our attention to the Apex Court’s
judgment in the case of National Insurance Co. Ltd., vs Nitin Khandelwal, wherein it
stated as under:
The appellant aggrieved by the said order of the State Commission preferred a
revision petition before the National Consumer Disputes Redressal Commission.
The National Commission after considering the fact that the vehicle was used for
commercial purpose, granted reimbursement on the non-standard basis as per
the policy of the insurance company and observed that the order of the State
Commission did not call for any interference.
Learned
counsel
for
the
petitioner
has
also
referred
to
the
case
of Amalendu Sahoo vs Oriental Insurance Co. Ltd.
He also urged that even if for the sake of judgment, clause 8.1 had been violated
and the claim should be ought to have been settled under non-standard basis.
We do not find that these citations are applicable to the fact of this case.
Learned counsel for the respondents have drawn our attention to the Apex Court
judgment
in
the
case
of Amravati
District
Central
Cooperative
Bank
Limited vsUnited India Fire and General Insurance Company Ltd., - (2010) 5
Supreme Court Cases 294 wherein it observed as under:
In General Assurance Society Ltd., vs Chandmull Jain a Constitution
Bench of this court laid down the principle relating to interpretation of insurance
contracts. This court held: (AIR p. 1649, para 11)
………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.
In Oriental Insurance Co. Ltd., vs Sony Cheriyan this Court held (SCC p
455, para 17)
The insurance policy between the insurer and the insured
represents a contract between the parties. Since the insurer undertakes to
compensate the loss suffered by the insured on account of risks covered
by the insurance policy, the terms of the agreement have to be strictly
construed to determine the extent of liability of the insurer. The insured
cannot claim anything more than what is covered by the insurance
policy. That being so, the insured has also to act strictly in accordance
with the statutory limitations or terms of the policy expressly set out
therein.
Further the learned counsel for the respondents have also drawn our attention to
the
Apex
Court
judgment
in
the
case
of General
Assurance
Society
Ltd., vsChandumull Jain and Anr. – 1966 (3) SCR 500 has observed that “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”.
In the case of Polymat India (P) Ltd., and Another vs National Insurance Co.
Ltd., and Ors and National Insurance Co. Ltd., vs Polymat India (P) Ltd., and
Another – (2005) 9 Supreme Court Case 174, the Apex Court has held that:
Therefore, what was sought to be insured was the plant and machinery. It
is admitted that there was no godown. Therefore, it is clear that goods lying
outside the plant were not insured. Had the intention of the parties been
otherwise then they would have answered Query 8 in positive terms with details.
But it was answered in the negative.
In this connection, a reference may be made to a series of decisions of this
Court wherein it has been held that it is the duty of the court to interpret the
document of contract as was understood between the parties. In the case of
General Assurance Society Ltd., vs Chandumull Jain SCR at P 510 A-B it was
observed as under:
“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”.
Similarly,
in
the
case
of Oriental
Insurance
Co.
Ltd., vs Samayanallur Primary Agricultural Coop. Bank, SCC Para 3 at P
546f it was observed as under:
“The insurance policy have to be construed having reference only to the
stipulations contained in it and no artificial far-fetched meaning could be
given to the words appearing in it”.
Therefore, the terms of the contract have to be construed strictly without
altering the nature of the contract as it may affect the interest of parties
adversely.
In the case of Suraj Mal Ram Niwas Oil Mills Private Ltd., vs United India
Insurance Company Ltd., and Another (2010) 10 Supreme Court Cases 567, the
Apex Court has held as under:
Before embarking on an examination of the correctness of the grounds of
repudiation of the policy, it would be apposite to examine the nature of a contract
of insurance. It is trite that in a contract of insurance, the rights and obligations
are governed by the terms of the said contract. Therefore, the terms of contract
of insurance have to be strictly construed, and no exception can be made on the
ground of equity.
In General Assurance Society Ltd., a Constitution Bench of this Court had
observed that: (AIR p. 1649, para 11)
…….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 been made it themselves.
Similarly, in Harchand Rai Chandan Lal case this Court held that: (SCC p
647, para 6)
…….the terms of the policy have to be construed as it is and we cannot
add or subtract something. Howsoever liberally we may construe the policy but
we cannot take liberalism to the extent of substituting the words which are not
intended.
Thus, it needs little emphasis that in construing the terms of a contract of
insurance, the words used therein must be given paramount importance, and it is
not open for the court to add, delete or substitute any words. It is also well settled
that since upon issuance of an insurance policy, the insurer undertakes to
indemnify the loss suffered by the insured on account of risks covered by the
policy, in terms have to be strictly construed to determine the extent of liability of
the insurer. Therefore, the endeavour of the court should always be to interpret
the words in which the contract is expressed by the parties.
In the case of Vikram Greentech India Limited and Anr. Vs New India
Assurance Company Ltd., - (2009) 5 Supreme Court Cases 599, the Apex Court has
held as under:
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 uberrima fides i.e., good faith on the part of the
insured. Except that, in other respects, there is no difference between a contract
of insurance and any other contract.
The four essentials of a contract of insurance are : (i) the definition of the
risk, (ii) the duration of the risk, (iii) the premium, and (iv) the amount of
insurance. Since upon issuance of 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.
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
the policy is not expected to venture into extra liberalism that may result in
rewriting the contract or substituting the terms which are not intended by the
parties. The insured cannot claim anything more than what is covered by the
insurance policy. (General Assurance Society Ltd., vs Chandmull Jain, Oriental
Insurance
Co.
Ltd., vs Sony Cheriyanand
United
India
Insurance
Co.
Ltd., vs Harchand Rai Chandan Lal).
The present case is fully covered under the case laws cited above Supra.
We are of the view that it is important to reproduce the clause 8.1 to 8.3 of the
Professional Indemnity Policy for Doctors and Medical Practitioners:
8.1
The insured shall give written notice to the Company as soon as
reasonably practicable of any claims made against the insured (or any specific
event or circumstances that may give to a claim being made against the insured)
and which forms the subject of indemnity under this policy and shall give all such
additional information as the Company may require. Every 7 claim, writ,
summons or process and all documents relating to the event shall be forwarded
to the company immediately they are received by the insured.
8.2
No admission, offer, promise or payment shall be made or given by or on
behalf of the insured without the written consent of the company.
8.3
The company will have the right but in no case the obligation, to take over
and conduct in the name of the insured the defence of any claims and will have
full discretion in the conduct of any proceedings and it the settlement of any claim
and having taken over the defence of any claim may relinquish the same. All
amounts expended by the Company in the defence, settlement or payment of
any claim will reduce the limits of indemnity specified in the schedule of the
policy.
Petitioner himself has admitted that as soon as the award was passed,
communication was sent to the respondent on 17.01.2008. It is also indisputable fact
that the insured was required to give written notice to the respondent as soon as
reasonably practicable of any claims made against the insured or any specific event or
circumstances that may rise to a claim being made against the insured. It was also
required that every claim, writ, summons or process and also documents relating to the
event is to be forwarded to the company immediately as soon as they were received by
the insured. The petitioner failed to make any communication to the respondent that the
claim was made by the aforesaid Narayan Chandra Saha in the complaint filed in case
no. 39/99 before the District Forum, Nadia. Only upon passing of the award in the said
complaint case the same was intimated to the respondent. Learned counsel for the
respondent before the State Commission has also stated that “surprisingly, the
complainant/ OP 1 also did not prefer any appeal against the said award though the
other OP in the same proceedings preferred an appeal before the State Commission
against the same award and was successful”. It is also been admitted by the petitioner
that the respondent were not a party in CF Case no. 39/99 or even in the appeal case
no. 233/A/2005 before the State Commission. Further, even in the execution
proceedings no. EA/08-156 filed by Narayan Chandra Saha for realisation of the
awarded amount of the CF Case no. 39/99, the respondents werekept totally in dark.
We have also seen the letter dated 12.06. 2005 sent by the Advocate of the
petitioner to the respondent. We are of the view that the contents of the letter would
under no circumstances satisfy the conditions of the requirement of clause 8.1 to 8.3 of
the said insurance policy.
In the above circumstances 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.10,000/- (Rupees ten thousand
only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 10th May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3839 OF 2012
(From the order dated 17.02.2012 in Appeal No. 552/2009 of the A.P. State Consumer
Disputes Redressal Commission, Hyderabad)
Abdul Hafeez S/o Shri Abdul Nayeem R/o H. No. 1-101/1 1B, S.S. Gutta Mahabobnagar
– 509001
…Petitioner/Complainant
Versus
State Bank of Hyderabad Rashtrapati Road Branch Secundrabad, A.P.
… Respondent/Opposite Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner
PRONOUNCED ON
:
Ms. Soumyashree Kulkarni, Advocate
2nd April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order dated 17.02.2012 passed by the A.P. State Consumer Disputes Redressal
Commission, Hyderabad (in short, ‘the State Commission’) in Appeal No. 552 of 2009 –
The State Bank of Hyderabad Vs. Sri Abdul Hafeez by which, while allowing appeal
partly, order passed by learned District Forum was modified.
2.
Brief facts of the case are that complainant/petitioner availed loan to the tune of
Rs.10,500/- on 19.9.1989 from OP-respondent by depositing his title deeds and
executed demand promissory note and also submitted personal guarantee. OP filed
suit in the Court of Civil Judge (East and North), R.R. District at L.B. Nagar for recovery
of amount and during pendency of litigation, complainant paid Rs.50,280/- in
consequence of which, OP closed loan account on 12.11.1993 and issued passbook
with an endorsement “Account closed” to the complainant. Complainant requested OP
to return title deeds of the plot and the promissory note and agreement of guarantee,
but as documents were not returned, complainant filed complaint alleging deficiency on
the part OP. OP/respondent contested complaint and submitted that OP filed
documents before the Court of Junior Civil Judge and his documents could not be
traced in the Court and were not returned to the OP. In spite of sincere efforts,
documents could not be returned and prayed for dismissal of complaint. Learned
District Forum after hearing both the parties allowed the complaint and directed OP to
pay compensation of Rs.2,00,000/-. OP filed appeal against the order of District forum
and learned State Commission vide impugned order reduced amount of compensation
from Rs.2,00,000/- to Rs.1,00,000/-. Petitioner has filed this revision petition against the
impugned order for enhancement of compensation.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Petitioner has filed revision petition along with application for condonation of
delay of 119 days. Petitioner submitted that revision petition could not be filed in time
due to the fact that petitioner is 65 years old and ailing person and unable to work
without assistance and further submitted that due to paucity of funds, delay occurred.
5.
As per application for condonation of delay, petitioner is only 65 years old and
has not placed any document regarding illness. In such circumstances, old age is not a
tenable ground for condonation of delay. Further, it was submitted that due to paucity of
funds, revision petition could not be filed. As per impugned order, petitioner is a retired
Forest Range Officer and must be getting pension and in such circumstances, paucity
of funds cannot be treated as satisfactory explanation for condonation of delay. As
there is inordinate delay of 119 days, this delay cannot be condoned in the light of the
following judgment passed by the Hon’ble Apex Court.
6.
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.”
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) – 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 119 days. Revision petition is liable to be dismissed on the ground of
delay alone.
11.
As far as merits of the case are concerned, record clearly reveals that documents
were submitted by OP/respondent in the Court in suit for recovery of amount and the
documents were missing from the Court and were not returned to the respondent, in
such circumstances, respondent was not in a position to return documents to the
petitioner. Even then, learned District Forum allowed compensation of Rs.2,00,000/and learned State Commission modified it and upheld compensation of Rs.1,00,000/-,
there is no justification for enhancement of compensation. Learned State Commission
has observed as under:
“16.
The Supreme Court held that the compensation to be
awarded is to be fair and reasonable. In “Charan Singh vs. Healing
Touch Hospital and others” – 2000 SAR (Civil) 935, the Apex Court
stressed the need of balancing between the compensation awarded
recompensing the Consumer and the change it brings in the
attitude of the service provider. The Court held -
‘While quantifying damages, consumer forums are
required to make an attempt to serve ends of justice
so that compensation is awarded, in an established
case,
which
not
only
serves
the
purpose
of
recompensing the individual, but which also at the
same time aims to bring about a qualitative change in
the attitude of the service provider. Indeed calculation
of damages depends on the facts and circumstances
of each case. No hard and fast rule can be laid down
for
universal
application.
While
awarding
compensation, a Consumer Forum has to take into
account all relevant factors and assess compensation
on the basis of accepted legal principles, on
moderation. It is for the Consumer Forum to grant
compensation to the extent it finds it reasonable, fair
and proper in the facts and circumstances of a given
case according to established judicial standards
where the claimant is able to establish his charge’.
Therefore, taking into consideration of the totality of the circumstances and the
ratio laid in the aforementioned decision, we are of the opinion that the amount of
Rs.2,00,000/- awarded by the District Forum towards compensation is of higher side
and not commensurate with the degree of deficiency found on the part of the appellant
bank in rendering service to the respondent. As such, the amount of Rs.2,00,000/awarded is scaled down to Rs.1,00,000/-“.
12.
In the light of the aforesaid discussion, I do not find any infirmity, illegality or
jurisdictional error in the impugned order which calls for any interference and revision
petition is liable to be dismissed at admission stage.
13.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..………………Sd/……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3102 OF 2012
(From the order dated 22.5.2012 in First Appeal No. 596/2011 & 733/2011
of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur)
Sukumar Choudhary, Son of Late Shri Shivnarayan, Resident of Village – Tongpal,
Thana Tongpal, Tehsil Chhindgarh, District Dantewada (C.G.)
... Petitioner
Versus
1.
Branch Manager, M/s. Jaika Automobiles & Finance Pvt. Ltd., Semi Urban
Industrial Area, Nayamunda, B.S.N.L. Road, Jagdalpur, Distt. Bastar (C.G.)
2.
Branch
Manager,
Shriram Transport
Finance
Company
Geedam Road, Jagdalpur, District Bastar (C.G.)
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 05.03.2013 at the time of arguments,
For the Petitioner(s)
Mr. R.K. Bhawnani, Advocate
PRONOUNCED ON : 2nd APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
Ltd.,
This revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 against the order dated 22.05.2012 passed by the Chhattisgarh
State Consumer Disputes Redressal Commission (hereinafter referred to as “State
Commission”) in Appeal No. 596/2011 and 733/2011, vide which both the appeals were
dismissed and the order passed by the District Forum, Bastar, Jagdalpur on 14.10.2008
was confirmed.
2.
Briefly stated the facts of the case are that the petitioner-complainant filed a
complaint dated 13.10.2008 before the District Forum saying that the complainant had
purchased TATA ACE (Magic) vehicle from the opposite party No.1/respondent No.1,
M/s. Jaika Automobiles & Finance Pvt. Ltd., which was financed by opposite party
No.2/respondent No.2, M/s. Shri Ram Transport Finance Co. Ltd. The complainant paid
a total amount of Rs. 1,31,452/- at the time of purchase of the vehicle and rest of the
amount of Rs. 1.50 lacs was financed by Opposite party No.2/Respondent No.2. The
said vehicle was purchased on 21.2.2008 at a price of Rs. 2,70,000/- and a Cover Note
of the insurance policy was given to the complainant by O.P. No.1 on the same
day. However, the Sale Certificate and TR certificate were not given to the complainant
for 78 days. The said vehicle was given back to O.P. No.1 by the complainant on
09.5.2008 and he asked for refund of amount of Rs. 1,31,452/- paid by him. The
vehicle could not be registered in the absence of the sale certificate. On the other hand,
O.P. No.2 sent notice to the complainant on 27.9.2008 and demanded an amount of Rs.
42,292/-. It was stated that the loan amount had increased from Rs. 1.50 lacs to Rs.
1,75,011/-.
3.
The District Forum after taking into account the evidence adduced before them
came to the conclusion that the opposite party No.1 had not done any deficiency in
service because they did not issue the sale certificate in time due to late payment from
opposite party No.2. However, the OP-2 had committed deficiency in service and for
that they were directed to pay Rs. 10,000/- to the complainant for mental harassment
from the date of the complaint i.e. 14.10.2008 along with interest of 6% till realization
and also to pay Rs. 1500/- within thirty days from the date of the order. The appeal filed
by the appellant against this order was dismissed by the State Commission and they
agreed with the view that OP-1 was not at fault and also the order passed against OP-2
was appropriate.
4.
During the course of hearing before us, the learned counsel for the petitioner
stated that the petitioner had returned the vehicle to OP-1 as he was not able to obtain
the sale certificate from OP-1 for a period of 78 days. At the moment the vehicle was
with OP-1 and the petitioner wanted refund of his money.
5.
We have examined the entire material on record and given thoughtful
consideration to the arguments advanced before us. The case of OP-1/Dealer is that
the sale letter was to be issued after receiving the full cost of the vehicle. The amount
of Rs. 1.50 lacs was received by OP-1 from OP-2 on 06.5.2008 and immediately after
that, the sale letter and other documents were prepared and were shown to the
complainant but even then, the complainant left the vehicle in question on 09.5.2008 at
the premises of OP-1. The vehicle had already run a distance of 12838 kms. during this
period. The insurance cover had also been obtained and provided to the complainant
and the temporary registration certificate was also there. It is clear therefore, that all
documents; except the sale certificate had been provided to the complainant. The
complainant has been running the vehicle also and so it is wrong on his part to say that
the vehicle could not be run in the absence of registration certificate.
6.
In the light of these facts, it is clear that the order passed by the District Forum as
well as the State Commission are based on correct appreciation of the facts and
material on record. Both these orders are upheld and 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
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CIRCUIT BENCH AT HYDERABAD, A.P.
FIRST APPEAL NO. 120 OF 2009
(Against the order dated 23.01.2009 in Complaint No. 26 / 2006
of the Andhra Pradesh State Consumer Disputes Redressal Commission)
1.
Sri Lakshmi Narasimha Timber Depot, Rep. by its Proprietor, B. Poornachandra
Rao, S/o Ramakrishnaiah, R/o D. No. 1-18, Main Road, Piduguralla, Guntur
District Andhra Pradesh
2.
Sri Jaya Lakshmi Saw Mill, Rep. by its Proprietor B. Poornachandra Rao, S/o
Ramakrishnaiah, R/o D. No. 1-18, Main Road, Piduguralla, Guntur District Andhra
Pradesh
…
Appellant (s)
Versus
1.
United India Insurance Co. Ltd. D. No. 5-1-52/1, Bank Street, Narasaraopet –
522601Guntur District Andhra Pradesh
2.
Andhra Bank, Piduguralla Branch, Rep. by its Branch Manager, Piduguralla,
Guntur District, Andhra Pradesh
…
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON'BLE DR. B.C. GUPTA, MEMBER
APPEARED ON 28.02.2013 AT THE TIME OF ARGUMENTS
For the Appellant (s)
Mr. I.V. Siddhivardhana, Advocate
For the Respondent(s)
Mr. V. Sambasiva Rao, Advocate
PRONOUNCED ON : 2nd APRIL, 2013
Respondent(s)
ORDER
PER DR. B.C. GUPTA, MEMBER
This appeal has been filed under section 19 of the Consumer Protection Act,
1986 against the order dated 23.01.2009 passed by the Andhra Pradesh State
Consumer Disputes Redressal Commission, Hyderabad (for short ‘the State
Commission’) in CD No. 26 / 2006 according to which the complaint was partly allowed
against the respondent no. 1 United India Insurance Company Limited (for short ‘the
Insurance Company’), but dismissed against respondent no. 2, Andhra Bank. The
insurance company was directed to pay a compensation of Rs.1,85,000/- with interest
@9% p.a. from the date of the complaint till realization with costs of Rs.5,000/-.
2.
Briefly stated the facts of the case are that the complainants / appellants are a
timber depot and a saw mill and the proprietor of both is Shri B. Poornachandra
Rao. They obtained insurance coverage for timber and saw mill from respondent no. 1
insurance company under standard fire and special perils policy”, bearing number
150904/11/03/00002 for a sum of Rs.24,76,000/-, covering the stocks of timber for a
period of one year, i.e., from 29.05.2003 to 28.05.2004. Another fire insurance policy
bearing number 150904/11/03/00120 for a sum of Rs.1,50,000/- covering insurance for
tiled shed and saw mill machinery for a period of one year, i.e., from 17.06.2003 to
16.06.2004 was also taken. The premium of the policies was paid by respondent no. 2,
Bank. The case of the complainant is that the Saw Mill was burnt due to electric short
circuit on 12.05.2004 at about 3.00 A.M. The complainants lodged a report to the local
police which registered FIR No. 105/2004. The Insurance Company was also informed
which appointed Mr. K. Shiva Prasad as surveyor. As stated by the complainant, the
surveyor asked them to furnish certain documents but since the proprietor was suffering
from fever, he requested time to give the documents. The surveyor got the test fire
conducted and after making volumetric analysis estimated the loss to be Rs.12,60,000/. However, despite the report of the surveyor, the Insurance Company refused to pay
claim to them. They appointed an investigator, Mr. M.S. Prasad, who gave its own
report. The local police also gave report on 28.05.2004 stating that no foul play had
been detected after investigation. The Station Fire Officer also stated that the fire was
due to electric short circuit. The complaint then filed a consumer complaint before the
State Commission claiming a compensation of Rs.23,95,071/- with interest and another
compensation of Rs.1 lakh and costs of Rs.25,000/-. However, the State Commission,
taking into account the evidence submitted before them, allowed compensation of
Rs.1,50,000/- towards loss of stocks and Rs.35,000/- towards machinery. In this way,
the State Commission awarded a compensation of Rs.1,85,000/- with interest @9% p.a.
from the date of complaint till realization together with costs of Rs.5,000/-. It is against
this order that the present appeal is filed before us.
3.
The main ground taken by the appellant in the appeal as well as in the arguments
submitted before us says that the Insurance Company should have placed reliance on
the report of their own surveyor. The State Commission have also not given any cogent
reason for disbelieving the report of the surveyor. The learned counsel for the appellant
also invited our attention to the report of the local police saying that the police did not
detect any foul play in the incident and treated the case as an accident one. Further,
there was no reason for the insurance company to have appointed an investigator. The
Insurance Company should have, at least, made payment as per the report of the
surveyor.
4.
We have examined the material on record and given thoughtful consideration to
the arguments advanced before us. The facts of the case and the reports given by the
surveyor and the investigator make an interesting reading. It is very clear that the claim
of the complainant is not substantiated by any authentic documents or accounts. It has
been stated that on four earlier occasions, the father of the complainant had reported
fire incident in the timber depots run by him at Giddalur (Prakasham District), Agirpally
(Krishna district), Mellacheruvu (Nalgonda district), and Piduguralla (Guntur District). In
all these cases, the insurance claims were submitted to the insurance company. It has
come on record that all these claims were settled by the insurance company. The
learned counsel for the insurance company was repeatedly asked about the exact
outcome of these claims, whether the insurance company had paid any money to the
insurer or not? In spite of giving chance to obtain opinion and come prepared on the
next date, the learned counsel for the insurance company could not provide any details
about the four claims stated to have been settled already.
5.
Moreover, the summary of the report submitted by the investigator runs as
follows:“1. The cause of fire was not due to electric origin. No
documentary evidence was produced by claimant obtaining
from electrical department.
2.
The alleged stock burned was of the unaccounted business
(against law) run by the claimant which shall not be
indemnified by the policy issued.
3.
The material burned was not teak wood sizes but waste throw
away log pieces. Based on the remained ash of such stuff
loss was assessed.
4.
Arson was not proved in previous fire claims connected with
claimant family members due to inconsistent policy enquiry,
based on which it shall not be concluded that the present
claim is genuine.
5.
If any concerned object this, the insurer may inform all the
previous cases details to higher police authorities for proper
enquiry.”
6.
The investigator has opined that it was technically baseless to say that the cause
of fire was due to electric short circuit. Moreover, the insurer had not become an
income-tax assesse and had not got his accounts audited for many years.
7.
The surveyor had also stated in his conclusion that the accounts were not properly
maintained by the insured. There was no material evidence available to establish
arson.
8.
From the facts stated above, it becomes abundantly clear that the claims
submitted by the appellant are far from being genuine. It is also made out that the
complainant and his father are adept in submitting claims to the insurance company on
one pretext or the other, and they might be getting claims paid in collusion with the
officials of the insurance company. In the instant case, it is surprising to note that the
Insurance Company has not taken the trouble to file an appeal against the order passed
by the State Commission. This is another instance of the fact that insurance company
is working in cahoots with the complainant. We find that the order of the State
Commission has attained finality. We cannot interfere in it. However, the order passed
by the State Commission on its face is perverse and illegal. While maintaining the order
of State Commission, we dismiss the appeal with costs and compensation in the same
amount which is awarded to him by State Commission meaning thereby nobody will get
anything from any party.
9.
Further, looking at the peculiar facts and circumstances of the case and in order to
watch public interest at large, we find it expedient that this whole matter should be
subjected to a thorough probe at very senior levels in the Company and appropriate
follow-up action should be taken as a result of the said probe. The Chairman-cumManaging Director, United India Insurance Co. Ltd., Registered & Head Office, 24,
Whites Road, Chennai – 600014, is hereby directed to get a thorough probe conducted
into the whole affair, which should include the four claims mentioned in the present
order and then take the requisite action as per rules / instructions. The outcome of such
an investigation and the action taken should also be reported to this Commission,
preferably within a period of three months from the date of pronouncement of this order.
………………………….
(J.M. MALIK, J.)
PRESIDING MEMBER
…………………………
(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
M.A. No. 146 OF 2005
M.A. No. Nil OF 2005
IN
ORIGINAL PETITION NO. 93 OF 2004
Ambience Island Apartment Owners & 66 others Mr. Gopal Agarwal S/o Sh. D.P.
Agarwal R/o H 902, Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana &
65 Ors.
… Complainants
Versus
1. Mr. Raj Singh Gehlot L-4, Green Park Extension New Delhi- 110 016
2. M/s HLF Enterprises Private Limited L-4, Green Park Extension New Delhi –110 016
3. M/s Ambience Infrastructure Private Limited L-4, Green Park Extension New Delhi –
110 016
4. M/s Scan Elevatos K-127, Krishna Park Extension New Delhi-110018
… Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainants :
Dr. Amitabha Sen, Ms. Aditi Pandey,
Ms. Geetanjali Sethi,
Ms. Kimmi Singla &
Ms. Pragati Aneja, Advocates
For Opposite Parties 1 to 3: Mr. Sanjeev Sachdeva, Sr.Advocate with
Mr. Sumit Gehlawat, Mr. T.S.Thakran &
Mr. Abhimanyu Chopra, Advocates
For Opposite Party No.4
: Mr. Ajay Sharma and
Ms. Poonam Lau, Advocates
PRONOUNCED ON 3rd April, 2013
ORDER
JUSTICE J.M. MALIK, PRESIDING MEMBER
1.
The key question which falls for consideration is, whether Section 13(1)(a) of the
Consumer Protection Act, which runs as follows,
“(1)(a) refer a copy of the admitted complaint, within twenty-one days
from the date of its admission to the opposite party mentioned in the
complaint directing him to give his version of the case within a period of
thirty days or such extended period not exceeding fifteen days as may be
granted by the District Forum”
is mandatory or directory? There are three authorities of Hon’ble Apex
Court which are germane and wee bit divergent to the present
controversy.
2.
The complaint itself mentions about a judgment rendered by a Bench
consisting of three judges of the Supreme Court reported in Dr. J. J. Merchant
&Ors. Vs. Shrinath Chaturvedi III(2002 CPJ 8 (SC) 8, wherein it was held :
“….. From the aforesaid section, it is apparent that on receipt of the
complaint, the opposite party is required to be given notice directing
him to give his version of the case within a period of 30 days or
such extended period not exceeding 15 days as may be granted by
the District Forum or the Commission. For having speedy trial, this
legislative mandate of not giving more than 45 days in submitting
the written statement or the version of the case is required to be
adhered to. If this is not adhered, the legislative mandate of
disposing of the cases within three or five months would be
defeated.”
3.
The counsel for the complainants has also cited another authority reported
in Shaleem Bhai and Ors. Vs. State of Maharashtra and Ors. AIR 2003 SC
759 wherein it was held:
“9. A perusal of O. VII R11 C.P.C. makes it clear that the relevant
facts which need to be looked into for deciding an application
thereunder are the averments in the plaint. The trial Court can
exercise the power under O.VII R. 11 C.P.C. at any stage of the
suit before registering the plaint or after issuing summons to the
defendant at any time before the conclusion of the trial. For the
purposes of deciding an application under Cls. (a) and (d) of R.11
of O.VII C.P.C. the averments in the plaint are germane: the pleas
taken by the defendant I the written statement would be wholly
irrelevant at that stage, therefore, a direction to file the written
statement without deciding the application under O.7 R. 11 C.P.C.
cannot but be procedural irregularity touching the exercise of
jurisdiction by the trial Court. The order, therefore, suffers from nonexercising of the jurisdiction vested in the Court as well as
procedural irregularity. The High Court, however, did not advert to
these aspects.
10. We are, therefore, of the view that for the aforementioned
reasons, the common order under challenge is liable to be set
aside and we, accordingly, do so. We remit the cases to the trial
Court for deciding the application under O.7 R. 11 C.P.C. on the
basis of the averments in the plaint, after affording an opportunity of
being heard to the parties in accordance with law.
This authority hardly dovetails with facts of this case under the Consumer
Protection Act.
4.
On the other hand, learned counsel for opposite parties 1, 2 and 3 has invited
our attention towards another authority of the Apex Court reported inTopline Shoes
Ltd. vs. Corporation Bank AIR 2002 SC 2427 by a bench consisting of two judges,
wherein it was held:
“We have, however, already held that the provision saying that
extended time may not exceed 15 days is directory in nature. It
does not mean the orders extending the time to file reply may be
passed repeatedly unmindful of and totally ignoring the provision
that the extension may not exceed 15 days. This provision has
always to be kept in mind while passing an order extending the time
to file a reply to the petition. It is another matter, as we have found
that in case time is extended exceeding 15 days, it may not be kind
of an illegality which may deny or deprive the respondent to file his
reply within the time granted by the Forum/Commission.“
5.
This order shall decide two applications moved by the complainants under
Section 13 of the Consumer Protection Act, 1986 read with Section 151 of Code of Civil
Procedure, 1908. The first application is filed against OPs 1, 2 & 3. It is averred that
the complaints were admitted by this Commission on 14.01.2005. After service, OPs
are required to submit their replies, within a period of 30 days. This application is dated
18.05.2005, till then, no reply was filed by the OPs. The statutory period of 30 days to
file the reply had lapsed. It was prayed that the right of the OPs 1 to 3 to file their reply
be forfeited.
6.
The second application has been filed against OP4 with the same allegations and
with the same prayer.
7.
The opposite parties have contested the present applications. The OPs 1, 2 & 3
moved an application under Sections 149 and 151 of CPC, 1908, for extension of time
in filing of written statement/reply. It is submitted that the notice was served on the OPs
in the first week of February, 2005. It is explained that some documents were not
complete and legible but the OPs, on their own, constructed file with their own
documents. It is explained that the present complaint has been filed by 66 Flat
owners. The OPs in order to verify the claim of the said Flat owners, contacted them to
know their grievances, particularly, as alleged in the complaint and also contacted the
Association
of
the
OPs,
namely,
Ambience
Island
Lagoon
Apartments
Association. Most of the flat owners have denied having filed any such petition. It took
time to contact each and every person and find out their grievances. It took some time
to prepare and draft the written statement in the above said case. The entire record
was collected. The reply was drafted and the same was filed on or about 18.05.2005,
after serving copy of the same on the counsel for the complainants. The same was filed
much earlier to the first date of hearing, i.e. 05.07.2005. It is prayed that delay should be
condoned. Time be extended and written statement be taken on record. In their
reply, OPs 1, 2 & 3 took the same defence.
8.
It is explained that the legal affairs of the opposite party No. 4 are being
handled by one Shri C. N. Ramamurthy. He is one of the partners of opposite party
No. 4. Mr. Ramamurthy has acquired the skills of interacting with the lawyers,
understanding the technicalities of the cases and thus responding as per the
instructions of the counsel. The wife of Mr. C. N. Ramamurthy was bed ridden and
was in an awful stage when the summons were received by him. She was suffering
from the chronic renal failure and was administered with the dialyses treatment on
day to day basis. During the period in question her health had badly deteriorated
and he was assured by the counsel that his urgency is more compelling and a delay
of few days could be well explained to the Hon’ble Court which would appreciate its
plausibility and would be gracious to condone this unavoidable and unintentional
delay. Learned counsel for the petitioner pointed that since then Mrs. C. N.
Ramamurthy has expired and her husband Mr. Ramamurthy has also expired.
9.
Learned counsel however, submitted that the explanation given by the
opposite party No. 4 is satisfactory and does not press his application against
opposite party No. 4.
10.
Learned counsel for the petitioner vehemently argued that the authority given
by three Judges bench should be preferred to the judgment given by two judges.
11.
For the following reasons we clap no importance to these arguments. We
have perused the ordersheet maintained by this Court. The case was admitted on
14.1.2005. The said order is reproduced as hereunder:“Admit. Issue notice to the opposite parties returnable on
5.7.2005.”
12.
There is no direction given by this Commission to the opposite parties that their
version of the case be filed within 30 days. According to the opposite parties reply
was drafted and filed on 18.5.2005. The written statement was filed by opposite
party No. 4 on 30.3.2005.
13.
Learned counsel for the complainant did not pick up a conflict with the
explanation given by opposite party No. 4. The authority in Dr. J. J. Merchant
&Ors. Vs. Shrinath Chaturvedi (supra) has got no application to this case because
no such direction was given by the Commission. The Commission could have given
this direction on 5.7.2005 or it should have been given on 14.1.2005 when the notice
was sent.
14.
It must be borne in mind that written statements were filed by both the opposite
parties some 8 years back. All the parties have led their evidence. Under the
circumstances, we are of the considered view that the right to forfeit the written
statement does not vest with this Commission. This is a peculiar case which has got
its own facts. Moreover, the explanation given by both the respondents are quite
reasonable and just. Consequently, we dismiss both the applications and fix the
case for final arguments on 19.9.2013.
.…..……………Sd/-……………
(J. M. MALIK, J)
PRESIDING MEMBER
………………Sd/-……………...
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4711 OF 2012
(Against the order dated 09.03.2012 in C.M.A. No. 121 of 2012 of the
Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)
Bhoomi Tractors Sales & Service Opp. Daman Ganga Office, Nr. Damani Zampa, NH
8, Killa Pardi, Tal. Pardi, Dist. Valsad, Gujarat
... Petitioner
Versus
1. Nileshchandra C. Patel At & Post : Wav, Nishal Faliya, Tal Chikhali,
Dist. Navsari (Gujarat)
2. Branch Manager, HDFC Bank (Centurion Bank of Punjab) Retail Asset Division
Indraprasth Complex, Gunjan Cross Road, Opp. Hotel Galaxy, Vapi, Tal. Pardi,
Dist. Valsad Gujarat
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. S. J. Mehta, Advocate
Pronounced on : 3rd April, 2013
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
There is delay of 735 days in filing the first appeal before the State
Commission. The
State
Commission
dismissed
the
appeal
on
this
very
ground. Learned counsel for the petitioner has invited our attention towards the
application moved before the State Commission for condonation of delay. The delay
has been explained in paras 2 and 3 which are reproduced as follows:“2.That the present applicant was not at all served with the notice to the
complaint and therefore not able to resist the complaint. The applicant
has to the complaint from Hon’ble Forum form which it is clearly
ascertain that no seal or signature was made by the present applicant on
that acknowledgement and only ‘Star mark’ like sign was drawn on that. It
is further submitted that present applicant has closed business and the
premises was sold somewhere in 2010 therefore notice of execution was
also not served to the applicant.
3. It is submitted that the upon hearing about the order passed
by Hon’ble Valsad forum, the present applicant has inquired about the
order and came to know about filing of complaint by present respondent
No. 1. On further inquiry with office of Hon’ble forum present applicant
also came to know that free copy of order was not at all sent to the
present applicant and present applicant has obtained certified copy of the
order from Hon’ble forum on 10/01.2012 and then after preferred an
appeal on 13/01/2012 with an actual delay of 4 days. It is submitted that
the actual delay caused from the receipt of the copy of order is 4 days but
delay from the date of passing of the order is of 735 days. It is submitted
that as per the ruling of Hon’ble Supreme Court the delay should be
calculated form the receipt of the free copy of order but as the free copy of
the order was not sent to the applicant the appeal is preferred with an
actual delay of 4 days from the date of receipt of the order and with a
technical delay of 735 days from the date of passing of the order. It is
respectfully submitted that the delay of 4 days caused in filing appeal due
to non-receipt of the certified copy of the record and due to weekend
holidays. It is submitted that present applicant was not aware about filing
of the complaint because the complaint filed by the complainant against
some Rajubhai Halani in capacity of the proprietor of applicant firm, but in
fact the applicant firm was a partnership firm and not having any partner or
employee named Rajubhai Halani therefore the notice to the complaint
was not served to the applicant firm and applicant cannot able to file
appeal in time.”
2.
We have heard the learned counsel for the petitioner. The submission made by
him is that he was not served by the District Forum.
3.
This plea does not hold much water. We have seen the original record. From the
District Forum’s record, it clearly goes to show that the registered A.D. was sent at the
correct address. It was signed by somebody. The counsel for the petitioner opined that
this does not bear the signatures but somebody has made a “star”. The original A.D.
card is available on the record. It clearly goes to show that prima facie it is established
that service stood affected upon the petitioner. It is the petitioner and nobody else who
is to carry the ball in proving that who had received the registered A.D. or has made the
star in order to pull the wool in the eyes of law.
4.
The petitioner has failed to rebut the above said evidence. He should have moved
an application before the State Commission that he wanted to examine the postman. In
absence of the examination of postman, the value of the case of the petitioner
evanesces. It stands proved that the service was affected upon the petitioner and he
did not appear deliberately before the District Forum.
5.
It is thus clear that the application moved before the State Commission was
hopelessly barred by time. In para 3 of the impugned order, the State Commission
observed:
“3. Mr. Dudhiya has argued that the original notice of the complaint has not been
served upon the applicant. On perusal of the postal acknowledgement, it
transpires that the notice has been served upon Rajubhai Halani, Proprietor
of Bhoomi Tractors Sales & Service. A reference be made yet to the notice
correspondence between the parties. Notice dated 14.12.20-07 addressed
by Shri F.A. Gadiwala to the applicant and the reply to the said notice by
the applicants’s advocate Mr. Ayaz Shaikh dated 25.4.2008 show that it has
been replied for and on behalf of Shri Raju Halani, Proprietor of the applicant firm
and he has been served with the notice of the complainant. We, therefore, do
not subscribe to the view of Mr. Dudhiya that Raju Halani has nothing to do with
the applicant i.e. Bhoomi Tractors.
6.
It must be borne in mind that the appeal of the petitioner was dismissed as it was
hopelessly barred by time. However, the petitioner was negligent in filing this revision
petition after a period of 177 days. Alarm bells should have rung and this case should
have been filed in time. The further delay of 177 days clearly reveals negligence,
inaction and passivity on the part of the petitioner.
7.
In his application for condonation of delay, the following averments were
made. That after the verdict rendered by the State Commission, the petitioner
contacted his lawyer at Delhi who expressed huge costs for filing the revision
petition. The petitioner was not in a position to incur such a heavy amount. During the
execution proceedings, bailable warrants were issued against him for payment. Time
was granted to approach the National Commission and to obtain the stay order. His
appeal was wrongly dismissed on technical grounds and not on merits. The order from
the District Forum was obtained by fraud.
8.
All these facts do not go to explain the delay. The petitioner has failed to explain
the delay to our satisfaction. He has put forward a lame excuse with which no value
can be pinned.
9.
In Anshul Aggarwal v.
New Okhla Industrial
Development
Authority, IV
(2011) CPJ 63 (SC), it has been held that “It is also apposite to observe that while
deciding an application filed in such cases for condonation of delay, the Court
has to keep in mind that the special period of limitation has been prescribed
under the Consumer Protection Act, 1986 for filing appeals and revisions in
consumer matters and the object of expeditious adjudication of the consumer
disputes will get defeated if this Court was to entertain highly belated petitions
filed against the orders of the Consumer Foras”.
10.
Similar view was taken in Ram Lal and Others v. Rewa Coalfields Ltd., AIR
1962 Supreme Court 361, Balwant Singh (dead) Vs. Jagdish Singh & Ors. (Civil
Appeal no. 1166 of 2006), decided on 08.07.2010, Bikram Dass Vs. Financial
Commissioner and others, AIR, 1977 SC 1221 and Chief Post Master General
& Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC).
11.
The case is therefore hopelessly barred by time. Therefore, we dismiss the revision
petition and impose costs of Rs.10,000/- which be deposited with the Consumer Welfare
Fund established by the Central Government under Section 12(3) read with Rule 10-A of
the Consumer Protection Rules, 1987 of the Central Excise Act, 1944 within two months
from today, failing which it will carry interest @9% per annum till its realization. Learned
Registrar of this Commission shall see compliance of the order under Section 25 of the
Consumer Protection Act, 1986.
……………Sd/-………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 586 of 2012
(From the order dated 12.08.2011 of the Punjab State Consumer
Disputes Redressal Commission, Chandigarh in Appeal no. 327 of 2006)
United India Insurance Company Limited Through the Regional Manager DRO 1,
Kanchenjunga Building 8th Floor 18, Barakhamba Road New Delhi – 110001
Petitioner
Versus
Vakeel Singh Son of Shri Charan Singh Resident of House no. 30 A Rattan Nagar
Patiala, PUNJAB
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Harsh Kumar, Advocate
Pronounced on 3rd April 2013
ORDER
REKHA GUPTA
This revision petition is filed against the order dated 12th August 2011 passed the
Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State
Commission’) in appeal no. 327 of 2006 which has been allowed and set aside the
order dated 23.01.2006 in Consumer Complaint no. 261 of 2005 passed by the District
Consumer Disputes Redressal Forum, Patiala (‘the District Forum’)
As per the respondent/complainant he purchased one Indica Car having its
registration no. PB 11 W 9777 from Harish Kumar son of Shri Gobind Ram, resident of
H No. 202, Bajwa Colony, Patiala duly insured with the Petitioner / opposite party Insurance Company from 04.08.2003 to 03.08.2004. The respondent/complainant got
the R C of the said car transferred in his name and unfortunately the said car was stolen
on 03.11.2003. A claim was lodged with opposite party along with the letter for transfer
of policy of the said car from Harish Kumar and all the formalities were duly completed.
To the surprise of the respondent/complainant received the letter dated 25.05.2005
informing that the respondents have no insurable interest and why his claim should not
be repudiated. The said letter is illegal against the provisions of law and is liable to be
withdrawn.
The insurance company in their reply stated that it is pertinent to mention that if
any running policy has to be transferred in the name of a new owner, i.e., second owner
then the requisite transfer form have to be filed and the required transfer fee has to be
deposited which the respondent never did so.
The facts of the complainant were partly admitted to the extent that vide letter
dated 25.05.2005 Shri Harish Kumar and Vakeel Singh were informed that the
buyer Shri Vakeel Siingh has no insurable interest in the policy and therefore, the
companies liability does not exist, as why such claim should not be repudiated/ filed as
no claim.
The District Forum while considering the case came to the conclusion that the
“only point for consideration is as to whether the respondent/ complainant is entitled to
the benefit of the policy. The learned counsel for the respondent/complainant alleged
that after the respondent/complainant purchased the car the insurance policy stood
already transferred in favour of the respondent/complainant. In view of the provisions of
Section 157 of the Motor Vehicle Act, the learned counsel for the petitioner/ insurance
company, however, has referred 2005 (3) 416 Banowarilal Aggarwal vs National
Insurance Co. Ltd., and another, and latest Kishan Chand and another vs United
India Insurance Co. Ltd., and another on the point. However, without going into the
merits of the case but relying upon the law recently laid down by the Hon’ble National
Commission in 2005 (3) COT 414 (Supra). We have no option but to hold the complaint
to be not maintainable as the policy was not got transferred by the respondent/
complainant in his favour till the vehicle purchased by him was stolen. Consequently,
the
complaint
is
dismissed
holding
the
respondent/complainant
having
no
locus standi to file the complaint”.
Aggrieved by the order of the District Forum, the respondent/complainant filed an
appeal before the State Commission. The State Commission were of the view that “the
entry in the registration certificate was made in favour of the respondent/complainant on
27.10.2003 and the said vehicle was stolen on 03.11.2003 before the expiry of the “14
days period” given to the transferee, to get the insurance policy transferred in his name
and as such no negligence or fault on the part of the respondent/complainant can be
attributed”.
“In view of the above discussion, it is clear that the petitioner/ insurance company
has repudiated the claim without any basis and ignoring the provisions of the Indian
Motor Tariff Act, particularly GR 17 and the District Forum also did not take notice that
before the expiry of ’14 days’ time’ for transfer of the insurance policy in the name of the
respondent/complainant, the vehicle was stolen and without the physical presence of
the vehicle and its inspection, the policy could not be transferred in the name of the
respondent/complainant. Therefore, the order of the District Forum is not sustainable in
the eyes of law”.
“Accordingly, the appeal is accepted and the impugned order dated 23.01.2006
under appeal passed by the District Forum is set aside. Consequently, the complaint
filed by the respondent/ complainant is accepted and the petitioner/ insurance company
is directed to pay Rs.3.40,700/-, i.e., the sum insured along with interest @ 7.5% per
annum from the date of repudiation of the claim till realisation and Rs.5,000/- as
litigation expenses”.
Hence, this present revision petition.
We have heard the learned counsel for the petitioner and have gone through the
records carefully.
The revision petition has been filed with a delay. Registry has reported that there
is a delay of 57 days in filing the revision petition. However, in the application
for condonation of delay filed by the petitioner/ insurance company, it has been reported
that there is a delay of 44 days in filing the present revision petition.
The reasons given for the condonation of delay are as follows:
“That the petitioner/ insurance company prays that a delay of 44 days in filing the
petition may please be condoned, in the interest of justice.
It is humbly submitted that certified copy of the order of State Consumer
Disputes Redressal Commission, Chandigarh has been received on __________
by the petitioner’s branch office due to the communication gap between branch
office and the regional office. Thereafter upon reading the impugned order, the
present petition was got drafted immediately. The same is being filed thereafter,
without there being any further delay.
The impugned order is of 12.08.2011, the certified copy of the said order was
prepared on 13.09.2011 and that certified copy of order of SCDRC, Chandigarh,
has been received on 26.09.2011 by the branch office situated at Nabha District,
Patiala and thereafter on 28.09.2012 petitioner insurance company handed over
the said copy of the order to Mr Gopal Mittal , Advocate, Panchkula for seeking
legal opinion, thereafter Mr M B Raghavan, Advocate, Chennai gave his legal
opinion dated 29.10.2011 and advised to file the revision petition, thereafter
Regional Office, Chandigarh sent the case file to the Delhi Regional Office and
the Delhi Regional Office appointed an advocate vide letter dated 30.11.2011
and after obtaining the case file and relevant details and documents for filing
revision petition. Thereafter, upon reading the impugned order, the present
appeal was got drafted immediately. The same is being filed thereafter, without
there being any further delay.
The decision of filing present revision petition before the Hon’ble Commission is
taken by the competent authority situated in Regional Office – I, New Delhi and
having centralised legal department, but the matter was of Branch Office
at Nabha, Patiala and Divisional Office at Sangrur and Regional Office,
Chandigarh and Head Office at Chennai. As such after the decision of the matter
by the State Commission below, complete file was placed before the competent
authority in Divisional Office Sangrur and Regional Office at Chandigarh and
thereafter Head Office at Chennai and thereafter legal department at New Delhi
whereby it was decided to file the present revision petition before the National
Commission, New Delhi. All the matters relating to National Commission
and Hon’ble Supreme Court are to be taken care by the Regional Office at New
Delhi of the Insurance Company Branch Office at Nabha, Patiala and file was
received in New Delhi. The file has to go with various stages before placing
before the competent authority which took time. After receiving the file from
concerned Branch Office and Divisional Officer, the matter was scrutinized and
ultimately after the decision of the competent authority to file the present revision
in the matter, Advocate was appointed and the file was made available to him.
Revision Petition was got prepared, but since some documents were not
received, revision petition could not have been filed. As soon as the said
documents and pleadings was received signed revision petition along with its
annexures was made to counsel for filing the same before the National
Commission and will be filed before your Lordships on 08.02.2012.
The delay caused in taking decision was due to the fact that file was related to
Branch Office Nabha at District Patiala who forwarded the same to the Regional
Office at Chandigarh. The delay was caused in the above and due so much work
pressure and as such the delay caused of 44 days was due to the above
mentioned reasons and same may kindly be condoned in the interest of justice.
The impugned order is of 12.08.2011, the certified copy of said order was
prepared on 13.09.2011 and that the certified copy of order of SCDRC,
Chandigarh, has been received on 26.09.2011 by the branch Office situated
at Nabha District Patiala and thereafter on 28.09.2012 petitioner/ insurance
company handed over the said copy of the order to Mr Gopal Mittal,
Advocate, Panchkula for seeking legal opinion, thereafter Mr M B Raghavan,
Advocate Chennai gave his legal opinion dated 29.10.2011 and advised to file
the revision petition, thereafter Regional Office, Chandigarh sent the case file to
the Delhi Regional Office and Delhi Regional Office appointed an advocate vide
letter dated 30.11.2011 and after obtaining the case file and relevant details and
documents for filing the revision petition. Thereafter upon reading the impugned
order, the present appeal was got drafted immediately. The same is being filed
thereafter, without there being any further delay”.
The reasons given above indicate a very casual and irresponsible approach while
dealing with the case. The number of days taken at various levels of processing have
not been explained or justified. The only reasons given by the petitioner/ insurance
company for the delay is that the files were being sent by the Branch Office at Nabha,
District Patiala for most of the decisions, to the Regional Office at Chandigarh and the
Head Office at Chennai, the competent authority situated in Regional Office, New Delhi
and the Counsels. The inability to work to a time schedule and within a time frame work,
however, cannot be taken sufficient cause to condone the delay of 57 days in filing the
present revision.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), it has been held that:
“It is also apposite to observe that while deciding an application filed in such
cases for condonation of delay, the Court has to keep in mind that the special
period of limitation has been prescribed under the Consumer Protection Act, 1986
for filing appeals and revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if this Court was to
entertain highly belated petitions filed against the orders of the Consumer Foras”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting 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 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
manner subserves public
and
multiplicity
interest.
Prompt
of
and
proceedings
timely
in
payment
no
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.
In the above circumstances, the application for condonation of delay 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 Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 10th May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2330 of 2012
(From the order dated 14.12.2011 of the Uttar Pradesh State Consumer
Disputes Redressal Commission, Lucknow in Appeal no. 1505 of 2009)
1.
Ram Nihal Son of Ram Karan
2.
Smt Vidya Widow of Late Devendra Kumar Yadav
3.
Kumari Shivangi Daughter of Late Devendra Kumar Yadav All residents of village
Chakia Damodarpur Pargana and Tehsil – Akbarpur District Ambedkar Nagar (Uttar
Pradesh)
Petitioners
Versus
Dr C G Agarwal Medical Officer Gandhi Memorial and Hospitals, Lucknow (now
Chhatrapati Shauja Maharaj Medical University, Lucknow)
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Vijay Kumar Yadav, Advocate
For the Respondent
Ms Prem Lata Nigam, Advocate
Pronounced on 3rd April 2013
ORDER
REKHA GUPTA
The revision petition No. 2330 OF 2012 is filed against the impugned order dated
14.12.2011
passed
by
the
Uttar
Pradesh
State
Consumer
DisputesRedressal Commission, Lucknow ( ‘the State Commission’) in appeal no. 1505
of 2009 in original complaint case no. 106 of 2011 before the District Consumer
Disputes Redressal Forum, Faizabad (‘the District Forum’).
The facts
of
the
case
as
per
the
petitioner
was as
follows:
The
deceased Devendra Kumar Yadav was the son of petitioner/complainant no. 1, husband
of petitioner no. 2 and father of petitioner no. 3. The facts of the case are as follows:
The son of the petitioner/complainant no.1 and husband of petitioner/ complainant
no. 2 and father of petitioner/ complainant no.3, Late Shri DevendraKumar Yadav was
allegedly poisoned on the night of 22.02.2001 by Daya Shankar son of Rajaram, Rama
Kant
son
of Daya Shanaker, Phool Chandra
son
ofBabloo, Janaki Daughter
of Phool Chandra and Vidhan son of Ram Bahal which was revealed in the morning of
23.02.2001 The petitioner went to a doctor atBaskhari who asked him to go to the
District
Hospital Faizabad and
they
rushed
to Faizabad Hospital
and Devendra Kumar Yadav was admitted at 09.00 A M on 23.02.2001 and he was
attended by Dr Verma, respondent/Opposite party no. 1 before the District Forum.
Mr Verma was negligent and did not carry out the required procedure for ousting the
poison from the stomach when it was told that the case a poisoning and gave incorrect
general medicines. Due to the negligent treatment and due to non-adopting the correct
required treatment, the condition of Late Shri Devendra Kumar Yadav did not improve
he the doctor then referred the patient to the Medical College, Lucknow.
The
petitioner
rushed Shri Devendra Kumar Yadav to
Medical
College, Lucknow where late Shri Devendra Kumar Yadav was admitted in ward no. III
Bed no. 10 on the same day at about 12.00 Noon. Again there too Dr C G Aggarwal,
respondent herein attended the patient and referred him to Dr A K Pandey for obtaining
C T Scan and on the same day C T Scan was done in the clinic of Dr A K Pandey,
5 Subhash Marg, Near J G Medical College, Lucknow who gave report that there was
impression
of Intraventricular Haemorrhage.
The
late Devendra Kumar Yadav was
required to be given correct medicines and other treatment for a poisoning case but it
was not done.
On 26.02.2001 when the condition of the patient deteriorated then respondent
referred the report for an opinion to Dr Ravi Das, Neurosurgeon, who clearly said that
the case was of poisoning and review was needed.
Due to carelessness of Dr Verma at Faizabad Hospital and a gap of 2 days the late
son of petitioner was unconscious but he never got the appropriate treatment to negate
the result of poison. Again on 25.02.2001 the spinal cord was examined in order to
obtain result as to whether Devendra Kumar Yadav had some other disease like
Bacteria etc, or not and the result was Gram’s stained smear was negative and CSF
smear was also negative for acit fast bacilli and thereafter again the doctor at Medical
College did not adduce correct medicine and kept the patient negligently up to
28.02.2001and the patient died at 10.45 PM on 28.02.2001.
Now again to avoid to report to the nearest police station or Magistrate for
suspected case of poisoning the doctor wrote the cause of death as cardiac failure.
The District Forum considered the case and recorded as follows:
“Services has sufficient on respondent/opposite party no. 1 and thereafter he
appeared on 04.09.2011 through a paper no. 22 before the Court and said no
relation to this matter of them and a wrong notice is issued to him. On this ground
they told there is no necessity for appearing before the court on dates
fixed. Services of notices has presumed on opposite party no. 2. Both opposite
parties did not appear before the Court so for proceeding has initiated ex parte.
We have heard both ex and seen the paper books. The version of the
petitioner/complainant, that the deceased Devendra Kumar Yadav was admitted
on 23.02.2001 in the District Hospital, Faizabad where the treatment was done
by the respondent/opposite party no. 1. Petitioner/Complainant no.1 gave his
affidavit on this point. Against this affidavit, any opposite party, except
petitioner/complainant no.1, affidavit complainants provided discharge certificate
dated 24.02.2001 through paper no. 31/2 which shown deceased was admitted
on 23.02.2001 in the District Hospital, Faizabad and his treatment was done by
the respondent/ opposite party no. 1.
Petitioner/Complainants’ villagers’ one witness Pam Surat gave his affidavit in
which it is stated that poison was given to the deceased in the night of
23.02.2001. Deceased was admitted in the District Hospital, Faizabad where the
treatment was done by the respondent/opposite party no. 1 to the deceased. This
witness also told that the petitioner/complainant no. 1 stated to the
respondent/opposite party no. 1 that the poison was given toDevendra Kumar in
the night. On the same point Ram Milan son of Ram Janam aged about 28 years
given his affidavit.
All the witnesses have proved this fact. Medical negligence has committed by the
opposite parties in the hospital of Faizabad and Lucknow Medical College.
Negligence of doctors also proved this facts that the saying of the complainants
the poison was given to the patients, his treatment did not made any of them and
any of this facts has examined in the record. It is clear for this that the opposite
parties have committed conceal his wrong.
By the petitioner/complainants has produced a photo copy of the toxicology book
for giving treatment in the case of poison matter. By the petitioner/complainants
has filed a case had all in above decision it is relying upon no reply was given by
the respondent/ opposite parties of the affidavits than the fact of the affidavit
could not be denied. In the aforesaid matter the affidavits of witnesses given in
favour of the petitioner/complainants. In this affidavit it is clearly stated that the
story is about giving poison to Devendra Kumar Yadav was told to both the
respondents/opposite parties but by the both the respondents/ opposite parties
did not give any treatment with regard to poison and due to negligence of the
respondents/opposite parties the condition of the deceased has become serious
and he has died. So the complainants have proved their case and the negligence
of the doctors have been proved.
The deceased was aged about 30 years. He was given the poison but due to
slackness in treatment by the doctors he died. There was no one to look after the
petitioner/complainant except the deceased and if he would have alive then he
must live till 60 years and cared his family. It has been stated in the complaint
that
the
deceased
was
earning
Rs.5,000/-
per
month.
The
petitioner/complainants have claimed Rs.5 lakh. In our opinion with regards to
compensation, it is considered the uncertainty of life and one time earning and
expenses on his family a total Rs.2.50 lakh compensation can be awarded.
Except this 10% interest from the date of judgment till the actual date of payment
can be awarded. In our opinion the petitioner/complainants are entitled to
receive the such compensation”.
Hence, the District Forum ordered as under:
“The complaint is allowed for Rs.2.50 lakh against the respondents/ opposite
parties ex –parte. The petitioner/complainants are entitled to receive interest 12%
per annum from the respondent/opposite parties from the date of judgment till the
date of recovery. The petitioner/ complainants will also receive Rs.1000/- towards
litigation
expenses
from
the
respondents/
opposite
parties.
The
respondents/opposite parties are directed to make the payment of compensation
within one month from the date of judgment”.
The petitioner filed appeal no. 1839 of 2006 before the State Commission for
enhancement of the compensation.
Aggrieved by the order of the District Forum, the respondent Dr G
C Agarwal filed appeal no. 1505 of 2009 before the State Commission. In the affidavit
in support of their contention before the State Commission, the respondent in his
affidavit has stated on oath as under:
“That on 30.04.2009 the respondent/appellant was called to appear as a witness in
a
criminal
complaint
case
Ram Nihal versus DayaShanker and Others
no.
3562
pending before
of
the
2006
Chief
re:
Judicial
Magistrate, Ambedkar Nagar, to give evidence on some medical legal queries during
trial of the murder case of the deceased Devendra Kumar Yadav. Certified copy of the
order dated 30.04.2009 passed by the Chief Judicial Magistrate in case no. 3562 of
2006, certifying the appearance of the respondent before him and recording of the
statement.
The said case no. 3562 of 2006 was filed by the petitioner no. 1 before the Chief
Judicial Magistrate, Ambedkar Nagar on the grounds that the deceased son of the
petitioner no. 1 was murdered due to some enmity in the village. Certified copy of the
said complaint case no. 3562 of 2006 is being attached.
After recording of his statement, when the respondent was about to leave the court
of CJM, the counsel for the petitioner/complainant informed the respondent, that in the
same matter, one case has also been decided by the District Forum, Faizabad against
the appellant and one Dr Ramendra Pratap Vermaof Faizabad District, awarding the
compensation of Rs. 2,50,000/- to the complainant on the basis of finding of medical
negligence committed by the appellant and the said another doctor.
It is submitted that it was for the first time when the appellant came to know about
any such complaint case being filed and decided against the appellant by the
respondents before learned Forum, as prior to the same he was having no knowledge
or information about the said case. The appellant never received any notice or summon
etc., about the said case from the learned Forum, nor the respondents ever
informed him about the same nor even the said judgment and award of the learned
Forum was ever served upon the appellant by the respondents or given any information
till date.
That the counsel for the respondents had also informed to the appellant that the
said consumer complaint was filed in the year 2001 against the two doctors,
viz., Ramendra Kumar Verma of District Faizabad and the appellant and the same was
decided in the year 2006 itself. However, the respondent/complainant before the CJM
did not divulge the number of case or other specific details of the consumer case
despite the request of the appellant.
That
it
would
have
been
appropriate
and
normal
for
a
complainant
with bonafide intention to have first met or at least serve a notice to the person from
whom he felt aggrieved before approaching the court of law including the Consumer
Forum. In any case, a bonafide complainant ought to have at least enquired from the
person against whom he is about to file a complaint about his role in the matter in
complaint. However, in the instant case, no such efforts and ever been made by the
complainant either personally or by serving any notice to know the correct facts. Instead
he chose to file a totally false, baseless and imaginary complaint before the learned
Forum Faizabad, against doctors who even not treated the deceased person.
In the circumstances, after coming to Lucknow the appellant consulted his
advocate and discussed the entire matter with him and sought his advice in the matter.
The counsel then advised the appellant to make enquiry about any such complaint case
or the award passed and also to find out the other doctorVerma, who was also said to
have been party in the said complaint case.
As per the advice of the counsel, the appellant then started making inquiry about
any such consumer complaint case against the appellant in Faizabadand also tried to
find out the said other doctor Verma. After much efforts, it was only on 20.07.2009,
through one friend of the appellant, the appellant was able to locate and contract
Dr Ramendra Pratap Verma and consequently to inquire from him about the details of
any such complaint case including the case number etc., before the learned
Forum, Faizabad, as no details was available to the appellant. It was only then, that the
appellant could know from the said doctor, the details of the said Consumer Case no.
106/2001. It was also informed that the said case was also decided by the learned
Forum ex parte on 03.07.2006 against the appellant and the said doctor moreover, a
compensation of Rs.2,50,000/- was also awarded to the complainants/ respondents. It
was also informed by Dr Verma that an appeal no. 1839 of 2006 has also been filed by
the respondents before this Hon’ble Commission for enhancement of the compensation
amount.
Immediately on coming to know about the said complaint case from Dr Verma the
appellant consulted his advocate who suggested about his junior MrVijyant Nigam to let
him go to Faziabad for inspection of the records and for obtaining certified copies of the
required documents. Then the appellant as per the advice contacted Mr Vijyant Nigam
on 23.07.2009 and requested him to go to Faizabad with the complainant who then
went to Faizabad on 24.07.2009 and made enquiry from the office of the learned
Forum, Faizabad. Mr Vijyant Nigam also applied for the inspection of the records of the
said complaint case. It was only then when the appellant could be able to inspect the
records of the learned Forum, Faizabad, relating to the said complaint case.
From the inspection of the records of the learned Forum, Faizabad, it was for the
first time came to the knowledge of the appellant that a complaint no. 106 of 2001 was
filed by the respondents in the year 2001 against the appellant and another
Dr Ramendra Pratap Verma of District Hospital, Faizabad before the learned District
Forum, Faizabad.
The complainants/ respondents alleged in their complaint that both the two doctors
arrayed as opposite parties have committed medical negligence while giving treatment
to the deceased patient Late Devendra Kumar Yadav due to which the patient died.
The District Forum Faizabad was pleased to admit the complaint and issued
notices to both the opposite parties.
The District Forum, Faizabad after issuing notices to the opposite parties fixed the
next date as 05.09.2001 for filing the written statements.
That on 05.09.2001, the District Forum Faizabad has passed the order that the
opposite party no. 1 Dr Ramendra Pratap Verma has filed the written statement in which
he submitted that he was not concerned with the alleged complaint and a wrong
complaint was filed against him. About the appellant, the District forum found that the
service of notice upon appellant/ opposite party no. 2 Dr C G Agrawal was not sufficient,
hence, directed the complainant to take fresh steps within a week for issuing notice to
the appellant/opposite party no. 2 and directed to issue notice to the appellant/ opposite
party no. 2 to file written statement and for hearing. Certified copy of the order dated
05.09.2001 passed by the District Forum, Faizabad in complaint case no. 106 of 2001 is
being attached herewith.
On 01.12.2001, the complaint case no. 106 of 2001 was against listed before the
District Forum, Faizabad. On that date none appeared on behalf of the opposite party
no. 1, hence, the learned Forum directed for proceeding ex parte against him.
Regarding the appellant / OP no. 2, it was observed by the learned Forum that neither
the Registry sent to the appellant/ opposite party no. 2 had returned nor the A/ D was
returned back and on that basis only, the District Forum presumed that the services
upon the opposite party no. 2 was sufficient and directed to proceed ex parte against
the OP no. 2/ appellant also.
Thereafter the District Forum, Faizabad proceeded ex parte against the appellant
and finally decided the complaint on 03.07.2006 directing therein to the opposite parties
to pay compensation of Rs.2,50,000/- along with interest @ 12% per annum to the
complainant.
That from the inspection of the records of the learned Forum, it was revealed that
the opposite party no.1 Dr Ramendra Pratap Verma had also filed a recall application
before the learned Forum, Faizabad on 30.06.2006 which is pending till date and the
same was lastly listed on 24.07.2009. The said matter is now fixed for 26.10.2009.
It is submitted that the appellant has never received any notice of the said
complaint case neither in official capacity nor in person, either from the learned Forum
or from the respondents.
The appellant was also never made aware about the proceedings of the said
complaint case against him before the learned Forum in any manner.
In the circumstances, the presumption drawn by the learned Forum that merely
because the registry of AD had not returned, the notice could served upon the
appellant/ OP No. 2 was factually incorrect and is liable to be set aside by
this Hon’ble Commission. In any case, in view of the appellant/ OP 2 of any notice from
the Forum is liable to be accepted by the learned Forum in absence of any evidence to
the same is produced before the learned Forum. In the meantime the limitation for filing
of the appeal before this Hon’ble Commission has also been expired long back.
Thereafter, the appellant applied for the certified copies of the orders passed by
the learned Forum, Faizabad and obtained the same on 24.07.2009.
After obtaining the records relating to the said complaint case, the appellant then
consulted about the matter with his advocate and it was opined by the advocate that an
appeal should be filed against the said order before this Hon’ble Commission.
After getting the advice from his counsel regarding filing of an appeal, it took some
time for arranging all the necessary documents and records as the matter was very old.
It also took some time in completing the necessary formalities for filing of the appeal as
the matter is a medical legal case and thereafter, immediately the appeal is prepared
and is being filed herewith without any delay on part of the appellant”.
The State Commission noted that, “it is a case of alleged medical negligence by
the doctors who had attended the deceased Shri Devendra Kumar Yadavbefore he
expired on 28.02.2001. Shri Devendra Kumar Yadav was the son of Shri Ram Nihal, the
complainant no. 1, husband of complainant no. 2 SmtVidyawati and father of the
complainant no. 3 Kumari Shivangi, the minior. He was admitted in the district
Hospital, Faizabad on 23.02.2001 at 09.00 A M but since his condition did not improve
he
was
referred
to
the
King
George
Medical
College,
presently
known
as Chatrapati Shauja Maharaj Medical University. In the medical college, he was
attended to by Dr C G Agarwal. He was then examined by Dr A K Pandey and
Neurosurgeon Dr Ravi Das. Unfortunately, he died on 28.02.2001 at 10.45 p.m. His
relative Shri Mahendra Kumar Yadav had taken his body without any complaint against
the hospital authorities, as is evident from his application dated 28.02.2001. About 5
month after, the complaint before the District Consumer Forum was filed by the three
complainants, as stated above and in the complaint, it was for the first time revealed
that Shri Devendra Kumar Yadav was the victim of poisoning. The names of the person
who had allegedly administered the poison to him were disclosed as Daya Shankar,
Rama Kant, Phool Chandra, Janki and Vidhan. The impugned judgment appears to
indicate
that
the
two
doctors
namely
Dr Ramendra Pratap Verma and
Dr
C
G Agarwal did not appear before the District Forum to contest the complaint as a
consequence, ex parte proceedings were drawn and ex parte judgment delivered.
By means of the judgment, the District Forum recorded a finding that the doctors
who were supposed to have cleaned the stomach of the deceased so as to relieve the
body of the patient of the adverse effects of the poisoning and they were, thus, guilty of
medical negligence. On the basis of this finding, the complaint was allowed and a sum
of Rs.2,50,000/- awarded as compensation. Interest @ 12% per annum had also been
levied.
Mrs P I Nigam learned counsel for the appellant Dr C G Agarwal has submitted
that the theory of poisoning was based on an after though idea as neither any FIR
against the accused person namely Daya Shankar and others was lodged nor any
intimation to doctors who had attended the patient or any other authority of the district or
police was given. It is supplemented further by the learned counsel that not only the
theory of poisoning was imaginary one but the findings of the District Forum too are
nothing but presumptary and based on sumrises and conjectures. The contention
seems to carry weight. There is nothing on record to indicate that prompt FIR was
lodged for the incident of poisoning. Not only that the complainants particular the
complainant no. 1 who is father of the deceased was not knowing the procedure of
taking the criminal action but it appears that neither there was a story of poisoning in the
beginning nor there was any indication of any such incident. It is surprising to note that
a complaint under section 302 IPC on the basis of the story of poisoning was filed in the
court of the Chief Judicial Magistrate, Faizabad 5 years after the alleged incident of
poisoning. No doubt the story had already figured in the complaint filed before the
District Forum but the delay in filing the complaint before the Chief Judicial Magistrate
further explodes the imaginary theory of poisoning. The complainants had not offered
any explanation as to why the fact about the poisoning was not conveyed to any
authority such as police or the doctors who had been attend the patient. The affidavit
of Shri Ram Surat, a villager, is not worthy of credit for the simple reasons of his being
silent for four years altogether. He filed his affidavit during the pendency of the
complaint. Shri Ram Surat too did not submit any explanation as to why he did not take
a prompt action by filing an FIR or by approaching any other district authorities. Also he
has not come forward with any explanation as to why he did not inform the father of the
deceased soon after he came to learn about the incident of poisoning. The long silence
on his part falsifies his statement that Daya Shankar and others had poisoned the
deceased. Although it will be within the jurisdiction of a competent criminal court of law
to make a positive finding on the issuing in question and we are sure that by our
observations such court will not be unnecessarily prejudiced, yet we in order to arrive at
a just finding on the issue before us can observe that the theory of poisoning was
nothing but a tissue of lies.
Had
it
been
brought
to
the doctors knowledge
that Shri Devendra Kumar Yadav was the victim of poisoning, there was no reason for
either of them not to have gone into the process of cleaning his stomach as per the
prescribed procedure. Moreover, the cleaning of a poisoned stomach is immediately
required soon after the incident. The appellant Dr C G Agarwal who was incharge of the
ward where Devendra Yadav was admitted for his treatment on 23.02.2001 referred the
patient Dr A K Pandey for obtaining the CT Scan report and Dr Pandey, submitted his
report to the effect that there was an impression of Intra Ventricular Haemorrhage. Then
the patient was referred to Dr Ravi Das, the Neuro Surgeon. It is admitted to the
complainants that C T Scan revealed impression of Intra Ventricular Haemorrhage but
there is no evidence on record to suggest that Dr Ravi Das submitted a report about the
patient being poisoned.
It is a cardinal Rule of Law that a complainant is required to establish his case as
alleged by him in his complaint. In the case in hand not an iota of evidence was
produced either before the District Forum or before this Appellant Court to prove that
the two doctors namely Dr Ramendra Pratap Verma and Dr C G Agarwal had come to
learn about the incident of poisoning before they had examined the patient. In the
absence of any such evident, it would be extremely difficult to suggest that the two
doctors were guilty of the medical negligence or deficiency in service on their part by not
giving
due
attention
to
the
said
aspect
of
the
matter.
The
impression
of Intraventricular Haemorrhage has no relevance vis-a-vis the poisoning the patient
rather indicated that he suffered haemorrhage. The complainants have not adduced any
medical literature in support of their contention and connect the impression
of IntraventricularHaemorrhage with poisoning. The CT Scan report evidently reported
the seriousness of the head injury. Shri Devendra Kumar Yadav had suffered and the
same was perhaps the main cause which had led to his death. The impression
of Intraventricular Haemorrhage certainly has no relevance with the incident of alleged
poisoning. The fact that the complainant came to learn about the poisoning on
12.04.2001 as recited in paragraph 8 of their complaint no. 3562 of 2006 filed before the
Chief Judicial Magistrate, Ambedkar Nagar clearly proves that the theory of poisoning
having been conveyed to the two doctors at the relevant time of the patient being
attended by them, was totally false, baseless after thought and based on surmises and
conjectures.
Funny the doctors were rounded up in the negligence case but no action was
taken against the accused for five years”.
Hence, the State Commission gave the following order:
“Mr Vijay Yadav learned counsel for the respondent/ complainant has not pointed
out any document with reference to which or on the basis of which
communication about the poisoning would have been made to the two doctors.
We are therefore, of the view that neither Dr C G Agarwal nor the other doctor
who had attended the patient, Faizabad was guilty of any kind of medical
negligence.
In the result, the appeal of Dr C G Agarwal succeeds and is hereby allowed.
The impugned judgment is set aside and the complaint dismissed. As a
consequence, other appeal no. 1839 of 2006 becomes redundant and it is liable
to be dismissed. Ordered accordingly”.
Hence, this revision petition.
The grounds for the revision petition are as follows :
“Because the incident of poisoning has totally ignored by the State Commission by
the persons (Daya Shanker, Rama Kant, Phool Chand, Janki and theVidhan Chandra)
who had administered the poison to late Devendra Kumar Yadav. They have been
prosecuted by the Chief Judicial Magistrate, Ambedkar Nagar vide its order dated
15.07.2009 under section 302/34 & 120 (b) IPC in complaint case no. 3562 of 2006.
The State Commission has misread the C T Scan report dated 24.02.2011 by
which it is crystal clear in case of poisoning Intraventricular Haemorrhage is the result.
The State Commission acted illegally in exercise of its jurisdiction in not taking any
medical literature or any expert opinion on the finding (Intraventricular Haemorrhage) of
CT Scan examination.
The State Commission has acted illegally in expressing the power of an expert
himself when it is a well settled law that a court himself cannot act as an expert.
The State Commission has acted illegally and irregularly in ignoring the procedure
of criminal action, against the persons who had given poison to the deceased.
The State Commission has failed to exercise its jurisdiction because a highly time
barred appeal has been filed by Dr C G Agrawal (i.e., near about 3 years) before the
State Commission but without giving any single words of this point in impugned
judgment while the same was opposed by the reply of the revisionists no. 1.
The order passed by the State Commission is illegal, improper and perverse the
evidence and also ignored the documentary evidence available on record”.
We have heard the learned counsel for the parties and have carefully gone through
the records of the case.
Counsel for the petitioner insisted that it was a case of poisoning and that the
doctors had been so informed, and hence, the respondents was guilty of medical
negligence. He has also drawn our attention to the report of the Plain Cranial C T Study
and insisted that it supported the fact that it was due to poisoning.
We have seen the report which is reproduced below:
“Serial
5.0
mm
&
10.mm
cuts
were
taken
through
posterior
fossa
and supralentorial compartments.
POSTERIOR FOSSA
Fourth ventricle is normal in size and located
Both the cerebellar hemos here are within normal limit.
SUPRAILNIORIAL
Bilateral horizontal CSF haematoent level is seen in both ingonus
Both the lateral ventricles as such are mildly dilated 3 rd ventricle is within normal
limits
No mid line shift is observed
Basal cisterns and cortical such are obliterated
Bony calvaria is within normal limits
Impression:
Intraventricular Haemorrhage”.
Nowhere, in the report has it been reported that it was due to poison. The other
documents placed on record also do not mention that doctors were informed that it was
case of poisoning rather the case was diagnosed as ‘Encealogy’.
It is difficult to come to any conclusions after studying the typed copies of the
annexures produced as they have been very badly translated and the diagnosis is given
in terms which are not found in the medical dictionary. The original documents cannot
be read. Counsel for the petitioner again in the State Commission could not point out
any documents with reference to which or on the basis of which communication about
the poisoning would have purportedly been made to the doctors. He could not also
produce any document showing that death was due to poisoning. There is no copy of
the FIR, death certificate or post mortem report on record. The case was lodged in the
court of CJM Faizabad five years later after the said incident. The treatment record has
also not been supplied and record given are also not readable.
It is an ubdisputed fact that Shri Devendra Kumar Yadav was admitted in the
District hospital , Faizabad on 23.02.2001 at 09.00 AM . Since his condition was serious
he
was
referred
to
King
George
Medical College,Lucknow presently
known
as Chatrapati Sahauja Maharaj Medical University, where he was attended to by the
petitioner. He was then examined by Dr A K Pandey and Neurosurgeon Dr Ravi Das.
He died on 28.02.2001 at 10.45 p m. About five months later the petitioner filed a case
before the District Forum. The respondent did not get any notice and hence, could not
appear before the District Forum to contest the case and the decision was taken ex
parte.
The respondent came to know about the case for the first time on 30.04.2009
when he was called as a witness in a criminal complaint case no. 3562 of 2006
regarding – Ram Nihal vs Daya Shanker and Ors., pending before the Chief Judicial
Magistrate, Ambedkar Nagar, to give evidence on some medical legal queries during
the trial of the murder case of the deceased Devendra Kumar Yadav. The counsel for
the petitioner could not produce any documents/ records/ or evidence to support his
case that the respondents had been negligent, while treating the deceased who died as
a result of poisoning either before the State Commission or before us.
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 the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 3rd May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 36 OF 2008
(Against the order dated 05.12.2007 in O.P. No. 176/1994 of the State Consumer
Disputes Redressal Commission, Chennai)
1. Dr. Kurien Joseph
2. Joseph Nursing Home 10-A, Dr. Gurusamy Road Chennai-600031
…
Appellants
Versus
Govindarajan S/o Chakranpani No. 150, Raja Street Jothi Ramalingam Nagar
Perambakkam-631402
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. T. Srinivasa Murthy, Advocate with
Mr. Krishna Dev, Advocate
For Respondent
: Mr. S. Natana Ranjan, Advocate
Pronounced on 3rd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by Dr. Kurien Joseph & Another, Appellants
herein and Opposite Parties before the State Consumer Disputes Redressal
Commission, Chennai (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission which had accepted the complaint of
medical negligence filed against them by Govindarajan, Respondent herein and Original
Complainant before the State Commission.
2.
In his complaint before the State Commission, Respondent had submitted that his
daughter G. Ushanandhini (hereinafter referred to as the Patient) was admitted in
Appellant nursing home on 16.08.1992 with complaints of stomach pain and menstrual
discharge although she was pregnant. Respondent came to know from one Dr. V.C.
Balasubramanium, to whom Appellants had referred her case, on 23.11.1992 that the
medical treatment of the Patient by the Appellants was not correct since she was given
treatment for cancer although she was not suffering from the same, as a result of which
the Patient died at a young age. Being aggrieved because of the medical negligence
and lack of proper treatment resulting in the Patient’s death, Respondent filed a
complaint before the State Commission and stated that Appellants be directed to pay
the Respondent a sum of Rs.10 Lakhs on account of untold agony and loss caused to
the Respondent and also taking into account the young age of the Patient who was
gainfully employed as a teacher.
3.
Appellants on being served filed a written rejoinder challenging the veracity of the
complaint as also the allegation of medical negligence. It was stated that the Patient
was admitted in Appellant nursing home on 16.08.1992 with a history of 45 days
amenorrhea, giddiness and severe abdominal pain. An ultrasound scan showed that
she had ectopic pregnancy with internal bleeding. Therefore, on 17.08.1992 an
emergency laparotomy was done, during which the ruptured corneal pregnancy was
removed and sent for pathological test to Dr. V.C. Balasubramaniam, Chief Pathologist,
Government Medical Hospital. Patient recovered and was discharged on 22.08.1992
with an advice to take iron and vitamin tablets and to come for a review check-up after
10 days. However, she failed to come for the same until 12.09.1992 when she again
visited the Appellant nursing home with complaints of fever, vomiting and abdominal
swelling for 5 days, during which period she had been treated by another Doctor, who
had prescribed antibiotics. On examination in the Appellant nursing home it was found
that the Patient had abdominal mass about 4 inches diameter above the
uterus. Dilatation & Curettage (D&C) could not be done in this case as the mass was
just adjoining the uterus and there were chances of perforating the uterus during this
procedure. Taking this into account this fact and following receipt of the pathological
report dated 24.08.1992 from Dr. V.C. Balasubramaniam that the specimens sent for
test were suggestive of Choriocarcinoma i.e. cancer, the Patient was started with the
course of chemotherapy. Following this, her condition improved and the mass also
decreased in size. On 23.03.1992 Patient came back to the Appellant nursing home
with complaints of difficulty in breathing and abdominal pain and an ultrasonography
indicated that the uterus had further enlarged and both ovaries showed multiple cystic
lesions. Therefore, a second round of chemotherapy was given from 23.09.1992 to
27.09.1992 when she was discharged with a detailed treatment chart indicating the
course of action that she must continue. After discharge it was learnt that the Patient
got admitted to the KMC Hospital where she received treatment but no details were
made available to the Appellants. On 28.10.1992 another ultrasound was done on the
Patient and although the cyst had reduced in size, the uterus was still enlarged and,
therefore, she was advised for admission in the Appellant nursing home, which she did
not heed. A repeat ultrasonography done on 16.11.1992 again confirmed the enlarged
uterus and the cysts. On 23.11.1992 Patient was brought to the Appellant nursing
home with difficulty in breathing, abdominal pain and vaginal bleeding. She had not
continued the prescribed treatment and an ultrasound showed that the large mass in the
abdomen above the uterus had increased in size. A firm diagnosis of Chronic
Carcinoma (Trophoblast) was made and though the Patient was promptly advised to get
admitted in the Appellant nursing home, she was taken home against medical advice
and she passed away 2 days later. All these facts were suppressed in the
complaint. Patient was given right treatment for carcinoma based on a clear medical
diagnosis of the same, following pathological and other tests, which clearly indicated
that there were strong markers indicating carcinoma. Chemotherapy being the
accepted line of treatment in such cases was given and there was no medical
negligence in the treatment and care of the Patient, which was done taking into account
her health and safety.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it, including the oral evidence and cross-examination of the Appellant
doctor and the Respondent, concluded that the Appellants were guilty of medical
negligence and deficiency in service. Relevant parts of the order of State Commission
are reproduced:
“12. … No medical report has been produced to conclude that Usha
Nandhini was suffering from cancer. The test, Ex.B5, relied on by the
opposite party itself says that ‘prior to starting therapy a full blood count is
required and renal and hepatic function must be assessed. Thyroid
function should be measured. The blood group of the patient and her
partner responsible for the most recent or molar pregnancy is required for
the prognostic score’. The opposite parties attempted to wriggle out by
stating that the patient was not suffering from molar pregnancy. The
opposite parties had not taken any steps to measure thyroid function or
find the blood group of her partner.
13.
We are satisfied that the initial onus has been discharged by the
complainant/s. The first opposite party has not substantiated his stand
that it was a case of cancer and that chemotherapy treatment was
absolutely necessary in the context of the ailment of the deceased Usha
Nandhini. The first opposite party not having established conclusively that
the deceased was suffering from cancer, it has to be found that
chemotherapy was ill advised to be tried on the deceased. We therefore
hold that the opposite parties had been negligent in treating the patient
and this had been the cause for the death of the patient.”
The State Commission, therefore, directed the Appellants to pay a sum of Rs.5 Lakhs to
Respondent as compensation within a period of 8 weeks from the date of the order
failing which the amount would carry interest @ 9% per annum. Rs.3000/- were
awarded as litigation costs.
5.
Being aggrieved by the order of State Commission, the present first appeal has
been filed.
6.
Learned Counsels for the parties made oral submissions.
7.
Learned Counsel for the Appellants argued vehemently and at length that the
State Commission erred in concluding that there was medical negligence by not
adequately appreciating the evidence on record, which clearly indicated that the Patient
had cancer for which she was rightly given chemotherapy. It was pointed out that when
the Patient came to Appellant nursing home with complaints of abdominal pain, fever
and amenorrhea, tests confirmed that she had ectopic pregnancy. An emergency
laparotomy was, therefore, conducted, following which products of conception, which
included multiple sections were sent for pathological investigation and as per the report
dated 24.08.1992 it was confirmed that appearances of the specimen were suggestive
of Chroiocarcinoma. Further, urine and other tests conducted on the Patient confirmed
the diagnosis of trophoblastic disease, for which treatment i.e. administration of
chemotherapy was started, to which the Patient also responded. The State
Commission erred in concluding that trophoblastic disease is not the same as cancer
since as per medical literature trophoblastic disease is in fact carcinoma. It was
specifically denied that chemotherapy for treatment of cancer was whimsically started
without carrying out all the necessary tests. In fact there were several important
markers which clearly indicated that the Patient had carcinoma. These included the
ectopic pregnancy, the fact that the Patient had a large mass in the abdomen above the
uterus which had increased rapidly in size and urine & blood tests which indicated
grossly elevated hCG levels. Counsel for the Appellants also stated that it was
dangerous to remove a specimen of the mass or cyst for biopsy to confirm carcinoma
because this could lead to hemorrhaging or perforation of the uterus. As per medical
literature on the subject which was filed in evidence, it is safer to treat patients for such
carcinoma with chemotherapy rather than to risk biopsying a metastasis. It was under
these circumstances that chemotherapy was started and the Patient’s condition had
also started improving. Further, the State Commission erred in not taking note of the
fact that it was the Patient who did not come for review check-ups and instead went to
other hospitals for treatment and also got a self-discharge against medical advice. She
also did not follow the treatment regimen which was given to her for which Appellants
cannot be held responsible. The medical treatment of the Patient for carcinoma was as
per standard medical case practice and treatment was given after clinical and diagnostic
tests, which indicated that she was suffering from cancer. Therefore, the finding of the
State Commission that the Appellants were guilty of medical negligence is without merit
and deserves to be set aside.
8.
Counsel for the Respondent on the other hand stated that the pathological report
on which the Appellants have relied, namely the first report of Dr. V.C.
Balasubramaniam dated 24.08.1992, did not give a clear diagnosis that the Patient was
suffering from cancer. In fact the report stated that the pathological examination of the
multiple
specimens
only
indicated
that
the
appearances
were suggestive of
Choriocarcinoma and there was a question-mark thereafter. The report also specifically
advised that this provisional finding needed to be correlated with the clinical picture and
confirmed with biological test in dilutions. Appellants failed to conduct these tests as
was admitted by the Appellant Doctor himself during his cross-examination before the
State Commission. Appellant
Doctor also
admitted
in cross-examination that
enlargement of the uterus need not necessarily be due to cancer. It was further
admitted that no Oncologist was consulted in the matter. On the other hand, there is a
definite finding based on the second pathological report of Dr. V.C. Balasubramaniam
dated 23.11.1992 that the Patient did not have cancer since the pathological
examinations conducted at the Institute of Pathology confirmed that there was no
evidence of malignancy. Under these circumstances, there is no escaping the fact that
there was medical negligence on the part of Appellants in giving wrong and irrational
medical treatment to the Patient for a disease which she did not have and the rounds of
chemotherapy given to her caused untold damage to her and were also responsible for
her death. The State Commission had rightly concluded that this was a case of medical
negligence and the present First Appeal having no merit deserves to be dismissed.
9.
We have carefully considered the submissions of learned Counsel for both parties
and have also gone through the evidence on record, including the medical literature on
the subject. It is not in dispute that the Patient was admitted in the Appellant nursing
home on 16.08.1992 and following tests a laparotomy was conducted to end the ectopic
pregnancy, which was causing the problems and the specimens of the sections taken
out during this procedure were sent for pathological examinations. It is also not in
dispute that Patient was given chemotherapy since the Appellants reached a diagnosis
based on the first pathological report of Dr. V.C. Balasubramaniam dated 24.08.1992
that the specimens sent had appearances which were suggestive of carcinoma and
following examinations, which indicated elevated levels of hCG as also the increase in
the size of the mass in the uterus. According to the Appellants, these were important
and more than adequate indicators to confirm that the Patient had cancer and that there
was no need for other tests, including biopsy, which could have caused further damage
to the Patient. We are unable to accept this contention of the Appellants. The first
pathological report dated 24.08.1992 which is filed in evidence does not conclude
categorically that the Patient had carcinoma. In fact, it only states that there were some
appearances in the specimens which were indicative of carcinoma but these needed to
be correlated with other tests before reaching a clear finding to this effect. In this
connection, the Appellant Doctor has himself admitted in his cross-examination that he
did not conduct these tests because the Patient came a week later than the time fixed
by Appellant Doctor for conducting the same and by that time she was very ill. We also
note that while during cross-examination Appellant Doctor admitted that enlargement of
the uterus and ectopic pregnancy need not necessarily be due to cancer yet in the
instant case it was primarily on the basis of these very symptoms that Patient was
administered 5 cycles of chemotherapy by him. The Appellant Doctor’s reason for not
conducting a biopsy of the abdominal mass or the cysts was on the ground that it could
have caused severe bleeding and also cited medical literature in support. However, it is
medically well established that the only way to determine if a growth is cancerous is to
remove a sample of it and conduct a biopsy on it*.
(Source : American Cancer Society – Wikipediacancer.org)
We further note that the second pathological report dated 23.11.1992 clearly indicated
that the Patient had no malignancy and, thus, confirming the complaint of the
Respondent that the Appellants started chemotherapy without taking due care to
confirm that the Patient had cancer.
10.
What constitutes medical negligence is now well established through a number of
judgments of this Commission as also of the Hon’ble Supreme Court. Based on the
touchstone of the Bolam’s test, one of the principles is that 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. In the instant case, despite specific advice of the Pathologist to correlate the
provisional finding of carcinoma with the clinical picture and conduct biological test in
dilutions of the Patient, Appellants failed to heed this advice and did not conduct the
required tests nor did they consult an Oncologist or get biopsy done, which is the
common procedure undertaken in cases of suspected cancer of this nature involving
mass in the abdomen and growths. Such a procedure may have an inherent risk but
this is not adequate reason to not conduct the same especially when the ultrasound
indicated that apart from the mass there were a number of cysts and lesions. Taking
into account these facts, the State Commission had rightly concluded that this was a
case of medical negligence.
11.
For the reasons stated above, we agree with the order of the State Commission
and uphold the same. The present First Appeal is, therefore, dismissed. Appellants are
directed to pay Respondent a sum of Rs.5 Lakhs as compensation within a period of 8
weeks from the date of this order, failing which the amount will carry interest @ 9% per
annum, together with Rs.3000/- as costs of the proceedings. We note that Appellants
had deposited a sum of Rs.2.50 Lakhs with the State Commission vide this
Commission’s order dated 05.02.2008. In that case, this amount be released to the
Respondent with interest accrued thereon and Appellants are directed to pay the
remaining amount as directed above.
Sd/-
(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 55 OF 2008
(Against the order dated 06.11.2007 in Complaint Case No. C-88/2000 of the
Delhi State Consumer Disputes Redressal Commission)
Purshottam Behl S/o Late Shri Shyam Sunder Behl Sole Prop., M/s Jaipur Auto Service
Khasra No. 428 Village Rangpuri, NH-8 Delhi Gurgaon Road New Delhi-110037 &
Resident of H.No. B-16, Sector-8 Pappan Kalan, Dwarka New Delhi-110075
…
Appellant
Versus
Messers B.S.E.S. Rajdhani Power
Limited
(Successor-in-interest
of
Erstwhile
Delhi Vidyut Board) Through its Director/Managing Director/Chairman/ Principal Officer
concerned B.S.E.S. Bhawan, Nehru Place New Delhi-110019 (India)
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellant
:
Mr. Om Prakash Bhatia, Advocate
For Respondent
:
Ms. Shveta Kapoor, Advocate
Pronounced on 4th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by Purshottam Behl, Appellant herein and
Original Complainant before the Delhi State Consumer Disputes RedressalCommission
(hereinafter referred to as the State Commission) being aggrieved by the order of that
Commission
which
had
only
partly
allowed
his
complaint
against
M/s
BSES Rajdhani Power Limited, Respondent herein and Opposite Party before the State
Commission.
2.
FACTS :
In his complaint before the State Commission, Appellant-Complainant had
contended that he is the sole proprietor of a small auto repair workshop which he
operates on 215 square yards of land owned by him on the Delhi-Gurgaon
Road. Consequent to a policy introduced by the Respondent in the year 1997 for the
grant of Non-Domestic Power Connection in the non-conforming areas of the Union
Territory of Delhi, on 27.07.1997 Appellant-Complainant had applied for 2 KW electricity
load in the prescribed application format. He also executed an agreement in the form
supplied by the Respondent, according to which he was required to maintain his own
line till service lines/LV mains were installed by the Respondent. He further agreed that
Respondent would not be responsible for any damage/loss to man or material from the
line maintained by him. Appellant-Complainant received a show cause notice dated
20.04.1998 from an Assistant Engineer of the Respondent informing him that a report of
theft of electricity had been lodged against him in Police Station Vasant Kunj as the
electricity load consumed by him had been assessed as 9.312 KW against the
sanctioned load of 2 KW and consequently a sum of Rs.2,42,998.75 ps. was demanded
from him. Appellant-Complainant made a representation to the Respondent pointing
out that in the second quarter of 1997 Respondent had advertised in leading
newspapers
that
all
those
who
are
having
houses
or
plots
in
the
authorized/unauthorized colonies can obtain an electricity connection by paying charges
@ Rs.75/- per square yard which was later on increased to Rs.95/- per square yard,
which he had done and, therefore, it was with malafide intention that this complaint had
been made by the Respondent’s Assistant Engineer and Lineman to whom he had
refused to pay a bribe. The electricity connection provided to the AppellantComplainant had also been illegally disconnected on 18.04.1998. Further, the
allegation that there was 9.312 KW electricity consumption was incorrect because
Appellant-Complainant
had
never
applied
for
more
than
2
KW
to
the
Respondent. Being aggrieved by the action of the Respondent, Appellant filed a
complaint before the State Commission on grounds of unfair trade practice and
deficiency in service and sought a total compensation of Rs.9,87,546/-, which included
the following :
“(A)
For the quashing/cancellation of
2,42,995-75
demand raised in the Provisional Bill
dated 20.4.1998
(B)
For
the
amount
Compensation/Loss
in incurrage of
of
Additional
Diesel Cost of Rs.100/- per day
since 20.4.1998
73,000-00
(C)
On
account
of
compensation,
5,50,000-00
mental harassment, agony, torture,
lowering in the estimation of his
Friends,
Colleagues,
relatives,
Social Circle and Business Circle
(D)
For loss in Business Income, since
1,00,000-00
20.4.1998 upto the date of filing this
complaint
(E)
On account of charges for legal
5,500-00
notice fee paid to the counsel by the
complainant
(F)
For the restoration of the NonDomestic
Electricity
calculated
at
the
16,048-00”
Connection,
rate of 25%
charges for development obtained
from
the
complainant
by
the
Respondent/Opposite Party
3.
When the case came up before the State Commission, Respondent/Opposite
Party did not submit any reply, written version or affidavit by way of evidence. The
State Commission, therefore, on the basis of evidence produced before it partly allowed
the complaint by observing as follows :
“6.
So far as the allegations of direct theft of electricity is concerned it
has no basis particularly in view of the aforesaid clause 7 of the
agreement between the parties that till service lines/L.V. Mains are
installed by DVB complainant shall maintain his own line and that DVB will
not be responsible for any loss/damage to man/material from the line
maintained by the complainant.
7.
As regards the allegation of having used higher load than the
sanctioned load the OP has neither filed any reply nor any material to
show and prove the said allegation. Even otherwise connection was
granted on 29-07-1997 and it was disconnected on 18-04-1998 on the
basis of the show cause notice dated 18-04-1998. In between no
inspection of the premises was ever done by the OP. Furthermore, the
subsequent policy of the OP advertised in the National newspapers in the
second quarter of the year 1997 i.e. much prior to the show cause notice
and the disconnection of the electricity that all those houses or plots in
authorized or unauthorized colonies can obtain electric connection by
paying charges @ Rs.75/- per sq. yd. and the complainant had made the
payment and the connection was granted.
8.
The cumulative effect of the agreement between the parties as well
as subsequent advertisement and lack of evidence on the part of the OP
to prove the allegation of having used more load than the sanctioned load,
particularly when the OP did not lay down the main line and service
lines/L.V. mains and allowed all the consumers to maintain their own line
at their own risk, the demand was wholly unjustified and illegal.”
The State Commission, therefore, quashed the demand of Rs.2,42,998.75 ps. raised by
the Respondent against the Appellant-Complainant on account of electricity
consumption. However, no other relief as prayed for was granted. Hence, the present
appeal seeking compensation.
5.
Learned Counsel for both parties made oral submissions.
6.
Learned Counsel for the Appellant stated that even though the State Commission
had concluded that there was deficiency in service on the part of Respondent and thus
quashing the wrong demand of Rs.2,42,998.75 ps. made by Respondent, it erred in not
awarding any compensation since the Appellant had been left without any electricity
following its disconnection in 1998. When queried by us regarding the present status of
electricity, Counsel for the Appellant stated that in 2004 Appellant had taken another
similar connection in the name of his son and, therefore, from that year onwards he did
have electricity supply in his premises but prior to that there was no electricity
connection from 1998. Therefore, he had been deprived of the same for about 6 long
years from 1998 to 2004, for which the compensation has been requested.
7.
Learned Counsel for the Respondent while confirming that it had accepted the
order of the State Commission and had also refunded the amount of Rs.2,42,998.75 ps.
to the Appellant as directed by the State Commission, contended that as per the policy
of the Respondent two commercial electricity connections cannot be sanctioned for one
premises and, therefore, Appellant cannot now claim restoration of his own electricity
connection since he had already been sanctioned another connection in the name of his
son.
8.
We have considered the submissions made by learned Counsels for the parties
and have also gone through the evidence on record. We agree with the order of the
State Commission that the Respondent had wrongly disconnected Appellant’s power
supply and, therefore, the sum of Rs.2,42,998.75 ps. demanded by it was not
justified. Respondent had accepted this order and had refunded the amount. While we
agree with the contention of Counsel for the Respondent that as per the policy two
commercial electricity connections cannot be sanctioned in the same premises, the
Appellant needs to be compensated for the 6 long years during which period he was
wrongly deprived of the electricity connection. After taking into account the facts and
circumstances of this case, we are of the view that a compensation of Rs.2 Lakhs is
justified and reasonable. We, therefore, partly allow this appeal and in the partial
modification of the order of State Commission direct the Respondent to also pay the
Appellant a sum of Rs.2 lakhs as compensation within a period of 8 weeks, failing which
it will carry interest @ 9% per annum for the period of default.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3862 OF 2012
(From the order dated 6.09.2012 in First Appeal No.1698/2010 of the
M.P. State Consumer Disputes Redressal Commission, Bhopal)
Mr. Dinesh Kumar Namdeo S/o Sh. Badri Prasad Namdeo R/o Akashwani Colony
Katanga, Jabalpur (MP)
..…. PETITIONER
Versus
M.P. Housing Board C/o The Estate Manager/Estate Officer MP Housing Board
Rewa, Distt. Rewa (MP)
..... RESPONDENT
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: In person
PRONOUNCED ON: 4th April, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner/complainant challenging the
order dated 6.9.2012 passed by the M.P. State Consumer Disputes Redressal
Commission, Bhopal (‘State Commission’ for short) in F.A. No.1698 of 2010 by which
the State Commission accepted the appeal of the respondent/opposite party and set
aside the order dated 30.4.2010 passed by the District Forum, Rewa in consumer
complaint No.247 of 2009. By its order in question, the District Forum had allowed the
complaint of the petitioner in terms of the following directions:-
“1. The respondent is ordered to return an amount of Rs.1,60,000/which was illegally received by raising the cost of the house from
Rs.7,26,000/- to Rs.8,86,000/-within 30 days. The respondent should
also pay the interest of 12% on the said amount from 17.12.2009 till
the date is returned. The respondent also pay an amount of
Rs.10,000/- as financial lose, mental and physical harassment during
the mentioned period separately.
2. The respondent should bear the self expenses and also the suit
expenses of appellant and will pay Rs.1,000/- as the cost of the case.”
2.
The factual matrix of this case in brief are that the respondent Board had
advertised and invited offers for Junior HIG houses of estimated price of Rs.7,26,000/-.
It had been clarified by the respondent Board that the actual cost will be assessed after
construction of the house. The houses were completed in 2010 and on completion, the
price calculated came to Rs.8,86,000/-. The entire amount was paid by the petitioner
and he was allotted a house on 3.9.2009 and the sale deed was also executed on
7.5.2010. After occupying the house, the petitioner filed a complaint before the District
Forum for refund of Rs.1,60,000/- which was the difference between the amount
charged by the Board and the estimated price indicated in the advertisement. The
District Forum allowed the complaint vide its order reproduced above. The State
Commission while reversing the order of the District Forum has recorded the following
finding in support of the impugned order:-
“The perusal of the advertisement shows that it was made clear at
the inceptive stage that the cost of the house was estimated cost and
the allottee will pay the final cost after completion of the house. It is
not a case where escalation is being demanded but the case where
final cost of the house is being charged. Under these circumstances,
we are of the view that the allottee was not entitled to refund of
difference between the two amounts namely estimated amount and
the final cost.”
3.
We have heard the petitioner who has himself pleaded his case. The basic facts
of this case are not in dispute and the State Commission has passed the
impugned order non-suiting the claim of the petitioner based on the admitted factual
position and conditions of allotment which were already known to the petitioner. He has
not produced anything which would persuade us to take a different view. The impugned
order of the State Commission being a fair and just order, we do not see any reason to
differ with it. The revision petition, therefore, is dismissed in limine with no order as to
costs.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…………Sd/-………..………..
(SURESH CHANDRA)
SS/
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1014
OF 2011
with
I.A. No.01 of 2011 (Stay Application)
I.A. No.01 of 2011 (Condonation of Delay)
I.A. No.03 of 2011 (Exemption Application)
(From the order dated 12.10.2010 First Appeal No.617/2008 of the State
Commission, Maharashtra)
Mr. Vijaykant Motilal Kothari R/at -6/C, Motibaug, Pune –Satara Road Pune – 411037.
…Petitioner
Versus
M/s. Safire Hotel Private Limited Through its Director, Mr. Bhupendra P. Shroff, Address
: 39/1-A, Wellesly Road, Sangam Bridge, Pune – 411001.
…Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. S.N. Bhat, Advocate with
Mr. N.P.S. Panwar, Advocate
For the Respondent
:
Ms. Meenakshi Lekhi, Advocate with
Ms. Pooja Jain, Advocate
Pronounced on: 4th April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present petition has been filed under Section 21 (b) of Consumer Protection Act,
1986 (for short, ‘Act’) challenging order dated 12.10.2010, passed in (FA No.617 of
2008) whereby Consumer Disputes Redressal Commission, Mumbai (for short, ‘State
Commission’) dismissed the appeal of petitioner/complainant.
2.
Brief facts are that petitioner entered into an agreement with respondent/O.P. for
purchase of a shop in Sangamvadi Town Planning Scheme, Pune. The consideration
amount was paid and petitioner was put in possession of the shop on 10.7.2001. It is
alleged by the petitioner that respondent failed to provide following amenities as per the
agreement:“(i)
Respondent has not provided two driveways to the shop from
Pune Mumbai Highway as per the Agreemen;.
(ii)
No separate electricity meter is provided for the shop of the
petitioner and
(iii)
Respondent has not formed an Association of apartment
holders or a Co-op Society or a Ltd. Company as provided in
the agreement.”
3. Alleging
aforesaid
deficiency,
petitioner filed consumer complaint
before
District Consumer Disputes Redressal Forum, Pune (for short, ‘District Forum’)
4.
Respondent in its written statement took an objection that complaint is hopelessly
barred by limitation, as cause of action arose on 30.12.2000 when agreement was
executed between the parties and petitioner was put in possession of shop on
10.7.2001. Whereas, the complaint has been filed in the year 2005, which is beyond the
period of limitation. It is denied that driveways to the shop of the petitioner had not been
provided. It is stated that such driveways have been constructed by respondent as per
the specifications given in Annexure –E to the complaint. The same is complete and is
being used by the petitioner as an access to the shop premises. It is also stated that
until a separate electricity meter is provided to the petitioner, a stopgap arrangement
has been made. A sub-meter is provided to each shop premises and shop owners have
been paying electricity consumption charges in accordance with those sub-meters.
Petitioner is also receiving electricity supply through a separate sub-meter and is
making payment thereof to the respondent.
5. District Forum, vide order dated 16.4.2008, partly allowed the complaint
and passed following directions;
“The complaint is partly allowed.
The order dtd. 31/Jan/2008, passed by this Forum is hereby
made absolute.
Subject to the complainant depositing with the opposite party, the
requisite amount towards legal charges, share money, stamp
duty & registration charges, within a period of two months from
the date of this order, the opposite party is directed either to form
& register a co-operative housing Society, a condominium of
apartment holders or a company and to further execute
conveyance in favour of such legal entity, within a period of four
months from the date of receipt of the amounts, as ordered herein-above from the Complainant.
The opposite party is hereby directed to provide the driveways to
the shop of the Complainant, as specified in the agreement,
within a period of two months from the date of this order.
However, it is made clear that in case the Opposite party has
already provided the driveways to the Complainant’s shop, this
order would automatically stands vacated.
The
complainant
is
at
a separate electricity meter
a
from
liberty
the
to
obtain
Maharashtra
State
Electricity Distribution Company Ltd., by preferring an application
to that effect before the competent authorities. It is hereby made
clear that in case, the complainant chooses to prefer such an
application then, in such a case, the opposite party shall
handover the
requisite
‘No
Objection
Certificate’ to
the
complainant, subject to the recovery of all dues towards the
electricity charges.”
6.
Not satisfied by the order of District Forum, petitioner filed an appeal before the
State Commission which dismissed the same, vide impugned order.
7.
Being aggrieved, petitioner filed (Writ Petition No.9298 of 2010) before the High
Court of Maharashtra which vide its order dated 9.12.2010, dismissed the said writ
petition.
8.
Aggrieved by the order of High Court, petitioner filed (Special Leave Petition
No.3740 of 2011) in the Apex Court. The same was dismissed as withdrawn by the
petitioner with liberty to take all steps available to him in accordance with law.
9.
Now,
petitioner
has
filed
present
petition alongwith application
seeking condonation of delay of 73 days as well as application seeking exemption from
filing the certified copy of the impugned order.
10.
Respondent
has
filed
written
reply
to
this
petition
as
well
to the application for condonation of delay.
11.
We have heard learned counsel for the parties and gone through the record.
12.
Grounds on which condonation of delay has been sought read as under;
“ 3.
After the disposal of the appeal before the State Commission,
the petitioner consulted his local counsel to take further steps in the
matter. The local counsel advised him to file a writ petition before
the High Court of Judicature at Mumbai. Accordingly, the petitioner
filed a writ petition before the High Court of Judicature at Mumbai in
the month of November, 2010.
4.
The High Court by its order dated 9.12.2010 dismissed the
writ petition filed by the petitioner.
5.
After disposal of the writ petition, the petitioner was advised to
file a special leave petition before the Hon’ble Supreme Court of
as
India. As per the advised, the petitioner filed a special leave petition
before the Hon’ble Supreme Court of India on 29.1.2011.
6.
The Hon’ble Supreme Court of India by its order dated
18.2.2011 dismissed the special leave petition as withdrawn with
liberty to take all steps which are available to the petitioner in
accordance with law.
7.
Thereafter the petitioner collected case papers from his
counsel and sent the same to present counsel to file review petition
before this Hon'bleCommission. After receiving the case papers, the
counsel for the petitioner prepared the draft of the revision petition,
applications
and
sent
to
the
same
to
petitioner alongwith proforma of the affidavits. After receiving the
same, the petitioner sent duly corrected revision petition and
affidavits alongwith duly
sworn
affidavits
and
duly
executed vakalatnama to the counsel in Delhi. The counsel for the
petitioner in Delhi received the same in the second week of March,
2011 and got the matter ready for filing.
8.
The appellant-petitioner submits that in the circumstances
herein above, a delay of 73 days has occurred in filing the above
mentioned revision petition.
9.
The appellant-petitioner submits that the said delay caused in
filing the above mentioned revision petition is neither deliberate nor
intentional but the same has occurred in the circumstances narrated
herein above.”
13.
The gist of the grounds cited in application for delay is that, petitioner earlier
challenged the order of State Commission by way of writ petition before Mumbai High
Court. However, vide order dated 9.12.2010, Mumbai High Court dismissed the writ
petition. Thereafter, petitioner filed Special Leave Petition in the Apex Court which was
withdrawn with liberty to take steps as available under the law.
14.
In this context, it would be pertinent to refer to a decision of Hon’ble Supreme
Court
in “M/s
Advance
Scientific
Equipment
Ltd.
& Anr.
Vs.
West
Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil)
Nos. 17068-17069/2010, decided on 9 July 2010) in which Court observed interalia as
under;
“ ……We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction”.
15.
The, Hon’ble Supreme Court in “Anshul Aggarwal Vs. New Okhla Industrial
Development Authority, IV (2011) CPJ 65(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”.
16.
Decision
of Anshul Aggarwal (supra) has
in Cicily Kallarackal Vs.
Vehicle
Factory,
IV
been
(2012)
reiterated
CPJ
1(SC)
1, wherein Hon’ble Supreme Court observed;
“4
This Court in Anshulal Aggarwal v. NOIDA, (2011) CPJ 63 (SC)
has explained the scope of condonation of delay in a matter
where the special Courts/Tribunals have been constituted in order
to provide expeditious remedies to the person aggrieved and
Consumer Protection Act, 1986 is one of them. Therefore, this
Court
held
that
while
dealing
with
the
application
for condonation of delay in such cases the Court must keep in
mind the special period of limitation prescribed under the statute
(s).
5.
In the instant case, condoning such an inordinate delay without
any sufficient cause would amount to substituting the period of
limitation by this Court in place of the period prescribed by the
Legislature for filing the special leave petition. Therefore, we do
not see any cogent reason to condone the delay.
6.
Hence, in the facts and circumstance of the case as explained
hereinabove, we are not inclined to entertain these petitions. The
same are dismissed on the ground of delay”.
17. Hence, in view of the decision of M/s Advance Scientific Equipment Ltd.
(supra) High Court ought not to have entertained the writ petition, since petitioner had
an effective alternate remedy available under the Consumer Protection Act,
1986. Under these Circumstances, act of petitioner in approaching a wrong forum, will
not entitle him to have the delay condoned.
18. Accordingly, we find no just and sufficient cause to condone the long delay of 73
days in filing of the present petition. Application for condonation of delay without any
merit as well having no legal basis is not maintainable.
19.
Even otherwise, complaint filed by petitioner before the District Forum was
hopelessly barred by limitation. Respondent in its written statement has taken a specific
plea that the complaint which has been filed in the year 2005, is beyond the period of
limitation.
20.
Averments regarding cause of action made in para 22 of the complaint, read as
under;
“The complainant most humbly submits that the cause of
action for the present complaint firstly arose when the opponent
executed the agreement referred to herein and promised to
provide various amenities including ones not provided so far. It
further arose when the opponent was called upon by way of legal
notice dated 3rd March, 2005 not only to complete/provide the
incomplete amenities but also to form either an Association of
Apartment Holders/ a Co-operative Housing Society/Limited
Company as required under the prevailing laws and to execute
conveyance. The complainant submits that none of these
amenities have been provided by the opponent so far. The
conveyance too has not been executed as per the provisions of
law. There is, therefore, a continuous cause of action. The
complaint of the complainant is thus well within the period of
limitation prescribed by law.”
21.
Thus, cause of action firstly, arose on 30.12.2000 when the agreement was
executed between the parties. Accordingly, complaint ought to have been filed by
30.12.2002.
22.
Section 24-A of the Act, deals with such situation and the same is
reproduced as under ;
“24-A. Limitation period :-
(1) The District Forum, the State
Commission or the National Commission shall not admit a complaint
unless it is filed within two years from the date on which the cause of
action has arisen.
2) Notwithstanding anything contained in sub-section (1) a complaint
may be entertained after the period specified in sub-section (1), if the
complainant satisfies the District Forum, the State Commission or the
National Commission, as the case may be, that he had sufficient
cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless
the Commission, the State Commission or the District Forum, as the
case may be, records its reasons for condoning such delay.”
23.
The above provision is clearly peremptory in nature requiring the
Consumer Fora to see at the time of entertaining the complaint, whether it has been
filed within the stipulated period of two years from the date of cause of action.
24. In State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC)
(CP) = JT 2009 (4) SC 191, Apex Court, while dealing with Section 24A of the Act, held;
8.
It would be seen from the aforesaid provision that it is
peremptory in nature and requires consumer forum to see before it
admits the complaint that it has been filed within two years from the
date of accrual of cause of action. The consumer forum, however,
for the reasons to be recorded in writing may condone the delay in
filing the complaint if sufficient cause is shown. The expression,
‘shall not admit a complaint’ occurring in Section 24A is sort of a
legislative command to the consumer forum to examine on its own
whether the complaint has been filed within limitation period
prescribed thereunder. As a matter of law, the consumer forum must
deal with the complaint on merits only if the complaint has been filed
within two years from the date of accrual of cause of action and if
beyond the said period, the sufficient cause has been shown and
delay condoned for the reasons recorded in writing. In other words,
it is the duty of the consumer forum to take notice of Section 24A
and give effect to it. If the complaint is barred by time and yet, the
consumer forum decides the complaint on merits, the forum would
be committing an illegality and, therefore, the aggrieved party would
be entitled to have such order set aside.”
25.
Thus, complaint filed before the District Forum was hopelessly barred by
limitation. The District Forum ought not to have admitted the complaint at all. Further, by
serving the legal notice or by making representation, the period of limitation cannot be
extended by the complainant. In this context reference can be made to the law laid
down
by Hon'bleSupreme
Court
in
the
judgment
reported
as “Kandimalla Raghavaiah & Co. Versus National Insurance Company Ltd. and
another 2009 CTJ 951 (Supreme Court) (CP) wherein it has been held;
“By no stretch of imagination, it can be said that
Insurance Company’s reply dated 21st March, 1996 to the
legal notice dated 4th January, 1996 declining to issue the
forms for preferring a claim after a lapse of more than four
years of the date of fire, resulted in extending the period of
limitation for the purpose of Section 24A of the Act. We have
no hesitation in holding that the complaint filed on
24th October, 1997 and that too without an application
for condonation of delay was manifestly barred by limitation
and the Commission was justified in dismissing it on that
short ground.”
26.
Even on merits, petitioner has no case in view of the concurrent findings of fact
given by the two fora below.
27.
District Forum, in its order has held;
“It cannot be disputed that the agreement made in between
the parties on 30.12.2000 would be binding upon the parties. The
agreement dtd. 30.12.2000 would be binding upon the parties. The
agreement dtd. 30.12.2000 governs the rights, title & interests of the
parties, vis-à-vis the relief regarding the alleged conveyance. We
may refer to clause No.(24) of the agreement dtd. 30.12.2000. It
pertains to the obligation of the Opposite party to execute the
conveyance infavour of a co-operative society or a condominium or a
company. Certain deposit amount was required to be kept by the
purchaser for execution of such conveyance. Unfortunately, the exact
amount which was required to be deposited with the Opposite party is
left blank. We do not know if any deposit towards the formation of the
society and consequent conveyance thereof is made by the
complainant or otherwise. The complaint is totally silent in this regard.
The concluding paragraph of clause No.(25) of the agreement is
relevant for our purpose. It provides that only after deposit of such
sums towards stamp-duty & registration charges, as mentioned in
clause No.19 of the agreement, the shop-purchasers shall be entitled
to conveyance. There is, therefore, an obligation on the part of the
complainant to deposit certain amount with the Opposite party. Only
on such deposit being made, which shall be towards the stamp-duty
and registration charges, the complainant shall be entitled for
conveyance. As stated earlier, the complaint is totally silent in this
regard. The exact amount is not specified in the agreement. We do
not know if any deposit was paid to the opposite party by the
complainant. The payment of deposit is, therefore, a condition
precedent before the complainant shall be entitled to the conveyance.
Said condition prima-facie has not been complied with by the
complaint, and therefore, the delay attributed on the part of the
Opposite party is not justified.”
28.
The State Commission, while concurring with the order of District Forum,
observed;
“It
is
the
fact
that
opponent
has
not
provided
the separate meter to the appellant. The appellant is taking the
electric supply from the sub-meter. Till May 2006, there was no
dispute regarding the payment of electricity charges. After May
2006 the appellant stopped paying electricity charges. The
appellant could not prove that the bills were excessive, arbitrary
and exorbitant. No doubt, the appellant is entitled for a separate
electric meter and for the electric meter, No Objection Certificate
of the Respondent is necessary. However, it is the responsibility
of the appellant to clear the outstanding bills. Accordingly, the
opponent is directed to issue No Objection Certificate for getting
the independent meter.
Executing the conveyance is the legal responsibility of the
opponent and for executing the conveyance the opponent should
register a cooperative Housing Society or a company or the
Association of shop purchasers. It is a fact that the opponent has
not initiated the process. In this context, the agreement is binding
on both the parties. Clause No.24 explains the obligations of both
the parties. Clause No.24 reads thus“Commencing a week after notice in writing is
given by developer to the shop purchaser that the
shop is ready for use and occupation, the shop
purchaser shall be liable to bear and pay the
proportionate share (i.e. in proportion to the floor
area of the offices) of outgoings in respect of the said
land and building namely, local taxes, betterment
charges or such other levies by the concerned Local
Authority and/or the Government, water charges,
insurance, common lights, repairs and salaries of
clerks, sweepers chowkidars and other expenses
and maintenance of the said land and building until
Society or Limited Company or an Association of
Apartment Owners is formed and the said building is
transferred to it, shop purchaser shall pay to the
developer such proportionate share of outgoing as
may be determined.”
The opponent has not complied with the condition Clause 24.
The Learned counsel has not pointed out that the condition of Clause
24 is complied by the appellant. Taking into consideration the
obligation and legal responsibilities of both the parties, the Forum
below made observations regarding the execution of conveyance.
The Forum below passed the order after taking into
consideration the pleadings of both the parties and we do not find
anything wrong with the order passed by the Forum below.”
29.
Thus, looking from any angle, we do not find any illegality or infirmity in the
impugned order passed by the State Commission. Present revision petition being
barred by limitation as well as having no merit and without any legal basis, is hereby
dismissed
with
cost
of
Rs.10,000/-
(Rupees
Ten
Thousand
only). Petitioner is directed to pay/deposit the cost by way of demand draft in the
name of respondent, within four weeks from today.
30.
In case, petitioner fails to pay the aforesaid cost, within the prescribed period,
then he shall also be liable to pay interest @ 9% p.a., till realization.
31.
List on 17.5.2013 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
MEMBER
Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 1885 of 2008
(From the order dated 03.01.208 of the Uttar Pradesh State Consumer
Disputes Redressal Commission, Lucknow in Appeal no. 536/SC/2005)
K N Kandpal Son of Shri S R Kandpal Resident of A 206 Rajendra Nagar Bareilly
Present Address 17 C Vaibhav Suncity V istaar P S Izatnagar
Petitioner
Versus
1. M/s Alliance Builders and Contractors Ltd. Office Neelkhanth Flats
Stadium Road Manging Director Shri A S Bagga P S Baradari, Bareilly
2. Shri Ramandeep Singh Son of Shri Gurucharan Singh Director Alliance Builders and
Contractors Ltd Neelkhanth Flats, Stadium Road P S Baradari, Bareilly
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr S K Ghosh, Advocate with
Ms Rupali Ghosh, Advocate
For the Respondent
Mr Nikhil Jain, Advocate
Pronounced on 4th April 2013
ORDER
REKHA GUPTA
Revision petition no. 1885 of 2008 has been filed under section 21 (b) of the
Consumer Protection Act, 1986 against the order dated 03.01.2008 passed by the Uttar
Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State
Commission’) in appeal no. 536/SC/2005 and 591/SC/2005.
The brief facts of the case as per the petitioner are as follows:
The petitioner resides along with all members of his family at A
–
2006, Rajendra Nagar, Bareilly. He required a house. In order to purchase the house,
the petitioner contacted respondent no. 1 who builds houses in Sun City Extension. A
booklet was given about this house in which salient features of the houses were
described. Respondent no. 1 assured the petitioner that best quality material would be
used in the house. On this assurance, the petitioner agreed to purchase a house no. 20
C Vaibhav in Suncity Extension. House no. 20 C Vaibhav was changed as house no. 17
C Vaibhav by the respondent.
Respondent no. 1 is Alliance Builders and Contractor Ltd., who is engaged in
building and selling of houses. Respondent no. 1 who is a builder who carry out the sale
of plots and execute the construction work on the sold plots through their Managing
Director, Director, Engineers etc., who are respondents no. 1, 2 and 3 in petition.
Respondent no. 1 is responsible for the works.
Agreement was executed between the petitioner and respondent no. 1 for the sale
of a house 20 C Vaibhav which was later on changed as 17 C Vaibhavat a cost of
Rs.6,15,000/-. The cost of the plot was for Rs.33,414/- and the cost of building material
and labour charges was Rs.5,81,586/- and in total Rs. 6,15,000/- was agreed to be paid
by the petitioner to the respondent no. 1 for the plot and the cost of construction. The
petitioner is the consumer of the respondent in respect of house no. 17 C Vaibhav.
The petitioner paid Rs.5000/- as advance to the respondent no. 1 on 16.02.2009
and after that he paid Rs.55,000/- to respondent no. 1. In total Rs.6,00,000/- was paid to
the respondent no. 1 afterwards the sale deed of the plot whose area was
167.07 sq meter was executed and the petitioner got its possession.
On 31.05.1999 an agreement was made between the petitioner and respondent
no. 1 according to which the respondent no. 1 was to construct the house on plot no. 17
C Vaibhav. An amount of Rs.5,81,586/- was to be paid by the petitioner for the
construction of the house and the respondent no. 1 having got the possession from the
petitioner, was to construct the house within 10 months and returns for the possession
to the petitioner.
The petitioner transferred the possession of the house no. 17 C Vaibhav to the
respondent no. 1 for construction on 31.05.1999. Then after 23 months from 31.05.1999
the respondent handed over the possession of the house 17 C Vaibhav on 19.05.2001
to the petitioner. During this period the petitioner had to make alternative residential
arrangements.
After getting the possession of house no. 17 C Vaibhav on 19.05.2001 and coming
into it to live in, the petitioner come to know that the building material which was used in
the construction was of very bad and cheap quality. The cement, saria, iron, timber,
bricks etc., which were used in the construction of floor, walls, doors, chaukhats, roof,
outlets of water, road drainage etc., were of bad and cheap material, due to which
house no. 17 C Vaibhav was not living worthy and could fall down at any time. There
was continuous danger for the lives of the petitioner and the members of his family. The
petitioner made verbal and written complaint about these defects several times but the
respondents did not pay any attention to any complaint of the petitioner and the
respondent did not remove the above said defects.
“After living in house no. 17 C Vaibhav, the petitioner came to know that the
respondent no. 1 used inferior and cheap building material in the construction of house,
so the cracks occurred on the roof of the house. Due to cracks in the roof, it was leaking
down and water leaks from these cracks due to which the water stored inside the house
17 C Vaibhav. The house is not living worthy. The walls of the house are downwards.
The walls of the house are going down because bad and cheap saria, cement and
cement with much sand and was under in the foundation and much sand was used in
the plaster made on the walls so that the plaster is coming down from the walls and
because
of
the
walls
going
down.
There
is
danger
of
roof
falling. Surkhi, Chuna, gatta were to be provided on the roof of the house no. 17
C Vaibhav which were not provided by respondent no.1. So that water leaks from the
roof because of cracks in the roof, it may fall down at any time which is not be repaired.
There is a need of constructing the house afresh after dismantling it. The cracks of the
roof are not fit to be repaired. Inferior and cheap timber has been used in the chaukhat,
windows, doors etc, of the house no. 17 C Vaibhav so that due to rain and winter effect,
door and windows do not shut properly. These do not get their place due to gaps and do
not shut properly. The foundation being not good and due to use of bad and cheap
cement and bricks the walls are going down into the earth which may fall at any time.
Besides it, the floor of the house is not labelled because before flooring the inner side
was not labelled so that the water does not flow properly and the water is stored here
and there on the floor. Coloured chips were not used in the floor. More sand was used
in the plaster on walls and cement was used in less quantity. Because of the sand being
in more proportion the cement on roof and walls did not set properly. Sand is coming
out. Two gates were to be provided in the house no. 17 C Vaibhav which only one small
and light in weight gate was provided. The electric wiring and switches of cheap and
inferior quality were used. The floor was incomplete and unlevelled so that water is
stored and the blocks are shrinking. The floor is breaking. As such, the construction of
the house 17 C Vaibhav was made of inferior building material which is not to be
repaired. There is a need of dismantling it and reconstructing it, so that the petitioner is
suffering mentally, economically and physically. The house hold things which are kept
inside the house are decaying.
The house of the petitioner 17 C Vaibhav was constructed by the respondents,
inside which the facility which are to be provided in this society, were not provided. Due
to cheap and inferior building material cement etc., used in the construction, cracks
have developed in the roof and it has leaned down, water is leaking. The house may fall
down at any time. The plaster of the walls is coming out. Because of it the house needs
to be reconstructed, for which the existing construction is to be dismantled, as such an
amount of Rs.6,55,000/- will be required for its reconstruction the construction of the
house is very bad because of lacking service, carelessness and using cheap and
inferior building material, paint, steel, timber etc. and is not living worthy for the
petitioner and the members of his family as it may fall at any time due to cracks in the
roof and its leaking. So that there is a need of reconstruction for which the petitioner
made complaints to the respondents several times, but they do not pay any attention
and they are using delay tactics. Because of it, the petitioner has to file this complaint
before the Hon’ble Forum. An expert time of Rs.6,55,000/- is estimated in dismantling
the house and its reconstructions. This may be paid by the respondents to the
petitioner”.
The respondents have however, has stated in their written statement that “the
statement of the petitioner that the house no. 17 C Vaibhav was changed in place of 20
C Vaibhav Suncity Extension by the respondent, is completely wrong and baseless for
which the petitioner, himself requested the respondent for change of house no. 17 C in
place of 27 C, the respondents accepted the request of the petitioner. There is no fault
of the respondents and accordingly an agreement for 17 C Vaibhav was executed
between the petitioner and respondents.
The statement of the petitioner that material used in the construction of the house
was of cheap and inferior quality is completely incorrect and baseless, which the fact is
that all the material used in the construction of house is of high quality and standard
company. The statement of the petitioner that he made any complaint and the
respondent did not pay any attention is completely false and baseless, which the fact is
that the petitioner wants to create pressure on this petition and blackmail us.
As per the agreement executed between the petitioner and the respondents, the
responsibility of the respondents was up to the roof lavel. After it the responsibility of the
roof treatment was of petitioner. The petitioner has not done it till date and the petitioner
is holding responsible for it to the respondent for which the petitioner has no right.
The statement of the petitioner that inferior quality saria, cement and much sand in
proportion etc., was used in the foundation, is incorrect and baseless.While the
respondents got all the construction done with high quality material by the standard
contractors under the supervision of skilled engineers.
The statement of the petitioner that electric wiring and switches were used in the
house is of very cheap and inferior quality. While the respondents provided all the
electric wiring and switches of standard quality. Besides, here the most important fact
the respondents have made about 1000 houses under this scheme and no complaint
has been received from any one. Only the petitioner and a few other person of his group
have filed this petition because of their vested interests based on false facts and just to
trouble the respondents. Because all these persons collectively have threatened if the
respondents do not admit their statements then they will file the suit.
According to the agreement executed between the petitioner and respondents, the
house was to be white washed inside it with dry distemper but at the request of the
petitioner the respondents white washed it with oil bond paint without charging any extra
expenditure while the cost of oil bond painting was three times more than dry distemper.
The statement of the petitioner that this house may fall down at any time and he
has to reconstruct it is completely false and baseless. The house in question is
completely up to the mark and there is no need of its reconstruction and repair. As far
as the roof treatment is concerned, it is the responsibility of the petitioner which he did
not carry out knowingly till date for which the respondent is not bound”.
The District Consumer Disputes Redressal Forum, I, Bareilly (‘the District Forum’)
has discussed the case at length in their judgment dated 28.02.2005. After hearing the
counsels and going through the records, as also the reports given with regard to the
house both by the petitioner and the respondents. The District Forum came to the
following conclusion:
“The statement of the petitioner that the house way fall down at any time, does not
appear to be true. This also does not appear to be true that there is a need of
reconstruction of the house after dismantling it. The report of the architect which has
been filed by the petitioner does not mention that the defect of the house are beyond
repair. Shri Rukmesh Kumar has mentioned that cracks in the walls have occurred due
defects in the foundation and the floor has shrunk. The water out let on the roof is not
proper. The work was not executed as per PWD norms. The roof treatment was not
carried out. Deep cracks in the slabs occurred due to storage of water. In the opinion of
forum, all these defects are repairable. The petitioner could not prove that cheap and
inferior quality building material was used in the construction. But it is proved that cracks
in the roof and walls have occurred due to not providing roof treatment and for its repair,
the respondent is responsible. In the opinion of the forum the expenditure on repair
maybe Rs.40,000/- for which the petitioner is entitled to get the compensation. Besides
it, the petitioner is entitled for Rs.5,000/- as cost of the suit.
The respondent did not provide roof treatment even after realizing Rs.1,26,400/for it from the petitioner due to which cracks occurred in the roof of the house. Due to
storage of water, cracks occurred in the walls, the flooring was found defective.
Because of water outlet not being proper on the roof, cracks occurred in the linter joints.
In the opinion of the forum, the respondent is responsible to pay Rs.40,000/- to the
petitioner for the repair of all these defects. Through witnesses it is provided that the
petitioner asked the respondent several times to remove these defects but they did not
pay any attention to it. The petitioner is entitled to get Rs.5,000/- from the respondent on
the cost of the suit, and he is entitled to get back Rs.1,26,400/- from the respondents”.
The District Forum directed that “the petition is decided against the respondents
and the respondent is directed to refund Rs.1,26,400/- which he realised from the
petitioner for roof treatment but he did not execute the roof treatment, so that the
petitioner may carry out this work. The respondent is also directed to pay Rs.40,000/- to
the petitioner as compensation to remove the defects in the construction of the house
and the rent @ 2,500/- for 13 months should be paid to the petitioner. The order should
be complied within a month otherwise interest @ 9% per annum on the whole amount
will be paid by the respondent. The respondent will also pay Rs.5,000/- to the petitioner
as cost of the suit”.
Not satisfied by the order of the District Forum, the petitioner has filed an appeal
before the State Commission. The State Commission after hearing the counsels for the
parties and perused the records and observed as under:
“It is also significant to note that the complainant had entered into possession of
the house in question on 19.05.2001 but did not lodge any protest at the time of taking
possession on that day, although a deed was executed certifying delivery of
possession. Not only this but also not within a reasonable time any notice was served
upon the builders so as to bring to their notice the details of the alleged defects of the
house and ask them to remove the same. The learned counsel appearing
for Shri Kandpal made a reference to a letter dated 15.07.2002 which was despatched
to the builders. This notice was sent 14 months after the delivery of possession and
although many defects were pointed out but not an iota of mentioned was made about
the roof treatment. In case the builders failed to carry out the roof treatment in
accordance with the terms and conditions of the agreement, it should have certainly
being recited in this letter.
The complaint was filed more than three years after the delivery of possession and
prior to the filing of the complaint, no report of an architect had been obtained in support
of the complainant’s version. A report which was procured during the pendency of the
complaint (Paper nos. 15o to 154) was got without any instruction from the District
Consumer Forum. It was a one sided report submitted without seeking any instructions
from the District Consumer Forum. Even this report does not say that the house had
been rendered to a pitiable condition within a short span of 3-4 years. It simply refers to
certain defects in the plaster on walls but the defects do not appear to be so serious as
to cause any threat to the very existence of the house. If there was any seepage of
water through the roof, it could be very well repaired and this seepage either in the walls
or the roof after four years of the house had been delivered cannot be subscribed to the
defects in construction activity so as to hold the builders responsible either for repair of
these defects or for awarding damages. In this context, it would be relevant to observe
that if there was any defect in the roof, the water would have percolated during the first
rainy season of 2001 but there is nothing on record to show that within the first year of
the complainant’s occupation of the house any such defects came to light. We are,
therefore, not convinced that the seepage in the roof or cracks in the wall or any other
repairs required after four years of the delivery of the possession would be subscribed
to the builder for being asked to either carry out the repairs or remove the defects.
Every building is subject to the adverse effects of the weather which includes air,
moisture and sunshine and if any decay happens on account of these adversaries, the
occupant of a building is expected to look after them and carry out repairs. A builder
cannot be held responsible to remove all the defects for all times to come. In our
considered opinion, neither there is any warranty nor a guarantee of the construction
work. If a house resist the water of rains, bright sun, moisture hot and cold winds for a
period of one year, it can be said to have fulfilled all the qualities of a good construction.
In the case in hand, the house of the complainant did not develop any defect for 14
months as can be derived from the above discussions, therefore, the builders cannot be
asked either to refund the money allegedly assigned to the roof treatment or to carry out
the repairs pointed out.
In the result, the appeal of Shri K N Kandpal fails and is hereby dismissed. The
other appeal filed by M/s Alliance Builders and Contractors Limited is hereby allowed
and the judgment in appeal quashed. Resultantly the complaint of Shri K N Kandpal is
hereby dismissed”.
Hence, this present revision petition.
The main grounds given are as follows:
- the State Commission erroneously recorded that the estimate of cost of
construction issued by the respondents is a forged and fictitious document. Without
appreciating that the said document was issued by the respondents, which were
countersigned by their Chartered Engineer. That in the said document the estimate
quoted by the respondent for 5 cm thick line concrete terracing on the roof of the brick
ballast with white lime and surkhi in ratio of 100:32:16 and including supply of all
materials labour and tools and paints etc., required for proper completion of the work
was Rs.1,26,400/-. Hence, the State Commission erroneously and in a perverse
manner, ignoring the documents on record, observed, “……. We would be at our
dismay to observe that a sum of Rs.1,26,400/- was earmarked whereby for roof
treatment of house, the estimated value of which was agreed to be as Rs.6,15,000/-“.
And in and erroneous manner set aside the order passed by the District Forum
awarding the compensation for not undertaking the roof treatment by the respondent.
- the State Commission committed gross error by totally ignoring the report of the
advocate Commissioner, the photographs and the videography which clearly
established the deficiency of service of the respondent in constructing the house of the
petitioner.
- the State Commission has committed gross error of law by observing in the
impugned order that there was no warranty or guarantee of the construction work. It is
submitted
that
the
instant
case
is
a
classic
example
of
the
principle
of res ipsa loquitor. The condition of the house as evident from the report of the
Architect, the Advocate Commissioner, and the photograph produced before the District
Forum goes to prove beyond any doubt that there is deficiency in service on the roof of
the respondent in constructing the house and the respondent used substandard and
poor material for the construction of the house.
- the State Commission committed grave error by observing that the since the
house did not develop any defect for 14 months the builder cannot be asked either
refund the money allegedly assigned to the roof treatment or to carry out the repairs. It
is submitted that the aforesaid observation is not only perverse but the same contrary to
the records of the case. That the petitioner have been complaining to the respondent
about the poor quality of construction immediately after occupying the house, and
secondly a house under no circumstances can develop cracks on the roof within a
period of 14 months unless the construction is of poor quality and substandard materials
for constructions was used. It is submitted that manual 2003 issued by Government of
India the minimum life of land bearing structure is all least 55 years.
We have heard the learned counsel for the parties and carefully gone through the
records of the case. Counsel for the petitioner insisted that the house was very poorly
constructed. He however, could not explain why the written complaint regarding defects
in the house were made after fourteen months. Though he kept on referring to a letter
purportedly sent to the respondent in the year 2001, the same could not be produced.
He could not also confirm whether the same had been filed before the District Forum. It
is an undisputed fact that with reference to additional affidavit filed on behalf of the
petitioner that the said premises were handed over to the petitioner on 19.05.2001.
Petitioner stated that he made repeated complaints to the respondents however, there
is no written evidence of the same. The first complaint is dated 15.07.2002 wherein the
petitioner has written to the respondent as follows:
“Dear Sir,
This
goes
out
to
inform
you
that
House
no.
17
–
C Vaibhav,
Sun City, Vistaar was occupied by the undersigned after full payment formalities.
I am facing several problems in the house now, viz., widespread cracks under
and over the roof causing threat to the occupants. The cracks are getting wider
and thicker and even a little rain that poured down last month has ruined the
ceiling fans and electrical wirings and has caused the water to ooze out. Walls
and floors on the other hand, too are showing the signs of dilapidation. At several
places loose plaster has lost its grip and few squares of marbled floor have been
shaking separately without any firmness with the rest of the part.
Although this has been to the notice to the concerned authorities earlier, but a
deaf ear was being offered to the reminders that followed. A staff team of yours
did have a look at the condition and some repair work has also been
accomplished by fits and starts, but it seems that they have really not gone deep
into the groove of the problem and a lot more needs to be done for rectifying the
prevailing discrepancies.
I, therefore, earnestly hope you will look after the matter seriously and get the
needful done at the earliest to avoid any further damage and danger. An early
reply and favourable action will be appreciated”.
It is also evident from the records that the complaint before the District Forum was
filed on 04.06.2003 well after the two years period of limitation from the date he took
possession. It is also a fact that all the reports of experts produced by the petitioner
were those appointed by him. There is no evidence on record of any expert appointed
by the District Forum. All the reports also were with reference to the conditions of the
house in 2004, i.e., four years after he got the possession. In this context we would
agree with the State Commission that if there was any defect in the roof, the water
should have percolated during the first rainy season of 2001 but there is nothing on
record to show that within the first year of the complainant’s occupation of the house
any such defects came to light. Further, that every building is subject to the adverse
effects of the weather which includes air, moisture and sunshine and if any decay
happens on account of these adversaries, the occupant of a building is expected to look
after them and carry out repairs. A builder cannot be held responsible to remove all the
defects for all times to come. As neither is there any warranty nor a guarantee of the
construction work in perpetuating. If a house resists the water, rain, bright sun,
moisture, hot and cold winds for a period of one year it can be said to have fulfilled all
the qualities of a good constructions. In the case in hand, there is nothing on record to
show that the house of the complainant had developed any serious defects in the first
fourteen months. Even in his complaint, before the District Forum, while the petitioner
has given elaborate details of defects and the so called examples of poor construction
he has not mentioned the dates on which these were brought to the notices of the
respondents and action taken by them. He has also given no details of complaints in
writing or reference to any letter addressed to the respondents in this regard before
15.07.2002. He has by his own admission admitted that he has been residing in the
house since 19.05.2001, so it is indeed surprising to note that the house lived in by the
petitioner and his family since 19.05.2001, was in such a deplorable condition and yet
no repairs had been carried out by the petitioner to keep his house in a liveable
condition.
As
per
the
report
dated
18.03.2004
of
Ms Abha Agrawal,
Addl.
Commissioner. “The switches were not fixed properly and were not working
satisfactorily. The out let of the water was not found proper. Water was stored in the
bathroom. The condition of windows and doors were not found proper. The doors of the
bed room were found unfixed. Termite was seen in the widows. The floors of the room
were found downed so that the glass fitted in the floor struck the feet. Water was found
stored here and there on the floor. Water taps were found loose. The drains outside the
house was found flowed the out let of the water was found abstracted”. This only gives
evidence of a house which has not been given adequate maintenance and repairs by its
owners.
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.10,000/(Rupees ten thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 10th May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3879 of 2012
(From the order dated 28.05.2012 of the Delhi State Consumer
Disputes Redressal Commission, Delhi in Appeal no. 593 of 2009)
Manoj Kumar Resident of C – 112 Narwana Co-operative Group Housing Society 89, I
P Extension Patparganj Delhi – 110092
Petitioner
Versus
Narwana Cooperative Group Housing Society Ltd., 89, I P Extension Patparganj Delhi –
110092
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Soumya Chakraborty, Advocate
Pronounced on 4th April 2013
ORDER
REKHA GUPTA
This revision petition no. 3879 of 2012 has been filed against the order dated
28.05.2012 passed by the Delhi State Consumer Disputes RedressalCommission, Delhi
(‘the State Commission’) setting aside the order dated 27.05.2009 of the District
Consumer Disputes Redressal Forum (East) Saini Enclave, Delhi (‘the District Forum’).
The brief facts of the case given by the petitioner in the complaint are as follows:
The petitioner had purchased flat no. C – 112 through General Power of Attorney
executed between Shri Krishan Das son of Shri Jai Gopal c/o Sri DurgaProvision Store,
Shop no. 10 Sarvpriya Vihar, Hauz Khaz, New Delhi - the executants in favour
of Shri Rajinder Kumar son of Shri Raj Kumar resident of IX/6778,Shyam Gali, Gandhi
Nagar, Delhi. This General Power of Attorney was duly registered by the Sub-Registrar
of Seelampur, Delhi dated 31.01.1995. As per terms and conditions of the General
Power of Attorney, he claimed to be entitled to file this complaint case against
the Narwana Cooperative Group Housing Society Ltd., Delhi.
The Narwana Cooperative Group Housing Society Ltd., Delhi obtained the
membership of Delhi Housing Finance Co., to provide the loan to its allottees of flats.
For repayment of loan from its allottees of flats, the Narwana Cooperative Group
Housing Society Ltd., stood as guarantor on behalf of the allottees. The loan taken
by Shri Krishan Das the original allottee of flat no. C – 112 was duly repaid
by Shri Rajinder Kumar the General Power of Attorney holder vide receipt no. 2574
dated 18.03.1995 for Rs. 65,548/-.
Against the repayment of loan of Rs.65,548/- the share money between Rs.8,000/to Rs.9,000/- was payable by the respondent society to Shri KrishanDas the
original allottee of the flat. But the respondent society has not paid this share money as
yet.
The respondent society has issued a statement of demand for the quarter ending
on 30.06.202 (including arrear dues upto 31.03.2002) for Rs.9310/- against paid
services charges e.g., common lights, lifts, generator pump house, sweepers,
electrician and plumber etc. On the contrary the respondent society is not providing
proper service.
Petitioner is ready to pay the service charges in future in case the respondent
society gives an undertaking in writing to provide proper services in future.
The respondents taking objections has stated in their written statement has stated
as follows:
The present complaint filed by the complainant is not maintainable under law, as
the Hon’ble Consumer Disputes Redressal Forum is barred by jurisdiction under the
provisions of Delhi, Co-operative Society Act, 2003 and it was only the Registrar of the
Co-operative Society at Delhi, who has the jurisdiction to entertain any dispute inter-se
the members of the Society and the Managing Committee of the concerned Cooperative Society. The complaint is liable to be dismissed on this count alone.
The present complaint is not maintainable before this Hon’ble Forum as the
services rendered on no profit no loss basis are free of cost and thus outside the
purview of the Consumer Protection Act.
The present complaint is not maintainable under law due to the reason that the
complainant was/ is not the owner of the flat in question as per records maintained by
either the respondent society or the Registrar Co-operative Society, Delhi and as such
could not have demanded for the refund/ share money of the capital which had been
paid by the original allottee Shri K D Gupta could only be refunded to the owner on
record and not to the occupier of the flat and thus the complaint is liable to be
dismissed.
That the contents of paragraph no. 1 of the complaint are absolutely wrong and
hence denied emphatically. However, it is submitted for kind consideration of
this Hon’ble Forum that the complainant never resided in the Society, hence, the
question of availing the services of the society does not arise at all.
The District Forum in its order dated 27.05.2009 has stated that while Shri K D
Gupta may have been original allottee, “but subsequently, he (the petitioner) has step in
the shoe of Shri K D Gupta the original allottee therefore, he shall be treated
original allottee and he is entitled to get the benefit of the society towards the residents
of the flat in question. However, the version of the OP is liable to be believed that the
society is being run on no profit no loss basis. But if anything is due against the society
in favour of anybody, he has to pay. The complainant shall be treated as Member of the
OP society as the place of Shri K D Gupta original member of the society from whom
the complainant has acquired the flat in question. OP has also not filed documentary
evidences on record which proves that he has returned the share money to either any of
the allottees including Shri K D Gupta”.
Hence, the District Forum directed the “OP 2 to refund the share money to the
complainant Shri Manoj Kumar with the interest @ 6% per annum, from the due date till
the payment is made. As regards the quashing bills, the same is quashed at present.
However, the OP may raise the proper bill if the proper service is being provided to the
complainant in future. The complainant is also entitled for compensation of Rs.5000/- for
physical and mental harassment along with Rs.500/- cost of litigation from the OP which
shall be paid by him to the complainant”.
The State Commission, however, in its order was of the opinion “that Section 83 of
the Delhi Cooperative Society Act, 2003 very clearly and categorically places a bar on
courts tribunal or authority to decide or settle any dispute between the member and the
society. This has not been considered at all by the District Forum.
The respondent has contended that a finding may be obtained from the District
Forum on this legal issue therefore, the case may be remanded back to the District
Forum. We do not agree with the contention of the complainant in this regard. The
matter is apparently a legal issue, which we are deciding at this stage. It may be pointed
out that the complaint was filed in the year 2002 and it is near about a decade that it
was decided at present, therefore, no fruitful purpose will be served to remand this case
to the District Forum.
Under these circumstances, the appeal is allowed and the matter dated
27.05.2009 is hereby set aside, consequently the complaint no. 548 of 2002 filed by the
respondent shall stand dismissed”.
Hence, this present revision petition.
We have heard the learned counsel for the petitioner and have perused the
records carefully.
The main grounds taken are that the Hon’ble State Commission failed to
appreciate that the Central Legislature had consciously conferred a jurisdiction to the
forum or the Commission as the case may be which has wide amplitude to mitigate the
hardships of all consumers alike cutting across all walks of life.
- the State Commission failed to appreciate that deficiency in service provided by a
cooperative society would still attract the remedial provisions of the Consumer
Protection Act which is a social welfare legislation to the aid even of an occupant or a
beneficiary being consumers under the said Act.
- the State Commission failed to appreciate that assuming without admitting the
allegations of the respondent society to be true to the point that the petitioner herein is
not the original allottee but an occupant of the flat in question, the petitioner would still
be a consumer under Section 2 (d) (ii) of the Consumer Protection Act, 1986.
- the State Commission failed to appreciate that the question as to whether dispute
relating to deficiency in service against a cooperative society can be made before and
/or disposed of by a Consumers Forum is no more res integra as it is now well settled
that Consumer Forums enjoy wide additional jurisdiction even in respect of specific
remedies under other Acts.
The revision petition has been filed with a delay of 24 days. As per the application
for condonation of delay, the reasons given for the delay are as follows:
“The petitioner states that after hearing was concluded, the judgment was reserved
by
the Hon’ble State
Commission.
The
petitioner
was
appearing
before
the Hon’ble State Commission in person and as such was unable to keep track on the
daily cause list of the Hon’ble State Commission. As such the petitioner did not know as
to when the impugned judgment and final order was passed. It appears that the registry
of the Hon’ble State Commission despatched the envelope containing the certified copy
of the impugned judgment and final order on 04.07.2012 and the same was served
upon the petitioner on 07.07.2012.
Since the petitioner has at all material times been prosecuting the present case in
person and since his complaint was dismissed and the appeal of the respondent society
was allowed only on questions of law, the petitioner took some time in trying to
comprehend the true purports of the judgment. The petitioner who is otherwise a
businessman tried to take time off his busy schedule and study the appropriate remedial
measures. The petitioner even tried to draft the pleading but in the whole process lost
about a month of precious time. Thereafter the petitioner gave the file to a learned
Advocate who took about a month’s time to study the file and prepare the draft revision
petition. Even thereafter, the file was being shown to the present learned counsel of the
petitioner who also took about a month’s time to study the file and redraw the revision
petition as it reads now. Thereafter, the learned counsel for the petitioner took
necessary steps for filing the revision petition before this Hon’ble Commission with an
application for condonation of delay in filing the revision petition”.
The explanation and justification given for the delay is very general in nature
wherein no specific dates or the name of the advocate have been mentioned. The order
of the State Commission was received on 07.07.2012 and there are no details to show
what happened between the said date and 10.10.2012 the date of filing of the revision
petition.
The petitioner/complainant is supposed to explain the day-to-day delay, but
needful has not been done. The petitioner has failed to provide ‘sufficient case’ for the
delay of 24 days. This view is further supported by the following authorities.
In Anshul Aggarwal v. New Okhla Industrial
Development
Authority, IV
(2011) CPJ 63 (SC), it has been held that “It is also apposite to observe that while
deciding an application filed in such cases for condonation of delay, the Court has
to keep in mind that the special period of limitation has been prescribed under the
Consumer Protection Act, 1986 for filing appeals and revisions in consumer
matters and the object of expeditious adjudication of the consumer disputes will
get defeated if this Court was to entertain highly belated petitions filed against the
orders of the Consumer Foras”.
In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009)
SLT 701=2009 (2) Scale 108, it has been observed that “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”.
In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,
it has been observed that “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 Section 5. If ‘sufficient cause’ is
not proved nothing further has to be done; the application forcondonation 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 bonafides may fall for consideration;
but the scope of the inquiry while exercising the discretionary power after
sufficient cause is shown would naturally be limited only to such facts as the
Court may regard as relevant.”
In Sow Kamalabai,
W/o Narasaiyya Shrimal and Narsaiyya,
S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it
was held that “the expression ‘sufficient cause’ cannot be erased from Section 5
of the Limitation Act by adopting excessive liberal approach which would defeat
the very purpose of Section 5 of Limitation Act. There must be some cause which
can be termed as a sufficient one for the purpose of delay condonation. I do not
find any such ‘sufficient cause’ stated in the application and no such interference
in the impugned order is called for”.
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]”.
The present case is fully covered under the case laws cited above Supra.
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 24
days in filing the present revision petition. The application forcondonation of delay is
without any merit as well as having no legal basis and is not maintainable.
Consequently, the present revision petition being time barred by limitation and is
dismissed with cost of Rs.5,000/-. (Rupees five thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 10th May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4502 OF 2012
(From the order dated 5.07.2012 in Appeal No. 813/2011 & 925/2011 of the Tamil Nadu
State Consumer Disputes Redressal Commission, Chennai)
D. Thiruvateeswaran L 13 A, Sarvamangala Colony Ashoknagar, Chennai 600083
… Petitioner/Complainant
Versus
The Chief Executive Officer Central Govt. Employees’ Welfare Housing 6th Floor, “A’
Wing”, Janpath Bhawan, New Delhi – 110001
… /Opp. Party (OP)
REVISION PETITION NO. 4941 OF 2012
(From the order dated 5.07.2012 in Appeal No. 813/2011 & 925/2011 of the Tamil Nadu
State Consumer Disputes Redressal Commission, Chennai)
The Chief Executive Officer Central Govt. Employees’ Welfare Housing Organization
6th Floor, “A’ Wing”, Janpath Bhawan, New Delhi – 110001
… Petitioner/Opp. Party (OP)
Versus
D. Thiruvatteeswaran L – 13-A, Sarvamangala Colony Ashok Nagar, Chennai – 600083
(Tamil Nadu)
… Respondent/Complainant
REVISION PETITION NO. 4942 OF 2012
(From the order dated 5.07.2012 in Appeal No. 925/2011 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
The Chief Executive Officer Central Govt. Employees’ Welfare Housing Organization
6th Floor, “A’ Wing”, Janpath Bhawan, New Delhi – 110001
… Petitioner/Opp. Party (OP)
Versus
D. Thiruvatteeswaran L – 13-A, Sarvamangala Colony Ashok Nagar, Chennai – 600083
(Tamil Nadu)
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Mr. S. Thiruvatteeswaran, Petitioner in person
in R.P. No.4502/2012
Mr. Abhhijeet Sinha, Advocate
in R.P. Nos. 4941 & 4942/2012
For the Respondents :
Mr. Abhhijeet Sinha, Advocate
in R.P. Nos. 4502/2012
Mr. S. Thiruvatteeswaran, Respondent in person
In R.P. Nos. 4941 & 4942/2012.
PRONOUNCED ON 4th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
All these revision petitions arise out of a common order of learned State Commission
and; hence, decided by a common order.
2.
These revision petitions have been filed by the parties against the impugned
order dated 5.7.2012 passed by learned State Commission in Appeal No. 813/2011 –
The Chief Executive Officer Vs. D. Thiruvatteeswaran and Appeal No. 925/2011 D. Thiruvatteeswaran Vs. The Chief Executive Officer by which, while allowing appeals
partly, order of District Forum was modified.
3.
Brief facts of the case are that complainant petitioner was allotted a “D’” Type flat
in Paruttippattu in Poothamamallee - Avadi High Road by the opposite party on
24.2.2006. Complainant was to pay Rs.15,65,000/- as tentative cost of the flat in five
instalments. OP was to commence construction in December, 2006 and was to be
completed within 30 months. Complainant paid first 4 instalments by March, 2009 as
per schedule and further paid Rs.3,46,100/- being 50% of the estimated escalation cost,
under protest. On inquiry, OP projected that construction will be completed by May,
2010 and later on apprised that it would be completed by March, 2011. Complainant
has paid Rs.16,00,000/-, but still waiting delivery of the possession of the flat. Alleging
deficiency on the part of OP, complainant filed complaint before the District Forum and
claimed rent @ Rs.16,000/- per month for 20 months, Rs.90,000/- as compensation for
mental agony, Rs.70,000/- as interest on paid instalments and Rs.19,000/- as cost of
litigation. OP filed written statement and submitted that OP is an autonomous body
under the Ministry of Urban Development and Poverty Alleviation, Government of India
and works on “no profit no loss basis”. OP renders free service to the Central
Government Employees and complainant does not fall within the purview of
consumer. It was further alleged that tentative 30 months period for construction was
given. It was further submitted that complainant invested money for commercial
purpose; hence, complaint be dismissed. Learned District Forum after hearing both the
parties allowed complaint and directed OP to pay a sum of Rs.50,000/- as
compensation within one month, failing which, the said amount shall carry interest @
12% p.a. till payment. Both the parties filed appeal before learned State Commission
and the learned State Commission vide impugned order allowed both the appeals partly
and directed OP to handover possession of completed flat within 8 weeks and reduced
amount of compensation from Rs.50,000/- to Rs.20,000/- and further directed to pay
Rs.5,000/- as legal expenses against which, these revision petitions have been filed by
the complainant and OP.
3.
Heard the complainant in person and learned Counsel for the OP at admission
stage and perused record.
4.
Learned petitioner submitted that learned State Commission has committed error
in reducing amount of compensation, rather State Commission should have allowed
appeal and enhanced amount of compensation; hence, order of learned State
Commission be set aside and amount of compensation be enhanced. On the other
hand, learned Counsel for the OP submitted that learned State Commission has
committed error in upholding compensation of Rs.20,000/-, as OP works on “no profit no
loss basis”; hence, revision petition be allowed and order directing payment of
compensation be set aside.
5.
Parties apprised that OP has handed over possession of the flat to the
complainant on 13.3.2013. Thus, it becomes clear that order of State Commission
directing OP to handover possession has been complied with, though, with a delay of
about 6 months. Complainant had not prayed for delivery of possession in the
complaint and District Forum had also not directed OP to handover possession, but
State Commission directed to handover possession of flat and in consequence to that
order, possession has already been handed over to the complainant.
6.
Now, the question to be decided is; whether the amount of compensation is to be
enhanced or reduced or, as ordered by State Commission is to be upheld. Learned
District Forum has observed in its order that complainant has not filed any receipt
regarding payment of rent and in such circumstances, instead of granting compensation
towards rent, granted lump sum compensation of Rs.50,000/-, which has been reduced
to Rs.20,000/- by learned State Commission. Learned Counsel for OP submitted that
OP runs on “no profit no loss basis” and in such circumstances, learned State
Commission ought not to have granted Rs.20,000/- as compensation to the
complainant, whereas learned complainant submitted that instead of reducing amount
of compensation, it should have been enhanced. As OP is rendering service on “no
profit no loss basis”, as a welfare measure to provide houses to the Central Government
employees, we are of the view that compensation awarded by the learned State
Commission is reasonable and it need not be enhanced and in such circumstances,
Revision Petition No. 4502 of 2012 filed by the complainant/petitioner is liable to be
dismissed.
7.
As far as reduction of compensation awarded by the State Commission is
concerned, we do not feel it proper to reduce this amount of compensation because
possession of flat has been given to the complainant after 8 months of the impugned
order, whereas possession was to be given after 8 weeks. In such circumstances,
Revision Petition No. 4941 of 2012 and Revision Petition No.4942 of 2012 filed by the
petitioner/OP are liable to be dismissed.
8.
Consequently,
Revision
Petition
No.
4502
of
2012
filed
by
the
complainant/petitioner and Revision Petition Nos. 4941 & 4942 of 2012 filed by the
OP/petitioner against the impugned order are dismissed at admission stage 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. 904 OF 2013
(Against the order dated 09.11.2012 in First Appeal No. 241/2012
of the State Commission Haryana, Panchkula)
M/s Shree Balaji Woolen Mills Near Power Sub Station Kabri Road, Panipat Through its
Partner Sh. Satish Goel s/o Sh. Bal Kishandas Goel r/o H.No.329-R
Model Town, Panipat, Haryana
........ Petitioner
Vs.
The Oriental Insurance Co. Ltd. Regional Office, OIC Building IInd Floor, Road
Ambala Cantt., Haryana Through its regional Manager
......... Respondent
REVISION PETITION NO. 905 OF 2013
(Against the order dated 09.11.2012 in First Appeal No. 242/2012
of the State Commission Haryana, Panchkula)
M/s Shree Balaji Woolen Mills Near Power Sub Station Kabri Road, Panipat Through its
Partner Sh. Satish Goel s/o Sh. Bal Kishandas Goel r/o H.No.329-R
Model Town, Panipat, Haryana
........ Petitioners
Vs.
The Oriental Insurance Co. Ltd. Regional Office, OIC Building IInd Floor, Jagadhari
Road Ambala Cantt., Haryana Through its regional Manager
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
:
Mr.Manish Aggarwal, Advocate
PRONOUNCED ON 04th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1.
By this order, we propose to decide the above noted two revision petitions
involving similar question of law and fact.
2.
Briefly stated facts relevant for the disposal of these revision petitions are that the
petitioner ( complainant ) is engaged in manufacture of shody yarn, carpet yarn and
woollen yarn and he took two insurance policies from the respondent – company
bearing no. 250845 and 250846 having insurance cover of Rs. 65 lakhs and Rs. 60
lakhs respectively in respect of factory premises, machinery and stock etc. on the terms
and conditions detailed in the respective policies.
3.
Unfortunately on 28.04.2009, a fire took place in the premises of the petitioner (
complainant ) resulting in loss and damage to the factory premises, machinery and
stock etc. The complainant intimated the respondent – insurance company and the
respondent got the actual loss suffered by the petitioner through a competent surveyor
who vide his report dated 27.08.2009 assessed the loss suffered by the petitioner in
respect of both the policies to the tune of Rs.32, 01,729.25/.
4.
It is undisputed that the respondent – insurance company settled the claims of the
petitioner / complainant by giving a cheque of Rs.31,12,992/- in full and final settlement
of the claims of the petitioner under above noted insurance policy. At the time of
delivery of the cheque, the petitioner through its partner, signed a discharge receipt in
full and final settlement of his claims. 5. Case of the petitioner is that he received a
cheque of Rs.31,12,992/- under protest and he was compelled to sign the discharge
receipt in full and final settlement of his claims because of coercion and pressure
tactics adopted by the respondent / company. This according to the complainant
amounts to unfair trade practice as also deficiency in service. Accordingly, he filed two
separate complainants in respect of his respective claims under the above said
insurance policies.
6.
The claim petitions were contested by the respondent on the plea that the
petitioner having accepted the cheque of Rs.31,12,992/- in full and final settlement of
both his claims cannot be allowed to reagitate the same issue by filing the complaints.
7.
The District Forum Panipat on appreciation of facts and submissions made by the
rival parties, allowed both the complaints being complaint nos. 233 and 234 of 2010. In
complaint no. 233 of 2010, respondent was directed to pay to the complainant a sum of
Rs.2,48,185 with interest @ 8% p.a. w.e.f. 23.11.2009 besides litigation cost of
Rs.2200/-. In complaint No. 234 of 2010, the District Forum directed the respondent to
pay to the petitioner / complainant a sum of Rs.7,59,906/- with 8% interest p.a. w.e.f.
23.11.2009 besides litigation cost of Rs.2200/-.
8.
Respondent / insurance company being aggrieved by the above referred orders
of the District Forum preferred two separate appeals before the State Commission
Haryana. The State Commission taking note of the fact that the petitioner / complainant
on 23.09.2009 has settled the matter with the respondent and received cheque of
Rs.31,12,992/- in full and final settlement of both his claims and relying upon the
judgment of the National Commission in the matter of Raj Kumar Vs. United India
Insurance Co. Ltd. III (2011) CPJ 354 (NC), allowed the revision petition and
dismissed the complaint on the premise that having accepted the cheque in full and final
settlement of his claim, the petitioner could not have reagitated the matter. Being
aggrieved by the aforesaid orders of the State Commission in appeal, the petitioner has
preferred the above referred revision petitions.
9.
Learned Shri Manish Aggarwal, Advocate for the petitioner has contended that
the order of the State Commission in the respective appeals is not sustainable for the
reason that the State Commission has overlooked the facts which tend to show that the
petitioner because of the tactics adopted by the respondent / company was compelled
to sign the discharge voucher as the complainant was in dire need of finance to revive
his factory and run business. Learned counsel for the petitioner has taken us through
the correspondence between the parties as also the correspondence with the surveyor
appointed by the respondent / company. Expanding on the argument, learned counsel
for the petitioner submitted that the State Commission has failed to appreciate that
initially the petitioner had submitted the claim estimate for Rs.55 lakhs but later on after
carefully examining the records etc., the petitioner revised its estimate to Rs. 75 lakhs
and thereafter to Rs.87.29 lakhs. It is contended that the petitioner accepted the
cheque of Rs.31,12,992/- almost 2 ½ years after the fire incident against his claim of
Rs.87.29 lakh which itself is an indication that the respondent – company by not settling
the claim for such a long time had pressurised the petitioner to accept the full and final
settlement for a much lesser amount than the actual loss suffered by him. Thus it is
argued that impugned orders of the State Commission dismissing the complaints filed
by the petitioner suffers from illegality and as such are not sustainable.
10.
In support of his contention, learned counsel for the petitioner has referred to the
judgment of the Supreme Court in the matter of National Insurance Co. Ltd. Vs. M/s
Boghara Polyfab Pvt. Ltd. AIR 2009 Supreme Court 170 and the judgment of this
Commission in the matter of National Insurance Company Limited Vs. Vasavi
Traders I (2008) CPJ 487 (NC).
11.
We have considered the submissions made on behalf of the petitioner and
perused the record. Admittedly in the instant case, the petitioner did receive a cheque
of Rs.31,12,992/- from the insurance company against the final settlement of his claims
under the above noted two insurance policies. It is well settled that once had insured
had received the amount in full and final settlement of his insurance claim and signed
the discharge voucher, the insured claimant cannot be permitted to reagitate his claim
unless the claimant is able to establish that discharge voucher in question was obtained
by undue influence, fraud, misrepresentation or coercion etc.
12.
In the matter of National Insurance Co. Ltd. Vs. M/s Boghara Polyfab Pvt.
Ltd. while dealing with the question whether the discharge voucher signed by the
complainant would debar the claimant from agitating the issue, the Hon’ble Supreme
Court observed thus:
“We may next examine some related and incidental issues. Firstly, we
may refer to the consequences of discharge of a contract. When a
contract has been fully performed, there is a discharge of the contract by
performance, and the contract comes to an end. In regard to such a
discharged contract, nothing remains - neither any right to seek
performance nor any obligation to perform. In short, there cannot be any
dispute. Consequently, there cannot obviously be reference to
arbitration of any dispute arising from a discharged contract. Whether
the contract has been discharged by performance or not is a mixed
question of fact and law, and if there is a dispute in regard to that
question, that is arbitrable. But there is an exception. Where both parties
to a contract confirm in writing that the contract has been fully and finally
discharged by performance of all obligations and there are no
outstanding claims or disputes, courts will not refer any subsequent
claim or dispute to arbitration. Similarly, where one of the parties to the
contract issues a full and final discharge voucher (or no due certificate
as the case may be) confirming that he has received the payment in full
and final satisfaction of all claims, and he has no outstanding claim, that
amounts to discharge of the contract by acceptance of performance and
the party issuing the discharge voucher/certificate cannot thereafter
make any fresh claim or revive any settled claim. Nor can he seek
reference to arbitration in respect of any claim. When we refer to a
discharge of contract by an agreement signed by both parties or by
execution of a full and final discharge voucher/receipt by one of the
parties, we refer to an agreement or discharge voucher which is validly
and voluntarily executed. If the party who has executed the discharge
agreement or discharge voucher, alleges that the execution of such
discharge
agreement
or
voucher
was
on
account
of
fraud/coercion/undue influence practiced by the other party and is able
to establish the same, then obviously the discharge of the contract by
such agreement/voucher is rendered void and cannot be acted upon.
Consequently, any dispute raised by such party would be arbitrable.
Obtaining of undated receipts-in-advance in regard to regular/routine
payments by government departments and corporate sector is an
accepted practice which has come to stay due to administrative
exigencies and accounting necessities. The reason for insisting upon
undated voucher/receipt is that as on the date of execution of such
voucher/receipt, payment is not made. The payment is made only on a
future date long after obtaining the receipt. If the date of execution of the
receipt is mentioned in the receipt and the payment is released long
thereafter, the receipt acknowledging the amount as having been
received on a much earlier date will be absurd and meaningless.
Therefore, undated receipts are taken so that it can be used in respect
of subsequent payments by incorporating the appropriate date. But
many a time, matters are dealt with so casually, that the date is not filled
even when payment is made. Be that as it may. But what is of some
concern is the routine insistence by some government Departments,
statutory Corporations and government Companies for issue of undated
`no due certificates' or a `full and final settlements vouchers'
acknowledging receipt of a sum which is smaller than the claim in full
and final settlement of all claims, as a condition precedent for releasing
even the admitted dues. Such a procedure requiring the claimant to
issue an undated receipt (acknowledging receipt of a sum smaller than
his claim) in full and final settlement, as a condition for releasing an
admitted lesser amount, is unfair, irregular and illegal and requires to be
deprecated”.
National Commission while dealing with similar issue in the matter of National
Insurance Co. Ltd. Vs. Vasavi Traders (supra) observed thus:
“The complainant has submitted in his complaint that after 7 days of
receipt of Rs.3,45,968/-, the complainant had approached the Insurance
Company ( O.P.1) and demanded the balance amount which was
declined and he was asked to approach O.P.2. He further submitted
that since the entire stock was burnt and the business had come to a
stand still and because of financial crisis and heavy loss of interest the
complainant was constrained to sign on the discharge voucher, which
was in a printed format. Therefore, he had no option but to file a
complaint for the balance amount. This we feel is an act of coercive
bargaining indulged in by the insurance company. A distressed insured
person who has lost all means of earning his livelihood in a catastrophic
fire has no other choice but to accept any amount as an initial payment
in the first instance”.
13.
From reading of the above judgments, it is clear that whether or not the discharge
voucher / receipt signed by the party should amount to valid discharge of the liability of
the other party is a question of fact. If the signatory to the discharge voucher / receipt is
able to establish that he was compelled to sign the discharge voucher because of the
fraud, misrepresentation, pressure tactics or coercion etc. by the opposite party, he
would still be entitled to raise the issue in judicial forum dehors having sign the
discharge voucher. Now the question arises whether the petitioner has been able to
establish that he was compelled to sign the discharge voucher because of delay and
pressure tactics adopted by the respondent – insurance company. In this regard, it
would be relevant to note that Discharge Voucher was signed by the petitioner on
23.11.2009. The petitioner has placed on record a letter dated 06.10.2009 addressed by
him to the Senior Branch Manager of the insurance company which reads thus:
“Date 06.10.2009
The Sr. Branch Manager
Oriental Ins. Co. Ltd.
G.T.Road, Panipat
Sub: Fire loss on dt. 28.04.2009
Dear Sir,
With reference to the above, we hereby agree to accept
claim amount of fire loss of Rs.31,22,661/- in full and final
settlement of our claim.
An early action in the matter will be highly solicited.
Thanking you,
Yours faithfully
For Shree Balaji Woolen Mills
Sd/Partner”
14.
From this document, it is apparent that the petitioner himself has voluntarily
initiated the process of settlement of claim and as such it cannot be said that he was
coerced or compelled by the insurance company to settle his claims. Further, from the
perusal of the copy of the surveyor report placed on record, it is evident that surveyor
has quantified the loss suffered by the petitioner in respect of both the claim at
Rs.32,,01,729.25P. The amount of the loss quantified by the surveyor is more or less
matching with the amount of the cheque given to the petitioner in full and final
settlement of his claim against the Discharge Voucher signed by the petitioner on
23.11.2009. Therefore, we are of the view that the State Commission was right in
concluding that the petitioner has voluntarily accepted the cheque of Rs.31,12,992/- in
full and final settlement of his claims which are subject matter of this revision.
15.
In view of the discussion above, we do not find any illegality or infirmity in the
order of the State Commission dismissing the complaints of the petitioner in view of the
settlement arrived at between the parties, which may call for interference by this
Commission in exercise of its revisional jurisdiction. Revision petitions are, therefore,
dismissed in liminie. 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. 911 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1651/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opposite Parties (OPs)
Versus
A. Saida Reddy S/o Late Kasi Reddy R/o Flat No. G-1, Rohit Tower, Street No.
8, Vidyanagar, Hyderabad – 44 (A.P.)
…
Respondent/Complainant
REVISION PETITION NO. 912 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1652/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opp. Parties (OP)
Versus
D. Narasimha Reddy S/o Late D. Bal Reddy R/o H. No.11-451/1, Saroornagar
Hyderabad (A.P.)
…
Respondent/Complainant
REVISION PETITION NO. 913 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1653/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opp. Parties (OP)
Versus
Jinka Nagaraju S/o J. Narayana Swamy R/o H. No.301, Shyama Gayatri Nilayam,
Soubhagyapuram, Mohana Nagar Kothapeta, Hyderabad (A.P.)
…
Respondent/Complainant
REVISION PETITION NO. 914 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1654/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opp. Parties (OP)
Versus
V.K. Ashok S/o V. Radhakrishna Murthy, R/o Flat No. 102, Sai Rashmitha
Apartments Street No. 9, Balkampeta, Gandhi Nagar, Hyderabad (A.P.)
…
Respondent/Complainant
REVISION PETITION NO. 915 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1655/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opp. Parties (OP)
Versus
P. Sridhar S/o P. Koteswara Rao R/o Plot No. 484, Gayatri Nagar, Borabanda,
Hyderabad (A.P.)
…
Respondent/Complainant
REVISION PETITION NO. 916 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1656/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opp. Parties (OP)
Versus
B. Babu Rao S/o SV Subbaiah R/o H. No.1-1287/11/7, Bapunagar Chikkadpalli,
Hyderabad (A.P.)
…
Respondent/Complainant
REVISION PETITION NO. 917 OF 2013
(From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)
With
I.A. No. 1657/2013 (Stay)
M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-212/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by
its Managing Partner Sri P. Ravi Kumar
2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B
Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh
…Petitioners/Opp. Parties (OP)
Versus
1.
J. Pratap S/o J. Umamaheswara Rao,
2.
J. Nagendra S/o J. Umamaheswara Rao
3.
J. Ashok S/o J. Umamaheswara Rao R/o Flat No. 30-HIG, Block-2, Phase V,
KPHB Colony, Hyderabad (A.P.)
…
Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
:
Ms. Filza Moonis, Advocate
PRONOUNCED ON 4th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
All these revision petitions arise out of a single order of learned State
Commission and; hence, decided by a common order.
2.
dated
These revision petitions have been filed by the petitioners/OPs against the order
19.02.2013
passed
by
the
Andhra
Pradesh
State
Consumer
DisputesRedressal Commission, Hyderabad (in short, ‘the State Commission’) in FAIA
2908-2914/2012 in F.A. No. 731 – 737/2012 – A. Saida Reddy Vs. M/s. Veenus & S.V.
Projects & Anr. by which, application filed by the respondents for withdrawal of money
was allowed.
3.
Brief facts of the case are that the complainants/respondents filed complaints
before the District Forum, which were allowed and petitioners/OPs were directed to
return original sale deed and pay Rs.10/- per sft. per month from 13.3.2011 along with
Rs.50,000/- as compensation for mental agony and Rs.2,000/- as cost of the
complaint. Petitioner filed appeal before the learned State Commission and learned
State Commission passed the following order:
“Heard both sides. The opposite party, the builder/developer
preferred this appeal the order of the district forum directing him to
pay Rs.10/- per square feet from 13.3.2011 together with
compensation of Rs.50,000/- and costs of Rs.2,000/-.
The learned counsel for the appellant/opposite party contended that
in fact the order would not sustain, in the sense that they are ready
to construct the apartments and therefore, the order was unjust.
Equally the learned counsel for the complainant contended that the
agreement was executed on 14.3.2008 and till now permission was
not even obtained from GHMC. There was no progress in the
construction of the apartments. At any rate, by issuing notice he
had forfeited the deposit in terms of agreement. The District Forum
has only ordered payment of Rs.10/- per square feet besides
compensation and costs from 13.3.2011 apart from return of
original sale deed. All these questions would be considered at the
time of hearing. We do not intend to pre-judge the very issues
raised by both sides, suffice it to say in the interests of justice a stay
order can be passed which is equitable and just.
In the circumstances, the opposite party is directed to deposit half
of the amount awarded by the district forum which includes the
statutory amount within one month from today before the A.P. State
Commission. The learned counsel for the complainant requested
that he be permitted to withdraw the said amount. Considering the
circumstances, we are of the opinion that the learned counsel for
the complainant can as well move an application for withdrawal of
the amount, so that the same can be adjudicated on merits”.
4.
Complainants moved application for withdrawal of half of the amount awarded
by the District Forum inclusive of statutory deposit made by the OPs. Petitioners
contested application and learned State Commission vide impugned order allowed
withdrawal of amount lying with this Commission along with interest on furnishing
undertaking that in case appeals are allowed, the amounts withdrawn will be redeposited before the Commission.
5.
Heard learned Counsel for the petitioners at admission stage and perused record.
6.
Learned Counsel for the petitioners submitted that learned State Commission
ought not to have allowed withdrawal of amounts deposited by the petitioners, as
complainants have already forfeited Rs.5,00,000/- towards refundable deposit and
Rs.7,00,000/- towards non-refundable deposits and further submitted that if appeals of
the petitioners are allowed by the learned State Commission, it would be difficult for the
petitioners to recover this amount from the complainants/respondents. As such, learned
State Commission has committed error in passing impugned order, which may be set
aside.
7.
Learned State Commission stayed operation of the impugned order passed by
District Forum subject to depositing half of the amount awarded by the District forum. In
compliance to this order, OP deposited amount. Learned State Commission vide
impugned order allowed withdrawal of the amount lying with this Commission subject to
furnishing undertaking to refund of money in case appeals are allowed.
8.
Learned Counsel for the petitioners admitted that so far construction activity has
not started on the site and in such circumstances, order permitting withdrawal of amount
deposited by OP cannot be said to be unreasonable order, particularly, when order has
been passed subject to furnishing undertaking in case appeals are allowed,
complainants will re-deposit amount with the Commission. We do not find any illegality,
irregularity or jurisdictional error in the impugned order and revision petition is liable to
be dismissed at admission stage.
9.
Consequently, revision petitions filed by the petitioners are 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. 2195 OF 2012
(From the order dated 6.03.2012 in Appeal No. 53/2011 Rajasthan State Consumer
Disputes Redressal Commission, Jaipur (Circuit Bench at Kota)
Ramesh Chand Chourasiya S/o Nand Kisshor Chourasiya R/o 1541-A, R.K. Puram
Kota (Rajasthan)
… Petitioner/Complainant
Versus
Wazid Ali S/o Abdul Hamid R/o Narain Paan Wale Ki Gali, Bajaj Khana Kota,
Prop. Nio Builders, Bajaj Khana, Kota (Rajasthan)
… Respondent/Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
:
Mr. M.P. Saxena, Advocate
4th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
impugned order dated 6.3.2012 passed by the Rajasthan State Consumer
DisputesRedressal Commission, Jaipur (Circuit Bench at Kota) (in short, ‘the State
Commission’) in Appeal No. 53 of 2011 – Wazid Ali Vs. Ramesh Chand Chourasiya by
which, while allowing appeal, ex-parte judgment passed by the District Forum was set
aside and parties were directed to appear before District Forum.
2.
Brief facts of the case are that petitioner/complainant entered into an agreement
with OP/respondent for construction of a house and paid Rs.3,61,000/-, whereas only
Rs.2,10,000/- were spent in construction. Alleging deficiency on the part of respondent,
petitioner filed complaint before the District Forum on 14.8.2008. Learned District
Forum proceeded ex-parte against OP vide order dated 30.8.2010 and ex-parte
judgement was passed on 1.2.2011. Application filed by the OP for setting aside exparte decree was dismissed by District Forum vide order dated 1.2.2011. OP filed
appeal against ex-parte judgement of District Forum before learned State Commission
and learned State Commission vide impugned order set aside the ex-parte judgement
and remanded the matter back to the District Forum 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 learned State Commission has
committed error in setting aside ex-parte judgment passed by learned District Forum;
hence, revision petition be admitted.
5.
Perusal of impugned order reveals that notice of complaint to OP was not sent by
District Forum, but was sent by complainant himself, which was not in accordance with
law and in such circumstances, learned State Commission has not committed any error
in setting aside ex-parte judgement. We do not find any infirmity, illegality or
jurisdictional error in the impugned order and revision petition is liable to be dismissed
at admission stage.
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. 1138 OF 2008
(From the order dated 27.11.2007 in Appeal No.1503/2001 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
Life Insurance Corporation of India Northern Zonal Office, Jeevan Bharti Building,
Connaught Place, New Delhi – 110 001 Through its Assistant Secretary (L&HPF)
…
Shri J.C. Ahuja
Petitioner/Opposite Party (OP)
Versus
Shri Ganesh Lal S/o Late Sh. Ramchandra Ji Joshi R/o Daroga Mohalla, Bhopal Ganj,
…
Bhilwara (Rajasthan)
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
PRONOUNCED ON
:
Mr U.C. Mittal, Advocate
:
Mrs. Vikas Jain, Advocate
5th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the order dated
27.11.2007 passed by the Rajasthan State Consumer Disputes RedressalCommission,
Jaipur (in short, ‘the State Commission’) in Appeal No. 1503 of 2001 – LIC Vs.
Ganesh Lal by which, appeal filed by the petitioner was dismissed.
2.
Brief facts of the case are that the Complainant No.1 / Respondent obtained joint
policy of Rs.50,000/- in his name along with his wife Mrs. Ram Kanya Devi from
OP/Petitioner on 28.3.1992. As per terms of policy, on death of anyone, survivor was to
receive amount payable under the policy. Mrs. Ram Kanya Devi wife of Complainant
No. 1 and mother of Complainant No. 2 to 4 died on 28.8.1994. Claim preferred by the
Complainant No. 1 was repudiated by OP. Complainants alleging deficiency on the part
of OP filed complaint before District Forum. OP contested complaint and submitted that,
as deceased was suffering from mental illness and this fact was suppressed while
taking policy, OP has not committed any error in repudiating claim; hence, complaint be
dismissed. Learned District Forum after hearing both the parties allowed complaint and
directed OP to pay the amount of policy with 12% p.a. interest. 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 while taking policy, material
facts regarding mental diseases were suppressed by Mrs. Ram Kanya Devi. It was
further submitted that as the insured committed suicide within 3 years of taking policy,
complainants are entitled to get only refund of payment of premium and learned State
Commission has committed error in dismissing appeal and learned District Forum
committed error in allowing complaint; hence, petition be accepted 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 deceased Mrs. Ram Kanya Devi committed
suicide. Learned State Commission has observed in paragraph 10 as under:
“10. There is also no dispute on the point that since the
deceased had committed suicide, therefore, Mug FIR
bearing no.31/94 u/s 174 was registered with the police
station city Kotwali, Bhilwara in which police had come to the
conclusion that her mental condition was not good, therefore,
she had committed suicide”.
6.
Thus, it becomes clear that insured Mrs. Ram Kanya Devi committed suicide on
28.8.1994. Perusal of record further reveals that proposal for taking Insurance Policy
was made on 24.3.1992 and policy was issued on 24.11.1992, whereas suicide was
committed on 28.8.1994 meaning thereby, suicide was committed within a period of 3
years from taking Policy. Learned counsel for the petitioner has drawn our attention
towards Resolution No. 4 (b) according to which, in case of suicide by a female within 3
years of taking policy, the Insurance Company is liable to refund only the premium paid
by the insured without interest. Deceased Mrs. Ram Kanya Devi has signed Resolution
4 (b) which is binding on the deceased and the complainants and in such
circumstances, complainants are entitled to receive only premium paid towards this
policy and are not entitled to policy amount. Learned counsel for the petitioner has also
placed
reliance
on
(1998)
7
SCC
348
– Life
Insurance Corpn.
of
India Vs. Dharam Vir Anand in which, it was held that Clause 4 (b) is binding on the
parties and if death by suicide occurs within a period of 3 years from the date of policy,
liability of insurer is limited, as provided under Clause 4 (b). Thus, it becomes clear
that, as insured Mrs. Ram Kanya committed suicide within a period of 3 years from the
date of policy, complainants are entitled only to the refund of premium paid towards
policy and are not entitled to receive policy amount and learned State Commission has
committed error in dismissing appeal and learned District Forum has committed error in
allowing complaint.
7.
Learned Counsel for the petitioner further submitted that record reveals
that Mrs. Ram Kanya suppressed material facts regarding her mental sickness and
treatment and on this count also, complainants are not entitled to any compensation.
We need not to deal this aspect as OP/appellant is bound to refund only the premium
amount received from Mrs. Ram Kanya without interest.
8.
Consequently, revision petition filed by the petitioner is partly allowed and
impugned order dated 27.11.2007 passed by learned State Commission in Appeal No.
1503/2001 is set aside and order of District Forum dated 4.10.2001 allowing complaint
is modified and petitioner/OP is directed to refund amount of premium received from
deceased against this policy with 12% p.a. interest from 30.4.1996, the date of
repudiation of claim till realization.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1804
OF 2007
(From the order dated 7.3.2007 in Appeal No.112/2006
of the State Commission, Hyderabad, Andhra Pradesh)
M/s. Hero Honda Motors Limited 34, Basant Lok, Vasant Vihar, New Delhi – 110057
Through its Senior Manager-Legal Mr. P.M. Agarwal
…Petitioner
Vs.
Shri Katakam Mallikarjuna Rao
Son
of Shri Kotaiah,
Asstt.. Manager
Andhra
Bank,
Thimmasamudram N.G. Padu Mandal Prakasam District (A.P.)
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. G.L.N. Murthy, Advocate
For the Respondent
:
Nemo
Pronounced on : 5th April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 7.3.2007, passed by A.P. State Consumer
Disputes Redressal Commission,
Hyderabad
(for
short,
‘State
Commission’)
petitioner/opposite party no.4 (before District Forum) has filed the present revision
petition.
2.
Case
of
respondent/complainant
before
District
Consumer
Disputes Redressal Forum, Praksam (for short, ‘District Forum’) is that he purchased
Hero Honda Splendor NSP motor cycle from M/s. Associated Auto Services (O.P. No.1
before District Forum) being dealer of O.Ps. No.2 to 4 (before District Forum) for a sum
of Rs.46,606/- on 26.2.2003. Within one month of its delivery, respondent noticed rust
on the petrol tank and several defects in clutch cover, magnet cover, etc. These defects
were brought to the notice of O.P. No.1 at the time of service on 24.03.2003. O.P. No.1
told respondent that it would rectify the defects by changing the defective parts within 24
hours. As a prudent man and believing their words, respondent waited for some time.
Even at the time of second service on 28.05.2003, O.P. No.1 promised respondent that
it would rectify the said defects. On 25.11.2003, O.P. No.1’s engineer inspected the
motor cycle and noticed some defects, but could not rectify the same. Therefore,
respondent approached District Forum seeking direction to the opposite parties to
refund cost of motor cycle, i.e. Rs.46,606/- with subsequent interest at 24% per annum
from the date of purchase; to direct opposite parties to pay Rs.1,00,000/- towards
mental agony and costs of Rs.13,300/-.
3.
O.P. No.1 in its counter stated, that after delivery of vehicle it rendered service to
the respondent without any inconvenience to him as per manual with utmost
satisfaction. There are no mechanical defects in the vehicle. Their engineers observed
that there are no manufacturing defects in the engine and respondent never raised
problem regarding pick up of the vehicle. There is no deficiency in service on its part.
4.
On the other hand, O.Ps. No.2 to 4 in their counter denied allegations regarding
defects alleged by the respondent in the petrol tank, clutch cover, magnet cover etc. It is
stated that respondent after availing all the free services, started making frivolous
complaints to O.P. No.1. Further, complaints regarding pick-up in the vehicle and
rusting of petrol tank was made in September, 2003, after almost eight months of its
purchase and that too after plying the same for about 8000 kms.
5.
On the basis of documentary evidence filed by both sides i.e. Exs.A.1 and B.1 to
B.7 and the pleadings put forward by both parties, District Forum, dismissed the
complaint, holding that there was no deficiency of service on the part of opposite
parties.
6.
Being aggrieved by the order of District Forum, respondent filed appeal before
the State Commission, which vide its impugned order, allowed the appeal and set aside
the order of District Forum and directed O.Ps. No.2 to 4 alone to take back the vehicle
and pay a sum of Rs.25,000/- to the respondent. It also awarded compensation of
Rs.10,000/- and costs of Rs.2,000/-.
7.
Being aggrieved, petitioner (O.P. No.4) alone has filed this revision.
8.
On 18.2.2003, at the time of arguments for admission hearing only counsel for
petitioner appeared, whereas none appeared on behalf of the respondent.
9.
We have heard the learned counsel for the petitioner and considered the written
arguments filed by both the parties and gone through the record.
10.
It has been contended by learned counsel for petitioner that respondent has not
produced any evidence much less expert evidence in support of his case. It is further
contended that State Commission merely on the basis of assessed value of the vehicle
by an engineer has passed the non-speaking order. It wrongly set aside the wellreasoned order of the District Forum. Further, the State Commission did not appreciate
that no evidence was produced by the respondent. Merely, on the ground that
respondent has stated that he is not happy with the vehicle, the order of District Forum
was set aside. Learned counsel in support has also relied upon number of judgments.
11.
On the other hand, respondent in its written arguments has stated that there was
manufacturing defects in the vehicle which was not removed or attended to by the
petitioner, despite several requests and complaints made by him. He had requested for
replacement of the vehicle, but his request was turned down by the petitioner.
Moreover, there is no jurisdictional error in the impugned order. As such,
present revision petition filed under section 21(b) of the Consumer Protection Act,
1986, is not maintainable.
12.
District Forum while dismissing the complaint has held;
“ 9.
The main case of the complainant is that the vehicle
purchased by the complainant was defective and the opposite
party did not change the vehicle. It is admitted fact by the opposite
party that the complainant purchased the vehicle from the opposite
party. The documents, filed by the complainant, which were
marked as Ex.A1 to A8, were mainly legal notices 5 in number.
The form 23 of registration certificate, warranty card, office copy of
the requisition letter of the complainant only, the complainant did
not file any document to show that the vehicle delivered to the
complainant by the opposite parties is a defective vehicle, the
document such as mechanic opinion, 3rd party opinion who is
expert or the opinion of any 2 wheelers showroom. In the absence
of any documentary evidence by the experts in the motor
mechanic field we are unable to come to the right conclusion that
the motor vehicle supplied to the complainant is a defective one.
10.
Admittedly, the complainant purchased the vehicle on
26.2.2003 and the Ex.A1 owner’s manual with warranty card
shows that the warranty period is 2 years or 30,000 Kilometers
from the date of purchase. The complaint was filed on 15.03.2005
just before going to completion of the warranty period there is
lapse of more than totally 2 years and 7 months. The complainant,
if there is any defect, has to produce the vehicle before this forum
and to show to produce the qualified mechanics opinion. The
complainant requested this forum to issue new vehicle after
utilizing the vehicle from 26.02.2003 after lapse of 2 years and 7
months, which is against the principles of natural justice. The
complainant admittedly utilizing the vehicle till now and the vehicle
is in possession and enjoyment of the complainant only. The
complainant fails to produce any evidence that the vehicle is not
plying properly and the vehicle is kept idle. The complainant also
failed to produce any evidence that he got repairs from somewhere
for manufacturing defects in the vehicle by producing any 3rd party
affidavits or by producing the affidavits of the qualified mechanics.
The only evidence available before this forum is that the oral
evidence of the complainant only. We are in opinion that it is very
much unsafe to accept the oral evidence of the complainant in
awarding the relief as prayed for.
11.
The complainant is failed to establish that there is deficiency
in service by the opposite party and there is manufacturing defects
to the vehicle, which were delivered by the opposite parties.”.
13.
The only finding given by the State Commission, while allowing the appeal of the
respondent states;
“We have gone through the entire record. Earlier counsel for
the manufacturer, who got assessed the value of the vehicle by an
engineer and stated that the vehicle is worth Rs.25,000/-. The
complainant, Mr. Mallikarjuna Rao, submits that he is not at all
happy with the vehicle and all
the time has been lost for taking the vehicle to the showroom
continuously for repairs.
Taking these facts into consideration, we direct opposite
parties 2 to 4 alone to take back the vehicle and pay a sum of
Rs.25,000/- to the complainant. We also award compensation of
Rs.10,000/- and costs of Rs.2,000/-.”
14.
Order passed by the State Commission does not give any reasons for setting
aside the well reasoned order of the District Forum. Impugned order also nowhere
states that there was any manufacturing defect in the vehicle sold by the petitioner to
the respondent.
15.
There is nothing on record to show that vehicle in question sold to the respondent
was having any manufacturing defect at all. The vehicle was sold to respondent on
26.2.2003 and complaint was filed only on 15.3.2005, that is, after a period of more than
2 years from the date of purchase of the vehicle.
16.
Under these circumstances, the impugned order passed by the State
Commission
giving
no
reasons
at
all,
is
patently
illegal
and
cannot
be
sustained. Accordingly, present revision petition filed by the petitioner is allowed and
impugned order is set aside. Consequently, the order passed by the District Forum,
dismissing the complaint of the respondent stand restored..
17.
No order as to costs.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 923 of 2013
(From the order dated 28.09.2012 of the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur in Appeal no. 1017 of 2012)
Secretary Krishi Upaj Mandi Samiti Chirawa Jhunjhun (Rajasthan)
Petitioner
Versus
Smt Sarbati Devi Wife of Late Mahendra Singh Jat Resident of Janjot, Post Khudot
Jhunjhunu (Rajasthan)
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Amit Lubhaya, Advocate
Pronounced on 5th April 2013
ORDER
REKHA GUPTA
Revision petition no. 923 of 2013 has been filed against the final judgment and
order
dated
28.09.2012
passed
by
the
Rajasthan
State
Consumer
DisputesRedressal Commission, Jaipur (‘the State Commission’) in appeal no. 1017 of
2012.
The facts of the case as per the respondent/ complainant before the District
Consumer Disputes Redressal Forum, Jhunujhhunu, Rajasthan (the District Forum) are
as follows:
The respondent is staying at village Jhanjhot, Tehsil Chirawa. Respondent’s
husband Late Mahinder Singh was running livelihood of his family through doing the
work of agriculture. On 28.06.2011, when he was giving water to his crops during that
time because the electricity was gone, when the electricity came then he came
in Kotri of running the motor of well. Because of current in Kotari husband of the
complainant died on the spot.
According to the scheme of State Government any person who gets injured,
handicap, permanently disabled and die while doing the work of agriculture then the
help is provided under Rajiv Gandhi Krishka Sathi Yojna 2009 through wholesale
market.
The husband of the respondent died while doing the agricultural work therefore,
the respondent filed one claim memo on filing the same on 05.08.2011 for the amount
of Rs.1,00,000/- because of his demise under Rajiv Gandhi Krishi Sathi Yojna 2009 in
the office of non-applicant but the non-applicant kept on giving assurance to pay the
amount within one – two months only but despite the fact that complainant fulfilled all
the formalities, the petitioner/respondent did not make the payment even on demise
because of current at the time of doing the work by Late husband Mahender Singh of
respondent, only this much is stated by the petitioner that post mortem report is not
annexed along with claim form. Therefore, will not pay the amount of Rs.1,00,000/-.
The respondent along with his claim memo filed the documents, death certificate of
gram panchayat, panchnama of renowned persons, majornama,enquiry report of police
station showing that the husband of the respondent died because of current of electricity
at the time of doing work. Despite the same the claim of the respondent is dismissed by
the petitioner which was not in the interest of justice.
The petitioner in their written statement had admitted that the application was
made by the respondent but stated that the respondent did not give the post mortem
report due to want of the same it was not possible to give relief amount.
That the complaint of the respondent was not sustainable. Respondent is not a
consumer of the petitioner therefore, complaint is not sustainable.
The District Forum in their order dated 11.06.2012 opined that “in the present case,
the petitioner/ respondent stated that no post mortem report was given but the
complainant has submitted along with her application the death certificate of deceased
agriculturist Mahendra Singh
which
was
issued
by
GramPanchayat, panchnama, panchnama of motbir witnesses (illegible)/ enquiry report
of police station and whereby it is proved that farmer Mahendra Singh died due to
electric shock in Kotdi at the time when he was going to switch on the motor while doing
agricultural work and the respondent by overlooking the same, has gone away from the
real objective of Rajiv Gandhi Krishi Sathi Yojna launched by State Government and did
not make payment to the complainant on the basis of technical complexities and
dismissed her claim application on wrong grounds and which is deficiency in its
services.
Consequently,
the
application
of
the
complainant
is
allowed
and
the
petitioner/respondent “Secretary, Krishi Upaj Manhi Samiti, Chirawa” is directed to make
payment of aid amount to complainant under Rajiv Gandhi Krishi Sathi Yojna 2009 due
to immediate death the spot/ death of agriculturist MahendraSingh due to electric shock
while doing agricultural work, within a period of one month”.
Aggrieved by the order of the District Forum, the petitioner herein –
Secretary, Krishi Upaj Mandi Samiti has
filed
an
appeal
before
the
State
Commission. The State Commission vide their order dated 28.09.2010 opined that “in
the light of facts and circumstances, we do not find any error in the order dated
11.06.2012 passed by learned District Forum, Jhunjhunu. Since, the District Forum has
correctly exercised the discretion on the facts available on the record, no ground of
interference is made out. Besides this, there seems no substance in the appeal even on
merits.
Therefore, the order dated 11.06.2012 passed by District Forum, Jhunjhunu in
complaint no. 201 of 2011 is upheld and the appeal filed by the appellant is dismissed
on merit. The complainant shall be entitled to receive the amount deposited with District
Forum, Jhunjhunu along with earned benefits. The appellant is granted one month’s
time to comply with the remaining order”.
Dissatisfied by the order of the State Commission, the petitioner filed this present
revision petition before us.
The main grounds for the revision petition are as follows:
- both the Fora below have not appreciated the terms of paragraph no. 5 under the
Rajiv Gandhi Krashak Sathi Yojna which lays down the procedure and requirements for
any claim under the said scheme. This paragraph clearly lays down that a post mortem
report needs to be submitted along with the claim form before the claim authority. It is
an admitted fact by the respondent herein that she did not submit any post mortem
report and further no suitable clarifications have been given by her as to why she was
unable to submit a post mortem report.
- the respondent herein is not covered under the definition of a consumer within
the Consumer Protection Act, 1986. Section 2 (1) (d) of the Consumer Protection Act,
1986.
- the
respondent
did
not
pay
any
consideration
to Krishi Upaj Mandi Samiti, Chirawa under the Rajiv Gandhi Krashak Sathi Yojana of
2009 and the compensation to be provided was merely a beneficial scheme for
agriculturists.
We have heard the learned counsel for the petitioner and gone through the records
of the case carefully.
There is a delay of 59 days in filing the present revision petition before us. The
reasons given for the delay in the application for condonation of delay are as follows:
“The impugned judgment was rendered on 28.09.2012. A decision was taken by
the department to file the revision petition on 17.01.2013. The receipt of payment of
Rs.35,000/- before the District Forum, Jhunjhunu in compliance of order dated
11.06.2012 received on 05.02.2012. Thereafter the revision petition was filed. For the
reasons mentioned above, as such the delay in filing the Special Leave Petition may be
condoned”.
In the application for condonation of delay it has not been mentioned when the
order was received by the petitioner. In fact, there are no details and no explanation
given for the period between 29.09.2012 to 17.01.2013 and thereafter from 17.01.2013
to 08.03.2013 when the revision petition was filed.
Learned counsel for the petitioner could not give any further information nor
reasons or justification to account for the delay.
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.”
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.”
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.
The expression "sufficient cause" employed in Section 5 of the Indian
Limitation Act, 1963 and similar other statutes is elastic enough to enable the
courts to apply the law in a meaningful manner which sub serves the ends of
justice. Although, no hard and fast rule can be laid down in dealing with the
applications for condonation of delay, this Court has justifiably advocated
adoption of a liberal approach in condoning the delay of short duration and a
stricter approach where the delay is inordinate
- Collector, Land
Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M.
Krishnamurthy
(1998)
7
SCC
123
and
10 Vedabai v. Shantaram BaburaoPatil (2001) 9 SCC 106”.
The
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”.
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.”
Accordingly, no sufficient grounds are made out for condoning the delay of 59
days in filing the present revision petition. In the above circumstances, the application
for condonation of delay 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 Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 10th May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 201 OF 2013
(Against the order dated 04.10.2012 in CC No.13/2011 of the State Commission,
Andhra Pradesh)
The Oriental Insurance Co. Ltd. Rep. by its Divisional Manager, Divisional Office-II,
Western Wing, 3rd Floor, Snehalatha, D. No. 6-3-871, Greenlands Road, Begumpet,
Hyderabad- 500 016 Though its Chief Manager,Head Office, New Delhi
……….Appellant
Versus
M/s. Nagina Industrial Corporation, 5-4-54/12, Hariganga Market, Ranigunj,
Secunderabad- 500 003, Rep. by its Manager, Mr. Ajay Bansal.
.........Respondent
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Petitioner
: Mr.K.K. Bhat, Advocate &
Ms. Natasha Nautiyal, Advocate
PRONOUNCED ON: 5.4.2013
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
This appeal has been filed with delay of 98 days. In the application
for condonation of this delay, it is stated that certified copy of the impugned order of
4.10.2012 was obtained on 3.11.2012. The appeal itself was filed on 11.3.2013. In
explanation of the manner in which the intervening period of nearly five months
was utilised, the application merely states:“3. Aggrieved by the judgment and order of the State Commission,
the applicant immediately contacted the dealing advocate and discussed
the further steps to be taken. The advocate advised that a Appeal ought to
be filed since a State Commission failed to properly appreciate the evidence
in the case.
4. The operating office then forwarded the files with all the evidences
and Survey Report written arguments filed before the State Commission
etc. to the Head Office together with the opinion of the advocate.
5. The Head Office consulted their counsel and the counsel after
studying all the papers opined that there was miscarriage of justice and
agreed with the opinion of the dealing advocate to file an appeal before
this Hon’ble Commission.”
The above carries no explanation of the time spent in process of consultation at each
stage. Nor does it give any idea of time taken in appointing an advocate and in
consultation with him before filing the appeal on 11.3.2013.
2.
In terms of the provision in Section 19 of the Consumer Protection Act, 1986
appeal against an order passed by the State Commission is to be preferred before the
National Commission within a period of 30 days from the date of the order. The
proviso to this Section allows the National Commission to entertain an appeal after the
expiry of this period of 30 days, if the Commission is satisfied that there was
sufficient cause for not filing it within that period.
3.
The
question
of
approach
to
such
delay
came
up
for
consideration 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]”
4.
Similarly,
in Anshul Aggarwal V.
New Okhla Industrial
Development
Authority, IV (2011) CPJ (SC), H’ble Supreme Court 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.”
5.
In the present case, no details are forth coming. In the absence of any details in
the condonation application, it is not possible to form any opinion whether there was any
sufficient cause for the resultant delay of 98 days. Therefore, the appeal is liable to be
dismissed on account of delay alone.
6.
Coming to the merits, a perusal of the record shows that the consumer complaint,
decided in the impugned order, arose from repudiation of the claim of the Complainant
under the Standard Fire and Special Perils Policy taken from the appellant/Oriental
Insurance Company. The letter of repudiation issued on 11.11.2008 gives the following
as the grounds for repudiation:“Now you may appreciate that the cover of ‘Loss, destruction or
damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane,
Tornado, Flood or Inundation’ of the Standard Fire and Special Perils Policy
is intended to cover unusual perils that stem from atmospheric violence and
not owing to the usual entry of roadside rain water into the low lying cellars
such as yours.”
7.
In brief, the facts of the case are that there was heavy rain fall in an around
Hyderabad on 27.6.2008. Rain water entered the Complainant’s godown and heavily
damaged the insured goods stored therein, causing the alleged loss/damage of
Rs.20,13,310/-. The claim however, was not admitted by the insurer for the
reason contained in their letter cited above. The State Commission has observed that
the fact of heavy rain fall on 27.6.2008 has not been seriously disputed by the
insurer/OP. It is also admitted that a claim for Rs.20,13,310/- was made under the
policy. The appellant/OP also admitted that on the information of the Complainant about
the incident, Mr. C.P.S. Rama Sarma, Surveyor was deputed, who conducted the spot
survey on 27th and 28th of June, 2008.
8.
The State Commission has referred to the report of the Surveyor, where it says
that in his opinion it was a case of entry of rain water during the monsoon season. The
surveyor has seen the extent of submergence of goods in the godown and was also
present when dewatering was done. As observed by the State Commission, even the
second surveyor appointed by the insurance company has reported on the extent of
drenching of the tools in rain water. However, the Commission has not accepted his
assessment and observed that—
“We are of view that the second surveyor of the opposite party has not
conducted the survey in technical manner nor assessed the los on standard
basis and he failed to take into consideration the opinion of BOSCH Co.
Ltd., an authorized service centre, who have examined the damaged
material as per the advise of the first surveyor of the opposite party. In view
of the facts and circumstances of the case, we are not inclined to accept
Ex.b3 report of the second surveyor of the opposite party.”
9.
Therefore, the State Commission allowed the complaint holding that entry of rain
water into the godown, due to heavy rain, can be treated as ‘inundation’, which is a risk
covered under the policy. The Commission has allowed the claim of Rs.2013310/-with
deducting of Rs.149000/- towards recovery from the sale of damage goods.
10.
We have carefully perused the records submitted by the appellant and heard the
counsel for the appellant. Learned counsel limited his arguments to the ground of
repudiation relying upon the terms and conditions of the policy and reiterated the
position of the appellant/OP that liability of the insurer does not extend to covering the
loss arising from entry of rain water into the insured godwon.
Learned counsel carried
his argument further by asserting that ‘inundation’ as per the policy would cover the over
flow of rivers and nalas due to heavy rain fall but, rain water flooding the godwon due to
over flow of the drainage system of the town would not amount to inundation.
11.
His argument is very similar to the opinion of the second Surveyor appointed by
the insurance company. His report says—
“Thus inundation as the covered peril under the policy is an influx of
water beyond its normal confines, esp. over land. Understandably,
incessant rains only cause flooding of rivers and nalas and the overflowing
water makes way to the adjoining ground occasioning inundation. However,
if in the wake of incessant rains, water from the sewage system overflows in
a part of a town, then that inundation can be taken as the covered peril
under the policy. On the other hand, the overflow of rainwater from the road
into the low lying roadside cellar godown in the instant case cannot be
construed as inundation in the spirit of coverage under the Standard Fire
Policy.”
12.
In my view, it is a very strange logic. It amounts to ignoring a basic principle of
urban planning that roads and drainage are two parts of an integrated system. The
opinion of the second surveyor is clearly an attempt at redefinition of ‘inundation’ to
justify rejection of claim under the insurance policy. It has rightly been rejected by the
State Commission.
13.
In
my
considered
opinion,
the
decision
of
the
AP
State
Consumer
Disputes Redressal Commission in CC No.13/2011 is based on correct appreciation of
evidence on record. There is no merit in the appeal of the Oriental Insurance Company
Ltd. It is therefore, dismissed on the grounds both of limitation as well as merit. No
orders as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2766 OF 2012
(From the order dated 10.05.2012 in S.C. Case No.FA/280/2011 of the West Bengal
State Consumer Disputes Redressal Commission, Kolkata)
1. Smt. Sonamoni Biswas (D/o Sri Priya Shankar Biswas)
2. Smt. Bandana Biswas (W/o Sri Priya Shankar Biswas) Both residing at F/05.001,
Peerless Nagar, Panihati, 29 F, B.T. Road, P.S. Khardah Kolkata 700114 West Bengal
… Petitioners/Complainants
Versus
1. Peerless Developers Ltd. 13 A, Dacres Lane, 4th Floor., P.S. Hare Street Kolkata
700069 West Bengal
2. Authorized Person representing Peerless Developers Ltd. Site Office, Peerless
Developers Ltd. Peerless Nagar, Block ‘H’ 29 F, B.T. Road, Panihati, P.S. Khardah
Kolkata 700114 West Bengal
…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. Sanjeev Kumar Varma, Advocate
For the Respondents :
PRONOUNCED ON
Mr. Tapan Kr. Datta, Advocate
5th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/complainants against the
order
dated
10.05.2012
passed
by
the
West
Bengal
State
Consumer
Disputes RedressalCommission, Kolkata (in short, ‘the State Commission’) in S.C. Case
No. FA/280/2011 – M/s. Peerless Developers Ltd. Vs. Sonamoni Biswas & Anr. by
which, appeal filed by the appellants/present respondents was allowed and order of
District Forum allowing complaint was set aside and complaint was dismissed.
2.
Brief facts of the case are that complainant/petitioner booked a flat with
OP/respondents on 16.8.2004 and paid Rs.50,000/- towards consideration of the flat.
Agreement was executed on 28.9.2004 between the parties and the complainant paid
full price of the flat and deed of conveyance was executed by OP in favour of the
complainant on 29.3.2007 and possession was received by the complainant on
9.4.2007. After taking possession of the flat, complainant noticed some defects in the
flat and took up the matter with the OP over telephone and also by personal visits to the
office of the OP. Complainant also wrote letter on 16.7.2007 for redressal of
grievances. As the grievances were not sorted out, complainant alleging deficiency on
the part of OP filed complaint. OP resisted claim. Learned District Forum after hearing
both the parties, allowed complaint and directed OP to remove defects or pay
Rs.1,58,000 as estimated cost of repair along with 18% p.a. interest and further directed
to pay a sum of Rs.60,000/- as compensation. OP filed appeal and learned State
Commission vide impugned order allowed appeal on merits as well as on the ground
that complaint was time barred against which order, this revision petition has been filed.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
It is admitted case of the parties that petitioner obtained possession of the flat on
9.4.2007 in pursuance to deed of conveyance executed on 29.3.2007. It is also
admitted case of the complainant that in April, 2007, he pointed out defects in the flat to
OP on telephone as well as by personal visits. It is also admitted case on the part of
complainant that letter pointing out defects was written by the complainant to the OP on
16.7.2007. It is also admitted fact that complaint was filed before the District Forum on
19.4.2010 meaning thereby after almost 3 years of taking possession, whereas
complaint was required to be filed within a period of 2 years. Learned Counsel for the
petitioner has not moved any application under section 24A of the C.P. Act
for condonation of delay before the District Forum and in such circumstances, complaint
filed by the complainant is time barred and learned District Forum committed error in
allowing complaint, but learned State Commission has not committed any error in
allowing appeal and dismissing complaint, as time barred.
5.
Learned State Commission has also observed by detailed discussion that as per
joint inspection report, flat was habitable and in sound condition and no repairing was
required and learned State Commission has rightly allowed appeal and dismissed
complaint on merits as well as on the ground of complaint being time barred. We do not
find any illegality, infirmity or jurisdictional error in the impugned order and revision
petition is liable to be dismissed at admission stage.
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.4713 OF 2012
(From the order dated 13.09.2012 in First Appeal No.703/2010 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
HARYANA STATE CO-OPERATIVE SUPPLY & MARKETING FEDERATION LTD.
..….
(HAFED) THROUGH DISTRICT MANAGER, JIND.
PETITIONER
Versus
1. IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED PLOT NO.2-B AND C,
SECTOR 28-A, MADHYA MARG, CHANDIGARH, THROUGH ITS MANAGER.
2. IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED 34, NEHRU PLACE,
NEW DELHI THROUGH ITS MANAGER
RESPONDENTS
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. Yashpal Rangi, Advocate
PRONOUNCED ON: 5th April, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the complainant, namely, Haryana State
Co-operative Supply and Marketing Federation Ltd. (HAFED) in respect of its insurance
claims which was allowed by the respondents/opposite parties partly.
2.
Briefly stated, the facts which are relevant for deciding this revision petition are
that the petitioner got four sites of wheat stocks insured with OP Insurance Co. for a
sum of Rs.35.28 croresvide insurance cover note No.41275855 dated 4.6.2008 against
standard fire and alied perils for the period from 4.6.2008 to 3.9.2008. During the
intervening night of 14/15th June 2008, because of heavy rains, the wheat stocks of the
complainant got damaged. According to the petitioners, as per the report of the
surveyor, an amount of Rs.24,24,710/- was payable to them but the OPs paid only
Rs.4,72,263/- and did not pay the balance amount despite repeated requests sent to
them. A consumer complaint, therefore, came to be filed against them with the District
Forum for the balance amount along with interest @ 18% p.a. and costs. The
OPs/respondents contested the claim and submitted that after considering the reports of
the two surveyors, the claim of the petitioner was finally assessed by a senior surveyor
who arrived at a net loss of Rs.4,86,412/- which was the maximum liability of the
respondents. Accordingly, a Demand Draft dated 5.2.2009 of Rs.4,72,381/- was sent to
the petitioners by them in full and final settlement of their claim vide respondents’ letter
dated 19.2.2009. It was, however, admitted by the respondents that a sum of
Rs.14,031/- was further admissible to the petitioner. Denying any kind of deficiency in
service, the respondents prays for dismissal of the complaint.
3.
After hearing the parties and considering the evidence before it, the District
Forum accepted the complaint and issued direction to the respondents vide its order
dated 19.3.2010 to make the payment of a sum of Rs.19,52,447/- to the
complainant/petitioner with interest @ 9% p.a. from the date of the complaint till
realisation along with cost of Rs.5,000/-. Aggrieved by this order of the District Forum,
the
OPs
filed
an
appeal
before
the
Disputes Redressal Commission, Panchkula (‘State
Haryana
Commission’
State
for
Consumer
short)
which
allowed the appeal and set aside the order of the District Forum with the direction to the
OPs/respondents to pay Rs.14,031/- to the petitioner along with interest @ 6% p.a. and
Rs.2,000/- as cost of litigation. The petitioner has now challenged this order of the State
Commission through the present revision petition.
4.
Mr. Yashpal Rangi, Advocate appearing for the petitioner has submitted that the
amount of the Demand Draft sent by the respondents was never agreed or accepted by
the petitioner as full and final settlement at any point of time. He submitted that the
State Commission while setting aside the order of the District Forum has not given any
reasoning for its view. Learned counsel said that the State Commission has also failed
to consider letter dated 6.4.2009 written by the petitioner to the respondents wherein it
was specifically stated that the DD sent by the respondentswas accepted under
protest. In the circumstances, learned counsel contended that the impugned order is
based on wrong appreciation of the evidence and misunderstanding about the correct
factual position which has led to the reversal of the well-reasoned order of the District
Forum.
5.
We have considered the submissions made by learned counsel and also
perused the record. It is not in dispute that the petitioner received the demand draft
dated 5.2.2009 for Rs.4,72,263/- along with a covering letter dated 19.2.2009 from the
respondents. Contents of the letter in question which have been reproduced by the
State Commission in its impugned order have not been denied by the petitioner. It is
specifically written in its letter that the opposite parties were enclosing the demand draft
in question towards full and final settlement of the claim of the petitioner and for this
purpose they had also attached a discharge voucher which the petitioner was requested
to sign and send back to the respondents as acknowledgement towards full and final
settlement. Admittedly, the petitioner encahsed the demand draft in question although
they did not sign and send back the discharge voucher in question. Here, if we accept
the contention of the learned counsel, the petitioner should not have encashed the
demand draft in case the offer of full and final settlement was not acceptable to them
and they should have written back to the respondents about the inadequacy of the
offer. Rather than writing back and expressing their protest, the petitioner chose to
deposit the demand draft and yet later on send their protest against the amount. In view
of this, the petitioner by its own conduct forfeited its right to plead that it did not accept
the offer in full and final settlement of its claim against the opposite party. The State
Commission has considered this important aspect in the impugned order and given the
following reasons in support of its impugned order while accepting the appeal and
setting aside the order of the District Forum:“We find force in the contention raised on behalf of the
appellants. The contents of the above said letter make it
clear that the Demand Draft bearing No.143178 dated
5.2.2009 for Rs.4,72,263/- was sent by the opposite parties
to the complainant towards the full and final settlement of
complainant’s claim.
Admittedly, the complainant got
enchased the above said Demand Draft. Meaning thereby,
the complainant had received the amount in full and final
settlement and therefore no further cause of action arose in
favour of the complainant to re-open its claim. If the
complainant
was
not
agreed
with
the
payment
of
Rs.4,72,263/-, then the demand draft could have been
returned. Thus, it is not a case where the claim of the
complainant can be re-opened for any further payment.
However, at the same time it is admitted by the opposite
parties that a sum of Rs.14,031/- was further admissible in
respect of complainant’s claim.”
6.
We agree with the view taken by the State Commission. The petitioner cannot
be allowed to accept the offer of the respondents only in part which suited their
convenience and reject the condition subject to which the offer was made. We are not
impressed by the plea taken by the learned counsel and do not find any reason or
justification
to
interfere
with
the
impugned
order
while
exercising
our revisional jurisdiction to interfere with the impugned order under section 21(b) of the
Consumer Protection Act, 1986. Consequently, we dismiss the revision petition at the
threshold 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. 4328 of 2012
(From the order dated 25.07.2012 in Appeal No. 16/2011 Rajasthan State Consumer
Disputes Redressal Commission (Circuit Bench at Bikaner)
With IA/1/2012
Urban Improvement Trust, Bikaner Through Secretary, Public Park, Bikaner,
… Petitioner/Opposite Party (OP)
(Rajasthan)
Versus
Harish Kumar S/o Late Sh. Kanhaiya Lal Khatri, R/o Gangashahar Road, Bikaner
… Respondent/Complainant
(Rajasthan)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
:
Mr.H.D. Thanvi, Advocate
8th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the impugned
order
dated
25.7.2012
passed
by
the
Rajasthan
State
Consumer
DisputesRedressal Commission, (Circuit Bench at Bikaner) (in short, ‘the State
Commission’) in Appeal No. 16 of 2011 – Urban Improvement Trust, Bikaner Vs. Harish
Kumar by which, while dismissing appeal, order of District Forum allowing complaint
was affirmed.
2.
Brief facts of the case are that the complainant/respondent participated in auction
conducted by the OP/petitioner on 17.12.1997 and purchased a plot for Rs.6,41,618/and deposited 1/4th amount on the same day. Officer conducting auction made an
endorsement on the auction sheet that rest 3/4th amount will be payable only after high
tension line passing over the plot is removed. Complainant further submitted that on
29.4.2002, OP passed Resolution to the fact that rest 3/4 thamount may be taken from
the allottees without any interest and penalty, and intimation to the concerned Engineer
of Electricity Department be given for removal of high tension line. Complainant further
submitted that in 2007, he came to know that high tension line had been removed. The
complainant moved an application to the OP for depositing rest 3/4 th amount, but OP
asked him to deposit amount along with interest and penalty, whereas OP accepted
money from some allottees without interest and penalty. Alleging deficiency on the part
of OP, complainant filed complaint. OP resisted complaint and submitted that OP gave
many reminders to the complainant to deposit 3/4 th amount, but he has not deposited,
so OP is entitled to claim interest and penalty and prayed for dismissal of
complaint. Learned District Forum after hearing both the parties allowed the complaint
and directed OP to get deposited 3/4th amount without interest and penalty and to
execute lease deed of the plot in favour of the complainant and handover him
possession of the plot along with compensation of Rs.2,000/- and litigation expenses of
Rs.500/-. Appeal filed by the OP/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 there was no condition attached
with the auction that 3/4th amount will be payable only after removal of high tension line
and, as the complainant withheld the money for almost 10 years, petitioner was entitled
to receive money along with interest and penalty and learned State Commission has
committed error in dismissing appeal; hence, revision petition be admitted.
5.
Perusal of record reveals that at the time of auction, officer conducting auction on
behalf of the petitioner/OP mentioned in the auction sheet that 3/4 th amount will be
payable only after removing of high tension line. This endorsement is binding on OP
and OP cannot disown this endorsement. Complainant has also mentioned in the
complaint that OP passed Resolution on 29.4.2002 to receive rest of the 3/4 th amount
without interest and penalty, which further shows that rest of the 3/4 th amount was
payable without interest and penalty only after removal of high tension line. Learned
Counsel for the petitioner submitted that high tension line was removed in the year
2002, but admitted this fact that no intimation was given to the complainant that high
tension line has been removed. Petitioner has failed to prove any documentary
evidence to the fact that any intimation was given by petitioner to the respondent
regarding removal of high tension line passing over the auctioned plot, and in such
circumstances, the petitioner was not entitled to recover interest and penalty from the
complainant/respondent. Learned State Commission has not committed any error in
dismissing appeal and learned District Forum has not committed any error in allowing
complaint and directing OP to receive 3/4th amount without interest and penalty. We do
not find any illegality, infirmity or jurisdictional error in the impugned order, which calls
for any interference and revision petition is liable to be dismissed at admission stage.
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. 4329 of 2012
(From the order dated 4.09.2012 in Appeal No. 1066/2012 Rajasthan State Consumer
Disputes Redressal Commission, Jaipur)
Urban Improvement Trust, Bikaner Through Secretary, Public Park, Bikaner,
… Petitioner/Opposite Party (OP)
(Rajasthan)
Versus
Smt. Vijay Laxmi W/o Shri Ajay Kumar Ghai, R/o 4-E-34, Jainarayan Vyas Colony,
Bikaner (Rajasthan)
… Respondent/Complainant
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
8th April, 2013
PRONOUNCED ON
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the impugned
order dated 4.9.2012 passed by the Rajasthan State Consumer Disputes Redressal
Commission, Jaipur (in short, ‘the State Commission’) in Appeal No. 1066 of 2012 –
Urban Improvement Trust, Bikaner Vs. Smt. Vijay Laxmi by which, while dismissing
appeal, order passed by learned District Forum was upheld.
2.
Brief
facts
of
the
case
are
that
complainant/respondent
applied
for
purchase/allotment of plot in the scheme launched by OP/petitioner and deposited a
sum of Rs.30,000/- on 24.5.2008. On 30.6.2008, complainant applied for cancellation of
her application and requested not to include her name in lottery and further requested
for refund of deposited amount. Even then, OP included complainant’s name in the
lottery drawn on 2.7.2008 and complainant was allotted plot and OP issued notice for
balance amount of the plot. Alleging deficiency on the part of OP, complainant filed
complaint. OP did not appear before the District Forum and learned District Forum
while allowing complaint, directed OP to refund Rs.30,000/- deposited by the
complainant and further ordered that in case the amount is not refunded within one
month, OP will pay 9% p.a. interest from the date of judgment. Appeal filed by the
petitioner was dismissed by the learned State Commission on the ground of delay of
498 days as well as on merits 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 learned State Commission has
committed error in dismissing appeal on merits also while dismissing it on the ground of
delay; hence, petition be admitted.
5.
It is an admitted case of the petitioner that appeal was filed with an inordinate
delay of 498 days. Learned State Commission has rightly observed that reasons
mentioned in the application for condonation of delay are not sufficient for condoning
the delay. Paragraphs 2 & 3 of the application for condonation of delay filed by the
petitioner before learned State Commission runs as under:
“2.
That the above matter was abrogated by the learned District
Consumer Disputes Redressal Forum, Bikaner on 10.3.2011
and in this regard, information was not given to the
Applicant/appellant by the Advocate of Bikaner. Due to said
reason, the above order was not come in cognizance of
Applicant/Appellant.
3.
That the official enquiry of the Applicant/appellant, which
appears every year in middle of month June – July, then, it
was come to know that what is the status of the above
matter. Then, this Applicant/appellant contacted to the office
of the Advocate, whereon, such information was given by the
Advocate at Bikaner that the above matter has already been
abrogated on 10.3.2011 and application for obtaining the
certified copy of the above order dated 20.7.2012 was filed
by the Advocate and the certified copy of the order dated
20.7.2012 was filed by the Advocate and the certified copy of
the order dated 20.7.2012 obtained to the Advocate,
whereon, this Applicant/appellant discussed the matter from
the higher officers of Trust and it was decided to file appeal
in the above matter”.
6.
It appears that application for certified copy of District Forum order dated
10.3.2011 was submitted on 20.7.2012 and after obtaining certified copy, appeal was
filed. Apparently, no reason has been given in the application for condonation of delay
and learned State Commission has not committed any error in rejecting application for
condonation of delay and dismissing appeal on this count.
7.
Perusal of impugned order reveals that order of District Forum has also been
upheld on merits without any speaking order. Learned Counsel for the petitioner placed
reliance on judgment of Hon’ble Apex Court in Civil Appeal No. 86 of 2009 –
Commissioner Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Anr. in
which, Hon’ble Apex Court observed that –
“While deciding an application for condonation of delay, it is well
settled that the High Court ought not to have gone into the merits of
the case and would have only seen whether sufficient cause had
been shown by the appellant for condoning the delay in filing the
appeal before it. We ourselves have also examined the application
filed under Section 5 of the Limitation Act before the High Court
and, in our opinion, the delay of 178 days has been properly
explained by the appellant. That being the position, we set aside
the impugned order of the High Court”.
8.
It is true that there was no necessity to observe in the impugned order that
learned State Commission does not find any error in the impugned order. Even if, this
finding has been given in the impugned order, we do not find any reason to remand the
matter to learned State Commission, as the learned State Commission has rightly
dismissed appeal on the count of inordinate delay of 498 days.
9.
Learned District Forum has only directed OP to refund Rs.30,000/- deposited by
the complainant within a period of one month and further ordered that in case of nonpayment, OP will be liable to pay 9% p.a. interest from the date of judgment. During the
course of arguments, learned Counsel for the petitioner submitted that revision has
been filed only to the extent of awarding 9% p.a. interest. OP should have returned
Rs.30,000/- within a period of one month to the complainant from the date of passing of
the order by the District Forum. Learned District Forum has not awarded any interest on
this amount from the date of deposit till judegment, even then, unnecessary appeal
before the State Commission and revision before this Commission has been filed.
10.
Consequently, 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
FIRST APPEAL NO. 389 OF 2007
(Against the order dated 23.03.2007 in Complaint No.3/2004 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
1. Chairman & Managing Director M/s Oriental Insurance Co. Ltd. Head Office: Oriental
Insurance House A-25/27, Asif Ali Road New Delhi-110002 Through K.K. Bhat, Dy.
General Manager Power of Attorney Holder
2. Regional Manager Oriental Insurance Co. Ltd. Regional Office, Begumpet
Sbehlatnha Complex Hyderabad
3. Senior Branch Manager Oriental Insurance Co. Ltd. Branch Office-2, Main Road
…
Guntur
Appellants
Versus
M/s Balaji Cotton Traders 9-74A, Pulladigunta Guntur-522017 Rep. by its Proprietor
V. Anjaneyulu S/o Chinna Appaiah R/o Pulladigunta Village Guntur…
522017
Respondent
FIRST APPEAL NO. 520 OF 2007
(Against the order dated 23.03.2007 in Complaint No.3/2004 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
M/s Balaji Cotton Traders 9-74A, Pulladigunta Guntur-522017 Rep. by its Proprietor
V. Anjaneyulu S/o Chinna Appaiah R/o Pulladigunta Village Guntur522017
…
Appellant
Versus
1. Chairman & Managing Director M/s Oriental Insurance Co. Ltd. Head Office:
Oriental Insurance House A-25/27, Asif Ali Road New Delhi-110002 Through K.K. Bhat,
Dy. General Manager Power of Attorney Holder
2. Regional Manager Oriental Insurance Co. Ltd. Regional Office, Begumpet
Sbehlatnha Complex Hyderabad
3. Senior Branch Manager Oriental Insurance Co. Ltd. Branch Office-2, Main Road
Guntur
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
FA/389/2007
For Appellants
: Mr. Mohan Babu Agarwal, Advocate
For Respondent
: Mr. Suyodhan Byrapaneni, Advocate with
Mr. Siddharth Pattnaik, Advocate
FA/520/2007
For Appellant
: Mr. Suyodhan Byrapaneni, Advocate with
Mr. Siddharth Pattnaik, Advocate
For Respondents
: Mr. Mohan Babu Agarwal, Advocate
Pronounced 8th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Two cross-appeals, namely, First Appeals No. 389 of 2007 and 520 of 2007,
have been filed by Oriental Insurance Company Limited and M/s Balaji Cotton Traders,
Opposite Party and Complainant respectively before the A.P. State Consumer
Disputes Redressal Commission, Hyderabad (hereinafter referred to as the State
Commission) challenging the order dated 23.03.2007 of that Commission.
2.
Since the facts and the parties in both first appeals are common/similar arising
out of the same consumer dispute, it is proposed to dispose of these appeals by one
common order by taking the facts from First Appeal No. 389 of 2007. The parties will be
referred to in the manner in which they were referred to in the complaint i.e.
M/s Balaji Cotton Traders will be referred to as “Complainant” and the Oriental
Insurance Company Limited as “Opposite Party”.
3.
The facts as stated in the complaint before the State Commission are that the
Complainant had been carrying on the business of Pressed Cotton Trading in the name
and style of M/s Sri Balaji Cotton Traders after changing its earlier name of Balaji Cotton
Traders and after informing the various authorities as statutorily required, including
Opposite Party. It had insured its stocks of cotton and cotton products by obtaining two
insurance policies from the Opposite Party for Rs.50,50,000/- vide Policy Nos.
432303/2002/148 and 432303/2002/431 dated 27.06.2001 to cover building and stocks
of cotton in all forms located at various specified premises i.e. at M/s Balaji Cotton
Traders, Pulladigunta; M/s Sri Srinivasa Pressing Company Pvt. Ltd., Kuruntala; and
M/s Sri Lakshmi Pressing & Ginning Mill, Karuntala, Guntur District against the risks of
fire lightening, riot, strike and malicious damage, explosion, flood, cyclone etc. for a
period of one year i.e. upto26.06.2002. On 08.05.2002 due to a fire accident in one of
the insured premises the cotton stocks under pressing stored in gunny bags and
finished cotton stocks packed in fully pressed bales belonging to the Complainant were
totally gutted besides the stocks of several other cotton dealers, which were also lying
there. Reports were lodged with the Police and the Electricity Department and a
certificate from the Fire Services Department confirmed the fire. Complainant also
informed the Opposite Party about the incident and submitted a claim. Opposite Party
appointed an Investigator-M/s Sisir & Ravi Associates, Vishakhapatnam, who visited the
site on 09.05.2002 i.e. one day after the fire for assessing the loss and subsequently a
joint
inspection
was
also
carried
out alongwith another
Surveyor
M/s SrivatsanSurveyors Pvt. Ltd. appointed by the Opposite Party. After a span of 9
months, the Surveyor sought some clarifications which were answered by the
Complainant vide letter dated 06.03.2003. After several reminders to the Opposite
Party for early settlement of the claim, Opposite Party vide their letter dated 25.07.2003
repudiated Complainant’s claim inter alia on the ground that though the policy was
issued in the name of Balaji Cotton Traders, its name was changed to Sri Balaji Cotton
Traders without informing the Opposite Party. Therefore, since the affected stocks
belonged to M/s Sri Balaji Cotton Traders and not to the policy holder i.e. Balaji Cotton
Traders, no insurable interest vested with the Complainant. Being aggrieved by this
action and since Complainant had duly informed the Opposite Party as also other
authorities about the change in the name of the firm, Complainant approached the State
Commission on grounds of deficiency in service and unfair trade practice and requested
that the Opposite Party be directed to pay the Complainant a sum of Rs.30,10,000/towards the insurance claim together with interest at the rate of 12% per annum from
08.05.2002 as also Rs.50,000/- towards mental agony suffered by the Complainant due
to negligence and deficiency in service on the part of Opposite Party.
4.
Opposite Party on being served filed a written rejoinder, in which it was denied
that they were intimated regarding the change in the name of the company. The letter
dated 26.02.2002 was fabricated by Complainant to support the false claim. Further,
the fire which took place at M/s Sriniwasa Pressing Company Pvt. Ltd.,Kurunthala was
not
insured
under
the
insurance
policy
since
the
premises
insured
was
M/s Sriniwasa Pressing Factory (and not Company), Kurunthala. The Surveyor’s report
also indicated that there were many discrepancies and inconsistencies in the stock
position vis-à-vis the stock register and Complainant also did not fully cooperate with
the Surveyors and avoided to produce certain documents which were required to settle
the claim.
5.
The State Commission after hearing the parties and on the basis of evidence
produced before it partly allowed the complaint by inter alia observing as follows :
“The insured is also a registered dealer under APGST and CST and it is
also not in dispute that the accident occurred in Sri Srinivasa Pressing Co.
Pvt. Ltd., and the cause of accident is also not in dispute. The technical
objection of the opposite parties is that they were not informed of the
change of the name from M/s Balaji Cotton Traders to Sri Balaji Cotton
Traders though there is a letter addressed by the complainant to the
opposite party on 26-2-2002 which bears the stamp of the opposite
party. Therefore, we are of the considered opinion that there is no force in
this contention taking into consideration that the insured is also registered
under APGST and CST Acts as a dealer and is managed by the same
proprietor and has been insured with the insurance company since the last
8 years. Therefore, we hold that the record shows that M/s Balaji Cotton
Traders was changed to Sri Balaji Cotton Traders with effect from 18-22002 and the proprietor is the same for both the companies.”
Regarding the contention of the Opposite Party that the fire incident took place at
M/s Srinivasa Pressing Company Pvt. Ltd., which was not covered under the policy and
only Sri Srinivasa Pressing Factory, Kurunthala was covered under the policy, the State
Commission observed that the repudiation on this ground was also unsustainable since
the Opposite Party could not produce any substantial documentary evidence to prove
their contention that M/s Srinivasa Pressing Company Pvt. Ltd. is different from
Sri Srinivasa Pressing Factory while on the other hand the Surveyor in his report has
not disputed that the fire took place in the insured premises. Regarding the quantum of
loss, the State Commission concluded through its detailed order that the actual value of
the goods lost in the fire was Rs.20,98,952/- (and not Rs.10,24,606/- as assessed by
the Surveyor) and, therefore, directed the Opposite Party to indemnify the claim for this
amount with interest @ 6% per annum from the date of repudiation i.e. 25.07.2003 till
the date of realization together with cost of Rs.5000/- within a period of six weeks,
failing which the said amount would carry interest @ 9% per annum thereafter.
6.
Aggrieved by this order, Opposite Party has filed First Appeal No. 389 of
2007. Complainant has also filed First Appeal No. 520 of 2007 against this order on the
ground that the report of the Surveyor assessing the loss based on the APCOT news
letter dated 11.05.2002 was much less than the market price of various items of cotton
stored in the premises, the valuation of which had been accepted by the Surveyor in his
report. Further, the interest of 6% awarded by the State Commission is less and in
violation of IRDA Regulations, orders of this Commission as also Hon’ble Supreme
Court of India. Hence, the request for increase of the awarded amount from
Rs.20,98,952/- to Rs.30,10,000/- with enhanced interest.
7.
Learned Counsels for both parties made oral submissions.
8.
Learned Counsel for Opposite Party essentially reiterated the facts as stated by
them in the written rejoinder filed before the State Commission. It was again pointed
out that there was no insurable interest between the parties since the name of the
company as also where the fire took place were different from those mentioned in the
insurance policy. Counsel for Opposite Party stated that vide their letter dated
08.05.2002 Opposite Party had communicated to the Complainant that the proposed
change of the name of their company was not approved in terms of the insurance
coverage. Counsel for Opposite Party also sought to challenge the veracity of the
certificate of registration of the Sales Tax Department on the ground that it pertained to
the year 1997-98 whereas the name was actually changed in 2002 and further there
was no signature of any authority/officer of Sales Tax Department on this
document. Since an insurance policy has to be construed strictly in terms of what has
been stated in it, the State Commission erred in accepting the Complainant’s contention
and directing the Opposite Party to indemnify the claim.
9.
Counsel for Complainant on the other hand stated that the Opposite Party was
informed about the change of the name vide letter dated 26.02.2002 and the seal of the
Opposite Party on it was proof that it had been received and noted by them. Regarding
the certificate of registration, which was filed in evidence, Counsel for the Complainant
states that the intimation regarding change of name was done on 10.02.2002 and this is
confirmed by the signature of the Assistant Commercial Tax Officer on that document
also
dated
10.02.2002. This
change
was
given
retrospective
effect
from
1997. Opposite Party’s own Surveyor had also not challenged this certificate in his
detailed survey report. The letter from the Opposite Party communicating to the
Complainant that the change in the name was not approved was dated 08.05.2002 i.e.
after the fire had taken place and in order to justify the repudiation of the claim and,
therefore, it is of little help to the Opposite Party to prove their case. So far as the
insured premises is concerned, the report of the Surveyor as also affidavits filed by the
Auditor and other authorities clearly confirmed that the fire incident took place in the
insured premises and, therefore, the State Commission had rightly concluded that the
contention of the Opposite Party that the premises was not insured was not
sustainable.
10.
Regarding the quantum of monetary loss, Counsel for the Complainant through
First Appeal No. 520 of 2007 challenged the assessment made by the Surveyor based
on the First-in-and-First-out (FIFO) method and taking the price of cotton stocks from
the APCOT news letter dated 11.05.2002 by pointing out that the Surveyor himself had
recorded a finding that 6 different varieties of cotton were stocked at the time of fire
incident and the market price of these varieties was as under :“Variety
Rate/Qtl.Rs.
Mech-1 (28mm)
4,218
Brahmma (29mm)
4,499
Bunny (30mm)
4,781
MCU-5 (31mm)
5,062
MCU-5 (32mm)
5,343
MCU-5 (33mm)
5,624”
The average cost of this amount comes to Rs.4921/- per quintal and not Rs.3241/- per
quintal as concluded by the Surveyor. Under the circumstances, the Complainant is
entitled to the following claims :
“Bales 50 x 188 Kg = 9400 Kg. x 45.20 =
Rs.4,24,880-00
Boras 354x170 Kg = 60180 Kg. x45.20 =
Rs.27,20,136-00
31,45,016-00
4% Commercial Tax
1,25,800-00
32,70816-00”
Counsel for the Complainant further stated that interest of 6% on the awarded amount
was too small and the National Commission vide its order dated 06.08.2007 while
staying execution of the impugned order had directed that the amount deposited by the
Opposite Party of Rs.10,24,606/- as assessed by the Surveyor would carry interest @
10% per annum and that it would be open to the Complainant to withdraw this amount
by executing a personal bond. Therefore, interest of 10% on the actual claim amount of
Rs.30,10,000/- sought by Complainant was justified.
11.
Counsel for the Opposite Party on the other hand stated that the Surveyor in his
detailed report relying on the price of cotton as indicated in the APCOT news letter and
by using the FIFO method i.e. the method that assumes that inventory purchased first is
sold first, had rightly worked out the average rate per quintal as Rs.3241/- and assessed
the net loss as Rs.10,24,606/-. The Complainant has not been able to provide any
records or documents to substantiate his contention pertaining to the total loss claimed
by him.
12.
We have heard learned Counsel for both parties and have carefully considered
the evidence on record. So far as First Appeal No. 389 of 2007 filed by the Opposite
Party is concerned, we agree with the finding of the State Commission that as per the
evidence on record it is established that the Complainant had informed the Opposite
Party as also other statutory authorities about the slight change in the name of the
insured
business
by
adding
‘Sri’
to
the
existing nomenclature BalajiCotton
Traders. This fact is confirmed by the letter sent to the Opposite Party on 06.02.2002
which bears the stamp of the Opposite Party as having been received. Further, the
certificate of registration issued by the Commercial Tax Department dated 10.02.2002
also confirms that the change of the name had been intimated and duly incorporated in
their register. Thus, the State Commission had rightly concluded that it was the insured
company which had suffered the loss. We also agree with the finding of the State
Commission that the premises where the fire took place and where the stocks were
destroyed was insured as per the insurance policy. This fact has not been disputed by
the Surveyor who had investigated the incident and has been fortified by the affidavits
filed by the Auditor and the management to confirm the same. On the other hand, the
Opposite Party has not been able to produce any documentary or other evidence to
prove their contention that Sri Sriniwasa Pressing Factory, Kurunthala is not the same
premises as Sri Sriniwasa Pressing Company Pvt. Ltd., Kurunthala.
13.
Regarding First Appeal No. 520 of 2007 filed by the Complainant pertaining to the
valuation of the stocks lost in the fire, we note that the Surveyor had relied on the prices
of cotton stocks of different varieties as quoted in the APCOT news letter dated
11.05.2002 and using the FIFO method had assessed the loss. On the other hand, in
its survey report under the heading ‘Valuation’ the Surveyor has confirmed that 6
varieties of cotton were stocked at the time of the fire incident and the market price of
these varieties ranged from Rs.4218/- to Rs.5624/- per quintal. Under these
circumstances, a more acceptable method of assessing the value of stocks lost in the
fire would have been by working out the loss on the basis of the lowest market price of
the cotton stock in the premises i.e. at Rs.4218/- per quintal instead of assessing it on a
theoretical basis by relying on generic rates and applying the FIFO method without any
evidence.
14.
Regarding the actual quantity of the stocks destroyed, the Complainant had
contended that 50 Bales and 340 Boras were destroyed, which comes to 542.80
quintals. Surveyor had deleted 210 Boras from this quantity. The State Commission
had considered this issue and concluded that neither the Opposite Party nor the
Surveyor were able to substantiate with any credible proof the reason for this deduction
and, therefore, the State Commission had concluded that it should have been included
in the loss. We have gone through the report of the Surveyor as also the evidence on
record and we agree with the finding of the State Commission that the total number of
Bales and Boras destroyed in the fire were 50 and 340 respectively and there was no
justification for the Surveyor deducting 210 Boras.
15.
Keeping in view the above facts, the loss assessed by the State Commission
needs to be partly modified and worked out at Rs.4218/- per quintal for 542.80 quintals,
which were destroyed in the fire. In this way, the value of the insured stocks lost in the
fire would be Rs.22,89,530/- (i.e. 542.80 quintals x Rs.4218/- per quintal). After adding
Rs.91,581/- on account of 4% purchase VAT and after deducting the salvage amount of
Rs.500/- as also Rs.10,000/- on account of policy excess, the net payable amount
comes to Rs.23,70,611/-. Regarding the interest to be levied on this amount, we find
substance in the Complainant’s contention that interest @ 6% per annum as ordered by
the State Commission is on the lower side and interest @ 9% per annum usually
awarded by us in such cases is both reasonable and justified.
15.
To sum up, we dismiss First Appeal No. 389 of 2007 filed by the Opposite
Party. Regarding First Appeal No. 520 of 2007 filed by the Complainant, in partial
modification of the order of the State Commission and for the reasons stated
in Paras 12 to 14 of this order, we hold that Opposite Party is liable to pay the
Complainant a sum of Rs.23,70,611/- with interest @ 9% per annum from the date of
repudiation of the claim i.e. from 25.07.2003 till the date of realization together with
costs of Rs.5000/-.
16.
We note that in terms of order dated 06.08.2007 of this Commission the Opposite
Party has already deposited a sum of Rs.10,24,606/- i.e. the loss assessed by the
Surveyor with interest @ 10% with this Commission. This amount alongwith accrued
interest be released in favour of the Complainant. Opposite Party is, therefore, directed
to pay the balance amount with 9% interest per annum to the Complainant within a
period of 8 weeks in full and final settlement of the insurance claim.
17.
Both First Appeals stand disposed of on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2097
OF 2011
alongwith
I.A. NO.02 OF 2012 (For Condonation of Delay)
(From the order dated 3.8.2009 Appeal No.316/2009 of the State Commission,
Chhattisgarh)
Girish Kohle D-16, Tagore Nagar, Raipur, Chhatitisgarh – 492001
…Petitioner
Vs.
S.B.I. Cards & Payments Pvt. Ltd. P.O. Bag No.-28, GPO, New Delhi Having Registered
Office 11, Parliament Street, New Delhi – 110001.
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Pramod Kumar, Advocate
For the Respondent
:
Ms. Amita Kumari, Advocate
Pronounced on : 9th April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/complainant has filed the present revision petition under Section 21(b)
of the Consumer Protection Act, 1986 (for short, ‘Act’) challenging order dated
5.10.2009, passed by Chhattisgarh State Consumer Disputes Redressal Commission,
Raipur (for short, ‘State Commission’), vide which petitioner’s appeal challenging order
of the District Consumer Disputes Redressal Forum, Raipur (for short, ‘District Forum’)
dated 4.7.2007 dismissing the complaint of the petitioner was dismissed.
2.
Case of petitioner before District Forum was that he had obtained a credit card
from the respondent/opposite party. As per demand made by the respondent, certain
amount was due towards the petitioner which had been wrongly added in the account
of the petitioner. Further, undue pressure was created upon the petitioner for payment
of that amount. It was stated that no fees would be chargeable for next one year, but in
the bill such fees was charged. Thus, deficiency in service was committed by the
respondent.
3.
None appeared for the respondent before the District Forum despite service of
the notice. Hence, respondent was proceeded ex parte.
4.
District Forum, dismissed the complaint holding that petitioner himself was
careless in not making due payment to the respondent.
5.
Being aggrieved by the order of District Forum, petitioner filed an appeal, which
was dismissed by the State Commission.
6.
Alongwith the present petition, an application seeking condonation of delay of 365
days has also been filed. However, as per office noting, there is delay of 533 days.
7.
We
have
heard
arguments
on
application
for condonation of
delay and gone through the record.
8.
Grounds on which condonation of delay has been sought read as under;
“4.
After the order of the State Commission dated 5.10.2009, the
petitioner came to know that the respondent has also started a
parallel and unilateral arbitration proceeding against the petitioner
for recovery of its alleged claim which has been disputed by the
petitioner under the Act.
5.
That on 3.12.2009 the petitioner received a letter from arbitrator
situated in Delhi who was appointed by the respondent
to arbitrate the dispute between the petitioner and the respondent
for payment dispute. Vide said notice/letter the Arbitrator informed
the petitioner to attend the arbitration proceeding which was fixed
for 22.1.2010.
6.
That on 17.12.2009 the petitioner replied to the Arbitrator of the
respondent that Petitioner does not accept any kind of arbitration in
this regard and informed them that petitioner was going to
challenge the order of State Commission before the National
Commission.
7.
That it is stated that petitioner is a government servant and it is a
very difficult for him to take leave to attend the hearing time and
again. It was very difficult for the petitioner to manage all this
hassles while doing his job. There was also a unilateral arbitration
proceeding initiated simultaneously by the respondent against the
petitioner. In such circumstances the petitioner could not take
steps further within a reasonable period.
8.
That surprisingly, after almost ten months, petitioner received a
copy of an arbitration award dated 24.09.2010 purportedly passed
by the Arbitrator against the petitioner whereby an award of
Rs.1,21,367/- together with interest @ 2.95% per month, from the
date of accrual of the cause of action as per statement of claim till
the date of decree or the date of payment whichever is earlier was
pass against the petitioner.
9.
xxxxxxxxxxxxxxxxxxxxx
10.
That thereafter there was no other option before the petitioner
except to approach before this Hon'ble Commission for justice. On
21.2.2011 the petitioner filed the present revision petition before
this Hon'ble Commission.
11.
That thus there is delay of about 365 days of almost one year in
filing the revision petition.”
9.
As per petitioner’s own case, State Commission had passed the order of
5.10.2009. He also came to know that, respondent has started parallel arbitration
proceeding for which he had received intimation from the Arbitrator. It is also petitioner’s
case that on 17.12.2009, he replied to the Arbitrator stating that he does not accept any
kind of arbitration in this regard and was going to challenge the order of the State
Commission. Admittedly, order of State Commission was challenged only on 21.2.2011
by filing the present petition. There is no explanation at all as to why from 17.12.2009 till
21.2.2011, petitioner did not challenge the order of the State Commission.
10.
It is well settled that “sufficient cause” for condoning the delay in each case is a
question of fact.
11. Under the Consumer Protection Act, 1986, a special period of limitation has been
provided to ensure expeditious disposal of cases. Complaint has to be disposed of
within 90 days from the date of filing where no expert evidence is required to be taken
and within 150 days where expert evidence is required to be taken. The inordinate
delay of 365 days cannot be condoned without showing sufficient cause. Day to day
delay has also not been explained. We are not satisfied with the explanation given.
12. Hon'ble Supreme
Court
in Anshul Aggarwal vs.
New Okhla Industrial
Development Authority –IV (2011) CPJ 63 (SC) has held that while deciding the
application filed forcondonation of delay, the Court has to keep in mind that the
special period of limitation has been prescribed under the Act for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the
consumer disputes will get defeated if the appeals and revisions which are highly
belated are entertained. Relevant observations made by Apex Court read 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 consumerfora”.
13. The inordinate delay of 365 days cannot be condoned. Thus, we reject the
application for seeking condonation of delay of 365 days in filing the revision petition
before this Commission. Consequently, we dismiss the present revision petition being
time barred with cost of Rs.5,000/- (Rupees Five Thousand only).
14
Petitioner is directed to deposit the cost of Rs.5,000/- (Rupees Five Thousand
only) by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A
of Consumer Protection Rules, 1987, within four weeks from today. In case, he fails to
deposit the cost within prescribed period, then he shall be liable to pay interest @ 9%
p.a. till its realization.
15.
List on 17.05.2013 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
MEMBER
Sg/NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 22 OF 2001
Twin Tower Co-op. Hsg. Society Ltd. Manish Park, Rajmata Jijabai Marg, Pump House,
Andheri (East), Mumbai 400093
……….Complainant
Versus
1. M/s. Manish Vijay Enterprise Having their office at Behind Manish Park,
Opp. Parsi Salcette Off Veer Jigamata Marg, Pumphouse Andheri (East), Mumbai
400093
2. M/s. Jyoti Construction & Co. Having their office at Behind Manish Park,
Opp. Parsi Salcete Off. Veer Jijamata Marg, Pumphouse Andheri (E) Mumbai 400093
.........Opposite parties
BEFORE
HON’BLE MR. JUSTICE J.M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: Ms. Sumedha Rao, Advocate
For the Opposite Parties : Ms. Rashmi B. Singh, Advocate
Mr. Mohinder Kumar Madan, Advocate
PRONOUNCED ON: 9th April 2013
ORDER
PER MR.VINAY KUMAR, MEMBER
This original petition was filed on 21.8.2000. On two occasions i.e. 24.5.2001 and
24.3.2011, it was dismissed for non-prosecution. On the later date, the counsel for the
complainant also sought and was permitted discharge from the case. On 15.7.2011, it
was restored and thereafter finally heard in October 2012, on day to day basis. In the
meanwhile, on 1.10.2003 this Commission had decided to proceed against OP-2, ex
parte.
Advocates,
Ms Rashmi B
Singh
for
Mr Mohinder Kumar Madan, for the OP-1, have been heard.
the
complainant
and
THE CASE OF THE COMPLAINANT
2.
The complainant, Twin Tower Co-operative Housing Society (hereinafter referred
to as the Society) has filed this common complaint on behalf of all 145 owners of flats,
in a representative capacity. The Society was registered of 24.3.1999. However, the flat
owners have admittedly been in possession/occupation of their flats since 1989. As
stated in the Complaint petition—
“The Complainant states that the respondents vide their agreement of
sale to each flat purchaser promised various services. The complainant
took possession of their flats in the year 1989. The complainant states that
respondents have stated in the agreement of sale that they would be
constructing and completing the building as per the sanctioned plans and
that the respondents would comply with all the necessary formalities to get
the Occupation certificate issued by B.M.C. The Complainant states that till
today respondents have failed to obtain Occupation Certificate for the
complainant’s building thereby providing deficient service. The Complainant
states that due to non-obtaining of Occupation Certificate, the Complainant
members are forced to pay one fourth more property taxes which amounts
to Rs.22,98,906/- from 1.10.92 till 31.3.2000. The Complainant members
also have to pay excess water taxes which are double of normal water
taxes. Therefore, they are entitled to claim an amount of Rs.6,08,620/- from
1.10.1992 till 31.3.2000. The Complainant’s also have to pay non
refundable water deposit which amounts to Rs.1,76,000/-. The Complainant
have to pay non-agricultural charges to the Collector which amounts to
Rs.50,390/- from 1.10.1992 to 31.3.2000.”
3.
Therefore, the following relief is sought against the opposite parties—
“The Complainant therefore prays that:
(a) Be pleased to give conveyance of the property to the registered Cooperative Housing Society of the Complainant.
(b) A total sum of Rs.31,33,916/- towards excess property tax, water
tax, non refundable deposit and non agricultural charges and further
amount of excess taxes paid from the date of filing of complainant till
payment;
(c) Be pleased to direct the respondents to pay complainant an amount of
Rs.1,27,570/- towards registration of Co-operative Housing Society;
(d) Be pleased to direct the respondents to pay a total sum of Rs.1,65,007/collected by way of advance tax; in individual agreement of sale.
(e) Be pleased to direct the respondents to pay a total sum of Rs.2,45,625/towards estimated costs of compound wall and garages;
(f) Be pleased to order respondents to pay jointly and severally an interest
at the rate of 18% p.a. on the total amount of Rs.34,26,493/- arrived at
by adding prayer (b) (c) (d) from the date of filing complaint till payment;
(g) A sum of Rs.10,00,000/- be awarded towards the mental agony and
inconvenience cause due to deficiency of service by the respondents;
(h) Costs be awarded
(i) Any other reliefs as this Hon’ble Commission deems fit and proper;”
RESPONSE OF THE OPPOSITE PARTY
4.
Challenging the above position of the complainants, the response of OP-1/ Manish
Vijay Enterprises raises some preliminary issues, in addition to responding to the main
ones. We deem it appropriate to take up the preliminary issues, before going into the
others—
a. The first objection is on the ground of limitation. It is alleged that the
possession of the flats was given in 1989, while the complaint was filed
eleven years later in 2000. Hence, the complaint is alleged to be barred by
Section 24 A of the Consumer Protection Act, 1986. As replied in the
rejoinder of the complainant, the occupation certificate is not issued and the
conveyance of the property is not admittedly executed still. Therefore, the
question of limitation does not arise. We agree with this position. If the cause
of action arose in 1989 with the handing over of physical possession, it has
continued to exist due to non-execution of the conveyance deeds in favour of
the flat purchasers.
b. An issue is also raised about the locus standi of the Society to file the
consumer complaint, alleging that there is no privity of contract with the OPs.
On this point, the complaint itself clarifies that it is filed on behalf of individual
flat owners as well as to represent their common issues. The affidavit
accompanying the complaint is signed by individual flat owners as well as
authorised representatives of the Society. It is also clarified in the rejoinder
that the complaint is filed in the representative capacity, as per the provision
in Section 2(1)(b)(iv) of the Act. We therefore, find no merit in the objection
that the complainant Society has no locus.
c. It is further contended that the complaint is filed seeking the same relief which
was sought in the earlier Writ Petition. In this context, the rejoinder of the
complainant clarifies that the relief sought in the WP related to issue of
occupation certificate from the Municipal Corporation. In the consumer
complaint, the relief sought is the conveyance of the property by the OPs.
We therefore, reject the above preliminary objections and proceed to consider the
substantive issues arising in this complaint.
EVIDENCE LED BY THE TWO SIDES
5.
Exhibit A-1 is a copy of the agreement entered into by OP-1 in 1989 with individual
complainants for purchase of flats. It gives a good idea of the factual background of the
case. As per this agreement, the building plan was approved by Bombay Municipal
Corporation on 23.1.1981(Clause 8). The agreement also authorised the builder (OP-1)
to seek additional floor space from the Bombay Municipal Corporation, utilise and sell it
(Clause 14). Possession of these flats was to be given only after the purchaser had
made “all payments required to be made under this agreement” to the builders (Clause
17). Non-agricultural assessment for the previous three years was paid by the builder
and was required to be paid by the purchasers from the date of grant of occupation
certificate to the project (Clause 22). The individual purchasers of flat were not to be
given any separate deed of conveyance or any other title. The same were required to
be executed by the builders in favour of the Cooperative Society/Association (Clause
43).
6.
Coming to the problem of a part of the project land being in occupation of slum
dwellers, Clause 45 cast the following obligation on the builders:
“The Builders hereby declare that at present there are many
authorised as also unauthorised small structures on the said land and
the same have been occupied by authorised and/or unauthorised
persons. The Builders shall endeavour to get the portion or portions
of the said land with such structures duly sub-divided from the land on
which the Builders have been constructing the buildings. In case at
any time of such sub-division is not approved by the Municipal
Corporation of Greater Bombay the Builders shall have the said land
or any part thereof conveyed in favour of a co-operative society,
limited company or the association of apartment owners subject to
such encroachments and tenancies.”
7.
In the affidavit filed by Shri B. Dinkar on behalf of the Complainant society, it is
further stated that as per Clause 16 of the agreement the builder was to notify the
building as completed and hand over possession after receipt of entire amount of
consideration. But, till the date of the complaint, the builder /OP had failed to get the
occupation certificate issued for the building. The members of the Complainant Society
have therefore, had to pay 1/4th higher property taxes and double of water tax. The
affidavit further states that under Section 11 of the Maharashtra Ownership Flats Act,
1963, it is mandatory obligation of the builder to convey the property to the Complainant
within four weeks of registration of Cooperative Housing Society.
8.
Allegedly, the complainants have paid full agreed price as per the agreement of
sale with individual purchasers of flats. The respondents have put them in physical
possession but have not executed the conveyance deeds in their favour. In this behalf
the affidavit of evidence, filed on behalf of the complainants, states that—
“3. I say that as per clause 16 of the Agreement of sale the
respondent notified that they would be constructing and completing the
building as per the sanctioned plans and that the respondents could comply
with all the necessary formalities to get the Occupation Certificate issued by
the Bombay Municipal Corporation. I say that clause 19 (a) of the
Agreement of sale states that date of delivery would be the date on which
the Occupation Certificate is granted by Bombay Municipal Corporation.”
4. I say that Writ Petition No.1827 of 2000 was filed with the High
Court at Bombay against Bombay Municipal Corporation and Respondent
No.1 for issuance of Occupation Certificate to the Complainant’s Building. I
say that the said Writ Petition came to be disposed offin favour of the
Complainant by Lordship Justice A.P. Shah and Lordship Justice
S.A. Bobde vide their order dated 19.6.2001. I say that the said order
directed the Bombay Municipal Corporation to issue Occupation Certificate
within two months. I say that the order was not complied with therefore after
issuing a legal notice dated 7.3.2002 a Contempt Petition No.2 of 2003
came to be filed in the Hon’ble High Court of Bombay wherein show cause
notice has been issued against respondents and the matter is pending for
final hearing. Annexed and marked at Exhibit ‘C8 is the copy of the order
dated 19.6.2001. Annexed and marked Exhibit ‘D’ is the copy of the
Contempt Petition No.2 of 2003.”
The complainants have also placed on record a copy of the order of the High Court of
Bombay, passed on 19.6.2001 in W.P. No. 1827 of 2000. It reads—
“1.
Heard parties.
2.
Respondent nos.1 and 2 are directed to consider the petitioner’s
request for grant of occupation certificate in the light of circular No.7188
dated 18th February, 2000 and pass suitable orders within a period of two
months from today. Needless to say that the concerned authority shall grant
personal hearing to the petitioner and its architect before passing final
orders.
Petition is disposed of.”
Evidently, till the filing of the present complaint before this Commission, the High Court
direction had not resulted in grant of the Occupation certificate by the Municipal
Corporation of Greater Bombay (hereinafter referred to as MCGB). Nor had the
conveyance in favour of the flat purchasers been executed by the OPs.
9. In the Written Response of OP-1, it is claimed that the occupation certificate has not
issued from MCGB, though the building has been constructed as per the sanctioned
plan. But, the same Written Response also admits that the problem arose as a slum,
existing on a part of this land, was declared and notified as Slum Area in 1985. Due to
this, slum dwellers could not be evicted and the plot size was effectively reduced. It is
therefore, clear that the builder was fully aware of this effective reduction in the
project area for about four years, when he handed over possession of individual
flats in 1989 and undertook to obtain the Occupation Certificate from the BMC.
The rejoinder affidavit of the complainant also points out that OP-1 did not take
any steps to remove the encroachment on the property, thereby reducing the area
to be conveyed to the complainants. This has an obvious reference to the period
between 1981 since the building plan was sanctioned and 1985 when the slum
was notified.
10.
The case of the Complainant is that for want of occupation certificate, they have
had to pay property tax and water charge at substantially higher rates. As per the
rejoinder affidavit of the Complainant, during the period 1992 to 2004 Rs.43,28,876
lakhs was paid towards the property tax and Rs.12,29,291/- towards water tax. In this
behalf, a refund of Rs.31,33,916/- has been sought by the Complainant. We have
perused Exhibits B and C which are receipts filed by the complainant to substantiate
this claim. With the affidavit of evidence, the complainant has filed a large number of
these receipts of these charges paid to the BMC till 2003. The water charge receipts
show the details of consumption, rate per unit and total bill amount. But, by themselves,
these receipts do not show that this is levied at rates higher than normal. Per contra,
the written response of OP-1 carries only a bland denial of the contention of the
Complainants that due to non-obtaining of Occupation Certificate from the
Municipal Corporation, the Members/Flat purchasers are forced to pay property
tax and water tax at higher rate. No documents in support of the denial are filed
by OP-1.
11. Significantly, in the course of the proceedings on 21.4.2005, the Commission gave
the following direction:
“The Opposite Party is directed to file affidavit clarifying the part of
the bills which do not relate to the flats of the members of Complainant’s
society. They shall also specify whether any of the bills in respect of
property tax, water tax etc. has been paid by any person other than the
members of the Complainant society. The Opposite Party shall further
clarify as to why despite the order passed by the High Court the occupancy
certificate has not been given and why they could not comply with the
directions of the BMC.”
12.
No such affidavit was filed, as observed by the Commission on 8.9.2005. However,
subsequently on 23.1.2006 an affidavit was filed by Mr AjayPravichandra Kamdar for
OP-1 responding to the directions of 21.4.2005. The affidavit accepts that the entire bills
relate to the members of the complainant society and are paid by no one other than the
members. More importantly, this affidavit does not question the claim of the
complainant that they have to pay property charge and water charge at higher
rates. It merely states that the flat purchasers had taken possession on their own
risk, knowing that there was no occupation certificate.
13. Little later, on 27.1.2006, the Commission directed the Complainant to file
complete records of the property tax and water charges paid by them and also produce
a certificate from MCGB that 25% excess property tax was being levied as in this case
Occupation Certificate has not been issued. In compliance, an affidavit was filed by the
Complainant in April 2006. With this affidavit, a copy of the letter addressed by the
counsel for the Complainant to the BMC on 30.1.2006 and the response dated
23.2.2006 received from the BMC have been enclosed, together with a copy of the
circular No. HE/3625/IS dated 12.3.2001. The letter does not contain any specific
response to the Complainant’s query, but does state in so many words that, “the
percentage of property tax depends on the status of the property as to whether
the subject property is connected with the supply of Municipal Water by W X M
System.” Similarly, on the question of water charge, the Circular states that, “Arising
out of revision of Water Charges and Sewerage & Waste Removal Rule, Standing
Committee has sanctioned to levy either Water Charges & Sewerage Charges or Water
Tax and Sewerage Tax where the property feeds by the water connection granted
under Section 92 of M.M.C. Act. Similarly, the Water connections granted to land
under construction, wherein extra water charges and extra sewerage charges are
recovered in such cases, no Water Tax and Sewerage Tax to be levied to the property
under reference. (Emphasis supplied) Thus, the benefits of deletion of Water Tax and
Sewerage Tax from the property bills are also extended to the property which feeds by
the connections granted under Section 92 of M.M.C. Act. The connection granted
under Section 92 of M.M.Act as per Water Charges Rule No.6.0 now only pay water
Charges/Sewerage Charges and not Water Tax and Sewerage Tax.”
14.
It is clear from the above that the case before us would fall in the category of
“land
under construction” as admittedly, the occupancy certificate has not
been issued yet. The water connection would consequently be with extra charge.
Resultantly, the property tax too would be higher, as under section 140 of the
Mumbai Municipal Corporation Act, 1888, property tax includes water tax,
sewerage tax, General Tax and Education Cess. We therefore do not agree with
OP-1
(in
its
unsubstantiated
comment
in
the
affidavit
of
Mr
Ajay Pravinchandra Kamdar) that the compliance affidavit of the complainant is
vague. In our view, the complainant could not have done more than enclosing
copies of the response received from the BMC.
EVALUATION OF EVIDENCE
15. Conveyance of the property in favour of the complainant society is one of the
prayers made in this complaint. But, conveyance itself is directly dependent on grant of
occupation certificate by the GBMC. Detailed evidence considered in this order clearly
brings out the fact that occupation certificate has not issued due to conscious violation
of
the
FSI
norm
by
OP-1.
Thus,
in
an
earlier
affidavit
filed
by Mr. Ajay Pravinchandra Kamdar, partner of OP-1, detailed narration of the events as
seen by OP-1, is given with a concluding claim that there was no deficiency of service
on the part of OP-1. However, we find that the affidavit in itself carries the
following admissions which would go to show additional construction was taken
up by the builder/OP-1 with full knowledge that the slum notification of 1985 had
already reduced the available FSI:a) The plan was originally sanctioned by the GBMC for seven floors but later the
idea to build ten floors was persused by OP-1, under the impression that the civil
aviation authority may not have any objection.
b)
In March, 1984 an application was made to the GBMC seeking work
commencement certificate for height of 75 feet. But, by then the building had
already come up to a height of 87 feet !
c) Agreements for sale of flats on the 8th ,9th & 10th floors were entered into by
OP-1 with the prospective buyers “in the hope that NOCs from the Defence
Department & Fire Fighting Department were just a formality which the
Respondent No.1 were confident that they would get it as in the surrounding
area, buildings with similar height were already constructed.” But, on 23.6.1988,
GBMC issued notice to stop the construction works.
In the above background, we are unable to accept the claim of OP-1 that there was no
deficiency of service.
16.
We have earlier referred to the direction issued by this Commission on
21.4.2005. OP-1 was asked to file an affidavit clarifying the position on certain
points. One of them was why, despite the orders passed by the High Court, occupancy
certificate had not been given and why the OP could not comply with the direction of the
BMC. On this point, the affidavit of OP-1 filed on 23.1.2006 states that as BMC did not
issue the occupation certificate, the Complainant filed a contempt petition in which the
High Court directed to work out the solution for issue of occupation certificate. The
affidavit refers to a meeting of 17.1.2004 taken by Executive Engineer (Building
Proposal), BMC in which flat purchasers and the OP were asked to share the cost of
purchase of Transferable Development Rights (TDR). Apparently, no agreement was
reached and therefore the Executive Engineer issued his directions in the letter of
17.1.2004. A copy of this letter brought on record by OP-1, shows that the decision of
the Executive Engineer was that:
1) “The occupation of the Twin Towers C.H.S. Ltd. could be considered only if the
requisite TDR is purchased and imbalance of FSI on the plot under reference is
removed.
2) On compliance of various pending conditions as listed at Sr. Nos.1 to 14 in the
letter under No.CE/9568/BSII/AK dated 12/1/2000 addressed to developers,
architects and society members.”
In this background, we do not consider it appropriate to delve any further into the
matter of non-issue of occupation certificate. Consequently, no relief can be
awarded to the complainant on the prayer for execution of conveyance of
property.
17. Coming to other components of relief sought by the complainant, we may state the
obvious that they are direct consequence of non issue of conveyance of property by the
vendor i.e. OP-1. In this behalf, builder/OP-1 cannot be permitted to shelter behind nonissue of occupation certificate by GBMC as, in our view, conscious violation of FSI norm
by OP-1 was the cause for non-issue of occupation certificate. Evidence led by the two
sides has been examined in detail. As already stated, the complainant has
established with documentary evidence that property tax and water charge had to
be paid at higher rates, as a direct consequence of non-issue of conveyance of
property by the vendor/OP-1. The response of OP-1 has not travelled beyond a bland
denial of well documented claim of the complainant society. It needs to be mentioned
that the Commission even gave OP-1 a clear opportunity to bring evidence to the
contrary, if any, by filing an affidavit.
18. The belated affidavit of OP-1, mentioned earlier in this order, admits that the bills
brought on record by the other side pertained to the flats of the members of the
complainant society. It also admits that payments towards water tax and property tax
were made by the members themselves. However, on the main issue of responsibility of
the builder for higher rates of property and water taxes, the affidavit makes a very
devious and unconvincing attempt to escape liability by claiming that possession without
occupation certificate was given on the insistence of the flat purchasers themselves. It
says—
“They were ready to arrange themselves for the electricity and water
connection. In this circumstances and not to dis-satisfy the flat purchasers,
the Opposite Party agreed to give possession of the flats to the purchasers
in the building “ABC” and most of the flat purchasers have given
Undertaking to the Opposite Party that they were taking the possession
without the Occupation Certificate and they will arrange for the water and
electricity connection and if any additional charges are required to be paid,
the same will be paid by them.”
19. We have perused a copy of the Undertaking mentioned above. It needs to be
considered in the following background—
a. Admittedly the entire sale consideration had already been paid to the builder.
b. The builder/OP-1 was aware that his construction was in violation of FSI norm.
c. GBMC had already ordered stoppage of construction in 1989 and permission to
redevelop the slum had been withdrawn in 1991 when individual undertakings
were signed by flat purchasers.
d. As admitted in para 9(2) of the written Response of OP-1 filed on 6.11.2003,
possession of the flats were delivered in 1989 and 1991-92. The undertakings of
1991 would be of no relevance to cases of possession in 1989.
Therefore, in our view OP-1 cannot be permitted to take shelter behind the
undertakings signed by the flat purchasers.
20. In view of the details examined above, the complaint is partially allowed. OP1/M/s. Manish Vijay Enterprise are directed to refund an amount of Rs.30,61,410/towards excess property tax, water tax etc. to the Complainant. This refund shall carry
interest @ 9% with effect from the date of the complaint. OP-1 shall also pay an amount
of Rs.one lakhs to the Complainant towards costs. The entire amount shall be paid
within a period of three months failing this the period of delay shall carry interest at 12%
per annum.
.……………Sd/-……………
(J. M. MALIK,J.)
PRESIDING MEMBER
…………Sd/-……………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 98 OF 2013
(From the order dated 19.04.2012 in OP No. 28/03
of KERALA State Consumer Disputes Redressal Commission)
1. The Oriental Insurance Co. Ltd.
Through its Divisional Manager,
Divisional Office : 1, Seema Building,
P.B. No. 18, G.H. Road,
Calicut – 673001.
2. The Oriental Insurance Co. Ltd.
Regd. Office Oriental House,
P.B. No. 18 G.H. Road,
Asaf Ali Road,
New Delhi -110002.
... Appellant(s)
Versus
1. Sri. P.V. Balakrishnan
S/o P. Kuttiakkan,
Gayathri, 3/365 A, Idumbanilam,
P.O. Nallalam,
Calicut – 673 027, Kerala State
2. M/s Tower Assistance Limited,
807 – Maker Chambers V, Nariman Point,
Mumbai – 400 021
3. Mercury International Assistance
and Claims Ltd.
P.O. Box – 673, Hove,
Sussex BN3 6JL,
…. Respondent(s)
England
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellant(s)
Mr. Mohan Babu Agarwal, Advocate
PRONOUNCED ON : 9th APRIL 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This appeal has been filed under section 19 of the Consumer Protection Act, 1986
against the order dated 19.04.2012 passed by the Kerala State Consumer Disputes
Redressal Commission (for short ‘the State Commission’) in OP No. 28/03 vide which
the complaint filed by respondent no. 1 in this appeal, i.e., Mr. P.V. Balakrishnan, was
allowed and the OPs which are appellant no. 1 & 2 and respondent no. 2 & 3 in the
present appeal, were held jointly and severally liable and were asked to settle the claim
of the complainant / respondent no. 1 within two months from the receipt of the order,
failing which they would be liable to pay interest @12% p.a. from the date of complaint
till payment. They were also held liable for payment of Rs.2,00,000/- as compensation
and costs of Rs.10,000/- and were asked to make payment to the complainant within
the said period. It is against this order that the present appeal has been filed before
us. A preliminary examination of the first appeal revealed that the same has been filed
after a delay of 263 days. The impugned order is dated 19.04.2012 and is reported to
have been received by the appellant on that very date. However, the complaint was
filed on 06.02.2013, i.e., after a period of 293 days from the order and after taking into
account the permissible period of 30 days, there is a delay of 263 days in filing the
appeal. Of course, the appellant has filed an application for condonation of delay along
with the appeal.
2.
At the time of hearing before us, the learned counsel for the appellant was asked
to explain the reasons for delay in filing the appeal, in response to which, he has drawn
our attention to the contentions raised in the application for condonation of delay. It has
been stated therein that an officer was deputed by the appellant insurance company to
contact the counsel before the State Commission, after they got intimation about the
impugned order from the counsel. However, the entire file of the case got misplaced
and could not be traced until order was received for recovery of amount, in question,
from the State Commission. The requisite legal opinion was obtained and file was sent
to the counsel for drafting and filing the appeal before the National Commission.
3.
We have examined the matter on record and given thoughtful consideration to the
arguments advanced before us. The reasons advanced by the appellant for huge delay
of 263 days do not appear to be convincing from any yardstick. Even if, the file was
misplaced by the appellant, they could have obtained another coy of the order of the
State Commission and proceeded further for filing the appeal etc. but no action was
taken till the order was received under section 27 of the Consumer Protection Act, 1986
for execution of the said order. We, therefore, find no justification for condonation of
delay in the present case.
4.
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.”
5.
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.”
6.
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.”
7.
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.
8.
Hon’ble Apex
Court
in
2012
Ansul Aggarwal Vs. New Okhla Industrial
under:
(2)
CPC
Development
3
(SC)
Authority observed
–
as
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the
Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act,
1986, for filing appeals and revisions in Consumer matters
and the object of expeditious adjudication of the Consumer
disputes will get defeated, if this Court was to entertain
highly belated petitions filed against the orders of the
Consumer Foras”.
9.
It is quite evident from a perusal of the latest orders of the Hon’ble Apex Court that
unless sufficient cause is shown for not filing the revision petition / appeal within the
stipulated time, the delay should not be condoned. It has been specifically observed by
the Hon’ble Apex Court that special period of limitation has been prescribed under the
Consumer Protection Act, 1986 for filing the appeals and revision petitions in consumer
matters and the object of expeditious adjudication of consumer disputes will get
defeated, if the courts were to entertain highly belated petitions.
10. Based on the discussion above, application for condonation of delay deserves
rejection and the appeal is ordered to be dismissed at the stage of admission itself with
no order as to costs.
11. Statutory amount deposited along with accrued interest, if any, be released in
favour of the appellant.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.729 OF 2013
WITH
INTERIM APPLICATION NO.1323 OF 2013
INTERIM APPLICATION NO. 1324 OF 2013
(STAY & EXEMPTION FROM FILING CERTIFIED COPY)
(From the order dated 31.12.2012 in FAIA No.1923/2012 in FASR No.4384/2012 of the
State Commission Andhra Pradesh)
1.
Koganti Atchuta Rao
S/o Late Gopala Krishnaiah
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
Andhra Pradesh
2.
Smt. Koganti Lakshmi Sridevi
W/o Atchuta Rao
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
..…. Petitioners
Andhra Pradesh
Versus
Kakarla Venkata Sudhakara Rao
S/o Shyam Sundera Rao
FF-2, Seshadri Nilyam
Road No.3, Tulasinagar,
VIJAYAWADA-520 004
Krishna District
Andhra Pradesh
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: Mr. G.V.R. Choudary, Advocate
For the Respondent
: Mr. Parnam Prabhakar, Advocate (Caveator)
PRONOUNCED ON 09th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Being aggrieved of dismissal of their application for condonation of delay as well
as appeal vide order dated 31.12.2012 of the State Commission the petitioners/opposite
parties have preferred this revision petition.
Briefly stated facts relevant for the disposal of this revision petition are that the
respondent/complainant filed consumer complaint under Section 12 of the Consumer
Protection Act, 1986 against the petitioners alleging deficiency in service and claimed
compensation to the tune of Rs.18,64,400/- with 24% interest p.a. besides the cost of
litigation.
Notice of the complaint was sent to the petitioners but the petitioners failed to put
in appearance before the District Forum-II, Krishna at Vijaywada. The District Forum
therefore proceeded ex-parte against the petitioners/opposite parties and allowed the
complaint. The petitioners were directed to pay sum of Rs.18,67,000/- to the
complainant with interest @ 12% from the date of filing of the complaint till the date of
realization besides cost amounting to Rs.2,000/-.
Aggrieved by the order of the District Consumer Forum, petitioners preferred an
appeal
after
a
delay
of
1142
days. Alongwith the
appeal
an
application
for condonation of delay was filed. The cause shown by the petitioners for inordinate
delay in filing of appeal as set out in the affidavit filed alongwith the application before
the State Commission is that on coming to know of the ex-parte order, the petitioners
moved an application, being I.A. No.1441/2009, under Order 9 Rule 13 C.P.C. for
setting aside the ex-parte order. The District Forum however dismissed the application
on 16.7.2009.
Aggrieved by the order of dismissal of application under Order 9 Rule 13 C.P.C.
the petitioners filed Civil Writ Petition No.3941/2009 before Hon’ble High Court of
Andhra Pradesh. The writ petition was dismissed by the Hon’ble High Court on
12.8.2011 observing that it was not maintainable since alternative remedy is available to
the petitioners under Section 17 (1) (b) of Consumer Protection Act, 1986. Thereafter
the petitioners filed revision petition No.4948/2011 before the State Commission on
5.9.2011 which was withdrawn by the petitioners on 18.11.2011 in order to prefer a
regular appeal. It is further alleged that in the meanwhile the petitioners were
negotiating an amicable settlement with the father of the complainant but he dragged on
the settlement on one pretext or other. When the settlement did not come through, the
petitioner filed the appeal in the State Commission.
The State Commission being not satisfied with the explanation given for delay in
filing of the appeal, declined to condone the delay. Accordingly the application
for condonationof delay was dismissed. Consequently the appeal was also dismissed
being barred by limitation.
Learned counsel Shri G.V.R. Choudary, Advocate appearing on behalf of the
petitioners has contended that the impugned order of the State Commission declining to
condone the delay in filing of the appeal has been passed in utter disregard of Section
14 of the Limitation Act, 1963 which provides that if a litigant due to bona-fide mistake
pursues his right before a wrong forum the period consumed before that forum ought to
be excluded while computing the period of limitation. Expanding on the arguments
counsel for the petitioners submitted that the State Commission has failed to appreciate
that under mistaken belief the petitioners preferred a writ petition against the order of
District Forum before the High Court of Andhra Pradesh instead of filing the appeal
before the State Commission and that period ought to have been excluded while
computing the period of limitation. In support of this contention learned counsel has
relied upon the judgment of the Supreme Court in the matter of Rameshwarlal vs.
Municipal Council, Tonk (1996) 6 SCC 100 as also Union of India vs. West Coast
Paper Mills Ltd. (2004) 3 SCC 458 and Consolidated Engineering Enterprises vs.
Principal Secretary Irrigation Department (2008) 7 SCC 169.
Learned Shri Parnam Prabhakar, Advocate for the respondent (Caveator) on the
contrary has argued in support of the impugned order of the State Commission.
Learned counsel for the respondent contended that the State Commission has rightly
dismissed the application for condonation of delay in the light of the judgment of the
Supreme Court in the matter of M/s Advance Scientific Equipment Ltd. & Another
vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal
(Civil) Nos.170-17069/2010 decided on 9th July, 2010.
We have considered the rival contentions and perused the matter on record. In
the matter of Rameshwarlal vs. Municipal Council, Tonk (supra) Hon’ble Supreme
Court held as follows: “Normally for application of Section 14, the Court dealing
with the matter in the first instance, which is the subject of the
issue in the latter case, must be found to have lack of
jurisdiction or other cause of like nature to entertain the matter.
However, since the High Court expressly declined to grant relief
relegating the petitioner to a suit in civil Court, the petitioner
cannot be left remedyless. Accordingly, the time taken in
prosecuting the proceedings before the High Court and this
Court obviously pursued diligently and bona fide, needs to be
excluded.
In the matter of Union of India vs. West Coast Paper Mills Ltd. (supra) the
Supreme Court while dealing with Section 14 of the Limitation Act observed thus: “In the submission of the learned senior counsel, filing of
civil writ petition claiming money relief cannot be said to be a
proceeding instituted in good faith and secondly, dismissal of writ
petition on the ground that it was not an appropriate remedy for
seeking money relief cannot be said to be "defect of jurisdiction or
other cause of a like nature' within the meaning of Section 14 of the
Limitation Act. It is true that the writ petition was not dismissed by the
High Court on the ground of defect of jurisdiction. However, Section 14
of the Limitation Act is wide in its application, inasmuch it is not
confined in its applicability only to cases of defect of jurisdiction but it is
applicable also to cases where the prior proceedings have failed on
account of other causes of like nature. The expression "Other cause of
like
nature"
came
up
for
in Roshanlal Kuthalia and Ors. v.
the
consideration
R.B.
Mohan
of
this
Singh Oberai.
Court
AIR
(1975) SC 824 = (1975) 4 SCC 628 and it was held that Section 14 of
the Limitation Act is wide enough to cover such cases where the
defects are not merely jurisdictional strictly so called but others more
or less neighbours to such deficiencies. Any circumstances, legal or
factual, which inhibits entertainment or consideration by the Court of
the dispute on the merits comes within the scope of the Section and a
liberal touch must inform the interpretation of the Limitation Act which
deprives the remedy of one who has right.
Further in the matter of Consolidated Engineering Enterprises (supra) it was
observed thus: “Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the
said section, it becomes evident that the following conditions must be
satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party;
(2)
The prior proceeding had been prosecuted with due
diligence and in good faith;
(3)
The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
(4)
The earlier proceeding and the latter proceeding
must relate to the same matter in issue and;
(5)
Both the proceedings are in a court.
The policy of the section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding which by
reason of some technical defect cannot be decided on merits and is
dismissed. While considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to provide relief against the
bar of limitation in cases of mistaken remedy or selection of a wrong
forum. On reading Section 14 of the Act it becomes clear that the
legislature has enacted the said section to exempt a certain period
covered by a bona fide litigious activity. Upon the words used in the
section, it is not possible to sustain the interpretation that the principle
underlying the said section, namely, that the bar of limitation should
not affect a person honestly doing his best to get his case tried on
merits but failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section 34 of the
Act of 1996. The principle is clearly applicable not only to a case in
which a litigant brings his application in the court, that is, a court
having no jurisdiction to entertain it but also where he brings the suit
or the application in the wrong court in consequence of bona fide
mistake or (sic of) law or defect of procedure. Having regard to the
intention of the legislature this Court is of the firm opinion that the
equity underlying Section 14 should be applied to its fullest extent
and time taken diligently pursuing a remedy, in a wrong court, should
be excluded.”
On perusal of the aforesaid judgments as also Section 14 of the Limitation Act
which is reproduced in the above observations it is evident that benefit of Section 14 of
the Limitation Act would be available to the petitioners only if they had pursued the
remedy in the wrong forum with due diligence and in good faith. Thus the bona-fides of
the petitioners seeking advantage of Section 14 of the Limitation Act is the key factor for
deciding whether or not the benefit is to be extended.
In this context, it would be pertinent to refer to a decision of Hon’ble Supreme
Court in M/s Advance Scientific Equipment Ltd. & Anr. (supra) in which Court
observed as under: “…We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction.”
While dealing with the issue pertaining to condonation of delay the Supreme
Court in the matter of Anshul Aggarwal vs. New Okhla Industrial Development
Authority IV (2011) CPJ 65 (SC) has observed thus: “It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the Court
has to keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated
if this Court was to entertain highly belated petitions filed against
the orders of the consumer Foras.”
Decision
of Anshul Aggarwal (supra) has
in Cicily Kallarackal Vs.
Vehicle
Factory,
IV
been
reiterated
(2012)
CPJ
NOIDA,
(2011)
1, wherein Hon’ble Supreme Court observed:“4
This
Court
in Anshulal Aggarwal v.
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).
1(SC)
5.
In the instant case, condoning such an inordinate delay
without any sufficient cause would amount to substituting
the period of limitation by this Court in place of the period
prescribed by the Legislature for filing the special leave
petition. Therefore, we do not see any cogent reason to
condone the delay.
6.
Hence, in the facts and circumstance of the case as
explained hereinabove, we are not inclined to entertain
these petitions. The same are dismissed on the ground of
delay”.
In the aforesaid judgment Hon’ble Supreme Court has highlighted that while
dealing with an application for condonation of delay the Court must bear in mind the
object of expeditious disposal of consumer dispute which would get defeated if the
Court was to entertain highly belated petitions.
If we go through the factual matrix of this case the petitioners admittedly failed to
put in appearance before the District Forum and allowed the complaint to be proceeded
ex-parte. Thereafter the petitioners instead of filing an appeal against the order of the
District Forum filed a writ petition challenging the order of the District Forum. Not only
this when the writ petition was dismissed by the High Court then also the petitioners
instead of filing appeal filed a revision petition in the State Commission which was later
on withdrawn and the appeal was filed. Thus conduct of the petitioners reflects on their
mala-fide intention to delay the proceedings. Thus under the circumstances by no
stretch of imagination the petitioners are entitled to benefit of Section 14 of Limitation
Act.
Even if for the sake of argument benefit of Section 14 of Limitation Act is given to
the petitioners and the period during which the petitioners were pursuing writ petition
before the High Court is excluded, then also the appeal filed was highly belated.
Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal
was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year
from the dismissal of the writ petition by the High Court. Only explanation for this delay
is that during the intervening period petitioners were negotiating amicable settlement
with the father of the complainant which in our view is not acceptable. Thus even if the
benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before
the State Commission was hopelessly time barred and there was no justification
for coondonation of delay in filing of appeal.
Learned counsel for the petitioners has further submitted that the finding of the
State Commission to the effect that the petitioners were duly served with the notice in
the light of Section 28-A (4) of the Consumer Protection Act, 1986 is erroneous and
against the record. Expanding on the argument, learned counsel for the petitioners has
taken us through the order of the District Forum wherein the District Forum has
observed that notices sent to the opposite parties were returned unserved. So the
notices by publication were ordered. It is contended that once the notices were received
back undelivered presumption of service by Section 28-A (4) of the Consumer
Protection Act, 1986 should not have been drawn. It is also argued that the service by
publication is not a recognized mode of service under Section 28-A (4) of the Consumer
Protection Act, 1986. As such the ex-parte order passed by the District Forum against
the petitioners is not sustainable and if the delay in filing appeal before the State
Commission is not condoned, the petitioners would suffer grave injustice.
The above contention of learned counsel for the petitioners is misconceived.
From the order of the District Forum it is evident that effort was made to serve the
petitioners with the notices of the complaint by ordinary process. Not only this
undisputedly the notices were sent to the petitioners at the correct address which is
given by the petitioners in their revision petition. Under these circumstances, we can
safely infer that the notices sent by post to the petitioners were received back
undelivered because of avoidance of the petitioners to receive the notices. When the
notices were received back undelivered only option left with the District Forum was to
resort to the substituted service by publication which was exercised. Thus, we do not
find any fault with the District Forum having proceeded ex-parte against the petitioners
after resorting to substituted service of the appeal by publication in newspapers.
In view of the discussion above, we do not find any fault in the order of the State
Commission declining to condone the delay of 1142 days in filing of appeal, which may
justify interference by this Commission in exercise of its revisional jurisdiction.
Revision petition is therefore dismissed with punitive cost of Rs.20,000/- to be
deposited by the petitioners with the Consumer Legal Aid Fund maintained by the Union
Ministry within four weeks.
List on 24th May, 2013 for compliance.
…………………..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………….……………
(SURESH CHANDRA)
MEMBER
Raj/3
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.728 OF 2013
WITH
INTERIM APPLICATION NO.1327 OF 2013
INTERIM APPLICATION NO. 1328 OF 2013
(STAY & EXEMPTION FROM FILING CERTIFIED COPY)
(From the order dated 31.12.2012 in FAIA No.1922/2012 in FASR No.4381/2012 of the
State Commission Andhra Pradesh)
1.
Koganti Atchuta Rao
S/o Late Gopala Krishnaiah
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
Andhra Pradesh
2.
Smt. Koganti Lakshmi Sridevi
W/o Atchuta Rao
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
..…. Petitioners
Andhra Pradesh
Versus
Putcha Purnachandra Rao
S/o Late Gopala Krishna Murthy
D.N.30-18-28A, II Floor,
Inavolu Vari Street, Seetharampuram
VIJAYAWADA-520 004
Krishna District
Andhra Pradesh
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: Mr. G.V.R. Choudary, Advocate
For the Respondent
: Mr. Parnam Prabhakar, Advocate (Caveator)
PRONOUNCED ON 09th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Being aggrieved of dismissal of their application for condonation of delay as well
as appeal vide order dated 31.12.2012 of the State Commission the petitioners/opposite
parties have preferred this revision petition.
Briefly stated facts relevant for the disposal of this revision petition are that the
respondent/complainant filed consumer complaint under Section 12 of the Consumer
Protection Act, 1986 against the petitioners alleging deficiency in service and claimed
compensation to the tune of Rs.17,64,400/- with 24% interest p.a. besides the cost of
litigation.
Notice of the complaint was sent to the petitioners but the petitioners failed to put
in appearance before the District Forum-II, Krishna at Vijaywada. The District Forum
therefore proceeded ex-parte against the petitioners/opposite parties and allowed the
complaint. The petitioners were directed to pay sum of Rs.17,64,400/- to the
complainant with interest @ 9% from the date of filing of the complaint till the date of
realization besides cost amounting to Rs.2,000/-.
Aggrieved by the order of the District Consumer Forum, petitioners preferred an
appeal after a delay of 1088 days. Alongwith the appeal an application for condonation
of delay was filed. The cause shown by the petitioners for inordinate delay in filing of
appeal as set out in the affidavit filed alongwith the application before the State
Commission is that on coming to know of the ex-parte order, the petitioners moved an
application, being I.A. No.1481/2009, under Order 9 Rule 13 C.P.C. for setting aside the
ex-parte order. The District Forum however dismissed the application on 18.7.2009.
Aggrieved by the order of dismissal of application under Order 9 Rule 13 C.P.C.
the petitioners filed Civil Writ Petition No.3938/2009 before Hon’ble High Court of
Andhra Pradesh. The writ petition was dismissed by the Hon’ble High Court on
12.8.2011 observing that it was not maintainable since alternative remedy is available to
the petitioners under Section 17 (1) (b) of Consumer Protection Act, 1986. Thereafter
the petitioners filed revision petition No.4950/2011 before the State Commission on
5.9.2011 which was withdrawn by the petitioners on 18.11.2011 in order to prefer a
regular appeal. It is further alleged that in the meanwhile the petitioners were
negotiating an amicable settlement with the complainant but he dragged on the
settlement on one pretext or other. When the settlement did not come through, the
petitioners filed the appeal in the State Commission.
The State Commission being not satisfied with the explanation given for delay in
filing of the appeal, declined to condone the delay. Accordingly the application for
condonation of delay was dismissed. Consequently the appeal was also dismissed
being barred by limitation.
Learned counsel Shri G.V.R. Choudary, Advocate appearing on behalf of the
petitioners has contended that the impugned order of the State Commission declining to
condone the delay in filing of the appeal has been passed in utter disregard of Section
14 of the Limitation Act, 1963 which provides that if a litigant due to bona-fide mistake
pursues his right before a wrong forum the period consumed before that forum ought to
be excluded while computing the period of limitation. Expanding on the arguments
counsel for the petitioners submitted that the State Commission has failed to appreciate
that under mistaken belief the petitioners preferred a writ petition against the order of
District Forum before the High Court of Andhra Pradesh instead of filing the appeal
before the State Commission and that period ought to have been excluded while
computing the period of limitation. In support of this contention learned counsel has
relied upon the judgment of the Supreme Court in the matter of Rameshwarlal vs.
Municipal Council, Tonk (1996) 6 SCC 100 as also Union of India vs. West Coast
Paper Mills Ltd. (2004) 3 SCC 458 and Consolidated Engineering Enterprises vs.
Principal Secretary Irrigation Department (2008) 7 SCC 169.
Learned Shri Parnam Prabhakar, Advocate for the respondent (Caveator) on the
contrary has argued in support of the impugned order of the State Commission.
Learned counsel for the respondent contended that the State Commission has rightly
dismissed the application for condonation of delay in the light of the judgment of the
Supreme Court in the matter of M/s Advance Scientific Equipment Ltd. & Another
vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal
(Civil) Nos.170-17069/2010 decided on 9th July, 2010.
We have considered the rival contentions and perused the matter on record. In
the matter of Rameshwarlal vs. Municipal Council, Tonk (supra) Hon’ble Supreme
Court held as follows: “Normally for application of Section 14, the Court dealing
with the matter in the first instance, which is the subject of the
issue in the latter case, must be found to have lack of
jurisdiction or other cause of like nature to entertain the matter.
However, since the High Court expressly declined to grant relief
relegating the petitioner to a suit in civil Court, the petitioner
cannot be left remedyless. Accordingly, the time taken in
prosecuting the proceedings before the High Court and this
Court obviously pursued diligently and bona fide, needs to be
excluded.
In the matter of Union of India vs. West Coast Paper Mills Ltd. (supra) the
Supreme Court while dealing with Section 14 of the Limitation Act observed thus: “In the submission of the learned senior counsel, filing of
civil writ petition claiming money relief cannot be said to be a
proceeding instituted in good faith and secondly, dismissal of writ
petition on the ground that it was not an appropriate remedy for
seeking money relief cannot be said to be "defect of jurisdiction or
other cause of a like nature' within the meaning of Section 14 of the
Limitation Act. It is true that the writ petition was not dismissed by the
High Court on the ground of defect of jurisdiction. However, Section 14
of the Limitation Act is wide in its application, inasmuch it is not
confined in its applicability only to cases of defect of jurisdiction but it is
applicable also to cases where the prior proceedings have failed on
account of other causes of like nature. The expression "Other cause of
like nature" came up for the consideration of this Court in Roshanlal
Kuthalia and Ors. v. R.B. Mohan Singh Oberai. AIR (1975) SC 824 =
(1975) 4 SCC 628 and it was held that Section 14 of the Limitation Act
is wide enough to cover such cases where the defects are not merely
jurisdictional strictly so called but others more or less neighbours to
such deficiencies. Any circumstances, legal or factual, which inhibits
entertainment or consideration by the Court of the dispute on the
merits comes within the scope of the Section and a liberal touch must
inform the interpretation of the Limitation Act which deprives the
remedy of one who has right.
Further in the matter of Consolidated Engineering Enterprises (supra) it was
observed thus: “Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the
said section, it becomes evident that the following conditions must be
satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2)
The prior proceeding had been prosecuted with due
diligence and in good faith;
(3)
The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
(4)
The earlier proceeding and the latter proceeding
must relate to the same matter in issue and;
(5)
Both the proceedings are in a court.
The policy of the section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding which by
reason of some technical defect cannot be decided on merits and is
dismissed. While considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to provide relief against the
bar of limitation in cases of mistaken remedy or selection of a wrong
forum. On reading Section 14 of the Act it becomes clear that the
legislature has enacted the said section to exempt a certain period
covered by a bona fide litigious activity. Upon the words used in the
section, it is not possible to sustain the interpretation that the principle
underlying the said section, namely, that the bar of limitation should
not affect a person honestly doing his best to get his case tried on
merits but failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section 34 of the
Act of 1996. The principle is clearly applicable not only to a case in
which a litigant brings his application in the court, that is, a court
having no jurisdiction to entertain it but also where he brings the suit
or the application in the wrong court in consequence of bona fide
mistake or (sic of) law or defect of procedure. Having regard to the
intention of the legislature this Court is of the firm opinion that the
equity underlying Section 14 should be applied to its fullest extent
and time taken diligently pursuing a remedy, in a wrong court, should
be excluded.”
On perusal of the aforesaid judgments as also Section 14 of the Limitation Act
which is reproduced in the above observations it is evident that benefit of Section 14 of
the Limitation Act would be available to the petitioners only if they had pursued the
remedy in the wrong forum with due diligence and in good faith. Thus the bona-fides of
the petitioners seeking advantage of Section 14 of the Limitation Act is the key factor for
deciding whether or not the benefit is to be extended.
In this context, it would be pertinent to refer to a decision of Hon’ble Supreme
Court in M/s Advance Scientific Equipment Ltd. & Anr. (supra) in which Court
observed as under: “…We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction.”
While dealing with the issue pertaining to condonation of delay the Supreme
Court in the matter of Anshul Aggarwal vs. New Okhla Industrial Development
Authority IV (2011) CPJ 65 (SC) has observed thus: “It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the Court
has to keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated
if this Court was to entertain highly belated petitions filed against
the orders of the consumer Foras.”
Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal
Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court
observed:“4
This Court in Anshulal Aggarwal v. NOIDA, (2011) CPJ
63 (SC) has explained the scope of condonation of delay
in a matter where the special Courts/Tribunals have been
constituted in order to provide expeditious remedies to the
person aggrieved and Consumer Protection Act, 1986 is
one of them. Therefore, this Court held that while dealing
with the application for condonation of delay in such cases
the Court must keep in mind the special period of limitation
prescribed under the statute (s).
5.
In the instant case, condoning such an inordinate delay
without any sufficient cause would amount to substituting
the period of limitation by this Court in place of the period
prescribed by the Legislature for filing the special leave
petition. Therefore, we do not see any cogent reason to
condone the delay.
6.
Hence, in the facts and circumstance of the case as
explained hereinabove, we are not inclined to entertain
these petitions. The same are dismissed on the ground of
delay”.
In the aforesaid judgment Hon’ble Supreme Court has highlighted that while
dealing with an application for condonation of delay the Court must bear in mind the
object of expeditious disposal of consumer dispute which would get defeated if the
Court was to entertain highly belated petitions.
If we go through the factual matrix of this case the petitioners admittedly failed to
put in appearance before the District Forum and allowed the complaint to be proceeded
ex-parte. Thereafter the petitioners instead of filing an appeal against the order of the
District Forum filed a writ petition challenging the order of the District Forum. Not only
this when the writ petition was dismissed by the High Court then also the petitioners
instead of filing appeal filed a revision petition in the State Commission which was later
on withdrawn and the appeal was filed. Thus conduct of the petitioners reflects on their
mala-fide intention to delay the proceedings. Thus under the circumstances by no
stretch of imagination the petitioners are entitled to benefit of Section 14 of Limitation
Act.
Even if for the sake of argument benefit of Section 14 of Limitation Act is given to
the petitioners and the period during which the petitioners were pursuing writ petition
before the High Court is excluded, then also the appeal filed was highly belated.
Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal
was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year
from the dismissal of the writ petition by the High Court. Only explanation for this delay
is that during the intervening period petitioners were negotiating amicable settlement
with the father of the complainant which in our view is not acceptable. Thus even if the
benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before
the State Commission was hopelessly time barred and there was no justification for
coondonation of delay in filing of appeal.
Learned counsel for the petitioners has further submitted that the finding of the
State Commission to the effect that the petitioners were duly served with the notice in
the light of Section 28-A (4) of the Consumer Protection Act, 1986 is erroneous and
against the record. Expanding on the argument, learned counsel for the petitioners has
taken us through the order of the District Forum wherein the District Forum has
observed that notices sent to the opposite parties were returned unserved. So the
notices by publication were ordered. It is contended that once the notices were received
back undelivered presumption of service by Section 28-A (4) of the Consumer
Protection Act, 1986 should not have been drawn. It is also argued that the service by
publication is not a recognized mode of service under Section 28-A (4) of the Consumer
Protection Act, 1986. As such the ex-parte order passed by the District Forum against
the petitioners is not sustainable and if the delay in filing appeal before the State
Commission is not condoned, the petitioners would suffer grave injustice.
The above contention of learned counsel for the petitioners is misconceived.
From the order of the District Forum it is evident that effort was made to serve the
petitioners with the notices of the complaint by ordinary process. Not only this
undisputedly the notices were sent to the petitioners at the correct address which is
given by the petitioners in their revision petition. Under these circumstances, we can
safely infer that the notices sent by post to the petitioners were received back
undelivered because of avoidance of the petitioners to receive the notices. When the
notices were received back undelivered only option left with the District Forum was to
resort to the substituted service by publication which was exercised. Thus, we do not
find any fault with the District Forum having proceeded ex-parte against the petitioners
after resorting to substituted service of the appeal by publication in newspapers.
In view of the discussion above, we do not find any fault in the order of the State
Commission declining to condone the delay of 1088 days in filing of appeal, which may
justify interference by this Commission in exercise of its revisional jurisdiction.
Revision petition is therefore dismissed with punitive cost of Rs.20,000/- to be
deposited by the petitioners with the Consumer Legal Aid Fund maintained by the Union
Ministry within four weeks.
List on 24th May, 2013 for compliance.
…………………..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………….……………
(SURESH CHANDRA)
MEMBER
Raj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.726 OF 2013
WITH
INTERIM APPLICATION NO.1323 OF 2013
INTERIM APPLICATION NO. 1324 OF 2013
(STAY & EXEMPTION FROM FILING CERTIFIED COPY)
(From the order dated 31.12.2012 in FAIA No.1920/2012 in FASR No.4375/2012 of the
State Commission Andhra Pradesh)
1.
Koganti Atchuta Rao
S/o Late Gopala Krishnaiah
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
Andhra Pradesh
2.
Smt. Koganti Lakshmi Sridevi
W/o Atchuta Rao
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
..…. Petitioners
Andhra Pradesh
Versus
Koganti Triven
Rep. by his mother and
Natural guardian
Smt. Lakshmi
W/o K.V.V. Nageswara Rao,
D.No.31-13-5,
Pothinenivari Street, Machavaram,
VIJAYAWADA-520 004
Krishna District
Andhra Pradesh
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: Mr. G.V.R. Choudary, Advocate
For the Respondent
: Mr. Parnam Prabhakar, Advocate (Caveator)
PRONOUNCED ON 09th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Being aggrieved of dismissal of their application for condonation of delay as well
as appeal vide order dated 31.12.2012 of the State Commission the petitioners/opposite
parties have preferred this revision petition.
Briefly stated facts relevant for the disposal of this revision petition are that the
respondent/complainant filed consumer complaint under Section 12 of the Consumer
Protection Act, 1986 against the petitioners alleging deficiency in service and claimed
compensation to the tune of Rs.14,96,913/- with 24% interest p.a. besides the cost of
litigation.
Notice of the complaint was sent to the petitioners but the petitioners failed to put
in appearance before the District Forum-II, Krishna at Vijaywada. The District Forum
therefore proceeded ex-parte against the petitioners/opposite parties and allowed the
complaint. The petitioners were directed to pay sum of Rs.14,96,914/- to the
complainant with interest @ 24% from the date of filing of the complaint till the date of
realization besides cost amounting to Rs.2,000/-.
Aggrieved by the order of the District Consumer Forum, petitioners preferred an
appeal
after
a
delay
of
1197
days. Alongwith the
appeal
an
application
for condonation of delay was filed. The cause shown by the petitioners for inordinate
delay in filing of appeal as set out in the affidavit filed alongwith the application before
the State Commission is that on coming to know of the ex-parte order, the petitioners
moved an application, being I.A. No.1401/2009, under Order 9 Rule 13 C.P.C. for
setting aside the ex-parte order. The District Forum however dismissed the application
on 20.7.2009.
Aggrieved by the order of dismissal of application under Order 9 Rule 13 C.P.C.
the petitioners filed Civil Writ Petition No.3794/2009 before Hon’ble High Court of
Andhra Pradesh. The writ petition was dismissed by the Hon’ble High Court on
12.8.2011 observing that it was not maintainable since alternative remedy is available to
the petitioners under Section 17 (1) (b) of Consumer Protection Act, 1986. Thereafter
the petitioners filed revision petition No.4946/2011 before the State Commission on
5.9.2011 which was withdrawn by the petitioners on 18.11.2011 in order to prefer a
regular appeal. It is further alleged that in the meanwhile the petitioners were
negotiating an amicable settlement with the complainant but he dragged on the
settlement on one pretext or other. When the settlement did not come through, the
petitioners filed the appeal in the State Commission.
The State Commission being not satisfied with the explanation given for delay in
filing of the appeal, declined to condone the delay. Accordingly the application
for condonationof delay was dismissed. Consequently the appeal was also dismissed
being barred by limitation.
Learned counsel Shri G.V.R. Choudary, Advocate appearing on behalf of the
petitioners has contended that the impugned order of the State Commission declining to
condone the delay in filing of the appeal has been passed in utter disregard of Section
14 of the Limitation Act, 1963 which provides that if a litigant due to bona-fide mistake
pursues his right before a wrong forum the period consumed before that forum ought to
be excluded while computing the period of limitation. Expanding on the arguments
counsel for the petitioners submitted that the State Commission has failed to appreciate
that under mistaken belief the petitioners preferred a writ petition against the order of
District Forum before the High Court of Andhra Pradesh instead of filing the appeal
before the State Commission and that period ought to have been excluded while
computing the period of limitation. In support of this contention learned counsel has
relied upon the judgment of the Supreme Court in the matter of Rameshwarlal vs.
Municipal Council, Tonk (1996) 6 SCC 100 as also Union of India vs. West Coast
Paper Mills Ltd. (2004) 3 SCC 458 and Consolidated Engineering Enterprises vs.
Principal Secretary Irrigation Department (2008) 7 SCC 169.
Learned Shri Parnam Prabhakar, Advocate for the respondent (Caveator) on the
contrary has argued in support of the impugned order of the State Commission.
Learned counsel for the respondent contended that the State Commission has rightly
dismissed the application for condonation of delay in the light of the judgment of the
Supreme Court in the matter of M/s Advance Scientific Equipment Ltd. & Another
vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal
(Civil) Nos.170-17069/2010 decided on 9th July, 2010.
We have considered the rival contentions and perused the matter on record. In
the matter of Rameshwarlal vs. Municipal Council, Tonk (supra) Hon’ble Supreme
Court held as follows: “Normally for application of Section 14, the Court dealing
with the matter in the first instance, which is the subject of the
issue in the latter case, must be found to have lack of
jurisdiction or other cause of like nature to entertain the matter.
However, since the High Court expressly declined to grant relief
relegating the petitioner to a suit in civil Court, the petitioner
cannot be left remedyless. Accordingly, the time taken in
prosecuting the proceedings before the High Court and this
Court obviously pursued diligently and bona fide, needs to be
excluded.
In the matter of Union of India vs. West Coast Paper Mills Ltd. (supra) the
Supreme Court while dealing with Section 14 of the Limitation Act observed thus: “In the submission of the learned senior counsel, filing of
civil writ petition claiming money relief cannot be said to be a
proceeding instituted in good faith and secondly, dismissal of writ
petition on the ground that it was not an appropriate remedy for
seeking money relief cannot be said to be "defect of jurisdiction or
other cause of a like nature' within the meaning of Section 14 of the
Limitation Act. It is true that the writ petition was not dismissed by the
High Court on the ground of defect of jurisdiction. However, Section 14
of the Limitation Act is wide in its application, inasmuch it is not
confined in its applicability only to cases of defect of jurisdiction but it is
applicable also to cases where the prior proceedings have failed on
account of other causes of like nature. The expression "Other cause of
like
nature"
came
up
for
in Roshanlal Kuthalia and Ors. v.
the
consideration
R.B.
Mohan
of
this
Singh Oberai.
Court
AIR
(1975) SC 824 = (1975) 4 SCC 628 and it was held that Section 14 of
the Limitation Act is wide enough to cover such cases where the
defects are not merely jurisdictional strictly so called but others more
or less neighbours to such deficiencies. Any circumstances, legal or
factual, which inhibits entertainment or consideration by the Court of
the dispute on the merits comes within the scope of the Section and a
liberal touch must inform the interpretation of the Limitation Act which
deprives the remedy of one who has right.
Further in the matter of Consolidated Engineering Enterprises (supra) it was
observed thus: “Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the
said section, it becomes evident that the following conditions must be
satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party;
(2)
The prior proceeding had been prosecuted with due
diligence and in good faith;
(3)
The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
(4)
The earlier proceeding and the latter proceeding
must relate to the same matter in issue and;
(5)
Both the proceedings are in a court.
The policy of the section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding which by
reason of some technical defect cannot be decided on merits and is
dismissed. While considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to provide relief against the
bar of limitation in cases of mistaken remedy or selection of a wrong
forum. On reading Section 14 of the Act it becomes clear that the
legislature has enacted the said section to exempt a certain period
covered by a bona fide litigious activity. Upon the words used in the
section, it is not possible to sustain the interpretation that the principle
underlying the said section, namely, that the bar of limitation should
not affect a person honestly doing his best to get his case tried on
merits but failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section 34 of the
Act of 1996. The principle is clearly applicable not only to a case in
which a litigant brings his application in the court, that is, a court
having no jurisdiction to entertain it but also where he brings the suit
or the application in the wrong court in consequence of bona fide
mistake or (sic of) law or defect of procedure. Having regard to the
intention of the legislature this Court is of the firm opinion that the
equity underlying Section 14 should be applied to its fullest extent
and time taken diligently pursuing a remedy, in a wrong court, should
be excluded.”
On perusal of the aforesaid judgments as also Section 14 of the Limitation Act
which is reproduced in the above observations it is evident that benefit of Section 14 of
the Limitation Act would be available to the petitioners only if they had pursued the
remedy in the wrong forum with due diligence and in good faith. Thus the bona-fides of
the petitioners seeking advantage of Section 14 of the Limitation Act is the key factor for
deciding whether or not the benefit is to be extended.
In this context, it would be pertinent to refer to a decision of Hon’ble Supreme
Court in M/s Advance Scientific Equipment Ltd. & Anr. (supra) in which Court
observed as under: “…We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction.”
While dealing with the issue pertaining to condonation of delay the Supreme
Court in the matter of Anshul Aggarwal vs. New Okhla Industrial Development
Authority IV (2011) CPJ 65 (SC) has observed thus: “It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the Court
has to keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated
if this Court was to entertain highly belated petitions filed against
the orders of the consumer Foras.”
Decision
of Anshul Aggarwal (supra) has
in Cicily Kallarackal Vs.
Vehicle
Factory,
IV
been
reiterated
(2012)
CPJ
NOIDA,
(2011)
1, wherein Hon’ble Supreme Court observed:“4
This
Court
in Anshulal Aggarwal v.
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
1(SC)
dealing with the application for condonation of delay in
such cases the Court must keep in mind the special period
of limitation prescribed under the statute (s).
5.
In the instant case, condoning such an inordinate delay
without any sufficient cause would amount to substituting
the period of limitation by this Court in place of the period
prescribed by the Legislature for filing the special leave
petition. Therefore, we do not see any cogent reason to
condone the delay.
6.
Hence, in the facts and circumstance of the case as
explained hereinabove, we are not inclined to entertain
these petitions. The same are dismissed on the ground of
delay”.
In the aforesaid judgment Hon’ble Supreme Court has highlighted that while
dealing with an application for condonation of delay the Court must bear in mind the
object of expeditious disposal of consumer dispute which would get defeated if the
Court was to entertain highly belated petitions.
If we go through the factual matrix of this case the petitioners admittedly failed to
put in appearance before the District Forum and allowed the complaint to be proceeded
ex-parte. Thereafter the petitioners instead of filing an appeal against the order of the
District Forum filed a writ petition challenging the order of the District Forum. Not only
this when the writ petition was dismissed by the High Court then also the petitioners
instead of filing appeal filed a revision petition in the State Commission which was later
on withdrawn and the appeal was filed. Thus conduct of the petitioners reflects on their
mala-fide intention to delay the proceedings. Thus under the circumstances by no
stretch of imagination the petitioners are entitled to benefit of Section 14 of Limitation
Act.
Even if for the sake of argument benefit of Section 14 of Limitation Act is given to
the petitioners and the period during which the petitioners were pursuing writ petition
before the High Court is excluded, then also the appeal filed was highly belated.
Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal
was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year
from the dismissal of the writ petition by the High Court. Only explanation for this delay
is that during the intervening period petitioners were negotiating amicable settlement
with the father of the complainant which in our view is not acceptable. Thus even if the
benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before
the State Commission was hopelessly time barred and there was no justification
for coondonation of delay in filing of appeal.
Learned counsel for the petitioners has further submitted that the finding of the
State Commission to the effect that the petitioners were duly served with the notice in
the light of Section 28-A (4) of the Consumer Protection Act, 1986 is erroneous and
against the record. Expanding on the argument, learned counsel for the petitioners has
taken us through the order of the District Forum wherein the District Forum has
observed that notices sent to the opposite parties were returned unserved. So the
notices by publication were ordered. It is contended that once the notices were received
back undelivered presumption of service by Section 28-A (4) of the Consumer
Protection Act, 1986 should not have been drawn. It is also argued that the service by
publication is not a recognized mode of service under Section 28-A (4) of the Consumer
Protection Act, 1986. As such the ex-parte order passed by the District Forum against
the petitioners is not sustainable and if the delay in filing appeal before the State
Commission is not condoned, the petitioners would suffer grave injustice.
The above contention of learned counsel for the petitioners is misconceived.
From the order of the District Forum it is evident that effort was made to serve the
petitioners with the notices of the complaint by ordinary process. Not only this
undisputedly the notices were sent to the petitioners at the correct address which is
given by the petitioners in their revision petition. Under these circumstances, we can
safely infer that the notices sent by post to the petitioners were received back
undelivered because of avoidance of the petitioners to receive the notices. When the
notices were received back undelivered only option left with the District Forum was to
resort to the substituted service by publication which was exercised. Thus, we do not
find any fault with the District Forum having proceeded ex-parte against the petitioners
after resorting to substituted service of the appeal by publication in newspapers.
In view of the discussion above, we do not find any fault in the order of the State
Commission declining to condone the delay of 1197 days in filing of appeal, which may
justify interference by this Commission in exercise of its revisional jurisdiction.
Revision petition is therefore dismissed with punitive cost of Rs.20,000/- to be
deposited by the petitioners with the Consumer Legal Aid Fund maintained by the Union
Ministry within four weeks.
List on 24th May, 2013 for compliance.
…………………..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………….……………
(SURESH CHANDRA)
MEMBER
Raj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.727 OF 2013
WITH
INTERIM APPLICATION NO.1325 OF 2013
INTERIM APPLICATION NO. 1326 OF 2013
(STAY & EXEMPTION FROM FILING CERTIFIED COPY)
(From the order dated 31.12.2012 in FAIA No.1922/2012 in FASR No.4381/2012 of the
State Commission Andhra Pradesh)
1.
Koganti Atchuta Rao
S/o Late Gopala Krishnaiah
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
Andhra Pradesh
2.
Smt. Koganti Lakshmi Sridevi
W/o Atchuta Rao
Flat No.101, C-46,
Pedaprolu Nest, Madhura Nagar,
Hyderabad-500 038
..…. Petitioners
Andhra Pradesh
Versus
Koganti Vineeth
S/o S/o K.V.V. Nageswara Rao
D.N.31-13-5, II Floor,
Pothinenivari Street,
VIJAYAWADA-520 004
Krishna District
Andhra Pradesh
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: Mr. G.V.R. Choudary, Advocate
For the Respondent
: Mr. Parnam Prabhakar, Advocate (Caveator)
PRONOUNCED ON 09th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Being aggrieved of dismissal of their application for condonation of delay as well
as appeal vide order dated 31.12.2012 of the State Commission the petitioners/opposite
parties have preferred this revision petition.
Briefly stated facts relevant for the disposal of this revision petition are that the
respondent/complainant filed consumer complaint under Section 12 of the Consumer
Protection Act, 1986 against the petitioners alleging deficiency in service and claimed
compensation to the tune of Rs.14,92,076/- with 24% interest p.a. besides the cost of
litigation.
Notice of the complaint was sent to the petitioners but the petitioners failed to put
in appearance before the District Forum-II, Krishna at Vijaywada. The District Forum
therefore proceeded ex-parte against the petitioners/opposite parties and allowed the
complaint. The petitioners were directed to pay sum of Rs.14,92,076/- to the
complainant with interest @ 12% from the date of filing of the complaint till the date of
realization besides cost amounting to Rs.2,000/-.
Aggrieved by the order of the District Consumer Forum, petitioners preferred an
appeal
after
a
delay
of
1197
days. Alongwith the
appeal
an
application
for condonation of delay was filed. The cause shown by the petitioners for inordinate
delay in filing of appeal as set out in the affidavit filed alongwith the application before
the State Commission is that on coming to know of the ex-parte order, the petitioners
moved an application, being I.A. No.1400/2009, under Order 9 Rule 13 C.P.C. for
setting aside the ex-parte order. The District Forum however dismissed the application
on 20.7.2009.
Aggrieved by the order of dismissal of application under Order 9 Rule 13 C.P.C.
the petitioners filed Civil Writ Petition No.3793/2009 before Hon’ble High Court of
Andhra Pradesh. The writ petition was dismissed by the Hon’ble High Court on
12.8.2011 observing that it was not maintainable since alternative remedy is available to
the petitioners under Section 17 (1) (b) of Consumer Protection Act, 1986. Thereafter
the petitioners filed revision petition before the State Commission on 5.9.2011 which
was withdrawn by the petitioners on 18.11.2011 in order to prefer a regular appeal. It is
further alleged that in the meanwhile the petitioners were negotiating an amicable
settlement with the complainant but he dragged on the settlement on one pretext or
other. When the settlement did not come through, the petitioners filed the appeal in the
State Commission.
The State Commission being not satisfied with the explanation given for delay in
filing of the appeal, declined to condone the delay. Accordingly the application
for condonationof delay was dismissed. Consequently the appeal was also dismissed
being barred by limitation.
Learned counsel Shri G.V.R. Choudary, Advocate appearing on behalf of the
petitioners has contended that the impugned order of the State Commission declining to
condone the delay in filing of the appeal has been passed in utter disregard of Section
14 of the Limitation Act, 1963 which provides that if a litigant due to bona-fide mistake
pursues his right before a wrong forum the period consumed before that forum ought to
be excluded while computing the period of limitation. Expanding on the arguments
counsel for the petitioners submitted that the State Commission has failed to appreciate
that under mistaken belief the petitioners preferred a writ petition against the order of
District Forum before the High Court of Andhra Pradesh instead of filing the appeal
before the State Commission and that period ought to have been excluded while
computing the period of limitation. In support of this contention learned counsel has
relied upon the judgment of the Supreme Court in the matter of Rameshwarlal vs.
Municipal Council, Tonk (1996) 6 SCC 100 as also Union of India vs. West Coast
Paper Mills Ltd. (2004) 3 SCC 458 and Consolidated Engineering Enterprises vs.
Principal Secretary Irrigation Department (2008) 7 SCC 169.
Learned Shri Parnam Prabhakar, Advocate for the respondent (Caveator) on the
contrary has argued in support of the impugned order of the State Commission.
Learned counsel for the respondent contended that the State Commission has rightly
dismissed the application for condonation of delay in the light of the judgment of the
Supreme Court in the matter of M/s Advance Scientific Equipment Ltd. & Another
vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal
(Civil) Nos.170-17069/2010 decided on 9th July, 2010.
We have considered the rival contentions and perused the matter on record. In
the matter of Rameshwarlal vs. Municipal Council, Tonk (supra) Hon’ble Supreme
Court held as follows: “Normally for application of Section 14, the Court dealing
with the matter in the first instance, which is the subject of the
issue in the latter case, must be found to have lack of
jurisdiction or other cause of like nature to entertain the matter.
However, since the High Court expressly declined to grant relief
relegating the petitioner to a suit in civil Court, the petitioner
cannot be left remedyless. Accordingly, the time taken in
prosecuting the proceedings before the High Court and this
Court obviously pursued diligently and bona fide, needs to be
excluded.
In the matter of Union of India vs. West Coast Paper Mills Ltd. (supra) the
Supreme Court while dealing with Section 14 of the Limitation Act observed thus: “In the submission of the learned senior counsel, filing of
civil writ petition claiming money relief cannot be said to be a
proceeding instituted in good faith and secondly, dismissal of writ
petition on the ground that it was not an appropriate remedy for
seeking money relief cannot be said to be "defect of jurisdiction or
other cause of a like nature' within the meaning of Section 14 of the
Limitation Act. It is true that the writ petition was not dismissed by the
High Court on the ground of defect of jurisdiction. However, Section 14
of the Limitation Act is wide in its application, inasmuch it is not
confined in its applicability only to cases of defect of jurisdiction but it is
applicable also to cases where the prior proceedings have failed on
account of other causes of like nature. The expression "Other cause of
like
nature"
came
up
for
in Roshanlal Kuthalia and Ors. v.
the
consideration
R.B.
Mohan
of
this
Singh Oberai.
Court
AIR
(1975) SC 824 = (1975) 4 SCC 628 and it was held that Section 14 of
the Limitation Act is wide enough to cover such cases where the
defects are not merely jurisdictional strictly so called but others more
or less neighbours to such deficiencies. Any circumstances, legal or
factual, which inhibits entertainment or consideration by the Court of
the dispute on the merits comes within the scope of the Section and a
liberal touch must inform the interpretation of the Limitation Act which
deprives the remedy of one who has right.
Further in the matter of Consolidated Engineering Enterprises (supra) it was
observed thus: “Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the
said section, it becomes evident that the following conditions must be
satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are
civil proceedings prosecuted by the same party;
(2)
The prior proceeding had been prosecuted with due
diligence and in good faith;
(3)
The failure of the prior proceeding was due to defect
of jurisdiction or other cause of like nature;
(4)
The earlier proceeding and the latter proceeding
must relate to the same matter in issue and;
(5)
Both the proceedings are in a court.
The policy of the section is to afford protection to a litigant
against the bar of limitation when he institutes a proceeding which by
reason of some technical defect cannot be decided on merits and is
dismissed. While considering the provisions of Section 14 of the
Limitation Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the cause of
justice rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the invocation of
Section 14. In fact, the section is intended to provide relief against the
bar of limitation in cases of mistaken remedy or selection of a wrong
forum. On reading Section 14 of the Act it becomes clear that the
legislature has enacted the said section to exempt a certain period
covered by a bona fide litigious activity. Upon the words used in the
section, it is not possible to sustain the interpretation that the principle
underlying the said section, namely, that the bar of limitation should
not affect a person honestly doing his best to get his case tried on
merits but failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section 34 of the
Act of 1996. The principle is clearly applicable not only to a case in
which a litigant brings his application in the court, that is, a court
having no jurisdiction to entertain it but also where he brings the suit
or the application in the wrong court in consequence of bona fide
mistake or (sic of) law or defect of procedure. Having regard to the
intention of the legislature this Court is of the firm opinion that the
equity underlying Section 14 should be applied to its fullest extent
and time taken diligently pursuing a remedy, in a wrong court, should
be excluded.”
On perusal of the aforesaid judgments as also Section 14 of the Limitation Act
which is reproduced in the above observations it is evident that benefit of Section 14 of
the Limitation Act would be available to the petitioners only if they had pursued the
remedy in the wrong forum with due diligence and in good faith. Thus the bona-fides of
the petitioners seeking advantage of Section 14 of the Limitation Act is the key factor for
deciding whether or not the benefit is to be extended.
In this context, it would be pertinent to refer to a decision of Hon’ble Supreme
Court in M/s Advance Scientific Equipment Ltd. & Anr. (supra) in which Court
observed as under: “…We are further of the view that the petitioners’ venture of
filing petition under Article 227 of the Constitution was clearly an
abuse of the process of the Court and the High Court ought not to
have entertained the petition even for a single day because an
effective alternative remedy was available to the petitioner under
Section 23 of the Act and the orders passed by the State
Commission did not suffer from lack of jurisdiction.”
While dealing with the issue pertaining to condonation of delay the Supreme
Court in the matter of Anshul Aggarwal vs. New Okhla Industrial Development
Authority IV (2011) CPJ 65 (SC) has observed thus: “It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the Court
has to keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated
if this Court was to entertain highly belated petitions filed against
the orders of the consumer Foras.”
Decision
of Anshul Aggarwal (supra) has
in Cicily Kallarackal Vs.
Vehicle
Factory,
IV
been
reiterated
(2012)
CPJ
NOIDA,
(2011)
1, wherein Hon’ble Supreme Court observed:“4
This
Court
in Anshulal Aggarwal v.
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).
1(SC)
5.
In the instant case, condoning such an inordinate delay
without any sufficient cause would amount to substituting
the period of limitation by this Court in place of the period
prescribed by the Legislature for filing the special leave
petition. Therefore, we do not see any cogent reason to
condone the delay.
6.
Hence, in the facts and circumstance of the case as
explained hereinabove, we are not inclined to entertain
these petitions. The same are dismissed on the ground of
delay”.
In the aforesaid judgment Hon’ble Supreme Court has highlighted that while
dealing with an application for condonation of delay the Court must bear in mind the
object of expeditious disposal of consumer dispute which would get defeated if the
Court was to entertain highly belated petitions.
If we go through the factual matrix of this case the petitioners admittedly failed to
put in appearance before the District Forum and allowed the complaint to be proceeded
ex-parte. Thereafter the petitioners instead of filing an appeal against the order of the
District Forum filed a writ petition challenging the order of the District Forum. Not only
this when the writ petition was dismissed by the High Court then also the petitioners
instead of filing appeal filed a revision petition in the State Commission which was later
on withdrawn and the appeal was filed. Thus conduct of the petitioners reflects on their
mala-fide intention to delay the proceedings. Thus under the circumstances by no
stretch of imagination the petitioners are entitled to benefit of Section 14 of Limitation
Act.
Even if for the sake of argument benefit of Section 14 of Limitation Act is given to
the petitioners and the period during which the petitioners were pursuing writ petition
before the High Court is excluded, then also the appeal filed was highly belated.
Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal
was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year
from the dismissal of the writ petition by the High Court. Only explanation for this delay
is that during the intervening period petitioners were negotiating amicable settlement
with the father of the complainant which in our view is not acceptable. Thus even if the
benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before
the State Commission was hopelessly time barred and there was no justification
for coondonation of delay in filing of appeal.
Learned counsel for the petitioners has further submitted that the finding of the
State Commission to the effect that the petitioners were duly served with the notice in
the light of Section 28-A (4) of the Consumer Protection Act, 1986 is erroneous and
against the record. Expanding on the argument, learned counsel for the petitioners has
taken us through the order of the District Forum wherein the District Forum has
observed that notices sent to the opposite parties were returned unserved. So the
notices by publication were ordered. It is contended that once the notices were received
back undelivered presumption of service by Section 28-A (4) of the Consumer
Protection Act, 1986 should not have been drawn. It is also argued that the service by
publication is not a recognized mode of service under Section 28-A (4) of the Consumer
Protection Act, 1986. As such the ex-parte order passed by the District Forum against
the petitioners is not sustainable and if the delay in filing appeal before the State
Commission is not condoned, the petitioners would suffer grave injustice.
The above contention of learned counsel for the petitioners is misconceived.
From the order of the District Forum it is evident that effort was made to serve the
petitioners with the notices of the complaint by ordinary process. Not only this
undisputedly the notices were sent to the petitioners at the correct address which is
given by the petitioners in their revision petition. Under these circumstances, we can
safely infer that the notices sent by post to the petitioners were received back
undelivered because of avoidance of the petitioners to receive the notices. When the
notices were received back undelivered only option left with the District Forum was to
resort to the substituted service by publication which was exercised. Thus, we do not
find any fault with the District Forum having proceeded ex-parte against the petitioners
after resorting to substituted service of the appeal by publication in newspapers.
In view of the discussion above, we do not find any fault in the order of the State
Commission declining to condone the delay of 1197 days in filing of appeal, which may
justify interference by this Commission in exercise of its revisional jurisdiction.
Revision petition is therefore dismissed with punitive cost of Rs.20,000/- to be
deposited by the petitioners with the Consumer Legal Aid Fund maintained by the Union
Ministry within four weeks.
List on 24th May, 2013 for compliance.
…………………..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………….……………
(SURESH CHANDRA)
MEMBER
Raj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.3770 OF 2012
(From the order dated 18.04.2012 in F.A. No.357/2010 of the
Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)
JITESHKUMAR C PATEL,
B/50, BHOOMI PARK SOCIETY,
KHODIYARNAGAR, NH8,
.….. PETITIONER
AHMEDABAD.
Versus
1. PARAMOUNT HEALTH SERVICES PVT. LTD.
201/2/3, DR. HOUS, B-WING,
NR. PARIMAL CROSSING,
C.G. ROAD, AHMEDABAD-380 009.
2. NATIONAL INSURANCE CO. LTD.
FIRST FLOOR, VAISHALI COMPLEX,
NR. I.F.C. BHAVAN, LAL BUNGLOWS,
C.G. ROAD, AHMEDABAD.
........ RESPONDENTS
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. S. J. Mehta, Advocate
PRONOUNCED ON: 09th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision petition is directed against the order of the State Consumer
Disputes Redressal Commission, Gujarat, Ahmedabad dated 18.04.2012 whereby the
State Commission dismissed the appeal of the petitioner against the dismissal of his
complaint by the District Forum.
2.
Briefly put the facts relevant for the disposal of this revision petition are that the
petitioner/complainant took a Mediclaim Policy from the respondent no.2 worth
Rs.55,000/-. The policy was valid for the period from 04.04.2006 to 03.04.2007. The
case of the petitioner is that on 01.08.2006, he was admitted in Matru Hospital for
treatment of falsiferum malariya. He remained under treatment till 07.08.2006. That the
petitioner incurred medical expenses of Rs.29,598/- for which he filed his claim which
was repudiated by the respondents. Thus, the petitioner alleging deficiency in service
preferred a complaint under Section 12 of the Consumer Protection Act, 1986 seeking
compensation of Rs.29,598/- along with 12% interest besides Rs.5,000/- as a special
compensation for mental agony and harassment suffered by the petitioner as also
Rs.5,000/- as cost of litigation.
3.
The complaint was resisted by the respondents on the ground that the petitioner
did not go under treatment and had filed a false claim. Basis of repudiation of the claim
was that Dr. S.J. Metalia, who allegedly treated the petitioner at Matru Hospital vide his
communication addressed to the respondent no.1 denied having treated the petitioner.
4.
The District Forum on consideration of evidence particularly the letter of Dr. S.J.
Metalia came to the conclusion that the petitioner is faulted to discharge his onus of
proving the correctness of his claim and dismissed the complaint holding that there is no
deficiency of service on the part of the respondents.
5.
Being aggrieved order of the District Forum, the petitioner preferred an appeal,
which was dismissed by the State Commission vide the impugned order.
6.
It is against the aforesaid concurrent finding of facts the petitioner has preferred
this revision petition.
7.
The short point, which requires determination in this revision petition is whether or
not Dr. S. J. Metalia treated the petitioner for so called disease-falsiferum malaria during
the period from 01.08.2006 to 07.08.2006 as projected by the treatment record
submitted along with the complaint?
8.
Learned counsel for the petitioner has contended that the impugned order of the
State Commission is not sustainable as it is based on the incorrect appreciation of the
facts. He challenged the impugned order on the ground that it is based upon a
purported letter of Dr. Metalia addressed to respondent no.1 wherein he has denied
having signed the treatment file of the patient. It is contended that perusal of the letter
would show that it does not detail of the files referred to in the letter, as such the District
Forum as well as the State Commission has fallen in error in relying upon the aforesaid
letter which has not even been properly proved either by filing affidavit of Dr. Metalia or
producing him as a witness. Learned counsel for the petitioner has further contended
that malafide of the respondents is also clear from the fact that although the claim was
submitted at the earliest, the respondent insurance company failed to settle the claim for
almost one year. Learned counsel has thus urged us to accept the revision petition and
set aside the impugned order and allow the prayer made in the complaint.
9.
In order to appreciate the issue in dispute and submissions of learned counsel for
the petitioner it would be useful to have a look on the correspondence exchanged
between the respondent no.1 and Dr.S.J. Metalia. Petitioner has placed on record
photocopy of the letter dated 27.12.2006 sent by the respondent no.1 to Dr.S.J. Metalia,
Matru Hospital also the reply of Dr.S.J. Metalia dated 01.01.2007 addressed to the
respondent no.1.
10.
The letter of respondent no.1 addressed to Dr.S.J. Metalia dated 27.12.2006
reads thus:
“We have received multiple reimbursement claim files from insured
being treated at Matru hospital, Bapunagar. All the insured have
been admitted in Matru Hospital under your care and treatment.
On going through the claim files, the findings are as follows: nearly
all claims are with diagnosis of Malaria, all have been admitted for a
duration of 7-8 days, 7-8 viggos have been purchased for each
patient, nearly 3 litres of IV fluid is infused to all patients on a daily
basis, overuse of medicines is evident viz. 16 injections of Rantac
and pantoprazole each have been advocated, 2-3 antibiotics have
been prescribed on a daily basis, the medicines have been charged
above the MRP. There is gross overcharging and unjustifiable
overuse of medications.
All the prescriptions bear your stamp and sign. In some cases
nutritional powders and IV fluids worth Rs.5,000/- have been shown
to be purchased on the day of discharge.
On account of the above mentioned irregularities and unethical
practices. We seek justification from your regarding the same.
Please treat this matter as serious and urgent.”
11.
The letter of Dr.S.J. Metalia addressed to respondent no.1 reads thus:
“Sir,
I have received your letter suggesting gross irregularities in
reimbursement files of Matru Hospital.
I am qualified Physician, practicing since last 17 years. I am
Cardiologist to LIC of India, medical examiner of Aviva Life
Sciences,
Relience
etc. I
developed
Kakadiya
Hospital
(Ahmedabad Diamond Association medical Trust) as pioneer
Senior Physician, which is one of the best medical institutes of
Ahmedabad. I.C.C.U. of Kakadiya Hospital serves people of east
Ahmedabad (Naroda to Khokhara) and nearby villages.
First of all, I am not Director or Owner or Partner of Matru
Hospital. I am visiting Physician at the Matru Hospital. You have
given summary of irregularities. I HAVE NOT SIGNED ANY OF
THESE FILES. I have told this, during our talk at Paramount office,
10 times. You may check signature on these files. Please don’t
blame me of signing these files.
You may ask about any irregularity to Matru Hospital.”
12.
On perusal of the above letters, it is evident that since the respondents had
received multiple reimbursement claims from the insured patients purported to have
been treated by Dr. S.J. Metalia at Matru Hospital, Bapunagar. Therefore, the
respondent no.1 sought clarification from Dr.S.J. Metalia and Dr.S.J. Metalia vide his
letter dated 01.01.2007 informed the respondent no.1 that he was neither the Director
nor the Partner of Matru Hospital, he was visiting Physician and he has not signed any
of files regarding which the respondent no.1 had sought information vide its letter dated
27.12.2006.
13.
The petitioner has also placed on record photocopies of his alleged treatment
record. On perusal of the photocopies of the treatment record purported signed by
Dr.S.J. Metalia and on comparison of those signatures with the signatures appended on
the letter dated 01.01.2007, we find that the signatures of Dr.S.J. Metalia on the
treatment record do not tally with the signatures on the photocopies of the treatment
record. This casts a strong doubt against the correctness of mediclaim filed by the
petitioner. Otherwise also in order to succeed in his complaint onus of proof of his
treatment at Matru Hospital by Dr. S. J. Metalia was on the petitioner. This onus could
be easily discharged by the petitioner by producing Dr. S.J. Metalia as a witness or filing
his affidavit confirming that Dr.S.J. Metalia did treat the petitioner during the period from
01.08.2006 to 07.08.2006. The petitioner has failed to lead any evidence to discharge
his onus, therefore, we are of the view that both the Fora below were right in concluding
that the petitioner has failed to prove his claim. Thus, we do not find any infirmity in the
concurrent finding returned by the Fora below, which may call for any interference by
this Commission in exercise of its revisional jurisdiction.
14.
As a consequence of above discussion, the revision petition is dismissed. No
order as to costs.
Sd/…………………..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
Sd/……………….……………
(SURESH CHANDRA)
MEMBER
bs
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 644 OF 2007
(Against the order dated 20.08.2007 in Complaint Case No. C-176/1998 of the Delhi
State Consumer Disputes Redressal Commission)
M/s General Motors India Pvt. Ltd.
Palm Court
401-412 (4th Floor)
20/4, Sukhrali Chowk
Mehrauli-Guragaon Road
Gurgaon, Haryana
…
Versus
1. M.P. Bhargava & Co.
Through its Proprietor
Shri Mukul P. Bhargava
C-9, First Floor, South Extension-I
New Delhi
2. Regent Automobiles
A-24, Green Park
New Delhi
3. Bank of America
Hansalya Building
15, Barakhamba Road
Appellant
…
New Delhi
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Sanjay Kumar Singh, Advocate
For Respondents
: In person for R-1
NEMO for R-2
Mr. Saumyen Das, Advocate for R-3
Pronounced on 9th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by M/s General Motors (I) Pvt. Ltd., Appellant
herein and Opposite Party No.2 before the Delhi State Consumer Disputes Redressal
Commission (hereinafter referred to as the State Commission) being aggrieved by the
order of that Commission, which had partly allowed the complaint of deficiency in
service filed by M/s M.P. Bhargava & Co., Respondent No.1 herein and Complainant
before the State Commission, and had directed it to pay the Respondent/Complainant a
compensation of Rs.25,000/-.
2.
FACTS :
In his complaint before the State Commission, Respondent/Complainant had
contended that he had purchased an Opel Astra car from M/s Regent Automobiles (the
dealer), hereinafter referred to as Opposite Party No.1, manufactured by Appellant by
paying Rs.1,20,963/- towards margin money and after obtaining finance of
Rs.6,24,000/- from Bank of America, Opposite Party No.3. Respondent/Complainant
had given 59 Post Dated Cheques to Opposite Party No.1 besides margin money of
Rs.1,20,963/-. Another cheque in favour of New India Assurance Company was also
given towards insurance of the vehicle. The car was delivered on 07.07.1997 alongwith
warranty book, VDC and insurance cover note. However, the original sale invoice was
not delivered. Moreover, the vehicle was not got registered by Appellant till about 7
months later i.e. on 05.01.1998, thereby depriving Respondent/Complainant from
driving the vehicle. Thereafter when Respondent/Complainant drove the car, it was
found that it was not properly aligned and was tilting towards the left side. Since the
earlier warranty book was valid only upto 05.01.1998, Respondent/Complainant
requested Appellant to send a fresh warranty book. It was contended that since
Appellant through Opposite Party No.1 had supplied a defective vehicle, they had
intentionally delayed registration knowing fully well that Respondent/Complainant would
not be able to drive the vehicle in the absence of the registration and in the meantime
the warranty period would expire. Being aggrieved by this deficiency in service,
Respondent/Complainant filed a complaint before the State Commission and requested
that Appellant and Opposite Party No.1 be directed to (i) rectify the defects in the
vehicle or replace the vehicle; (ii) deliver the registration documents, VDC warranty
book and effect the warranty from the date the vehicle can be put to use; (iii) make good
the losses incurred due to delay in registration as well as on account of interest on the
cost of the car and the insurance amount, etc.
3.
Appellant on being served filed a written rejoinder denying that there was any
deficiency in service on its part. The delay in registration of the vehicle occurred
because Respondent/Complainant had a preference for a specific number i.e. 6500 and
he himself did not want the car to be registered till his turn came for allotment of the
number chosen by him. It was also denied that there was any manufacturing defect,
including any alignment problem in the vehicle. This complaint was made for the first
time in April, 1998 whereas had there been any such problem, this could have been
reported earlier. Moreover, the job cards clearly indicated that the minor defects
pointed out by Respondent/Complainant were duly rectified.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it concluded that even if it is accepted that Respondent/Complainant
had a preference for a specific number for his vehicle, Appellant had taken an
inordinately long time for arranging for the number and should have arranged for this
alongwith registration within a reasonable period of 15 days or a month. The State
Commission also had reservations on the veracity of Appellant’s contention that the
registration was delayed because it was Respondent/Complainant who had a
preference for a specific number. The State Commission further concluded that from
the job cards it was clear that the brand new vehicle was subjected to rectification of a
number of defects, for which Respondent/Complainant had suffered mental agony and
harassment by taking it time and again to the garage for rectification of the defects. The
State Commission observed in this connection as under :
“17. … Any amount of shortcoming, imperfection, or inadequacy in the
manner of quality and standards of goods renders it as a ‘defect’ in terms
of section 2(1)(f) of the Consumer Protection Act, 1986.”
The State Commission, taking into account this fact and also observing that
Respondent/Complainant also cannot be absolved from contributory negligence in
keeping the car for 6 months without registration and from when he could have
approached the Transport Authority complaining against the Appellant, awarded an
amount of Rs.25,000/- as compensation.
5.
Being aggrieved by this order, the present First Appeal has been filed.
6.
Learned Counsel for the Appellant and Respondent/Complainant as well as
Opposite Party No.3 were present and made oral submissions.
7.
Counsel for Appellant stated that the State Commission erred in concluding that
Appellant was guilty of deficiency in service both on account of supplying defective
vehicle and in taking an inordinately long time in delivering the invoice and registration
papers of the vehicle etc. In this connection, it was pointed out that it was the
responsibility of Opposite Party No.1 to have made available the necessary documents
and the Appellant being a manufacturer of the vehicle could not have been held
responsible for the same. It was the statutory duty of the Respondent/Complainant to
get the vehicle registered for which Appellant in his own discretion had appointed
Opposite Party No.1 to do the needful. Further, as per the written agreement between
Appellant and Opposite Party No.1, which was filed in evidence, it is clear that neither
acted as an agent for the other and they interacted on the principal-to-principal-basis.
The State Commission, therefore, erred in holding the Appellant responsible for
deficiency in service in delaying the registration of the vehicle. So far as finding of the
State Commission that Appellant was guilty of supplying Respondent/Complainant a
defective vehicle, it was contended that even Respondent/Complainant had not made
any specific allegation of manufacturing defect and had through a single line in his
complaint noted that the car was not properly aligned and was tilting towards the left
side. Further, though the vehicle was delivered to the Respondent/Complainant in July,
1997, no such complaint was made upto April 4, 1998, when this fact was mentioned in
the legal notice. Respondent/Complainant has also not filed any evidence to support
his contention regarding improper alignment nor has he ever reported this to Appellant
during visit of the vehicle to the workshop. If indeed there was a problem of improper
alignment, this would have become apparent even if the vehicle was not driven
extensively.
8.
Counsel for Respondent/Complainant on the other hand reiterated the facts as
stated before the State Commission and contended that the vehicle had serious defects
of alignment because of which Respondent/Complainant has not been able to use it till
date. He also reiterated the allegation that the registration of the vehicle was unduly
delayed
to
ensure
that
the
period
of
warranty
would
be
over
without
Respondent/Complainant having been given the opportunity to use the vehicle.
9.
We have considered the oral submissions made by the parties and have also
considered the evidence on record. From the evidence on record, we note that no
specific complaint regarding any manufacturing defect relating to the alignment of the
vehicle was made by the Respondent/Complainant except one line to state that the car
appeared to be tilting towards the left side due to improper alignment. However,
Respondent/Complainant has not been able to produce any evidence to back this
contention. The job cards filed in evidence dated 17.07.1999 and 10.08.2001 only
indicate that there was malfunctioning pertaining to wiper blades, lights, seat rattling,
filter change, tyre rotation etc.; no mention has been made about any problems
pertaining to alignment or any manufacturing defect. Under these circumstances, we
are unable to agree with the finding of the State Commission that since the vehicle had
some shortcomings and imperfections, it amounted to manufacturing defect. Regarding
the grievance of Respondent/Complainant pertaining to delay in the supply of the
concerned documents, which were required for registration, and the delay in the
registration, we find substance in the contention of Appellant that it was the
responsibility of Opposite Party No. 1 to supply these documents and register the
vehicle
for
which
Appellant,
who
was
a
manufacturer,
cannot
be
held
responsible. Therefore, we are also unable to uphold the finding of the State
Commission that Appellant was guilty of deficiency in service in delaying the registration
of the vehicle.
10.
Keeping in view these facts, we set aside the order of the State Commission and
allow the present First Appeal. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 139 OF 2008
(Against the order dated 25.05.2007 in Complaint Case No. C-191/1997 of the Delhi
State Consumer Disputes Redressal Commission)
All India Institute of Medical Sciences
Ansari Nagar
…
New Delhi-110029
Appellant
Versus
Swarn Bedi
M-93, Saket
…
New Delhi
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Mukul Gupta, Sr. Advocate with
Ms. Anjali Chauhan, Advocate
For Respondent
: NEMO
Pronounced on 9th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by All India Institute of Medical Sciences,
Appellant
herein
and
Opposite
Party
before
the
Delhi
State
Consumer
DisputesRedressal Commission (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission which while partly accepting the complaint of
Smt. Swarn Bedi, Respondent herein and Original Complainant before the State
Commission, had concluded that Appellant-Medical Institute was guilty of limited
deficiency in not making arrangements for a bed in that Institute, which she had visited
as a Patient.
2.
In the complaint, it was contended that on 30.05.1996 when the Respondent and
her daughter Ms. Ginni Bedi were sleeping at night, they were attacked by 6 to 7
intruders with axes, blunt rods etc. and were injured with bleeding from the head. Early
next morning at 5.45 a.m. their neighbours came to know about the incident and with
their help and that of the Police they were taken to Appellant-Medical Institute for
treatment, where they were admitted in the casualty ward. Appellant-Medical Institute
carried out various medical tests and also got the Patients examined in the concerned
departments. Respondent’s daughter was diagnosed with blood clots in the head due
to the head injury, for which she was operated and remained admitted in the AppellantMedical Institute. However, Appellant-Medical Institute discharged the Respondent
without keeping her under observation and only casually attending to her despite her
respect complaints of headache, nausea etc. apparently because a bed was not
available in that Medical Institute. On her way from Appellant-Medical Institute,
Respondent became unconscious and was shifted to Aashlok Hospital, where she was
advised head surgery and underwent the same, for which she had to incur a total
expenditure of Rs.95,490/-. Being aggrieved by the deficiency in service and medical
negligence on the part of Appellant-Medical Institute, who, despite her serious medical
complaints and condition, discharged her, Respondent filed a complaint before the
State Commission and requested that Appellant-Medical Institute be directed to
reimburse her medical expenses of Rs.95,490/-, Rs.50,000/- for medicines and other
post-operative treatment at Aashlok Hospital and compensation of Rs.4,00,000/- for
mental agony and harassment.
3.
Appellant-Medical Institute on being served filed a written rejoinder denying that
there was any medical negligence or deficiency in service on their part. It was inter alia
stated that in the first instance the case was not maintainable against it as AppellantMedical Institute does not levy any charges in regard to service and treatment provided
to the patients and in this case also no payment was taken from the Respondent and,
therefore, she was not a ‘consumer’ as defined under Consumer Protection Act,
1986. Further, it is not a fact that she was discharged even though she had serious
medical complaints merely because there was no bed available. As admitted by the
Respondent herself, as soon as she was brought to Appellant-Medical Institute she was
admitted there and was immediately examined by Doctors in the emergency department
and other departments. On examination, it was found that there was a laceration
wound in the skull of the Respondent but there was no history of loss of consciousness
or vomiting. She was treated with conservative method and procedure and was given
necessary injections and laceration wound was sutured. Respondent was further
examined in the ENT and Dental Departments, where she was treated for a laceration
in the right ear and antibiotics were administered. The Dental Surgeon also examined
her. The overall finding was that there was no loss of consciousness, vomiting and
bleeding and no evidence of fracture of maxilla and zygoma. The Respondent was,
therefore, discharged and asked to attend OPD. On the other hand, her daughter, who
had more serious injuries was admitted in the Appellant-Medical Institute and was
discharged after she was medically fit for the same. Under these circumstances, there
was no question of discharging the Respondent without duly attending to her and
because no bed was available. It was further contended that in case Respondent felt
uneasiness after being discharged, she could have always approached the AppellantMedical Institute and the fact that she went to Aashlok Hospital was her decision for
which Appellant-Medical Institute cannot be held liable to pay for the medical expenses
incurred by her in that hospital.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it concluded that there was no medical negligence in the treatment of
the Respondent and proper emergency treatment had been provided to her. However,
there was some administrative deficiency in discharging the Respondent apparently due
to non-availability of the bed and for this limited deficiency, the State Commission held
that a token compensation of Rs.25,000/- would meet the ends of justice.
5.
Being aggrieved by the above order, the present first appeal has been filed.
6.
Learned Counsel for the Appellant-Medical Institute was present. None was
present on behalf of the Respondent. Since service was complete, the case was heard
ex-parte.
7.
Learned counsel for the Appellant-Medical Institute reiterated the contentions as
made by the Appellant-Medical Institute before the State Commission and pointed out
that from the evidence on record it is clear that both the Respondent and her daughter
were given the best possible medical treatment. The Respondent underwent several
tests in the Emergency, ENT and Dental Departments and based on these she was
given the necessary medical treatment. She was discharged only after the Doctors were
satisfied that there was no need for her to be admitted in the Appellant-Medical Institute
and she was advised to attend the OPD for review check-ups. The allegation of the
Respondent as also the finding of the State Commission that she was discharged
because of non-availability of the bed is a conjecture and not factually correct. She was
discharged after the Doctors using their best professional judgment and after treating
her were of the considered view that her injuries were not such that required her to be
admitted in the Appellant-Medical Institute.
8.
We have considered the submissions made by learned Counsel for the Appellant-
Medical Institute and have also gone through the evidence on record. It is not in dispute
that the Respondent and her daughter on reaching the Appellant-Medical Institute were
admitted to the Emergency Department and were seen by Doctors on duty in that and
other Departments. On the basis of the diagnosis made, it is an admitted fact that
Respondent’s daughter who required surgery was admitted for the same. So far as the
Respondent is concerned, it is not disputed that the injuries which she suffered were
attended to and after the wounds were sutured and necessary injections and antibiotics
were given, she was discharged. No evidence has been produced by the Respondent
to support her allegation that she was discharged because of non-availability of the bed
even though she was medically unfit to be discharged. The State Commission relying
purely on the statement of the Respondent had also reached the conclusion that the
Respondent was discharged because of the non-availability of the bed while at the
same time stating that there was no deficiency or medical negligence in her medical
treatment. We are unable to accept the finding of the State Commission that
Respondent was discharged because of non-availability of the bed since it is purely
conjectural in the absence of any evidence to support the same.
9.
We, therefore, set aside the order of the State Commission concluding that there
was limited administrative deficiency on the part of the Appellant-Medical Institute and
allow the present First Appeal. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION No. 3736 of 2012
(From the Order dated 23.07.2012 in Appeal No. 1553/2011 of the State Consumer
Disputes Redressal Commission, Rajasthan)
Terex Vectra Equipment Pvt. Ltd.
(Now known as Terex Equipment
Pvt. Ltd.
Plot No. 22, Udyog Vihar,
Noida, Uttar Pradesh
Through its authorized signatory
… Petitioner
VERSUS
1.
Sh. Meharchand,
S/o Shri Ramnarayna Gujar,
R/O Village Milkapur
Bhiwadi, Tehsil Tijara,
Distt. Alwary
2.
Sales Manager,
Terex Vectra Equipment Pvt. Ltd.
(now known as Terex Equipment
Pvt. Ltd. )
Second Floor, Roshan Tower,
Ajmer Road, Jaipur
3.
Sh. Ashok Mehdiratta,
Aurthorized Agent of
Terex Vectra Equipment Pvt. Ltd.
SCO 22, IInd Floor,
Sector 22, IInd Floor,
Sector 31, Gurgaon
Haryana
… Respondents
BEFORE: HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
For the Petitioner
: Mr. Gagan Kumar and
Mr. Amish Tandon, Advocates
For the Respondents :
Mr. Kumarshashank, Advocates
PRONOUNCED ON:
09.04.2013
ORDER
ASHOK BHAN, J., PRESIDENT
ORDER
Complainant/Respondent purchased a Terex Vectera vehicle manufactured by
the Petitioner through opposite party no.2 – the dealer – on 29.11.2007. According to
the complainant/Respondent certain technical defects appeared in the vehicle
immediately after purchase. On examination of the vehicle, manufacturing defects were
detected and the vehicle was lying idle in the residence of the complainant. It was
alleged in the complaint that the Petitioner and the Dealer could not fix the defects in the
vehicle. Thus, legal notice was issued. No remedial steps were taken by the
Petitioner. Aggrieved by this, Complainant/Respondent filed the complaint before the
District Forum seeking a direction to the Opposite Parties including the Petitioner to
either rectify the defects or to replace the vehicle with a new one and to pay
compensation and costs.
Petitioner, after being served, entered appearance and took the stand that there
were no manufacturing defects in the vehicle.
District Forum allowed the complaint and directed the Opposite Parties including
the Petitioner to replace the vehicle with a new one or to pay the sale price of the
vehicle
as
per
the
purchase
bill.
Rs.3,000/-
were
awarded
by
way
of
compensation. Opposite parties were directed to comply with the order within 30 days
failing which the sale price was to carry interest @ 15% p.a. from the date of judgment
till realization.
Petitioner, being aggrieved, filed the appeal before the State Commission. The
State Commission simply endorsing the finding recorded by the District Forum
dismissed the appeal by observing as under:‘The District Forum has observed that as per the job card itself there
had been major defects in the vehicle and the replacement of the
parts were made accordingly by once but thrice within seven months
of the purchase of the vehicle. The District Forum further observed
that there is nothing on record to substantiate the allegation of the
appellant that the vehicle was not handled properly by the
complainant. In our opinion also as per job card the main parts of the
vehicle had been replaced. There appears to be an inherent
mechanical defect in the vehicle itself.”
Petitioner, being aggrieved, filed the Revision Petition No.4121 of 2011 before
this Commission which was allowed vide order dated 22.05.12. The matter was remitted
back to the State Commission for deciding the appeal afresh by observing as under:“State Commission is the final court of fact which is required to note
down the contentions of the respective parties and arrive at a
decision by recording reasons in support of the conclusion arrived
at. The State Commission endorsed the finding of the District Forum
by observing ‘in our opinion also as per job card the main parts of
the vehicle had been replaced; there appears to be an inherent
mechanical defect in the vehicle itself.” Mechanical defects are
different from the manufacturing defects. The State Commission has
not referred to any piece of evidence which had been produced by
either of the parties. In our considered opinion the order of the State
Commission is non-speaking and accordingly the same is set
aside. Case is remitted back to the State Commission to decide it
afresh in accordance with law.
On remand, the State Commission vide order dated 23.07.12 again dismissed
the appeal observing as under:“It appears from the order dated 12.09.11 that the entire evidence as
available on the record of the District Forum had been duly
considered by the State Commission. Once the State Commission
endorses the findings and discretions used by the District Forum,
there is no justification for referring the entire evidence and
arguments of the counsel for the parties again while deciding the
appeal. The Ld. Counsel for the Appellant has now tried to raise
some new legal issues
which had neither been raised earlier before this Commission or
even before the National Commission, nor the same are part of the
pleadings. Even otherwise, the complaints and the appeals as well
are required to be decided summarily under the provisions of the
Consumer Protection Act, 1986.
“Since the earlier order dated 12.09.2011 has been passed after due
consideration of the facts and evidence on record, we find no ground
for taking any other contrary view. The appeal is dismissed
accordingly as having no merits. The compliance of the order of the
District Forum if not made, the same may now be made within 30
days. However, the Appellant shall be at liberty to withdraw the
amount if any deposited by them before the District Forum or any
other Forum in the present matter.”
Feeling aggrieved, Petitioner has filed the present Revision Petition.
We have heard the Ld. Counsel for the parties at length.
The State Commission, being the first Court of appeal is the final Court of fact.
Against the order of the State Commission passed in first appeal, only a revision lies
under Section 21(b) of the Act. In the revisional jurisdiction, this Commission can
interfere only if there is an error in exercise of jurisdiction. Being the final Court of fact,
the State Commission is required to notice the contentions raised on behalf of the
respective parties and arrive at a decision by recording reasons in support of the
conclusion arrived at. Recording of reasons is fundamental to the decision making. It
informs the litigant parties with the reasons for the decision taken. The requirement of
recording reasons guarantees consideration by the authorities, introduces clarity in the
decisions and minimizes the chances of arbitrariness in decision making. The decision
of the State Commission is subject to the Appellate/Revisional jurisdiction of this
Commission and the reasons thereof recorded would enable the higher Court to
effectively exercise the Appellate/Revisional jurisdiction. Order passed without reasons
is like a still born child.
The State Commission in its earlier order had simply endorsed the finding of the
District Forum by observing, “In our opinion also as per the job card the main parts of
the vehicle have been replaced. There appears to be an inherent mechanical defect in
the vehicle itself”. In our order dated May 22, 2012 by which the earlier order of the
State Commission was set aside, it was pointed out that mechanical defects are
different from the manufacturing defects. That the State Commission had not referred to
any piece of evidence which has been produced by either of the parties. The order of
the State Commission was held to be a non speaking order and case was remitted back
to it to decide it afresh in accordance with law by passing a speaking order. The State
Commission instead of showing due deference to the opinion expressed by the superior
Court and instead of passing a speaking order has again disposed of the appeal by
passing a non-speaking order by endorsing the finding of the District Forum. Reading of
the impugned order of the State Commission leaves us with the impression that
according to the State Commission, there is no requirement of recording of the reasons
while endorsing the finding of the fora below as the cases under the Consumer
Protection Act are required to be decided in a summary manner. The State Commission
has justified its order dated Sept 12, 2011 by observing that the order had been passed
after due consideration of the facts and evidence on record whereas, in fact, neither in
the order dated Sept.12, 2011 nor in the impugned order, has the State Commission
noted or considered any of the contentions raised by the parties or the evidence put on
record. This approach is neither justified nor acceptable.
We had indicated in our order that mechanical defects are different from the
manufacturing defects. In spite of indication given in our earlier order, the State
Commission has not chosen to record a finding as to whether there was any
manufacturing defect in the vehicle sold by the petitioner to the respondent. Being the
Court of subordinate jurisdiction, it was incumbent upon the State Commission to
comply with the order of the superior Court and pass a speaking order. The order
passed by the State Commission amounts to impertinence as it violates the judicial
discipline requiring the subordinate Court to comply with the order of the superior Court.
Insofar as the Courts/Tribunals exercising quasi-judicial powers are concerned, it
was/is always understood that the recording of reasons is a principle of natural
justice. Order passed without recording reasons is liable to set aside. Hon’ble Supreme
Court in the case of A.K. Kraipak & Ors. Vs. Union of India & Ors, (1969) 2 SCC 262,
more than 40 years back held that even in administrative matters which involve civil
consequences, it was necessary to record reasons in support of the decision taken. The
relevant observation made in A.K. Kraipak’s case is reproduced hereunder:
“17. This takes us to the question whether the principles of natural justice
apply to administrative proceedings similar to that with which we are
concerned in these cases. According to the learned Attorney General those
principles have no bearing in determining the validity of the impugned
selections. In support of his contention he read to us several decisions. It
is not necessary to examine those decisions as there is a great deal of
fresh thinking on the subject. The horizon of natural justice is constantly
expanding. The question how far the principles of natural justice govern
administrative enquiries came up for consideration before the Queens
Bench Division in In re : H.K. (An Infant) (1967) 2 Q.B.617 Therein the
validity of the action taken by an Immigration Officer came up for
consideration. In the course of his Judgment Lord Parker, C.J. observed
thus:
“But at the same time, I myself think that even if an immigration
officer is not in a judicial or quasi-judicial capacity, he must at any
rate give the immigrant an opportunity of satisfying him of the
matters in the sub-section, and for that purpose let the immigrant
know what his immediate-impression is so that the immigrant can
disabuse him. That is not, as I see it, a question of acting or being
required to act judicially, but of being required to act fairly. Good
administration and an honest or bona fide decision must, as it seems
to me, require not merely impartiality, nor merely bringing one’s
mind to bear on the problem, but acting fairly; and to the limited
extent that the circumstances of any particular case allow, and within
the legislative framework under which the administrator is working,
only to that limited extent do the so-called rules of natural justice
apply, which in a case such as this is merely a duty to act fairly. I
appreciate that in saying that it may be said that one is going further
than is permitted on the decided case because heretofore at any rate
the decisions of the courts do seem to have drawn a strict line in
these matters according to whether there is or is not a duty act
judicially or quasi-judicially.”
In the same case Blain, J. observed, thus:
“I would only say that an immigration officer having assumed the
jurisdiction granted by those provisions is in a position where it is
his duty to exercise that assumed jurisdiction whether it be
administrative , executive or quasi-judicial , fairly, by which I mean
applying his mind dispassionately to a fair analysis of the particular
problem and the information available to him in analyzing it. If in any
hypothetical case, and in any real case, this Court was satisfied that
an immigration officer was not so doing, then in my view mandamus
would lie.”
18.
In
State
of
Orissa
V.
Dr.
(Miss)
Binapani
Dei
and
Ors.
MANU/SC/0332/1967: (1967) IILLJ 266SC. Shah, J. speaking for the Court,
dealing with an enquiry made as regards the correct age of a government
servant, observed thus:
We think that such an enquiry and decision were contrary to the
basic concept of justice and cannot have any value. It is true that the
order is administrative in character, but even an administrative order
which involves civil consequences as already stated, must be made
consistently with the rules of natural justice after informing the first
respondent of the case of the State………”
There is a plethora of case law on the subject. We may refer to the decision of
the Constitution Bench in S.N. Mukherjee Vs. Union of India, (1990) 4 SCC 594,
wherein the Supreme Court held as under:
“35.The decisions of this Court referred to above indicate that with regard
to the requirement to record reasons the approach of this Court is more in
line with that of the American courts. An important consideration which
has weighed with the court for holding that an administrative authority
exercising quasi-judicial functions must record the reasons for its
decision, is that such a decision is subject to the appellant jurisdiction of
this Court under Article 136 of the Constitution as well as the supervisory
jurisdiction of the High Courts under Article 227 of the Constitution and
that the reasons, if recorded, would enable this Court or the High Courts to
effectively exercise the appellate or supervisory power. But this is not the
sole consideration. The other considerations which have also weighed with
the Court in taking this view are that the requirement of recording reasons
would (i) guarantee consideration by the authority; (ii) introduce clarity in
the decisions; and (iii) minimize chances of arbitrariness in decisionmaking. In this regard a distinction has been drawn between ordinary
courts of law and tribunals and authorities exercising judicial functions on
the ground that a Judge is trained to look at things objectively
uninfluenced by considerations of policy or expediency whereas an
executive officer generally looks at things from the standpoint of policy
and expediency.
36. Reasons, when recorded by an administrative authority in an order
passed by it while exercising quasi-judicial functions, would no doubt
facilitate the exercise of its jurisdiction by the appellate or supervisory
authority. But the other considerations, referred to above, which have also
weighed with this Court in holding that an administrative authority must
record reasons for its decision, are of no less significance. These
considerations show that the recording of reasons by an administrative
authority serves a salutary purpose, namely, it excludes chances of
arbitrariness and ensures a degree of fairness in the process of decisionmaking. The said purpose would apply equally to all decisions and its
application cannot be confined to decisions which are subject to appeal,
revision or judicial review. In our opinion, therefore, the requirement that
reasons be recorded should govern the decisions of an administrative
authority exercising quasi-judicial functions irrespective of the fact
whether the decision is subject to appeal, revision or judicial review. It
may, however, be added that it is not required that the reasons should be
as elaborate as in the decision of a court of law. The extent and nature of
the reasons would depend on particular facts and circumstances. What is
necessary is that the reasons are clear and explicit so as to indicate that
the authority has given due consideration to the points in controversy. The
need for recording of reasons is greater in a case where the order is
passed at the original stage. The appellate or revisional authority, if it
affirms such an order, need not give separate reasons if the appellate or
revisional authority agrees with the reasons contained in the order under
challenge.”
In Director, Horticulture Punjab & Ors. Vs. Jagjivan Parshad (2008) 5 SCC
539, the Hon’ble Supreme Court went to the extent of saying that reasons introduce
clarity to the order and failure to give reasons amounts to denial of justice. Reasons
substitute subjectivity by objectivity. The failure to record reasons makes it impossible
for the higher Courts to perform their appellate functions or exercise the power of
judicial review in adjudging the validity of decisions. Right to reason is an indispensable
part of sound judicial system. Relevant observations of the Supreme Court in para 5 to
8 are reproduced below.
“5. Reasons introduce clarity in an order. On plainest consideration of
justice, the High Court ought to have set forth its reasons, howsoever brief,
in its order indicative of an application of its mind, all the more when its
order is amenable to further avenue of challenge. The absence of reasons
has rendered the High Court’s judgment not sustainable.
6. We find that the writ petition involved disputed issues regarding
eligibility. The manner in which the High Court has disposed of the writ
petition shows that the basic requirement of indicating reasons was not
kept in view and is a classic case of non-application of mind. This Court in
several cases has indicated the necessity for recording reasons.
7. Even in respect of administrative orders Lord Denning, M.R. in Breen V.
Amalgamated Engg. Union (1971) 1 All ER 1148 observed: (All ER p.1154h)
“The giving of reasons is one of the fundamentals of good administration.”
In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 1 CR 120 it was
observed:
Failure to give reasons amounts to denial of justice. Reasons are live
links between the mind of the decision taker to the controversy in
question and the decision or conclusion arrived at.
8. Reasons substitute subjectivity by objectivity. The emphasis on
recording reasons is that if the decision reveals the “inscrutable face of the
sphinx”, it can, by its silence, render it virtually impossible for the courts to
perform their appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an indispensable
part of a sound judicial system. Another rationale is that the affected party
can know why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the order made,
in other words, a speaking-out. The “inscrutable face of the sphinx” is
ordinarily incongruous with a judicial or quasi-judicial performance (See:
Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar,
MANU/SC/0110/2003:2003IILLJ181SC.”
The Hon’ble Supreme Court in Ramphal Vs. The State of Haryana & Ors.,
(2009) 3 SCC 258 went a step further and held that, “reason is heartbeat of every
conclusion. Without the same, it becomes lifeless”.
Supreme Court in “M/s Kranti Associates Pvt. Ltd. & Anr. Vs. Masood
Ahmed Khan & Others, (2010) 9 SCC 496” held that the judicial and quasi-judicial
courts/authorities are required to pass speaking orders. In the said case, this
Commission had dismissed the revision petition vide its order dated 31.08.2007 by
passing following order:“Heard.
In view of the concurrent finding of the State Commission, we do not
find any force in this revision petition.
The Revision Petition is dismissed. “
Supreme Court after considering the entire case law came to the conclusion that
it is mandatory for the courts and quasi-judicial authorities to record reasons in support
of conclusion arrived at. Supreme Court set aside the order passed by this Commission
and remitted the case back to this Commission for deciding the matter by passing a
reasoned order in the light of the observations made. Supreme Court summarized as
under:
“51. Summarizing the above discussion, this Court holds:
a.
In India the judicial trend has always been to record reasons, even in
administrative
decisions,
if
such
decisions
affect
anyone
prejudicially.
b.
A quasi-judicial authority must record reasons in support of its
conclusions.
c.
Insistence on recording of reasons is meant to serve the wider
principle of justice that justice must not only be done it must also
appear to be done as well.
d.
Recording of reasons also operates as a valid restraint on any
possible arbitrary exercise of judicial and quasi-judicial or even
administrative power.
e. Reasons reassure that discretion has been exercised by the decision
maker on relevant grounds and by disregarding extraneous
considerations.
f.
Reasons have virtually become as indispensable a component of a
decision making process as observing principles of natural justice
by judicial, quasi-judicial and even by administrative bodies.
g.
Reasons facilitate the process of judicial review by superior Courts.
h.
The ongoing judicial trend in all countries committed to rule of law
and constitutional governance is in favour of reasoned decisions
based on relevant facts. This is virtually the life blood of judicial
decision making justifying the principle that reason is the soul of
justice.
i.
Judicial or even quasi-judicial opinions these days can be as
different as the judges and authorities who deliver them. All these
decisions serve one common purpose which is to demonstrate by
reason that the relevant factors have been objectively considered.
This is important for sustaining the litigants' faith in the justice
delivery system.
j.
Insistence on reason is a requirement for both judicial accountability
and transparency.
k.
If a Judge or a quasi-judicial authority is not candid enough about
his/her decision making process then it is impossible to know
whether the person deciding is faithful to the doctrine of precedent
or to principles of incrementalism.
l.
Reasons in support of decisions must be cogent, clear and succinct.
A pretence of reasons or `rubber-stamp reasons' is not to be equated
with a valid decision making process.
m.
It cannot be doubted that transparency is the sine qua non of restraint
on abuse of judicial powers. Transparency in decision making not
only makes the judges and decision makers less prone to errors but
also makes them subject to broader scrutiny.(See David Shapiro in
Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
n.
Since the requirement to record reasons emanates from the broad
doctrine of fairness in decision making, the said requirement is now
virtually a component of human rights and was considered part of
Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29
and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the
Court referred to Article 6 of European Convention of Human Rights
which requires, “adequate and intelligent reasons must be given for
judicial decisions”.
o.
In all common law jurisdictions judgments play a vital role in setting
up precedents for the future. Therefore, for development of law,
requirement of giving reasons for the decision is of the essence and
is virtually a part of “Due Process”.”
Rajasthan State Commission has been passing non- speaking orders. We have
set aside at least 100 such orders and remitted the cases to the State Commission to
pass reasoned orders. In spite of this, the State Commission has chosen to pass the
impugned order. It continues to pass non-speaking orders. We direct the State
Commission to pass speaking orders as per law laid down by the Supreme Court and
the directions issued by us. We hope that in future we shall not get any non-speaking
order from the State Commission and the State Commission shall pass the orders
keeping in mind the directions issued by this Commission and the law laid down by the
Hon’ble Supreme Court.
For the reasons stated above, the impugned order is set aside and the case is
remitted back to the State Commission to decide it afresh in accordance with law laid
down by the Hon’ble Supreme Court by passing a speaking order.
The parties, through their counsel or in person, are directed to appear before the
State Commission on 28.05.2013.
A copy of this order be sent to the Registrar of the State Commission, Rajasthan
with a direction to place it before the State Commission for its perusal.
….. . . . . . . . . . . . . . .
(ASHOK BHAN J.)
PRESIDENT
................
(VINEETA RAI)
MEMBER
Yd/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 421 OF 2012
(From the order dated 13.04.2012 in Complaint No. CC/08/118
of the Maharashtra State Consumer Disputes Redressal Commission)
WITH
INTERIM APPLICATION NO. 1 OF 2012
(For expert for Medical Examination)
Mrs. Lalita Ramesh Jain,
Residing at A/3, Sukhwani Garden,
Dapoli, Pune,
Maharashtra
... Appellant
Versus
1.
Talesara Hospital,
Plot No. 6, S. No. 6/A/1, Next to
Ganga Complex, Air Port Road,
Yerwada, Pune- 6
Maharashtra
2. Dr. Jayantilal M. Talesara,
Talesara Hospital,
Plot No. 6, S.No. 6/A/1, Next to
Ganga Complex, Air Port Road,
Yerwada, Pune – 6
…. Respondent(s)
Maharashtra
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 19.03.2013 at the time of arguments,
For the Appellant
Dr. R.R. Deshpande, Advocate
Mrs. Ujwala R. Deshpande, Advocate
For the Respondent (s)
Mr. Rahul Gandhi, Advocate
PRONOUNCED ON : 10th APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This is the First Appeal filed under Section 19 of the Consumer Protection Act,
1986 by the appellant / complainant against the order dated 13.04.2012 passed by the
Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter
referred to as ‘State Commission’) in complaint case No. CC/08/118, vide which the
complaint alleging medical negligence on the part of the respondents/opposite parties
was ordered to be dismissed.
2.
Briefly stated, the facts of the case are that the appellant/complainant, who is a
lady aged about 38 years was hit by a two-wheeler at the Dapoli, Pune, fracturing her
right hand. The complainant had severe pain and swelling and she was admitted for
treatment
at
the
hospital/Respondent
No.1
where
she
was
treated
by
Doctor/Respondent No.2. On 26.07.2006, the respondent No.2 performed surgery on
the right hand of the appellant with the help of some other Doctors with the intent to rejoin the fractured bones in the right hand. She was told that the surgery was successful
and her right hand shall become normal after some time. It has been alleged by the
complainant that even after surgical intervention, the pain and swelling on the right hand
neither stopped nor were reduced and she was still in pain and agony, but she was
discharged from the hospital on 03.08.2006. She was asked to visit the hospital on
subsequent dates for post-operative care and she kept on visiting the hospital and
taking the medicines as advised by the opposite parties. The complainant has stated
that after much painful suffering and agony, the pain subsided and the plaster was
removed, but she found that she could not use her right hand for any purpose. The
complainant then got herself examined by another Doctor, who stated that the fractured
bones of the right hand of the complainant were not aligned properly before putting the
plaster on her hand, and as a result, the fractured ends got fused together in an
abnormally twisted manner. She visited some other Doctors as well, who gave the
same opinion, stating that nothing could be done to reverse the damage. It was
therefore, a case of medical negligence on the part of the opposite parties, because had
they taken proper X-ray etc., to see if the bones had been set properly, they could have
discovered the real picture about alignment of bones. The complainant then filed the
complaint, claiming compensation of Rs. 28.20 lacs, but the same was dismissed by the
State Commission vide impugned order.
3.
The case of the opposite parties is that the complainant was an overweight lady
and she had previous history of Epilepsy. She used to take a Tablet called ‘Tagiritol’,
which resulted into the weakening of her bones. Further, the damage occurred due to
her accidental fall on 18.9.2006, because of Epilepsy attack. The complainant had also
not taken proper post-operative care.
4.
Heard the learned counsel for the parties and examined the record.
5.
The learned counsel for the petitioner stated that it was a clear case of medical
negligence on the part of the opposite parties and the matter could be got examined by
a team of medical experts to know the truth. The State Commission had therefore,
erred in dismissing the complaint.
6.
On the other hand, the learned counsel for the respondents stated that although
the complainant had mentioned that she had consulted many doctors about her
condition, but she had not given the names of any doctors so consulted. The
respondents had taken appropriate care to deal with the case and no medical
negligence could be attributed to them.
7.
The State Commission vide impugned order have stated that the averments made
by the appellant that she had consulted other expert Orthopaedic surgeons, who opined
that there was error in joining of the bones of the elbow of the right hand due to wrong
treatment given by the opposite parties, had not been supported by documentary
evidence, as required under Section 13 (4) of the Consumer Protection Act, 1986. The
Medical Board of B.J. Medical College and Sassoon General Hospital, Pune had given
a certificate saying that the operated hand was 42% disabled, but there is no evidence
to show that the abnormality was a result of any post-operative complications. There is
also evidence of Epilepsy attack and fall of the complainant on 18.9.2006.
8.
In view of these facts, we feel that there is no conclusive evidence to prove
medical negligence on the part of the opposite parties. The order passed by the State
Commission reflects a correct appreciation of the facts and circumstances on record
and hence does not suffer from any infirmity or illegality. The First Appeal is therefore,
ordered to be dismissed and the impugned order is upheld, with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2168 OF 2012
(From the order dated 05.1.2012 in First Appeal No. 980/2011 & FA/986/2011
of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)
WITH
I.A. NO. 682 OF 2013
(PLACING ADDITIONAL DOCUMENTS)
Director,
Rajya Krishi Utpadan Mandi Parishad,
Gomti Nagar,
Lucknow
... Petitioner
Versus
1.
Smt. Madhu Shukla,
Wife of Sri Dinesh Chandra Shukla,
Resident of 11 A.P. Sen Road,
Lucknow
2.
Secretary to Govt. of U.P.,
Agriculture Department,
Civil Secretariat,
Lucknow
…. Respondent(s)
REVISION PETITION NO. 2421 OF 2012
(From the order dated 05.1.2012 in First Appeal No. 980/2011 & FA/986/2011
of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)
Director,
Rajya Krishi Utpadan Mandi Parishad,
Gomti Nagar,
Lucknow
... Petitioner
Versus
1.
Smt. Madhu Shukla,
Wife of Sri Dinesh Chandra Shukla,
Resident of 11 A.P. Sen Road,
Lucknow
2.
Secretary to Govt. of U.P.,
Agriculture Department,
Civil Secretariat,
Lucknow
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 19.03.2013 at the time of arguments,
For the Petitioner
Mr. Amit Kumar Sharma, Advocate
For the Respondent (s)
Mr. Rakesh Chadha, Advocate
Mr. Nikhil Jain, Advocate
PRONOUNCED ON : 10th APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
These Revision Petitions have been filed under Section 21 of the Consumer
Protection Act, 1986 against the order dated 05.01.2012 passed by the State Consumer
Disputes Redressal Commission, Uttar Pradesh, Lucknow (hereinafter referred to as
‘State Commission’) in Appeal No. 986 of 2011, vide which the State Commission has
directed that the possession of the shop in question may be handed over to the
complainant/respondent within a period of two months and also she should be given
interest
@
9%
on
the
amount,
which
is
lying
in
deposit
with
the
petitioner/Rajya Krishi Utpadan Mandi Parishad, Lucknow.
2.
This single order shall dispose of both the petitions in question and a copy of the
same may be placed on each file.
3.
Briefly stated, the facts of the case are that the petitioner/opposite party No.1-
Rajya Krishi Utpadan Mandi Parishad, Gomti Nagar,Lucknow invited
applications
for
registration for construction of shops in ‘Apna Bazar’ Fruit, Flower and Vegetables
Market
Scheme
(Phase-III)
in Gomti Nagar, Lucknow from
01.01.1997
to
31.01.1997. The complainant/respondent No.1-Madhu Shukla made application for the
allotment of a shop in Super Bazar under the Scheme and deposited a sum of Rs.
43,075/- as registration money. She was informed vide letter of opposite party dated
30.4.1997 that the registration had been affected and the allotment money of Rs.
43,670/- should be deposited. The said amount was deposited by the complainant and
further vide letter dated 29.07.1997 from the opposite party, allotment of shop No. 96
was made to her. The complainant deposited a sum of Rs. 1,72,802/- with the opposite
party against the total cost of construction of the aforesaid shop i.e. Rs. 1,72,300/. However, the possession of the shop in question was never given to the complainant
on the ground that due to various reasons, the construction of shop No. 96 in the
Scheme had not been possible. The opposite party allotted another shop No.53 in the
same market to the complainant, but she refused to accept the said allotment saying
that shop No. 53 was smaller in size as compared to shop No. 96. Another question
then arose that one of the shops from shop No. 80 to 91 could be allotted to the
complainant, but the opposite party took the stand that these twelve shops had been
earmarked for Government functionaries. A consumer complaint was filed by the
complainant against the opposite party in the District Forum, which passed an order on
19.4.2011 saying that the possession of shop should be given to the complainant within
thirty days at the old prescribed rates and a sum of Rs. 10,000/- to take care of mental
agony and Rs. 2,000/- as litigation expenses should also be given to her.
4.
An appeal was filed by the opposite party/present petitioner before the state
Commission, which vide impugned order, directed that the possession of the shop may
be handed over to the complainant within two months. It is against this order that the
present petitions have been made by the opposite party.
5.
At the time of hearing before us, the learned counsel for the petitioner stated that
shop No. 53, in place of shop no. 96 had already been allotted to the complainant and a
letter to this effect had also been issued on 01.08.2011. However, the complainant had
refused to accept the allotment of said shop. Further, shops No. 80-91 had been kept
reserved
for
Government
Departments
and
could
not
be
allotted
to
the
complainant. Out of these twelve shops No. 80-91, 10 shops had been reserved for the
Rural Developemnt Department under ‘Swarn JyantiGram Vikas Swarojgar Yojna’ and
two shops had been kept by the petitioner Department themselves. It is clear therefore
that these shops had been reserved keeping in view the public interest. Moreover, the
value of these shops had also risen sharply during the past few years and one of these
shops was sold to the complainant at old rates, it shall put the Department to huge
financial loss. The learned counsel for the petitioner, referring to the delay of 37 days in
filing the petition stated that the impugned order was passed on 05.01.2012 and at that
time, General Elections had been declared in the State and the staff of the Department
had been put on election duty. The Director of the Department had also been made an
Election Observer.
6.
On the other hand, the learned counsel for the respondent stated that there is no
valid ground for the condonation of delay in the present case. None of the staff from the
petitioner Department had been put on election duty. Moreover, the election
in Lucknow had been held on 16.02.2012 but the petitioners were sitting idle and did not
take any action in the present case. In the second petition, there was a delay of 69
days in filing the petition.
7.
It has further been stated on behalf of the respondent No.1 that the
respondent/complainant was a valid allottee of the shop under the Scheme and the
money deposited by her had been lying pending with the Department for a number of
years. She was therefore, entitled to get the shop under the Scheme and hence it was
clear that the orders passed by the State Commission and District Forum were valid in
the eyes of law.
8.
We have examined the entire material on record and given our thoughtful
consideration to the arguments advanced before us. In Revision Petition No. 2168 of
2012, there has been a delay of 37 days in filing the petition, whereas in revision
petition No. 2421of 2012, there is a delay of 69 days. The petitioners have tried to give
explanation for delay by saying that the State machinery was busy with the elections
being held in the State and hence they could not take timely action for filing the
petitions. However, the plea does not seem to be based on any sound reasoning and
these petitions deserves to be dismissed on this ground alone.
9.
Now coming to the merits of the case, it is an admitted fact that
Smt. Madhu Shukla gave an application for the allotment of a shop under the said
Scheme and deposited the amounts in question as demanded by the petitioner from
time to time and the said money has been lying deposited with the petitioner for a long
time. She was also given allotment of shop No. 96 but due to the non-availability of
proper site or other reasons, it was not possible for the petitioner to construct the said
shop. The petitioner also made allotment of an alternative shop, but the same was
smaller in size as compared to the one already allotted. The complainant refused to
accept the allotment of the said shop. As per the current situation, however, it is very
clear that the twelve shops with numbers 80 to 91 are lying constructed under the
Scheme and they are stated to be reserved for Government Departments by the
petitioner. The petitioner has stated that ten of these shops are meant for the Rural
Development Department under some National Scheme and two of these shops are for
the petitioner Department. However, looking at the entire circumstances of the case
and the mental agony and harassment suffered by the complainant, we find it
appropriate that one of these shops should be allotted to the complainant and the
Government Departments could bear with the remaining eleven shops. The District
Forum as well as the State Commission have also ordered that one of the shops should
be given within the prescribed time. The State Commission has also ordered that
interest of 9% should be paid on the amount lying in deposit with the petitioner. We do
not find anything wrong with this part of the order as well.
9.
Based on the discussions above, we find that the impugned order does not suffer
from any illegality or infirmity from any standard. The same is therefore upheld and the
present revision petitions are ordered to be dismissed with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3965 of 2011
(From the order dated 03.06.2011 in Appeal No. 1677/2009 of Haryana State
Consumer Disputes Redressal Commission, Panchkula)
Lakhan Pal
S/o Sh. Kishori Lal
R/o House No. A-987,
Dabua Colony, N.I.T.
… Petitioner/Complainant
Faridabad
Versus
United India Insurance Co. Ltd.
Through its Divisional Manager
5-R/4, Gobind Bhawan (2nd Floor),
N.I.T., Faridabad – 121 001.
… Respondent/Opposite 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 :
PRONOUNCED ON
Mr. K.K. Koul, Advocate
Mr. Naveen Kumar, Advocate
10th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 03.06.2011 passed by the Haryana State Consumer Disputes Redressal
Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1677 of 2009 –
United India Ins. Co. Ltd. Vs. Lakhan Pal by which, while allowing appeal, order of
District Forum allowing complaint was set aside and complaint was dismissed.
2.
Brief facts of the case are that complainant/petitioner’s Truck No. 38/H-5368 was
insured by OP/respondent for a period of one year from 28.10.2003 to 27.10.2004.
During the subsistence of the insurance policy, the vehicle was stolen on the intervening
night of 14/15.3.2004. Complainant lodged FIR NO. 198 dated 21.3.2004 with the
concerned police station and intimation was also given to OP. OP repudiated the
claim. Alleging deficiency on the part of OP, complainant filed complaint before District
Forum. OP resisted claim. Learned District Forum after hearing both the parties
allowed the complaint and directed OP to pay Rs.6,50,000/- along with interest @ 9%
p.a. and Rs.2,200/- as litigation expenses. OP/respondent filed appeal before the
learned State Commission and learned State Commission vide impugned order while
accepting the appeal dismissed the complaint 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 petitioner promptly lodged FIR
and intimated to the OP/respondent, even then, learned State Commission has
committed error in allowing appeal and dismissing complaint; hence, revision petition be
allowed and impugned order be set aside. On the other hand, learned Counsel for the
respondent submitted that order passed by learned State Commission is in accordance
with law; hence, revision petition be dismissed.
5.
This revision petition has been filed along with application for condonation of 60
days delay. Apparently, no satisfactory explanation has been given by the petitioner for
condonation of delay.
6.
It is an admitted case that the vehicle was stolen on the intervening night of
14/15.3.2004. FIR No. 198 was lodged on 21.3.2004, i.e., after 7 days of theft and
intimation to OP/respondent was given on 7.4.2004, i.e., after 23 days of
occurrence. Learned State Commission has rightly observed that there was violation of
the conditions of the policy, as the complainant had failed to inform the Insurance
Company immediately after the alleged theft. Learned State Commission has not
committed any error in allowing appeal and dismissing complaint on the basis of
judgement passed by this Commission in Devendra Singh Vs. NIA and Ors. – III
(2003) CPJ 77 (NC).
7.
This Commission in F.A. No. 321 of 2005 – New India Assurance Co. Ltd. Vs.
Trilochan Jane dismissed the complaint on the ground that there was delay of 2 days in
lodging FIR and delay of 9 days in giving intimation to Insurance Company.
8.
In the present case, as there was delay of 7 days in lodging FIR and delay of 23
days in intimating the Insurance Company, learned State Commission has not
committed any error in allowing appeal.
9.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order passed by the learned State Commission 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
REVISION PETITION NO. 4895 of 2012
(From the order dated 07.09.2012 in Appeal No. 1009/2012 of M.P. State Consumer
Disputes Redressal Commission, Bhopal)
Rajendra Prasad Tripathi
S/o Late Moti Lal Tripathi
R/o Village Badchhar, P.S. Indvar
Tehsil Manpur, District Umaria
… Petitioner/Complainant
Madhya Pradesh
Versus
1. The Manager,
Agrawal Motors,
Dealer, Baldeobagh
Jabalpur (M.P.)
2. Sushil Vishwakarma,
Sub Dealer,
Massey Fergusan Tractor Agency,
Mandi Road, Kuthla
Katni (M.P.)
3. Ram Pramod Payasi, Agent
R/o Semaria, (near Piparia Kala),
District Katni (M.P.)
4. Branch Manager,
State Bank of Indore,
Umaria, Financer,
… Respondent/Opposite Parties (OP)
District Umaria (M.P.)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Rajendra Prasad Tripathi in person with
Mr. Ram Prashad Gautam, Auth. Representative.
PRONOUNCED ON
10th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated
07.09.2012
passed
by
the
Madhya
Pradesh
State
Consumer
DisputesRedressal Commission, Bhopal (in short, ‘the State Commission’) in Appeal
No.
1009 of
2012
– Rajendra Prasad Tripathi Vs. Manager, Agarwal Motors by
which, while dismissing appeal, order of District Forum dismissing complaint was
affirmed.
2.
Brief facts of the case are that complainant/petitioner purchased tractor/trolley
from OP No. 1/respondent No.1 and tractor/trolley were financed by respondent No. 4 /
OP No. 4. Petitioner paid Rs.50,000/- on 15.9.2003, Rs.50,000/- on 10.11.2003 and
Rs.50,000/- on 22.1.2004 to OP Nos. 2 & 3/Respondent Nos. 2 & 3, but that amount
was not adjusted against the loan. It was further alleged that trolley and documents for
registration of trolley were not given to the petitioner. Alleging deficiency on the part of
OP, complainant filed complaint in 2008 with a prayer for direction to OP to give
possession of trolley and documents of trolley along with compensation. OP No. 4
contested complaint and submitted that complaint is time barred; hence, complaint be
dismissed. Complaint was dismissed against the OP Nos. 1, 2 & 3 by learned District
Forum on 14.11.2008, as the petitioner did not deposit fees. After hearing both the
parties, learned District Forum dismissed the complaint as time barred. Appeal filed by
the petitioner was also dismissed by the learned State Commission vide impugned
order against which, this revision petition has been filed.
3.
Heard authorized representative of the petitioner at admission stage and perused
record.
4.
Authorized representative of the petitioner submitted that petitioner made
complaints to the Respondent No. 4 in 2004 and in 2005, even then, trolley and its
documents were not given to him and in such circumstances, in spite of deficiency on
the part of respondent, learned State Commission has committed error in dismissing
appeal and learned District Forum has committed error in dismissing complaint; hence,
petition be admitted.
5.
Perusal of record clearly reveals that, as per invoice of tractor/ trolley,
tractor/trolley was purchased by the petitioner on 8.8.2004, whereas complaint
regarding non-delivery of trolley and registration certificate has been filed on 23.1.2008,
which is clearly time barred. As per complaint, money was given by the petitioner to OP
Nos. 2 & 3 for depositing in the account in the year 2003 and 2004, which has not been
deposited in the account, as per complaint. Complaint ought to have been filed within a
period of 2 years from the cause of action. As the complaint has been filed almost after
3½ years without any application under section 24-A of the Consumer Protection Act,
learned District Forum has not committed any error in dismissing complaint as time
barred and learned State Commission has not committed any error in dismissing
appeal.
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 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. 727 of 2010
(From the order dated 21.12.2009 in Appeal No. 151 of 1999 Bihar State Consumer
Disputes Redressal Commission, Patna)
Ashok Kumar Singh
of R.P. Retraders
Gheghatta
… Petitioner/Complainant
Chapra - Bihar
Versus
1. Bihar State Electricity Board, Patna
Through Chairman, Patna
Baily Road, Patna
2. Chairman, Bihar State Electricity Board
Patna, Baily Road,
Patna
3. Executive Engineer
Bihar State Electricity Board
Chapra, P.O. Chapra,
P.S. Town Thana,
District Saran.
4. Sub-Divisional Officer (Engineer)
Electrical (Supply)
Bihar State Electricity Board,
… Respondent/Opposite Parties (OP)
Chapra
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
For the Respondent :
PRONOUNCED ON
Mr. A.K. Singh, In person
Mr. Mohit Kumar Shah, Advocate
10th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated
21.12.2009
passed
by
the
Bihar
State
Consumer
Disputes RedressalCommission, Patna (in short, ‘the State Commission’) in Appeal
No.151 of 1999 – Chairman, Bihar State Electricity Board Vs. Ashok Kumar Singh by
which, while allowing appeal partly, reduced the amount of compensation granted by
the learned District Forum.
2.
Brief facts of the case are that complainant/petitioner had taken industrial
connection of electricity from OP/respondent for a tyre resoling business under an
agreement and deposited security amount of Rs.13,750/-. Supply of electricity started
on 6.1.1993. Supply of electricity by OP was not proper and regular; so, complainant
made complaint to OP No. 3 vide letter dated 25.3.1994 and further requested to refund
security money. Later on, OP No. 3 illegally disconnected supply of electricity of the
complainant on 28.4.1994. Complainant alleging deficiency on the part of OPs, filed
complaint for refund of security and compensation. OP resisted complaint and
submitted that as per agreement, consumer was required to pay minimum charges for 2
years. It was further alleged that, as the complainant has not paid a sum of Rs.29,290/as dues of electricity bills from February, 1994 to April, 1994, his connection was
disconnected. It was further alleged that, as the complainant has not paid minimum
guarantee charges for two years, no question of refund of security money arises and
prayed for dismissal of the complaint. Learned District Forum after hearing both the
parties allowed the complaint and directed OPs to refund security amount subject to
depositing Rs.29,290/- as arrears of dues and further awarded Rs.10,000/- as
compensation for business loss and Rs.25,000/- as compensation for mental
agony. OP/respondent filed appeal and learned State Commission vide impugned
order modified order of District Forum and reduced compensation to Rs.5,000/- and
further observed that petitioner will be entitled to claim 9% p.a. interest on the security
amount and OP will be entitled to claim 9% p.a. interest on electricity bill dues against
which, this revision petition has been filed.
3.
Heard the petitioner in person and learned Counsel for the respondent and
perused record.
4.
Petitioner submitted that, as there was illegal disconnection on 28.4.1994,
though, order for disconnection was passed on 4.5.1994, learned District Forum has not
committed any error in granting compensation and learned State Commission
committed error in reducing compensation and imposing interest on the electricity bill
dues; hence, revision petition be allowed and order of State Commission be set
aside. On the other hand, learned Counsel for the respondent submitted that learned
State Commission has not committed any error in reducing compensation, as
respondent was entitled to recover minimum charges for 2 years, whereas connection
has been disconnected only after 13 months on account of non-payment of electricity
dues and further submitted that petitioner was also awarded interest on security deposit;
hence, revision petition be dismissed.
5.
Learned District Forum and learned State Commission has come to the
conclusion that petitioner has not deposited electricity bill dues for the month of
February, March and April, 1994 and in such circumstances, learned State Commission
has
not
committed
any
error
in
imposing
burden
of
interest
on
the
petitioner. Simultaneously, learned State Commission has awarded 9% p.a. interest on
security deposit to the petitioner, though, no appeal was filed by the petitioner against
the order of District Forum. In such circumstances, allowing 9% p.a. interest to the
respondent on electricity dues cannot be held to be improper.
6.
Record reveals that electricity connection of the petitioner was disconnected on
28.4.1994, whereas order for disconnection was given on 4.9.1994. It appears that on
account of complaint of the petitioner dated 25.3.1994 regarding irregular supply of
electricity and refund of security money (implied request for disconnection), petitioner’s
connection was disconnected by the concerned employee even before the order of the
Assistant Engineer. For this purpose, learned State Commission has already upheld
grant of compensation to the extent of Rs.5,000/-. As per agreement, petitioner was
bound to pay minimum charges for 2 years and on account of non-payment of electricity
dues, petitioner’s connection has been disconnected after 16 months of connection.
Learned State Commission has not committed any error in reducing amount of
compensation from Rs.35,000/- to Rs.5,000/-
7.
We do not find any infirmity, illegality, irregularity or jurisdictional error in the
impugned order and revision petition is liable to be dismissed at admission stage.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.4656 OF 2012
(Against the order dated 19.09.2011 in First Appeal No.1568 of 2007 of the State
Commission, Haryana )
Rediff.com India Limited
1st Floor, Mahalaxmi Engineering Estate
L.J. Road No.1,
Mahim (W) Mumbai- 400016,
Through Jyoti Ravi Sachdeva,
Company Secretary and Associate Director Legal
Authorized
……….P
Signatory
etitioner
Versus
Ms. Urmil Munjal
C/o Gurgaon Gramin Bank
Head Office, Sector 4,
Gurgaon
.........Respondent
BEFORE
HON’BLE MR. JUSTICE J.M . MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Ms. Sangeeta Sondhi, Advocate
PRONOUNCED ON: 11 APRIL 2013
ORDER
PER MR.VINAY KUMAR, MEMBER
M/s Rediff.com India Limited has filed this revision petition against concurrent
orders of the District Consumer Disputes Redressal Forum, Gurgaon and Haryana
State Consumer Disputes Redressal Commission. The revision has been filed with a
delay of 327 days. In explanation of the same the application seeking its condonation
says:
“5. That it is pertinent to mention that the petitioner never received
copy of the order and the same was never served upon the petitioner. It
was only on 15.10.2012 that the petitioner received show cause notice
from the District Court, Gurgaon for non-compliance of the order of the
Hon’ble State Commission. Upon receipt of the same, the petitioner
followed up with its counsel and got the certified copy of the order only
on 18.10.2012.
6. It is respectfully submitted that the limitation to file the present
petition would commence from 15.10.2012 when the petitioner came
know that impugned order, however, as an abundant caution, the
petitioner has filed the present application for condonation of delay in
filing the present revision petition from the date of the order.
7. That the order of the Hon’ble State Commission is dated
19.09.2011, the certified copy of the same received by the petitioner on
18.10.2012. The petitioner was never delivered the copy of the
order. Even the respondent never took any steps to serve the
petitioner. It is only when the respondent filed the execution petition
and the petitioner received the certified copy of the order only then, he
came to know about the impugned order.”
2.
Thus, according to the revision petitioner, he came to know of the existence of the
impugned
order
on
15.10.2012
and
obtained
a
certified
copy
thereof
on
18.10.2012. The copy of the impugned order filed before this Commission does show
that the certified true copy was issued on 18.10.2012. Presumably, it will have been
applied for sometime between the 15th and 18th of October, 2012. However, neither the
condonation application nor the certified copy show the date on which it was applied
for. Significantly, the endorsement on the same copy of the impugned order also
indicates that free of cost copy of the impugned order dated 19.9.2011 was already
supplied on 17.10.2011. The copy supplied on 18.10.2012 was a duplicate copy. It is
therefore clear that the claim of the petitioner that he came to know about the existence
of the impugned order one year later, on 15.10.2012 has no factual basis.
3.
The certified copy of the impugned order also shows that the order was
pronounced on 19.9.2011. This date is carried at the beginning as well as at the end of
the order. In the face of this, the claim in para 3 of the condonation application that the
appeal was last heard on 19.9.2011 and was kept pending for orders, becomes a
blatant lie. Moreover, the revision petitioner was not ex-parte before the State
Commission and should therefore have been fully aware of the proceedings before the
State Commission including when the case was reserved for orders and when was the
order pronounced. We therefore have no hesitation in rejecting the application of this
inordinate delay 327 days as totally unacceptable. The revision petition is therefore
liable to be dismissed on the ground of delay alone.
4.
Coming to the merits of the matter, we have carefully perused the records and
heard Ms. Sangeeta Sondhi Advocate on behalf of the revision petitioner. The main
urged on behalf of the revision petitioner is that the respondent/Complainant is not a
consumer of the revision petitioner within the meaning of Section 21 (d) of the
Consumer Protection Act, 1986. It is alleged that dissatisfaction of the Complainant, if
any, was with the goods delivered by their vendor, who has not been joined as a
necessary party before the consumer fora. The revision petitioner, it is claimed, was
mere facilitator of the transaction between the seller and buyer and cannot be held
liable for any deficiency of service.
5.
Nevertheless, the above contention, the revision petition does admit “that the
petitioner is only an intermediary who facilitates the sellers and buyers through
its online portal and once the offer is made by the buyer and it is accepted on
payment of consideration by the seller the role of the intermediary is over.”
6.
In the Written Response filed before the District Forum (para 3), it is claimed that
as the information and service provided to the buyer on this website by the respondent
company are gratuitous or without consideration therefore, no contract for supply of any
good or service ever came into existence between the complainant and the respondent
in the present case. That the complainant does not have any legal rights against the
respondent and there can be no question of any deficiency of service or defect in goods
supplied.
7.
In the background of the above contention, it needs to be noted that the District
Forum did not hold the RP/OP liable for any defects in the goods supplied, but for failure
to inform the Complainant about the manner in which defective goods were to be
returned to their seller. The District Forum has observed:-
“4. The main allegation of the complainant against the opposite party
is that the opposite party failed to inform the complainant as to how the
items received by the complainant are to be returned to the seller. Since
the opposite party was facilitator between the seller and buyers as
mentioned in the terms and conditions for Rediff Shopping Anneure-OP1
in the column “online Shopping Platform” Annexure-OP1-A, so it was the
duty of the opposite party to inform the complainant as to how the goods
are to be returned to the seller. A letter was issued through the opposite
party to the complainant Annexure-C1 according to which the seller had
undertaken to replace the produce at no cost to the buyer if the buyer
inform the seller within 30 days of the delivery of the order, which shows
that had the opposite party informed the complainant about the procedure
and from the goods purchased by the complainant through the opposite
party are to be returned, the complainant would have taken the benefit of
the facility given by the seller under Annexure-C1. Although the opposite
party did not charge any price from the complainant from mediating
between the seller and the complainant yet it is implied that the opposite
party which was giving service to the seller to invite buyers to purchase
the goods is a service as contemplated under the provisions of Consumer
Protection Act and the complainant has locus standi to file the
complainant against the opposite party.”
8.
The State Commission fully endorses the view of the District Forum when it holds
that:“Admittedly, the opposite party was facilitator between the seller and
buyers (complainant) as mentioned in the terms and conditions for Rediff
Shopping Annexure OP-1 in the column “Online Shopping Platform”
Annexure OP1-A. It was the duty of the opposite party to inform the
complainant as to how the goods could be returned to the seller. As per
letter Annexure C-1, which was written by the seller to the complainant
through the opposite party, the seller had undertaken to replace the
product at no cost in case the buyer informed the seller within 30 days of
the delivery of product.”
9.
We find that the view taken by the fora below is completely in line with the
admitted position of the RP/OP. In para 2 of its written response before the District
Forum, it is clearly stated that the respondent company is engaged in business of
providing services through its internet portal (www.rediff.com) to interested buyers and
sellers by acting as a means of communication between them and bringing into
existence contracts of sale and purchase of movable goods. If this is the declared
business interest of the RP/OP it cannot be permitted to claim that it is providing purely
gratuitous service to its customers, without any consideration. It is certainly not the
case of RP/OP that it is a charitable organisation involved in e-commerce, with no
business returns for itself.
We therefore, reject the contention of the revision petitioner
that the respondent/Complainant is not a consumer of the revision petitioner within the
meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.
10.
We find no merit in this revision petition. It is accordingly dismissed on the
grounds of limitation as well as on merit. No order as to costs.
.……………Sd/-……………
(J.M. MALIK,J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1149 of 2013
(From the order dated 18.02.2011 in Appeal No. 564 of 2010 Bihar State Consumer
Disputes Redressal Commission, Patna)
With
I.A. No.2089 & 2090 / 2013
(Stay & Condonation of Delay)
United Bank of India
Head Office at 11, Hemanta Basu Sarani,
Kolkata – 700 001
and branches amongst others at
Baranagar Branch, 57, Cossipur Road,
Kolkata – 700 036 (West Bengal)
… Petitioner/Opposite Party (OP)
(through its Chief Manager)
Versus
M/s. Shib Durga Rolling Centre
177-B, Maharaja Nanda Kumar Road
Kolkata – 700 036
(through its sole proprietor
… Respondent/Complainant
Smt. Chandra Nandy)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
:
Mr. S.S. Lingwal, Advocate
11th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order
dated
18.02.2011
passed
by
the
West
Bengal
State
Consumer
DisputesRedressal Commission, Kolkata (in short, ‘the State Commission’) in Appeal
No.564 of 2010 – United Bank of India Vs. M/s. Shib Durga Rolling Centre by
which, appeal was dismissed in default.
2.
Brief facts of the case are that Complainant/Respondent filed complaint with the
District Forum and by order dated 29.7.2010, District Forum allowed complaint and
directed OP/Petitioner to return the original title deeds in respect of the landed property
to the complainant within a month and to pay compensation of Rs.5,000/- and litigation
cost of Rs.1,000/-, but appeal filed by the petitioner was dismissed in default by learned
State Commission by the impugned order against which, this revision petition has been
filed along with application for condonation of delay.
3.
Heard learned Counsel for the petitioner at admission stage on application
for condonation of delay and perused record.
4.
Learned Counsel for the petitioner submitted that petitioner came to know about
the impugned order on 26.11.2012, and revision petition has been filed on 22.3.2013;
hence, delay of 24 days in filing revision petition be condoned.
5.
Perusal of record reveals that impugned order dismissing appeal in default was
passed on 18.2.2011 and as per certified copy issued on 26.11.2012, free copy was
issued to the parties on 7.3.2011. Petitioner has nowhere mentioned in its application
for condonation of delay that petitioner or his Counsel has not received free copy issued
by the learned State Commission. In such circumstances, it may be presumed that
petitioner received free copy issued on 7.3.2011 and this revision petition has been filed
on 22.3.2013 i.e. after more than 2 years and in such circumstances, inordinate delay of
1 year and 9 months in filing revision petition cannot be condoned.
6.
Perusal of application reveals that on 1.8.2012, Petitioner-Bank received notice of
Execution Case No.124/2010 pertaining to this complaint and then Petitioner’s Branch
Manager contacted Advocate Sri Puranjay Das who assured that appeal will be
restored. It was further mentioned in the application that Advocate was being contacted
through letters, e-mails or phones, but no documentary evidence in support of this fact
has been filed by the petitioner along with application for condonationof delay. It was
further submitted in the application that on 17.11.2012, Police Officer came with Arrest
Warrant for non-compliance of order of District Forum and thereafter, on 20.11.2012,
Branch Manager appeared before District Forum and paid the amount of compensation
and cost of litigation, as per order of District Forum and only after that Arrest Warrant
was recalled by District Forum. It was further mentioned in the application that
Petitioner-Bank applied for certified copy, which was received on 26.11.2012. It was
further mentioned that Petitioner came to know about the fate of appeal only after the
receipt of certified copy on 26.11.2012. This fact is apparently wrong because when the
petitioner received Execution Notice on 1.8.2012 and further Police Officer came along
with Arrest Warrant on 17.11.2012 and further when Branch Manager appeared before
District Forum on 20.11.2012, the petitioner must have come to know about the fate of
appeal. For the sake of arguments, even if, it is presumed that the petitioner came to
know only on 26.11.2012 about the fate of appeal on receipt of certified copy, he should
have filed revision petition immediately explaining delay of each day, but revision
petition has been filed on 22.3.2013 i.e. almost after 4 months.
7.
Apparently, no satisfactory explanation has been given by the petitioner for
inordinate delay of 1 year and 9 months for filing revision petition and in such
circumstances, application for condonation of delay is liable to be dismissed in the light
of the following judgments passed by the Hon’ble Apex Court and the National
Commission in (1) (1010) 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)
–
Anshul AggarwalVs. New Okhla Industrial Development Authority.
8.
In such circumstances, application for condonation of delay is dismissed and
consequently, revision petition stands dismissed as time barred 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. 204 OF 2008
(Against the order dated 17.03.2008 in Complaint Case No. C-85/1999 of the Delhi
State Consumer Disputes Redressal Commission)
Emirates
P.O. Box 686
Dubai, UAE
Also at
M/s Emirates Airlines
7th Floor, DLF Building
Parliament Street
New Delhi-110001
(Address for service)
…
Appellant
…
Respondent
Versus
Dr. Rakesh Chopra
R/o 3b/4, NEA, Rajinder Nagar
Sir Ganga Ram Hospital Road
New Delhi-110060
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Ms. Ritu Singh Mann, Advocate
For Respondent
: Mr. Rishi Manchanda, Advocate with
Mr. Siddhartha Jain, Advocate
Pronounced on 11th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by M/s Emirates, Opposite Party before the Delhi
State Consumer Disputes Redressal Commission (hereinafter referred to as the State
Commission) and Appellant herein being aggrieved by the order of the State
Commission, which had allowed the complaint of negligence and deficiency in service
filed against it by Dr. Rakesh Chopra, Original Complainant before the State
Commission and Respondent herein.
2.
FACTS :
In his complaint before the State Commission, the Respondent, who is a doctor
by profession, had stated that in his capacity as Executive Member of the International
Affairs Committee of the American Society of Clinical Oncology he had been invited to
attend a conference at Athens, Greece from 6 th to 10th of November, 1998 as also some
other professional meetings and functions there during this period. He alongwith his
wife purchased tickets from Appellant Airlines and left from Delhi on 4th of November,
1998. On arrival at Athens Airport, Respondent was shocked to note that one of his two
checked-in baggages containing personal clothing, small gift items as also papers
pertaining to the said conference were missing and he, therefore, made a complaint in
this connection to the Appellant Airlines with frantic requests to locate the missing
baggage. Appellant Airlines office in Athens in a disdainful manner offered him 50 US
Dollar as interim relief, which Respondent refused to accept. Subsequently, 150 Dollars
were offered to the Respondent to enable him to purchase some essential items for
daily use. Because of the misplaced baggage containing important documents, which
has not been traced till date, Respondent could not attend the conference, which
caused him a great deal of anguish. Since the Respondent had to honour some
appointments with other experts in the field of Oncology, he had to spend 200 Dollars
trying to reconstruct some of the documents. This was, however, not the end of his
problems vis-à-vis the Appellant Airlines because on the return journey when he and his
wife arrived in Dubai, he found that the locks of the remaining checked-in baggage had
been tampered with and papers were missing. Respondent had no option but to
purchase a new suitcase to carry his belongings, which cost him another 200
Dollars. Being aggrieved by the callous and negligent behavior of the Appellant Airlines
on account of which the Respondent and his wife suffered harassment and acute
mental tension throughout their tour, he brought these facts to the notice of the
Appellant Airlines vide letter dated 03.12.1998 and asked it to restore him his misplaced
baggage and also pay him 10000 Dollars as compensation, including for the goods and
articles worth Rs.75,000/-, which he had lost in addition to other expenses. Appellant
Airlines without expressing any regret for their negligence offered to pay 130 US Dollars
i.e. the total of 280 Dollars after deducting 150 Dollars paid as interim relief to the
Respondent at Athens. Being aggrieved, Respondent filed a complaint before the State
Commission seeking a total compensation of Rs.5,24,350/- with interest @ 24% per
annum as per following details :
“a)
Value of goods/suitcase lost in Athens
b)
Amount spent in Athens on typing, phones etc. to
Rs.75,000/USD 200
restructure important paper work
c)
Amount spent in purchasing new clothes etc. in
USD 200
Athens
d)
Amount spent in Dubai in purchase of new Suitcase
USD 200
in Dubai
e)
Damages for mental loss and loss opportunity of
USD 10000
meeting various specialists in Athens
Total of (b) to (e)
Less Interim relief received
3.
USD 10600
USD 150
Amount recoverable from Respondent
USD 10450
(USD 10450 @ Rs.43.00 per 1 USD)
Rs,4,49,350/-
TOTAL CLAIM
Rs.5,24,350/-”
Appellant Airlines on being served filed a written rejoinder in which they denied the
allegation of misbehavior and stated that on receipt of Respondent’s complaint
regarding his missing luggage, steps were immediately taken to trace the same and it
was regretted that despite their best efforts, they were not successful. Therefore, as per
the terms and conditions of the air tickets based on the Carrier Laws for the luggage at
the rate of 20 US Dollars per kilogram of lost luggage (in this case 14 kilogram),
compensation of 280 Dollars was found payable as also 80 Dollars for the damage
caused to the second suitcase. As a passenger, Respondent was also bound by the
terms and conditions of the air tickets and there was no deficiency in service.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it allowed the complaint by concluding that the loss of baggage per se
amounted to ‘deficiency’ in service as provided under Section 2(1)(g) of the Consumer
Protection Act, 1986 and directed the Appellant Airlines to pay a lump sum
compensation of Rs.2 Lakhs to the Respondent. The relevant part of the order of State
Commission is reproduced:
“13. The quality and standard of service has to be tested on the anvil of
definition provided by section 2(1)(g) which means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for
the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service.
14.
The circumstance of not delivering baggage at all or short delivery or
late delivery itself amounts to deficiency in service for which consumer is
entitled for compensation.”
5.
Being aggrieved by the order of the State Commission, the present first appeal
has been filed.
6.
Learned Counsel for both parties made oral submissions.
7.
Learned Counsel for the Appellant Airlines while reiterating the facts stated in their
written rejoinder before the State Commission contended that the State Commission
erred in holding Appellant guilty of deficiency in service and asking it to pay the
Respondent enhanced compensation of Rs.2.00 Lakhs. It was stated that despite the
best intentions, occasionally baggages do get misplaced and lost and it was to cover
such eventualities that the Carriage By Air Act, 1972, on which the terms and conditions
of the air tickets were based, clearly spelt out the compensation in respect of such
cases. It was also stated that all passengers, including the Respondent, to whom air
tickets were issued, were bound by the terms and conditions listed in the air
tickets. Appellant Airlines in accordance with the statutory provisions did not delay
settlement of claim pertaining to the lost baggage and also promptly paid compensation
of 80 Dollars for the damaged baggage. Further, it was the Respondent who was to
blame for packing his important documents required for the conference in his checkedin baggage when there was a specific advisory in the ticket that such items as also
valuables should not be put in checked-in baggages. Counsel for the Appellant Airlines
stated that the State Commission by awarding enhanced compensation failed to
appreciate that the terms and conditions of the Appellant Airlines as also the provisions
of Carrier Laws would be negated and lead to prolonged litigation if Courts start
awarding compensation far more than laid down in the statutory provisions pertaining to
Carriage by Air Act, 1972. Under the circumstances, the order of the State Commission
is liable to be set aside.
8.
Counsel for the Respondent reiterated that right from the time when the luggage
was lost, the Appellant Airlines was impolite and indifferent to them. This is borne out
by the fact that in the first instance only a very meager interim relief of 50 US Dollars
was offered and it was increased only the next day after Respondent’s vehement
protests. Apart from this, no plausible explanation has been given for the luggage still
not being traced and also for the other luggage being ripped open and damaged, which
is an admitted fact before the State Commission. The State Commission in its order
had rightly observed that apart from the compensation given to the Respondent as per
the terms and conditions of the tickets issued, the Appellant Airlines is liable to pay the
amount of Rs.2.00 Lakhs for deficiency in service as per the provisions of the Consumer
Protection Act, 1986, to which a consumer is entitled.
9.
We have carefully considered the submissions of learned Counsel for both parties
and have also gone through the evidence on record. The fact that the Respondent and
his wife travelled by Appellant Airlines to Athens for a business conference where one
of the baggages was misplaced and was not found till date is an admitted fact. It is also
a fact that on the return journey, their second luggage was ripped open and some
papers removed. We have also seen the terms and conditions regarding settlement of
claims in case of lost luggage as also the relevant provisions of the Carriage by Air Act,
1972. There is, of course, no doubt that based on these provisions of Carriage by Air
Act, 1972 the Appellant Airlines had offered to pay the loss, which has been calculated
as being 280 US Dollars since these claims are settled on the basis of weight and not
on the value of the goods that have been lost. The State Commission while taking note
of this fact has directed the Appellant Airlines to pay compensation of Rs.2.00 Lakhs for
the deficiency in service as well as for harassment, agony and mental tension caused to
the Respondent, which is admittedly not taken into account for settlement of such
claims under the Carriage by Air Act, 1972 as also the terms and conditions of the
Appellant-Airlines. We find substance in this finding of the State Commission. In the
instant case, due to the negligence and deficiency in service, the Appellant Airlines who
was entrusted with the safe custody and delivery of the passengers luggage admittedly
failed to do so causing the Respondent, who is a well-known Oncologist, to undergo
mental tension, harassment, loss of professional face, apart from the monetary
loss. The Consumer Protection Act, 1986 has been enacted to give relief to consumers
for deficiency in service, unfair trade practice etc. by service providers, traders,
manufacturers etc. and the Hon’ble Supreme Court in The Consumer & Citizens
Forum v. Karnataka Power Corporation [1994 (1) CPR 130] has laid down that the
provisions of this Act give the consumer an additional remedy besides those that may
be available under other existing laws. In the instant case, no doubt the Appellant
Airlines had sought to settle the consumer’s grievance purely in terms of the notional
monetary loss suffered by him as per the relevant provisions of Carriage by Air Act,
1972. However, as discussed earlier, because there was deficiency in service on the
part of Appellant Airlines in losing and mishandling the Respondent’s luggage, which
caused him harassment, agony, mental tension and loss of professional face apart from
monetary loss, he is entitled to compensation for this deficiency in service on
Appellant’s part as per the provisions of the Consumer Protection Act, 1986. Keeping in
view these facts, the State Commission has awarded a compensation of Rs.2.00
Lakhs. We see no reason to disagree with the compensation awarded, which, we feel,
is fully justified under the circumstances.
10.
We, therefore, uphold the order of the State Commission and dismiss the present
First Appeal. Appellant Airlines is directed to pay the Respondent a sum of Rs.2.00
Lakhs within a period of 8 weeks, failing which the amount will carry interest @ 9% per
annum for the period of default. This is in addition to the settlement of the claim as per
the terms and conditions of the Carriage by Air Act, 1972.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 920 OF 2013
(Against the order dated 03.12.2012 in FA No.361/2012 of the State Commission, UT
Chandigarh)
Jagan Nath Brij Kumar (P) Ltd.
Through its Director
Sh. Surinder Singal, Regd.
Office, SCO No.15, Sector 26,
Madhya Marg,
…
Chandigarh
…….Petitioner
Versus
1. Superintending Engineer,
Municipal Corporation, Chandigarh
Public Health (Water Supply),
Municipal Corporation Chandigarh
Building, Sector 17, Chandigarh
2. Executive Engineer,
Municipal Corporation,
Public Health Division No.2,
Engineering Department,
Chandigarh Administration,
Sector 11 (Near Karuna Sadan Building)
Chandigarh
3. Sub Divisional Engineer,
Municipal Corporation,
Public Health, Water Supply,
Sub Division No.4, Sector 18,
Chandigarh
.........Respondents
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Petitioner
: Mr. Ankit Goel, Advocate
PRONOUNCED ON: 12th April, 2013
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
M/s. Jagan Nath Brij Kumar (P) Ltd. has filed this revision petition against
concurrent orders of the District Forum-I UT of Chandigarh and State Consumer
Disputes Redressal Commission, Chandigarh. The matter relates to complaint of
excess charge in water bills of the Complainant. The Complainant deposited requisite
fee on 4.9.2008 for testing for leakage in the water meter line. No leakage was found
and hence request for testing of water meter was made. The meter was found to be
defective and was changed in January, 2009. In this background, the respondent
Municipal Corporation, Public Health and Water Supply Division revised the bill account
for the period 15.7.2007 to 15.1.2009 and gave the credit of Rs.5280/- to the account of
the Complainant.
2.
In the consumer complaint filed subsequently in 2011, alleging that:“ That the complainant wrote numerous letters to the OP to refund
the excess charges in the water bills received prior to the changing of water
meter. It was further brought forth by the complainant that after the change
of the water meter, the subsequent water bills were 20% of the earlier
bills. The said bills showed what the actual water charges should have
been for all the preceding years but for the lenient and non cooperative attitude, the complainant was made to suffer huge financial
woes. It is pertinent to mention here that after the installation of the new
water meter the complainant usage/ consumption was even lower than the
permissible quantity under the minimum fixed charges charged by the
OP’s. Copies of letters dated 25.08.2009, 15.10.09 & 01.12.209 are being
annexed as Annexure C-9,C-10 & C-11.”
3.
The complaint was dismissed by the District Forum, which held that:“After going through the facts & circumstances of the case, hearing
the pleadings of the parties and perusing the documents on record, it has
been made out that it is an admitted case of the parties that in response to
the complainant made by the complainant, his water meter was got
checked, and found 9% fast on 11.11.2008. It is also admitted by the
parties that the benefit of the fast running water meter was also extended to
the complainant for the period 15.7.2007 to 15.1.2009, based on the
formula. Thus, the charged in excess, was granted to the complainant
against his account.”
4.
Appeal against dismissal of the complaint has also been dismissed by the State
Commission. The
State
Commission
has
observed
that
the
application
for condonation of delay of 42 days did not have any merit and was therefore,
dismissed. It also held that the order passed by the District Forum was based on correct
appreciation of evidence and the law did not suffer from any illegality or perversity.
5.
We
have
carefully
considered
the
records
submitted
by
the
revision
petitioner M/s. Jagan Nath Brij Kumar (P) Ltd. and have heard Mr. Ankit Goyel,
Advocate
on
his
behalf. On
the
question
of
dismissal
of
the
application
for condonation of delay by the State Commission. Learned counsel referred to
observations of the State Commission in para 13 of the impugned order and sought to
explain the same with reference to the application before the State Commission. The
State Commission has observed that the contention in the application that the counsel
before the District Forum had received the certified copy of the order of dismissal of the
complaint, but had not informed the Complainant until 22.10.2012 about it, has not been
accepted by the State Commission. It has been rejected on the ground that the
application does not even mention the name of the counsel. Nor does it mention any
details of the period during which renovation of his house was going on. Also no
supporting document or evidence was placed on record. In this behalf, learned counsel
for the revision petitioner conceded during arguments that the affidavit of the concerned
Advocate, due to whose conduct delay in filing of appeal had occurred before the State
Commission was also not filed. Therefore, in my view the application for condonation of
delay has rightly been dismissed by the State Commission.
6.
Coming to the merits of the matter, the counsel for the revision petitioner has
argued that his case for relief against alleged excess billing for the period earlier to 2007
should also have been considered but relief only for the period 2007 to 2009 has been
allowed by the respondent. Earlier in this order, a part of the consumer complaint filed
before the District Forum has been cited. It will show that the complaint itself was in the
nature of a roving allegation about “what the actual water charges should have been
for all the preceding years.” In this behalf, the District Forum has categorically held
that the onus to prove excess charge was squarely on the Complainant, but he has not
been able to prove it by placing documentary evidence on record.
7.
The order of the State Commission, explains the position further in the following
terms:“Since, the complainant never deposited the fees for checking the
water meter, in the years 2004, 2005, 2006 and 2007, it could not claim
refund of the alleged excessive water consumption charges, from 2004
onwards, on the ground, that the water meter was defective. In the absence
of any report, that the water meter was defective earlier to the date, when it
was checked, by the Opposite Parties, the District Forum could not act on
conjectures and surmises that it had been defective since 2004. No cogent
and convincing evidence was also produced by the complainant, to prove
that its water meter had been defective since 2004. The complainant was,
thus, not entitled to the refund of the alleged excessive water charges, from
2004 onwards. There was, thus, no deficiency, in service, on the part of the
Opposite Parties. The findings of the District Forum, in this regard, being
correct are affirmed.”
8.
It needs to be observed here that neither the revision petition nor the arguments of
the counsel for the petitioner have brought out any specific piece of evidence which was
placed before the fora below in this behalf and not considered by them. During
arguments on the revision petition, learned counsel merely relied upon a few bills
pertaining to the period November 2004 to May, 2005 in support of his contention of
excess billing. But, as rightly observed by the State Commission, there was not even a
request for checking of the water meter with deposit of requisite fee during the relevant
period.
9.
For the reasons detailed above, I find no merit in this revision petition. It is
therefore, dismissed for want of merit. The order of the Delhi State Consumer
Disputes Redressal Commission in First Appeal No. 361 of 2012 is confirmed. No
orders as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
C.C. NO.39 OF 2013
M/S. SAM FINE O CHEM LIMITED,
FORMERLY KNOWN AS M/S SAM FINE CHEM LTD.
SHYAM VILA, SAPTA SINDHU COMPOUND
ROKADIA LANE, BORIVALI,
MUMBAI 400092
MAHARASHTRA
THROUGH, ITS AUTHORIZED SIGNATORY
.… COMPLAINANT
Versus
UNION BANK OF INDIA
66/80, MUMBAI SAMACHAR MARG
MUMBAI 400023
MAHARASHTRA
THROUGH ITS BRANCH
DEPUTY GENERAL MANAGER
.... OPPOSITE PARTY
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Complainant
: Mr.D. K. Singh and Mr.Diyang Thakur, Advs.
PRONOUNCED ON:
12th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
M/s. Sam Fine O Chem Ltd., the complainant herein has filed this consumer
complaint under Section 21 (a) (i) of the Consumer Protection Act, 1986 with following
prayers:
a)
Direct the opposite party to pay a sum of Rs.1,24,00,966/- towards
refund of the excessive interest, which has been paid by the complainant till
date along with the unauthorized lead bank charges of Rs.15,15,030/-, which
have been paid, by the complainant till date.
b)
Direct the Opposite Party to pay the additional amount of interest of
Rs.62,10,832/- suffered by the complainant on account of levying of excess
interest every month and levying of lead bank charges periodically by the
opposite party.
c)
Direct the Opposite Party to pay future interest, calculated till the date of
realization at the rate of 12% per annum on the amount of Rs.2,01,26,828/-.
d)
Direct the Opposite Party to bear the entire cost of the instant
proceeding and the legal expenses incurred till the date of institution of the
present proceeding.
e)
Provide any other relief deemed fit in the facts and circumstances of the
instant case.
2.
Briefly stated, relevant facts for the disposal of this complaint are that as per
allegations in the complaint, the complainant availed of credit facility from the OP bank
for expansion of its manufacturing facility. The credit facility was sanctioned vide
sanction letter dated 17.04.2008 detailing various terms and conditions governing the
grant of loan to the complainant, which are reproduced as under:
i.
The Complainant was sanctioned total credit limits of Rs.14
Crores. The interest to be charged on the loan was 0.75% lesser than the
Benchmark Prime Lending Rate (“BPLR”) of the Bank. Hence the interest
to be paid by the complainant was “BPLR-0.75%”.
ii.
The sanction letter stated that interest rate was subject to
change in the event that the BPLR changed or the credit rating of the
complainant changed.
iii.
The sanction letter also informed the complainant that the
interest rate of “BPLR-0.75%” was subject to the approval by the
competent authority.
iv.
It further stipulated that “usual processing charges and
charges on documentation” would have to be borne by the company
without disclosing in clear terms the type, rate quantum and periodicity of
charges in maintenance of transparency in the dealings with the
customers as mandated by the Fair practices Code adopted by the Bank.
3.
Grievance of the complainant is that the OP bank has charged and debited the
interest at the rate much higher than the agreed rate of interest and also charged and
debited unauthorized amounts in the loan account of the complainant in respect of the
processing charges, lead bank charges-consortium charges against the terms and
conditions of the agreement. It is alleged that the complainant wrote various protest
communications to the OP bank but the OP has ignored the protest of the complainant,
this according to the complainant amounts to deficiency in service, therefore he has
filed the instant complaint with the above noted prayers.
4.
We have heard learned counsel for the complainant on maintainability of the
instant complaint under Section 21 of the Consumer Protection Act, 1986 and perused
the record.
5.
On perusal of the complaint we find that this complaint has been filed by M/s. Sam
Fine O Chem Ltd. claiming itself to be a ‘Consumer’. The term consumer has been
defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 as under:
"consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment
and includes any user of such goods other than the person who buys such
goods for consideration paid or promised or partly paid or partly promised,
or under any system of deferred payment when such use is made with the
approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid
or promised or partly paid and partly promised, or under any system of
deferred payment and includes any beneficiary of such services other than
the person who 'hires or avails of the services for consideration paid or
promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of
the first mentioned person but does not include a person who avails of
such services for any commercial 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;]
6.
On reading of the above definition in conjunction with the explanation, it is evident
that any person who has bought goods or availed services for commercial purpose is
not a consumer unless the goods bought or the services availed by him were
exclusively for the purposes of earning his livelihood by means of self-employment. In
the present case, on going through the allegation in the complaint, it is evident that the
complainant has availed the credit facility services of the OP bank for commercial
purpose i.e. the expansion of its manufacturing facility. The complainant is a limited
company and not an individual therefore it cannot be said that the services of OP were
availed by the complainant for earning of his livelihood by means of selfemployment. Thus, in our view, the complainant does not fall within the definition of
‘consumer’ given under Section 2 (1) (d) of the Consumer Protection Act, 1986. In our
aforesaid view, we find support from the order dated 22.08.2003 of Four Members
Bench of this Commission in O.P. no.174/2003 titled M/s. Leatheroid Plastics Pvt.
Ltd. Vs. Canara Bank.
7.
Learned counsel for the complainant has referred to the judgment of Supreme
Court in the matter of Regional Provident Fund Commissioner Vs. Shiv Kumar
Joshi, (2000) 1 SCC 98 and submitted that the Consumer Protection Act is aimed to
protect the interest of the consumer and definition of consumer given under Section 2
(1) (d) is wide enough to include a person who bought and hired service for
consideration
even
if
the
services
availed
or
hired
are
for
commercial
purposes. Learned counsel for the complainant has also referred to the judgment of
Supreme Court in the Standard Chartered Bank Ltd. vs. Dr. B. N. Raman, (2006) 5
SCC 727 and contended that in the aforesaid case Hon’ble Supreme Court has held
that the banks in furtherance of their business render service/facility to its customer or
even non customer, therefore it is obvious that the OP was a service provider qua
whom the complainant is a ‘consumer’ and as such, the complaint is maintainable.
8.
We do not find merit in the submissions made by the learned counsel for the
complainant. The judgments relied upon the complainant are of no avail to him. So far
as the judgment in the case of Regional Provident Fund Commissioner Vs. Shiv
Kumar Joshi (Supra) we may note that the aforesaid judgment is based upon the
interpretation of the definition of ‘Consumer’ as it then existed. The definition of
consumer was amended in the year 2003, which provided that the person who hired or
availed services for commercial purposes would be excluded from the definition of
‘consumer’. Even the judgment in the matter of Standard Chartered Bank Ltd. Vs. Dr.
B. N. Raman (Supra) is not applicable to the facts of the this case. The aforesaid
judgment related to the case pertaining to deficiency in service in respect of foreign
currency deposited in the NRI account holder and it was not a case of loan or credit
facility availed by the customer for commercial purpose.
9.
In view of the aforesaid discussions, we are of the view that since this complaint
relates to deficiency in service availed for commercial purpose, the complainant is not
covered under the ambit of the definition of ‘consumer’ given under Section 2 (1) (d) of
the Consumer Protection Act, 1986, as such the complainant is not eligible to maintain
the complaint. The complaint is accordingly dismissed.
………………sd/-…..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
Sd/……………….……………
(SURESH CHANDRA)
bs
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4951 OF 2012
(From the order dated 22.8.2012 in First Appeal No. 104/2011 & FA/328/2011
of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla)
Narinder Singh,
Son of Sh. Sant Ram,
Resident of Village Mohali,
P.O. Garaog,
The Kotkhai,
Distt. Shimla,
Himachal Pradesh
... Petitioner
Versus
1.
New India Assurance Co. Ltd.,
Office: New India Assurance
Building 87,
Mahatma Gandhi Road,
Mumbai
2.
New India Assurance Co. Ltd.,
Timber House, Cart Road,
Shimla
Through its Divisional Manager
3.
Magma Leasing Ltd.,
SCO 10, 1st Floor, Sector, 26,
Madhya Marg,
Chandigarh
Through its Regional Manager
4.
Sh. Sanjay Bhardwaj,
Resident of Bhardwaj Niwas,
Near Cemetery Gate,
Cemetery Road,
Sanjauli,
…. Respondent(s)
Shimla, H.P.
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 19.03.2013 at the time of arguments,
For the Petitioner
Mr. P.P. Chauhan, Advocate
Ms. Pooja Singh, Advocate
PRONOUNCED ON : 12th APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 against the order dated 22.08.2012 passed by the Himachal
Pradesh State Consumer Disputes Redressal Commission, Shimla (hereinafter referred
to as “State Commission”) in First Appeal No. 104/2011 and First Appeal No. 328 of
2011, vide which, First Appeal No. 104 of 2011 filed by the respondent/opposite partyNew India Assurance Co. Ltd., was allowed, the order passed by the District Forum
dated 18.1.2011 was set aside and the complaint filed by the present petitioner was
dismissed. Vide the same order, the First Appeal No. 328 of 2011 filed by the petitioner
was dismissed as infructuous.
2.
In brief, the facts of the case are, the petitioner/complainant purchased a Mahindra
Pick UP BS-II 4 WD vehicle and got it insured with M/s. New India Assurance Company
for the period 12.12.2005 to 11.12.2006. The vehicle was temporary registered for a
period of one month, which was to expire on 11.01.2006. On 02.02.2006, the vehicle
met with an accident and got damaged. An intimation about the accident was given to
the opposite party, which appointed a surveyor who assessed the loss at Rs. 2,60,845/on repair basis. The insurance claim was however, repudiated by the opposite party on
the ground that Rajeev Hetta, who was driving the vehicle at the time of the accident did
not possess a valid and effective driving license and also, the vehicle had not been
registered after the expiry of the temporary registration certificate on 11.01.2006. The
complainant then filed a consumer complaint before the District Consumer
Disputes Redressal Forum, Shimla and vide order dated 18.1.2011, his complaint was
allowed and the opposite party/respondent was asked to pay 75% of Rs. 4,30,037/along with interest @ 9% per annum with effect from the date of filing the complaint. It
was observed by the District Forum that the surveyor had estimated the loss to be Rs.
4,13,548.55, but he had not given any reason for reducing the loss to Rs. 2,60,845/. The District Forum held that the opposite party/Company cannot escape its liability to
indemnify the insured to the entire insurance claim of Rs. 4,30,037/- on non-standard
basis. Against the order of the District Forum, two appeals were filed before the State
Commission, one by the opposite party/New India Assurance Co. and other by the
complainant. The State Commission accepted the appeal of the respondent/opposite
party and set aside the order of the District Forum and dismissed the complaint. The
appeal filed by the complainant was dismissed as infructuous. It is against this order
that the present petition has been filed.
3.
The main ground taken by the petitioner is that even when a vehicle is used
without registration having been done, it does not amount to violation of any statutory
requirement and in such a case, if the accident takes place, the insured is entitled to
claim benefit under the insurance policy. There is no statutory bar in insuring the
vehicle without registration and hence there is no bar in making payment of insured sum
in the eventuality of an accident. The impugned judgment was therefore not based on
correct appreciation of the facts on record. In such cases, 75% of the amount of
damage was definitely required to be given.
4.
On the other hand, the case of the respondent is that the vehicle can be driven
only after proper registration has been affected. In the instant case, the vehicle was
being driven without registration, which is violation of Section 192 of the Motor Vehicles
Act, 1988.
5.
We have examined the entire material on record and given our thoughtful
consideration to the arguments advanced before us. The State Commission, after a
careful examination of the facts of this case and after examining the Licence Clerk of
the Theog Licencing Authority came to the conclusion that the licence possessed by
Rajeev Hetta had been endorsed for HGV with effect from 20.04.2002, which was valid
for three years. The licence was also endorsed for LMV-Transport with effect from
07.6.2003, which was also valid for three years. The accident had taken place on
02.02.2006, on which date the licence for HGV had expired, but it remained valid for
LMV-Transport. It is clear therefore, that the driver had a valid and effective
licence. However, it is also clear from the facts on record that the temporary registration
of the vehicle done by the Registration Authority of UT, Chandigarh had expired on
11.01.2006. At the time of accident on 02.02.2006, the vehicle was being driven without
registration, which is prohibited under Section 39 of the Motor Vehicles Act, 1988 and is
also an offence under Section 192 of the said Act. The State Commission have rightly
quoted
the
judgements
DisputesRedressal Commission
given
by
the
in Kaushalendra Kumar
National
Mishra
Consumer
Vs.
Oriental
Insurance Company Ltd. as report in II (2012) CPJ 189 (NC), saying that the
damaged vehicle, although insured, is not entitled to claim indemnification under the
insurance policy.
6.
In view of the facts explained above, it is quite clear that the order of the State
Commission is based on a correct appreciation of the facts and documents on record
and there is no infirmity or illegality in the impugned order. The petition is therefore,
ordered to be dismissed, with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 183 OF 1999
Salem Textiles Ltd.
LRN Building, II Floor
Sarada College Road
Salem – 7, Tamil Nadu
…Complainant
Versus
United India Insurance Co. Ltd.
Rep. by its Chairman & Managing Director
… Opp.party
24, Whites Road, Chennai
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant
: Mr.D.Bharat Kumar, Advocate
With Mr. Balasubramanyam Kamarsu &
Mr.Sayooj Mohan Das, M., Advocates
For the Opp.party
: Mr. A.K.De, Advocate
With Mr.Rajesh Dwivedi, Advocate
Pronounced on 12.04.2013
ORDER
JUSTICE J.M. MALIK
1.
In this case, Salem Textiles Ltd, the complainant has claimed a sum of
Rs.7,42,00,000/- along with interest @ 18% p.a. from 21.04.1998, till the date of
payment of the full amount for loss of stocks of raw materials and yarn, damage to
building, plant and machinery, in their mills which was gutted in devastating fire from the
United India Insurance Co.Ltd., as it had obtained insurance from it. The incident
took place on 21.03.1998 at the new godown of the complainant’s mills. The fire was
noticed when the third shift was in progress with about 200 employees. The police and
fire brigade were informed. The OP was also apprised of these facts on 21.03.1998
itself. The excise authorities were also informed.
2.
The details of
below. Damage
to
the
huge
yarn
loss
stock
suffered
by
Rs.2,00,29,363/-,
the
complainant
damage
to
are
given
cotton
stock
Rs.5,05,53,495/-, cotton new godown fully damaged to the extent of Rs.19,87,500/- ,
weighing scale Rs.1,26,170/-, Labour work at cotton godown from 20.03.1998 to
31.03.1998 Rs. 1,92,815/- and fire extinguisher, damaged and consumed Rs.83,585/-,
total being Rs.7,29,72,928/-.
3.
OP also appointed M/s. Selva & Selva I-Tech, Salem as Preliminary Surveyor. It
had also appointed M/s. Rank Associates, as final Surveyor. The Preliminary Surveyor
visited the mills on 21.03.1998 itself and came to the conclusion that loss amounted to
Rs.98,63,225/- The Final Surveyor, however, came to the conclusion that the loss was
up to Rs.72,36,290/- All the necessary documents were provided by the complainant to
the Surveyors. It is alleged that unreasonable and illegal demands were being made
endlessly
by
the
Surveyors
for
submission
of
accounts
in
the
specified
formats. Besides the repetitive demands for records already submitted calling for
record of one Surveyor when they had been handed over to another Surveyor, lack
of arrangements between two Surveyors, etc, have caused untold hardship to the
complainant and has been used as a ruse and excuse by the Surveyors for their own
incompetence
and
gross
delay. The
Surveyors
failed to
perform
their
task
professionally and properly. The delay on the part of the OP has driven the complainant
to their wits end and they were left with no option but to approach this Commission for
necessary relief. Consequently, the present complaint was filed for the above said
amount and additional compensation amounting to Rs.3,42,00,000/- towards business
loss was also claimed besides the costs of the case.
4.
OP’s DEFENCE :
The OP has listed the following defences in its written statement. The
complaint involves many complicated questions of disputed facts and law, which
cannot be adjudicated by this Commission in a summary proceedings. The matter
should be decided in an elaborate trial after taking extensive, oral as well as scrutiny of
voluminous documents/records. The Preliminary Surveyor could not ascertain the
cause of fire but the insured confirmed that the same could have been caused by
malicious act. However, the Final Surveyor found that the sparks of fire could not be
due to malicious act. There is no electric connection in the godown. The delay was
caused due to the non-coperative attitude of the complainant. The answer to various
queries were vague in nature or the complainant omitted to answer certain points. The
Surveyor also found that the damage was predominantly due to mechanical twisting of
steel trusses while falling down and the trusses did not have much thermal
damage. Again, damage to AC sheets was due to mechanical damage and at the time
of the survey, many ventilator glasses were in broken condition. It was observed by the
Surveyor that the soot deposits on wall were also not commensurate with the extent of
damage claimed by the insurer. Both the Surveyors made the same objections. The
claims made by the complainant are vague and on the higher side.
5.
It is further averred that MO2 returns to Textile Commissioner is a monthly
statistical return showing consumption and month-end stock to cotton, yarn, etc.,
Copies of MO2 returns given by the insured/complainant to the surveyor and copies
collected by the surveyor from TC’s office for 1997-98 shows wide variation. Monthend quantum of stock in MO2 returns given to the surveyor was seen to have been
inflated for the financial year 1997-98 by 7,62,661 kgs cotton. The insured/complainant
claimed that this was due to clerical error. Central excise rules make it statutory that
RG1 Register (Daily Yarn Production Countwise) should be pre-authenticated by
Central Excise Officials. The RG1 Register copies given to surveyors have central
excise pre-authentication only for three months. Violation of this rule carries strict
penalty. It is doubtful whether RG1 copies given to the surveyor were the ones actually
maintained by the insured/complainant.
6.
Furthermore, the Closing stock of pressed cotton bales as per surveyor’s
working is 597 bales as against claim of 5128 bales by insured/complainant. The
signed stock statements given by the insured/complainant to the surveyor for some
days in February, 1998 shows that the insured/ complainant had been holding a
maximum of seven days stock during the period. Therefore, sudden increase of stock
as on date of loss to 5128 bales (nearly 60 days stock) is doubtful. The complainant
claims that over 5000 bales were lost in fire. The fire raged for about six hours and there
were hardly any traceable remnants. According to the surveyor, in such a short time,
5000 bales of cotton cannot be lost in fire. The surveyor has furnished technical details
of the production of the unit based on power consumption. It was observed that yarn
production of 25,20,778 for 1996-97 and 1997-98 had been unaccounted indicating that
the production and other records submitted by the insured did not reflect the true
position.
7.
Again, a prudent manufacturer does not keep his important records in a
godown. However, the case of the complainant is that important documents kept in the
godown were destroyed during fire. However, it was found by the preliminary surveyor
that the records kept in the almirah were in good condition. This shows that false
declaration was made by the complainant. Surveyor also found that iron hoops were
strapped and bundled in an orderly fashion-awaiting disposal as scrap. The surveyor
opined that these straps could not have held cotton material as claimed by the
insured/complainant. According to the reports of the surveyor, it is apparent that the
cone winding production for 1996-97 and 1997-98 as per RG1 register is lower by 16.4
lac kg of yarn. Consequently, dependability of RG1 register is questionable. Lastly, the
actual lap production as worked out by the surveyors for 1996-97 was 53,66,724 which
was reduced by the complainant by 2.6 lacs to 50,01,283. The supporting documents
showed the pencil figure of specific counts were erased and altered from 22 kg and 8
kg. The daily report file certified by the factory manager for these dates shows that the
count was 22 kg only. Further rejection of lap during count change indicates that there
was no count change to 15/8 kg. The effect of reducing lap production is reducing
issues to mixing thereby closing stock of raw material piles up whereas the actual
physical stock is much lessor. The final surveyor has estimated the insured outstanding
liabilities to the extent of information collected by them at 37.36 crores.
8.
The preliminary surveyor has also commented on the precarious financial
condition of the insured. The OP has received many letters from various Banks, IT
Department, complainant’s landlord requesting pro-rata payment of their dues. All
these facts clearly reveal that the insured was in financial difficulties. However, the final
surveyor has assessed the loss without prejudice for Rs.72,36,290/- less salvage of
cotton and yarn. The salvage was segregated and the final surveyor had arrived at an
approximate salvage value of Rs.4 lakh. Considering the deteriorating value of salvage,
the surveyor negotiated with the complainant and agreed to retain the salvage for 3.95
lakh subject to condition No.7 of the policy. Under these circumstances, the final
surveyor recommended repudiation of the claim due to violation of policy
conditions. The final surveyor’s report dated 26.03.1999 of M/s.Rank Associates
revealed gross discrepancies in the claim, especially pertaining to value of stocks said
to have been lost, maintenance of books and registers and other vital aspects. The
claim was found to be highly exaggerated. M/s.Srivatsan Surveyors Pvt. Ltd. Verified
the genuineness of the purchase bills for cotton stocks. The Investigator had made
enquiries and afforded opportunity to obtain confirmation of the bills and the
complainant vide letter dated 20.07.2001 admitted that he suppliers were not willing to
do so. The Investigators by their reports confirmed that the bills were fictitious and
discrepant on various other aspects, vide Annexure OP-3. All the other allegations have
been denied.
9.
We have heard the counsel for the parties and perused the written synopsis filed
by the counsel for the complainant. Counsel for OP submitted that his written statement
be taken as written submissions. The first question which falls for consideration is,
“Whether loss was committed due to fire or not ?” We have gone through the reports
filed by the two Surveyors, mentioned above and the report of M/s.Srivatsan Surveyors
Pvt. Ltd., Investigators. Preliminary surveyor vide his report dated 23.07.1998,
mentioned as under :“The truss were buckled, bend and misaligned and the
A/C sheets were completely cracked, the building has to be
reconstructed.
The market rate for constructing the same building
except plinth foundation and flooring was estimated at Rs.150
per sq.ft”.
10.
The first surveyor also assessed the cost for reconstruction as Rs.19.50 lakh
whereas the counter claim by the complainant is Rs.19.87 lakh. There is only a wee bit
difference. The certificate of the Fire Station Officer dated 05.12.1998 clearly indicates
that the fire fighting operation continued for more than 18 hours. The complainant has
also filed photographs in support of its case. For all these reasons, we find that the
goods of the complainant were gutted in fire.
11.
The second question is, “Whether the OPs were entitled to depute 2nd Surveyor
and ultimately, the third Surveyor/Investigator ?”. As a matter of fact, there is no
provision in Insurance Act to appoint the second Surveyor or an unlicenced
Investigator. An Investigator can be appointed only if the claim is found to be
fraudulent. This view was taken by this Commission in an authority reported
in Sarvalaxmi Marines, Represented by Prop. Smt. Angoli Suseela, 2008 (1) ALT
(NC) (CPA).
12.
Under these circumstances, we hold that the insurance company tried to delay the
case by appointing unnecessary Surveyors and Investigators. The report of the first
surveyor towers above the rest. This piece of evidence has substance, it can do
without frills.
13.
The next submission made by the counsel for the complainant is that the claim
made by it is correct and the surveyors have reduced the same for unjustifiable
reasons. According to the counsel for the complainant, the stack plan shows that the
stock
containing 8798
bales
could
be
easily stored
in affected
godown. Secondly, earlier to the date of fire, the bankers of the complainant,
M/s.Karnataka Bank
Ltd.,
Salem
had
appointed
Mr.A.Gowthaman,
Chartered
Accountant, for conducting the stock audit. The stock audit was conducted on
17.06.1997 and also on 05.12.1998 in the capacity of concurrent auditor. He
submitted in his report that mill had stocks worth more than Rs.18.31 crores on
17.06.1997 and Rs.7.45 crores on 05.012.1998. The complainant also appointed M/s.
Bala & Shakti, Chartered Accountants, on 17.06.1997. They prepared detailed
reports. Their report calculates and mentions that the closing stock as on 20.06.1998
was 5215 bales, i.e.8,54,299 kgs. The value of the same was over Rs.6.00
cores. Again the statement of Mr.V.Thiagarajan, Godown Keeper reveals that there
were 5128 kgs of steel hoop irons lying inside the affected godown and in the
surveyors report it was only 383.70 kgs which is false. The power consumption report
submitted by the OP is incorrect. The statement of both the surveyors are contradictory
and not reliable.
14.
For the following reasons, we clap no value with these arguments. A clear glance
on the claim made by the complainant clearly goes to show that it is on the higher
side. They have claimed compensation from 20.03.1998 to 31.03.1998 to the extent of
Rs.1,52,815/- and fire accident damage to the extent of Rs.83,585/-. Such like claims
cannot be granted. One must come to the Court, with clean hands. There are two
reports of the Surveyors. The first report reveals that the damage was assessed at
Rs.98,63,225/-. There is no reason to discard this report. This report was prepared on
the same very day, i.e., immediately after the occurrence. The surveyor is an
independent person and no reason was suggested to discard his statement. There is
no ground to view his evidence with distrust. This piece of evidence overshadows the
rest. The CAs appointed by the complainant are interested persons and no much
reliance can be placed on their reports. We also ignore the report of the second
surveyor as there was no need to appoint him. The report of the first surveyor is a
well-reasoned report. The relevant portion is reproduced below :-
“22.0 CIRCUMSTANTIAL EVIDENCES:
22.1 Only few bales aggregating approximately 400 bales were
stored in the godown at the time of fire as against the claim of nearly
5000 bales.
22.2. As disclosed by the Insured in the policy schedule that there
was only FP Cotton bales and yarn stored in the fire affected godown.
But, the Insured had stored cotton, viscose, polyester, wool, spandex
and flax, cotton waste like FS, comber noil, silver waste, dyed cotton,
hard waste, oil waste, etc. in the fire affected godown.
22.3. We inspected the other godown called Karthikeya Rice Mill, it
was declared for the purpose of insurance as storage of cotton FP
bales. But, there was no FP bales kept in all the 3 godowns. Instead
of cotton FP bales, there was a storage of cotton waste borahs, flax
fibre, yarn, yarn stock and machinery spares were stored in the
godown. There is no relevancy of material stored in the godown as
against the material declared for the purpose of insurance as far as
these godowns are concerned.
22.4. Next, we inspected K.K.C.Chandra Rice Mill Godown and it
was said to have been vacated 2 years ago, but it was declared as
storage of FP bales for the purpose of insurance. We asked the
insured, why a vacated godown was declared for insurance as
storage of cotton FP bales, but there was no reply from the insured
end. Some seeds pertaining to M/s. Raasi Seeds Pvt.Ltd., Attur were
stored in this premises.
22.5. We inspected godown and it was stored with silk waste as
against declared as cotton FP bales in the policy schedule.
22.6. On the same line while inspecting the STL, new godown, there
was a lot of contradictory evidences regarding storage of cotton FP
bales. Only 400 cotton FP bales were stored in the godown as
against the claim of 5,100 cotton FP bales.
22.7. Upon inspecting all the godowns declared and meant for
storage of cotton FP bales, all the other 6 godowns except STL new
godown were found stored with other than cotton FP bales. Similarly,
we feel that only few bales stacked in the fire affected godown and
the insured claim of having stored 5,000 bales cannot be sustained.
22.8. In between the cotton FP bales, there was a lot of bare bale
strips counting 130 bundles of steel hoops in strips form weighing
5,218 kgs were kept inside the godown in between the fire affected
bale lots. Apart from this, 21 bundles were also found in between the
bales and it has not been weighed by us, since it was jammed
between the falling of truss. The insured were not able to explain the
reason for stacking in many strips inside the FP bale godown.
22.9. The insured has claimed nearly 8,51,930 kgs of cotton which
roughly amounts to 5,000 bales. This seems a highly exaggerated
fact from our visual observation, as we were able to estimate only
400 number of bales to be affected.
15.
This view is fortified by the following authorities. This Commission has held
in Pentagaon Steel Pvt. Ltd. Vs. New India Assurance Co. Ltd. & Ors, III (2010) CPJ
339, that Reports of Surveyors are to be given credence over reports of Surveyors
appointed
by
complainants,
who
are
interested
persons. Complainant had raised demand of highly exaggerated claim.
16.
In Ashu Textiles Vs. New India Assurance Co.Ltd. & Anr, III (2009) CPJ 272
(NC), it was held that Surveyor’s report has to be given more weightage than the
report of the Fire Brigade.
17.
In Dabiruddin Cold Storage Vs. New India Assurance Co.Ltd.,& Ors., I (2010)
CPJ 141 (NC), it was held that Surveyor’s report being important document, cannot be
easily brushed aside. The insurer was held liable to pay loss assessed by the Surveyor,
with interest.
18.
Same view was taken in New India Assurance Co.Ltd. & Anr.
Vs. New Good Luck Retrading Works, III (2009) CPJ 262, wherein it was held that
Surveyor’s report cannot be brushed aside easily, without valid justification.
19.
In latest authority reported in New India Assurance Co.Ltd., Vs. Febama
Agencies,
I
(2013)
CPJ
133
(NC),
it
was
held
that
report
of
Surveyor is an important document and it is to be relied upon unless, it is
contradicted by more credible evidence.
20.
Consequently, we find that the complainant is entitled to have a sum of
Rs.98,63,225/- with interest @10% p.a. from the date of filing of complaint, till its
realisation.
21.
Now, the question of litigation charges and compensation for delay arises. The
complainant has cited an authority reported in P.Venkateswara Rao Vs. New India
Assurance Co. Ltd., III (1998) CPJ 14 (NC) wherein it was held that insurance
company should not have delayed the settlement of claim for more than three months,
after the report of the Surveyor. Keeping in view the facts and circumstances of the
case, we impose costs towards litigation charges and delaying the matter in the sum of
Rs.2,00,000/- which should be paid within two months, otherwise, it will carry interest @
10% p.a.
22.
OP would be entitled to the adjustment of the amount already paid to the
complainant. The matter stands disposed of.
..…………………..………J
(J.M. MALIK)
PRESIDING
MEMBER
.……………….……………
(DR.S.M. KANTIKAR)
MEMBER
dd/ 20
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2333 of 2012
(From the order dated 8.2.2012 in Appeal No. 315 of 2009 of Haryana State Consumer
Disputes Redressal Commission, Panchkula)
LIC of India
Through
Balihar Singh
Asstt. Secretary,
LIC of India
Circle Office Legal Cell,
…
Delhi
Petitioner/Opposite Party (OP)
Versus
Shri Niwas Bansal
S/o Sh. Om Prakash Bansal
C/o M/s. Ami Lal Om Prakash,
Haryana Cloth Market,
… Respondent/Complainant
Rohtak
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Arunav Patnaik, Advocate
Ms. Mahima Sinha, Advocate
For the Respondent :
Mr. Deepak Jain, Advocate
PRONOUNCED ON 12th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order
dated
08.02.2012
passed
by
the
Haryana
State
Consumer
DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal
No. 315 of 2009 – LIC of India Vs. Shri Niwas Bansal by which, while dismissing appeal,
order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that Complainant/Respondent purchased three medi-
claim Insurance Policies from the petitioner/OP in the year 2000 for Rs.1,00,000/- each.
During the subsistence of the Policies, on 23.5.2006, complainant suffered pain in chest
and took treatment from Max Devki Devi Heart and Vascular Institute, Delhi for his
disease and underwent Coronary Angiography and Angioplasty and spent Rs.1,83,704/on his treatment. Complainant submitted claim with the OP, but claim was repudiated by
OP on the ground that complainant’s claim was not covered under the Policy. Alleging
deficiency on the part of OP, complainant filed complaint. OP resisted claim and
submitted that Angiography and Angioplasty are not covered under the Policy and
prayed for dismissal of the complaint. Leaned District Forum after hearing both the
parties, allowed complaint and directed OP to pay Rs.91,852/- along with 9% p.a.
interest and awarded Rs.2,000/- 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.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as per terms & conditions of
the policy, Angioplasty has been excluded from the coverage, even then, learned State
Commission has committed error in dismissing appeal and learned District Forum has
committed error in allowing complaint; hence, revision petition be allowed and impugned
order be set aside and complaint be dismissed. On the other hand, learned Counsel for
the respondent submitted that order passed by learned State Commission is in
accordance with law; hence, revision petition be dismissed.
5.
Clause 11 (b) of the Insurance Policy runs as under:
“11 (b) Benefit (B) of the Policy Schedule is applicable on the
occurrence of any of the following contingencies.
(i)
The Life Assured undergoes open Heart By-Pass surgery
performed on significantly narrowed/occluded coronary
arteries to restore adequate blood supply to heart and the
surgery must have been proven to be necessary by means
of
coronary an geography. All other operations (e.g.),
an gioplasy and Thrombulysis by
Coronary
Artery
Catheterization) are specially excluded”
6.
Perusal of policy clause clearly reveals that complainant was entitled to
reimbursement only in case of open heart by-pass surgery, but Angioplasty has
specifically been excluded from its coverage. Learned Counsel for the petitioner placed
reliance
on
I
(2012)
CPJ
31
(NC)
– Life
Insurance
Corporation
of
India Vs.Abdul Salim the facts of which, are similar to the present case in which,
orders of Fora below allowing complaint were set aside. Learned Counsel for the
respondent placed reliance on II (2005) CPJ 70 (NC) – LIC of India & Anr.
Vs. Madisetty Rajashekaram in which, claim was allowed on the ground that it was an
open heart surgery. Facts of aforesaid case are not similar to the present case and in
such circumstances, the aforesaid citation does not help to the respondent’s cause.
7.
On account of specific exclusion of Angioplasty, the complainant is not entitled to
reimbursement of medical expenses and petitioner has not committed any deficiency in
repudiating claim, but District Forum has committed error in allowing complaint and
learned State Commission has committed error in dismissing appeal.
8.
Consequently, revision petition is allowed and impugned order dated 8.2.2012
passed by learned State Commission in Appeal No.315 of 2009 - LIC of India
Vs.Niwas Bansal and order of District Forum dated 8.1.2009 passed in Complaint
No.555 – Shri Niwas Bansal Vs. LIC of India is set aside and complaint 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. 2024 of 2012
(From the order dated 31.01.2012 in Appeal No. 1839/2010 Haryana State Consumer
Disputes Redressal Commission, Panchkula)
National Insurance Company Ltd. Through Assistant Manager Delhi Regional Office – I,
Jeevan Bharti Tower – II, Level – IV, 124, Connaught Circus, New Delhi – 110001
… Petitioner/Opposite Party (OP)
Versus
M/s. Luxmi Food Meham Gate Circular Road, Bhiwani
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. K.K. Bhat, Advocate
For the Respondent
:
Mr. Manoj Kumar, Advocate
PRONOUNCED ON
12th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the impugned
order
dated
31.01.2012
passed
by
the
Haryana
State
Consumer
DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal
No. 1839 of 2010 – National Insurance Co. Ltd. Vs. M/s. Luxmi Food by which, while
dismissing appeal, order of District Forum allowing complaint was upheld.
2.
Brief facts of the case are that complainant got insured his car No.HR-61/2958
from the OP for a period from 24.8.2005 to 23.8.2006. Car met with an accident and
FIR was lodged on 7.5.2006. The complainant also informed OP about the accident. OP
appointed Surveyor. Complainant submitted claim along with documents, but OP
repudiated claim on the ground that Mahesh Kumar driver of the vehicle was not having
valid driving licence. Complainant alleging deficiency on the part of OP filed complaint.
OP contested complaint and alleged that driver of the vehicle was not having L.T.V.
licence at the time of accident and was having driving licence for Motor Cycle, Scooter,
Car and Jeep, which was in violation of the terms and conditions of the insurance policy
and prayed for dismissed of the complaint. Learned District Forum after hearing both
the parties allowed the complaint and directed OP/petitioner to pay Rs.1,64,455/- along
with interest and Rs.2,200/-, as litigation charges. 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 parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that, as the driver of the vehicle was
not possessing valid driving licence at the time of accident, petitioner has not committed
any error in repudiating the claim and learned State Commission has committed error in
dismissing appeal and learned District Forum has committed error in allowing complaint;
hence, revision petition be accepted and complaint be dismissed. On the other hand,
learned Counsel for the respondent submitted that order passed by the learned State
Commission is in accordance with law, as driver of the vehicle was possessing valid
driving licence; hence, revision petition be dismissed.
5.
It is admitted case of the parties that vehicle was Maruti Omni Cargo Car and
Mahesh Kumar, who was driving the vehicle at the time of accident was holding Licence
No.
8392
issued
on
2.4.1996
for
Motor
Cycle/Scooter/Car/Jeep
and
was
valid upto 13.12.2013. Accident occurred on 7.5.2006. Now, the important question is;
whether driver of the vehicle was holding a valid driving licence at the time of accident,
or not. Learned Counsel for the petitioner placed reliance on AIR 2009 SC 2151 –
Oriental Insurance Co. Ltd. Vs. Angad Kol and Ors. in which, it was held that if a
person is having a licence to drive a light motor vehicle, he cannot drive a commercial
vehicle unless his driving licence subsequently entitles him so to do. On the other hand,
learned Counsel for the respondent placed reliance on AIR 2008 SC 1418 – National
Insurance Co. Ltd. Vs. Annappa Irappa Nesaria & Ors. in which it was held that if the
driver is possessing L.M.V. licence, it cannot be said that he was not possessing
effective driving licence to drive Matador van having goods carriage permit.
6.
In National Insurance Co. Ltd. Vs. Annappa Irappa Nesaria & Ors. case
(Supra), accident took place on 9.12.1999, before amendment of Rules on 28.3.2001
and in such circumstances, it was held that amendments carried out in the Rules having
a prospective operation, the licence held by the driver of the vehicle, in question, cannot
be said to be invalid in law. We agree with the proposition laid down by
the Hon’ble Apex Court in the aforesaid case, but this case is not applicable to the facts
and circumstances of the present case, because in the present case accident took
place on 7.5.2006, i.e., after amendment of Rules in 2001. Hon’ble Apex Court
in Oriental
Insurance
Co.
considered National
Ltd. Vs. Angad Kol and Ors. case (Supra)
has
Insurance
Ltd.
Co.
Vs. Annappa Irappa Nesaria & Ors. case(Supra) and ultimately held in paragraph 17
as under:
“17. The effect of the different terms of licences granted in terms of
the provisions of Section 2(14) and 2(47) has also been noticed by
this
Court
inNew
India
Assurance
Co.
Ltd.
v. Prabhu Lal MANU/SC/4527/2007 : air 2008 SC 614, stated :
30. Now, it is the case of the Insurance Company that the vehicle of
the complainant which met with an accident was a “transport
vehicle”. It was submitted that the insured vehicle was a “goods
carriage” and was thus a “transport vehicle”. The vehicle was driven
by Ram Narain, who was authorised to drive light motor vehicle and
not a transport vehicle. Since the driver had no licence to drive
transport vehicle in absence of necessary endorsement in his
licence to that effect, he could not have driven Tata 709 and when
that vehicle met with an accident, the Insurance Company could not
be made liable to pay compensation.
XXX
XXX
XXX
37. The argument of the Insurance Company is that at the time of
accident, Ram Narain had no valid and effective licence to drive
Tata 709. Indisputably, Ram Narain was having a licence to drive
light motor vehicle. The learned counsel for the Insurance
Company, referring to various provisions of the Act submitted that if
a person is having licence to drive light motor vehicle, he cannot
drive a transport vehicle unless his driving licence specifically
entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of
Section 2 make it clear that if a vehicle is “light motor vehicle”, but
falls under the category of transport vehicle, the driving licence has
to be duly endorsed under Section 3 of the Act. If it is not done, a
person holding driving licence to ply light motor vehicle cannot ply
transport vehicle. It is not in dispute that in the instant case,
Ram Narain was having licence to drive light motor vehicle. The
licence was not endorsed as required and hence, he could not have
driven Tata 709 in absence of requisite endorsement and the
Insurance Company could not be held liable.
38. We find considerable force in the submission of the learned
counsel for the Insurance Company. We also find that the District
Forum considered the question in its proper perspective and held
that the vehicle driven by Ram Narain was covered by the category
of transport vehicle under Clause (47) of Section 2 of the Act.
Section 3, therefore, required the driver to have an endorsement
which would entitle him to ply such vehicle. It is not even the case
of the complainant that there was such endorsement and
Ram Narain was allowed to ply transport vehicle. On the contrary,
the case of the complainant was that it was Mohd. Julfikar who was
driving the vehicle. To us, therefore, the District Forum was right in
holding that RamNarain could not have driven the vehicle in
question”.
7.
It was further observed in paragraph 18 as under:
18. From the discussions made hereinbefore, it is, thus, evident that
it is proved that respondent No.6 did not hold a valid and effective
driving licence for driving a goods vehicle. Breach of conditions of
the insurance is, therefore, apparent on the face of the records.
8.
Thus, it becomes clear that on the date of accident, driver of the vehicle was not
possessing valid driving licence to drive transport vehicle, as no endorsement was
made on his driving licence to the fact that he is permitted to drive transport vehicle also
and in such circumstances, petitioner has not committed any error in repudiating claim.
9.
Learned Counsel for the respondent submitted that, as the licence was issued in
1996 and was valid upto 2013, there was no occasion for the driver to get any
endorsement, as light motor vehicle also covered transport vehicle at the time of
issuance of the licence. This argument is devoid of force, because it is to be seen;
whether driver was holding a valid driving licence required under the law for driving a
particular type of vehicle at the time of accident. Admittedly, driver was driving a
transport vehicle and his driving licence did not contain endorsement regarding
permission to drive transport vehicle. Effect of subsequent amendment can be
illustrated by an illustration. “Suppose, a licence is issued to drive a vehicle falling
within the purview of light transport vehicle according to weight and later on by
amendment, particular weight of vehicle is covered by medium motor vehicle, then in
such circumstances, a person holding light motor vehicle’s licence cannot drive medium
motor vehicle after amendment, though, he was permitted to drive a vehicle of that
much weight falling with in definition of Light Motor Vehicle at the time of grant of driving
licence”.
10.
In the light of aforesaid discussion, it becomes clear that driver of the vehicle was
not possessing valid driving licence at the time of accident and petitioner/OP has not
committed any error in repudiating claim of the complainant/respondent and learned
State Commission has committed error in dismissing appeal and learned District Forum
has committed error in allowing complaint and revision petition is to be allowed and
complaint is liable to be dismissed.
11.
Consequently, revision petition filed by the petitioner against the respondent is
allowed and impugned order dated 31.1.2012 passed by learned State Commission and
order dated 26.10.2010 passed by District Forum are set aside and complaint 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. 3855 of 2011
(From the order dated 13.10.2011 in Appeal No. 154 of 2011 State Consumer Disputes
Redressal Commission, UT, Chandigarh)
Standard Chartered Bank SC Tower, SLF Cyber City Building 7A, Sector 24,25,25A,
Gurgaon
… Petitioner/Opposite Party (OP)
Versus
Krishan Lal Juneja S/o Shri Sant Ram Juneja R/o H. No.285, Sector 33-A,
… Respondent/Complainant
Chandigarh
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
For the Respondent :
PRONOUNCED ON
Mr. Devmani Bansal, Advocate
Mr. A. Tewari, Advocate
12th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order dated 13.10.2011 passed by the Learned State Consumer Disputes Redressal
Commission, UT Chandigarh (in short, ‘the State Commission’) in Appeal No.154 of
2011 – Krishan Lal Juneja Vs. Standard Chartered Bank by which, while allowing
appeal, set aside order of dismissal of complaint passed by District Forum and directed
OP to refund Rs.2,52,574.53 along with compensation of Rs.30,000/-.
2.
Brief facts of the case are that Complainant/Respondent along with his son and
daughter-in-law obtained loan of Rs.60,00,000/- from OP/petitioner. Subsequently, due
to higher rate of interest, the complainant decided to make pre-mature payment. OP
agreed to the request of the complainant for pre-mature payment, but vide letter dated
9.9.2010, OP demanded Rs.2,52,574.53, as prepayment charges. Complainant under
protest deposited the aforesaid amount along with due loan amount and closed the
account. Complainant, alleging deficiency on the part of OP, filed complaint for refund of
prepayment charges along with compensation. OP filed reply and submitted that
complainant accepted all terms & conditions of sanction letter and on receipt of his
acceptance, loan was disbursed. It was further submitted that pre-payment charges
were charged as per terms & conditions of the sanction letter and prayed for dismissal
of complaint. Learned District Forum after hearing both the parties dismissed complaint
against which, complainant filed appeal and learned State Commission vide impugned
order allowed appeal, as directed aforesaid.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that petitioner has not committed
any deficiency in claiming pre-payment charges as per terms and conditions of sanction
letter and learned State Commission has committed error in allowing appeal; hence,
petition be allowed and impugned order be set aside. On the other hand, learned
Counsel for the respondent submitted that order passed by learned State Commission
is in accordance with law; hence, revision petition be dismissed.
5.
Learned State Commission while disposing of appeal, observed in paragraph 11,
as under:
“11.
This letter was signed by the complainant, his son and
daughter-in-law. There is nothing, in this letter, regarding the
prepayment charges. Even, on the overleaf of this document, no
conditions are mentioned that, in case, the complainant wanted to
pre-close the loan, he was required to pay prepayment charges. At
page No.25 of the District Forum file, there is a document,
containing the terms and conditions. This document is not signed by
the complainant, his son and daughter-in-law. Even this document
is not signed by any official of the bank. This is a unilateral
document of the bank, and is not binding on the complainant. No
doubt, as per clause-10 of this document, if loanee wanted to preclose the entire loan, he was required to pay pre-closure charges @
2.5%, on the principal amount outstanding at the time of preclosure. Had these terms and conditions, been signed by the
complainant, his son and daughter-in-law, loanees, it would have
been said that the same were binding upon them. No help,
therefore, can be drawn by the OP bank, from these terms and
conditions, the same being unilateral. Under these circumstances,
there was no agreement, between the parties, that in case of preclosure of loan, loanees shall be liable to pay the pre-closure
charges. The bank, therefore, could not charge the prepayment
charges/foreclosure charges, at the time, the loan was prepaid by
the complainant his son and daughter-in-law. The OP bank, thus,
indulged into unfair trade practice, in charging prepayment charges
in the sum of Rs.2,52,574.53. The District Forum gravely erred, in
not properly interpreting R1. The complaint should have been
allowed, but the District Forum, illegally dismissed the same. The
order of the District Forum, being illegal, is liable to be set aside and
the
complainant
is
entitled
to
the
refund
of
amount
of
Rs.2,52,574.53 illegally charged, from him, as pre-closure/prepayment charges, by the OP”.
6.
Learned State Commission directed for refund of pre-payment charges on the
ground that terms & conditions regarding prepayment charges were not signed by the
complainant, his son and daughter-in-law and had these terms been signed, it would
have been binding upon them. Perusal of record reveals that personal information
document containing photos of complainant, his son and daughter-in-law contains
signatures of complainant, his son and daughter-in-law. It has specifically mentioned in
personal information document:
“I confirm that I have understood the points as mentioned below:
1. I understand that
.
My application may take a minimum of 2 working days to
process once I have completed all requirements as required by
the Bank.
.
Disbursal of the loan may take a minimum of 2
working days from the time of submission of all
property and loan related documents as required
by the Bank.
.
Linkage setup for Home Saver on system may take
A minimum of 4 working days from the time of
submission of all loan/account related documents
as required by the Bank.
. The actual interest rate applicable on my loan will
be as mentioned in the sanction letter and will be
governed as per terms and conditions therein.
. The interest will be calculated on a Daily Reducing
Balance and is charged with monthly rests.
. If there is a review in my rate of interest during the
tenure of the loan (for variable rate loan) will be
advised of the new rate applicable.
. Panel charges, part prepayment fee and pre-closure
fee will be applicable as per the sanction letter.
The Total fee to be paid by me is Rs.____.
I understand that only in the event of my loan getting
declined an amount of Rs.2,000/- (or the fee paid by
me, whichever is lower) would be deducted and the
balance amount refunded”.
At the bottom of loan sanction letter which bears signatures of all the borrowers reads
as under:
“Please sign this letter as a token of your acceptance of the terms
and conditions mentioned above and overleaf and give us a signed
copy of this letter. Please feel free to call us at our Phone banking
help-line 39404444”.
On the overleaf of this sanction letter, Condition No. 10 runs as under:
If you preclose the entire loan outstanding amount, you shall pay to
the bank a pre-closure fee at the rate of 4% ad valorem on the
principal outstanding amount for the first 3 years from the date of
final disbursal. In case you wish to preclose after 3 years, there will
be a fee of 2.5% on the principal outstanding at the time of such
closure”.
Article 2.8 of the Loan Agreement, which has been signed by all the borrowers, runs as
under:
“Pre-payment
SCB may, in its sole discretion and on such terms as of prepayment
charges, minimum prepayment amount, etc., as it may prescribe,
permit prepayment/acceleration in payment of EMIs at the request
of the Borrower, subject that SCB may specify, from time to time,
the minimum amount of prepayment/amounts pyable on account of
acceleration
of
EMIs.
In
the
event
SCB
permits
any
prepayment/acceleration, the repayment schedule for the Loan
shall be amended/altered by SCB for giving effect to such
prepayment/acceleration, and such amended/altered repayment
schedule shall be binding upon the Borrower”.
7.
Perusal of aforesaid documents clearly reveals that complainant along with his
son and daughter-in-law agreed to pay for preclosure of the account and learned State
Commission has wrongly come to the conclusion that complainant and his son and
daughter in-law have not signed this Agreement. It has rightly been observed by the
learned State Commission that had these terms and conditions been signed by the
complainant, his son and daughter-in-law, it is binding on them. As these terms and
conditions have been signed by the complainant, his son and daughter-in-law, the
complainant was bound to pay preclosure charges as per Agreement and OP/petitioner
has not committed any deficiency in demanding preclosure charges. Learned District
Forum rightly dismissed the complaint and learned State Commission has committed
error in allowing complaint and directing refund of preclosure charges along with
compensation.
8.
Documents and complaint clearly reveals that loan was taken by the complainant,
his son and daughter-in-law, but complaint has been filed only by the complainant, while
his son and daughter-in-law have not been arrayed as complainants and in absence of
them, complaint was not maintainable for non-joinder of necessary parties.
9.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 13.10.2011 passed by learned State Commission in Appeal No.154 of 2011
– Krishan Lal Juneja Vs. Standard Chartered Bank is set aside and order of District
forum dismissing complaint is affirmed 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
ORIGINAL PETITION NO. 269 OF 1999
Madan Lal Arora S/o Ishwar Dass Arora R/o 26/1, Ashok Nagar New Delhi
…Complainant
Versus
1.
Sh. Dharam Pal Ji Chairman Mahashya Chuni Lal Saraswati Bal Mandir Senior
Secondary School L-Block, Hari Nagar, New Delhi – 110064 Also at : Mahashya
De Hatti (M.D.H.) 9/44, Kirti Nagar, New Delhi – 110015
2. Sh. Govind Ram Aggarwal Prinicpal
3. Sh. Sohan Singh Head Teacher
4. Sh. Pawan Paliwal Clerk
5. Sh. Rajpal Singh P.E.T.
6. Sh. Ramesh Chand P.E.T
All C/o Mahashya Chuni Lal Saraswati Bal Mandir Senior Secondary School L-Block,
Hari Nagar, New Delhi
7. Mahashya Chuni Lal Saraswati Bal Mandir Senior Secondary School L-Block, Hari
Nagar, New Delhi – 110064
…Opp.parties
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Complainants
: Mr. Peeyoosh Kalra &
Mr. Omar Siddiqui, Advocates
For the Opp.party Nos. 1,2,3 & 6 : Represented by OP 4 & 5
For the Opp.party Nos. 4 & 5
For the Opp.party No.7
: Both, In person
: Mr.Shambhu Nath Singh, Advocate
Pronounced on 15.04.2013
ORDER
JUSTICE J.M.MALIK
1.
This is an unfortunate case where Nitin Arora, a student of Class IX got drowned
in presence of his school teachers, in ‘Saryu’ river.
2.
The facts germane to the present case filed on 04.10.1999 are these. Nitin Arora
was a student of Class IX and was studying in Mayasya Chuni Lal Saraswati Bal
Mandir Senior Secondary School, L-Block, Hari Nagar, New Delhi, OP No.7. OP7 is
running a School under the control of Sh.Dharampalji, Chairman, OP1. Sh.Govind Ram
Aggarwal, Principal, OP2, Sh.Sohan Singh, Head Teacher, OP3, Sh.Pawan Paliwal,
Clerk, OP4, Sh. Rajpal Singh, and Sh.Ramesh Chand, PETs, OP5 & OP6, are all
employees of said school, OP7. The OPs had arranged Desh Bhraman Tour and have
also charged Rs.1,800/- per child and a tourist bus was booked which started for tour on
02.10.1997. Nitin Arora also joined the tour. The tour programme did not mention that
students will take bath in ‘Saryu’ river.
3.
This complaint was filed by Sh.Madan Lal Arora, father of deceased Nitin
Arora. Sh.Madan Lal Arora received the message that his son got drowned in ‘Saryu’
river, on 04.10.1997. The message was delivered at about 11/11.30 AM, at
Delhi. Madan Lal Arora immediately left for Ayodhya in Tata Sumo on the same day at
about 1.00PM. The school authorities had provided the said vehicle. Madan Lal Arora
arrived at ‘Saryu’ river on 05.10.1997 at about 8.30AM. It transpired that his son had
got drowned. It is alleged that OPs 3, 4 & 6 were taking tea in the canteen and OP 5
was sitting near the clothes of the children. The son of the complainant was sent to
take bath in ‘Saryu’ river without accompanying teachers. It appeared that Nitin Arora’s
foot might have slipped because of high current of the river water and he, as were all
other children, started shouting for help, but the teachers did not come to their rescue.
4.
Sh. Madan Lal Arora employed swimmers/divers and two boatmen and one
steamer for finding out the body of his son and had to spend Rs.35,000/-. He made the
said search for complete seven days, but the body could not be traced out. The
complainant came back to Delhi on 11.10.1997. On 12.10.1997, at about 9.30AM, the
complainant received a phone call informing him that the child had been traced out and
that he is completely well. Consequently, the complainant and Nitin Arora’s maternal
uncle left for Lucknow and from Lucknow to Ayodhya, they hired a Maruti Van. At
Ayodhya, they found that there were two Katras. The complainant could not find his son
despite the matter was tomtomed by ‘drum-beating’. The matter was published in
newspaper along with photograph of Master Nitin Arora. The complainant and the
maternal uncle of Master Nitin Arora stayed there for 5-6 days and again employed
divers, boatmen and steamers and spent about Rs.25,000/- and reached Delhi on
18.10.1997. In the month of April, 1999, the complainant went to Ayodhya but could not
find any whereabouts of his child, Nitin Arora and came back to Delhi after spending
Rs.5,000/-. It is alleged that the complainant’s son got drowned due to negligence and
deficiency on the part of the OPs. No frantic efforts were made to save the child. No
safety precautions were taken. The OPs allowed the children to take bath in ‘Saryu’
river. They did not try to contact any swimmers, divers or boatmen, immediately. The
mother and grand-mother of the child have not recovered from shock of the death of
Master Nitin Arora. The complainant could not look after his business
for about three months from 04.10.1997 to 31.12.1997 and suffered loss to the tune of
Rs.30-35 thousands.
5.
Legal notice was sent to the OPs but it did not ring the bell. Ultimately, this
complaint was filed wherein the complainant has demanded a sum of Rs.25.00 lakh
from OPs 1 to 7, for the loss suffered by the complainant, both mentally, physically and
financially. He has also prayed for interest @ 12% p.a. from 04.10.1997, till the date of
payment, with costs of the proceedings.
It must be mentioned here that OPs 1 to 6
were the OPs initially. OP7 was impleaded as a party, subsequently vide order dated
08.08.2012.
6.
Defence :
OPs 1 to 6 set up the following defences. First of all, they have called into the
question, the jurisdiction of this Commission. Secondly, it is stated that complainant is
not a ‘consumer’. It is explained that by imparting education to the children, the school is
not doing any business and not running the school on commercial basis, rather they are
serving the nation by imparting the education to the children. Most of the students get
the education without paying the fees. The tour was not on commercial basis. It is an
academic tour and the school was not supposed to earn any profit. The expenses were
charged for the welfare of the children. The school had organized an educational tour
for the upliftment of the children and it was the option for the guardian of the students to
send or not to send, to join or not to join the tour. Those students who joined the tour,
their guardian had to sign the ‘undertaking’ and the complainant himself had signed the
‘undertaking’ to this effect. Such like tours have been organized for the last 20
years. The teachers have been taking full attention and care to the students and prior
to this incident, no such like incident took place. The complainant has been doing all
possible mischief and trying to black-mail the OPs for extracting huge amount.
Although the complainant had lodged FIR, yet, no action was taken against the OPs. It
is explained that this incident took place due to negligent act of the deceased because
he did not obey the directions of the teachers. The school management had deputed
four teachers to look after the children who had been accompanying them. ‘Saryu’ river
bath was very much in the list of tour programme. The complainant is not a witness to
the incident. OP 2, the Principal, did not accompany the other teachers. The
complainant could not explain the source of his information. The deceased did not obey
the instructions of the teachers and went ahead from the directions given by the
teachers. OPs immediately tried to save him and took all the necessary steps. The
story put forward by the complainant is false. The OPs are not liable to pay any
compensation to the complainant.
7.
According to OP7, all necessary due care and safety precautions were taken by
the OPs to save the life of the deceased. OPs took the children on tour with a purpose
of giving exposure to them and to make their tour programme knowledgable and
successful. All kinds of first aid equipment were also given to them in their journey. The
teachers were specifically instructed by the Management to follow the discipline of tour
programme and during the entire tour programme, they were instructed to keep the
students in discipline and all necessary arrangements and precautions were taken to
avoid any such untoward incident. Nitin Arora was an adolescent boy of 14½ years
old. He was expected to be having a sufficient amount of maturity to travel or take bath,
etc., under the supervision of the teachers, who were accompanying him in the said
tour. Consequently, the degree of care and safety precautions were taken during the
said tour, but while going into the water, the deceased Nitin Arora did not follow certain
safety precautions given by the teachers who were admittedly present on the bank of
the said Saryu river on 04.10.1997 and despite the aforesaid due care, Nitin Arora
slipped into the current of water and unfortunately drowned. The tour programme
includes Ayodhya Darshan, which includes taking a holy dip in the Saryu river as well
which was allowed by the Teachers, in their wisdom after verifying the depth of the
water and current of water on the bank of Saryu river. The teachers were also having
ascended with the students in water to avoid any kind of nasty conduct on the part of
the students but Nitin Arora, after ascending in water, did not follow the instructions of
his teachers. OP7 is an unaided private educational institution which is imparting quality
education to the children of poor strata and the same is being managed and established
by a Society with the contribution of funds. The school is not indulged in any kind of
profiteering and as such the funds of the school were being utilized just for the cause of
education. All other allegations have been denied.
8.
Submissions and Findings:
We have heard the counsel for the parties and gone through their written
synopses. The learned counsel for the OP has invited our attention towards the
undertaking given by the deceased as well as his father. The undertaking runs as
follows:“UNDERTAKING
I agree to abide by the Rules of the above
tour. Trekking/competition and shall observe
discipline as directed by the authorities of M.C.L
Saraswati Bal Mandir School, Tour Trekking/
completion Incharge all times. In case of any
unforeseen accident or injury, I or my parents of
Guardian will not hold the institute or any member
of its staff wholly or partially responsible for it.
Sd
Father/Guardian
Sd/Signature of Applicant”
He contended that under these circumstances, all the OPs are not liable for the above
said incident. He also argued that there is no evidence, worth the name, which may go
to show that the teachers were sipping tea. He argued that teachers were also taking
bath in the Saryu river along with the children. He explained that all the children were
allowed to go into the water. The teachers discharged their duty with due diligence.
They were not aware of any unforeseen incident. Moreover, Tata Sumo was provided
by the School. All kinds of arrangements were made. The teachers had encircled the
children. He, however, submitted that only two teachers knew swimming. Counsel for
OPs further submitted that the school is very ‘sorry’ about the incident but it had no
intention. The teachers took all the due care. The boys were of adolescent age and
divers were engaged to find out the body of Nitin Arora.
9.
It was also argued that the complainant is ‘not’ a ‘consumer’. This case entails
lot of evidence and the complainant should be directed to approach the civil court. The
teachers were taken to the tour and there was no consideration and no profiteering in
taking the children to the tour. This was a cultural tour. The father of the deceased is a
factory owner, a well to do person and does not deserve such a huge amount.
10.
Learned counsel for the OPs lastly submitted that there is no evidence. The
allegations of the complainant that teachers were sipping tea is based on hear-say
evidence which carries no value in the eyes of law. There is no eye-witness. The
defence of service on the part of the school does not stand proved.
11. In addition, the OPs 2 to 6 raised the following arguments. The complainant being
the father of the deceased child cannot claim himself to be a ‘consumer’, under the
provisions of Consumer Protection Act, 1986. The complainant has not hired the
‘services’ of Chairman and the teachers of the school. The complainant is bound by the
‘undertaking’ given by him. The incident took place on 04.10.1997 and the present
complaint was filed on 04.10.1999 beyond two years and, therefore, it is barred by
time. This Commission has no jurisdiction to try this case. FIR was lodged but no case
was made out against the OPs. The tour itinerary was only a broad outline of the
places to be visited by the children and no minute details of the tour programme can be
given. The allegations leveled in the complaint are contradictory to the notice dated
07.09.1998. The complainant is trying to encash the unfortunate death of his child and
wrongly stated that he had spent Rs.35,000/-. According to the OPs, OPs 2 to 6 are
the employees in the school, therefore, complaint against them is not maintainable. The
deceased student did not follow the instructions and, therefore, this incident took place.
The complainant spent only Rs.600/- for publication of missing report in Jan Morcha
newspaper. In other newspaper, news was carried out but it did not mean that the
complainant had paid money. The complainant’s submission that he had spent huge
amount for his stay in Ayodhya, is false as the entire expenses were borne by the
school management. The school constituted an inquiry committee. The maternal uncle
of the deceased child also participated and he was satisfied that there was no fault on
the part of the teachers and left the school premises, in good faith.
12.
Again, there is improvement in the evidence. In the notices, no bifurcation of the
amounts spent was given. It is difficult to fathom as to how six persons, compensation,
in the sum of Rs.25,00,000/- each, vide six separate notices were sent to first six OPs.
However this amount appears to be incorrect because no specific demand was
made from each of the OPs.
13. The learned counsel for the complainant has cited the following authorities :-
1) Santu Ram & Anr. Vs. State & Ors., W.P. (C ) 768/2009, decided on
07.02.2012.
2) Association of Victims of Uphar Tragedy & Ors. Vs. Union of India & Ors.and
Common Cause Vs. Govt. of NCT of Delhi & Ors., 2003 [2] JCC 715.
3) Samira Kohli Vs. Dr. Prabha Manchanda & Anr., 2008 (1) SCALE 442.
14. All these arguments have left no impression upon us. We have perused the tour
itinerary which is placed on record. There is no progaramme for ‘Saryu’ river
bath. When it was known to the OPs that the students did not know how to swim, why
did they allow them to take a dip in the ‘Saryu’ river. This is the main negligence on the
part of the teachers. Only two teachers knew how to swim. The plea set up by the OPs
that all the teachers had encircled the children is not true. The children were asked not
to go deep into the water. Yet the deceased went into the deep-waters and was
drowned. The parents should have been informed that the students will be allowed to
take a ‘dip’ in the ‘Saryu’ river. Had the parents knew about it, they would not have
allowed the children to enter into the ‘Saryu’ river. It is also noteworthy that without
seeking the help from divers, boatmen and swimmers, the children were allowed entry
into the ‘Saryu’ river. No precaution was taken. Had the teachers remained present in
the river or on the banks of the river, the question of Nitin Arora’s drowning would not
have arisen. It clearly means that the students were put in the river without any
aid. The
story
that
teachers
were
sipping
tea
near
the
river,
assumes
importance. Moreover, the versions given by OPs 1 to 6 on 19.04.2005 and the version
given by OP 7 on 28.01.2013 are different, contradictory and some improvement has
been made in the version of OP7. None of the teachers stated that they were present
when Nitin Arora was taking bath in the ‘Saryu’ river. The OPs should not have allowed
all the students to take bath together, at one time.
15.
The facts of this case smack of negligence on the part of the teachers. This view
finds force from the following authorities.
As far as the principle of strict liability is
concerned, reference may be made to a leading case of MCD Vs. Suhagwanti, AIR
1966 SC 1750, wherein the Supreme Court applied the strict liability principle in
awarding compensation to the victim. The court applied the maxim Res Ipsa Loquitor
as the mere fact that the clock tower fell, told its own story in raising the inference of
negligence so as to establish a prima facie case against the Corporation.
16.
In Pushpabhai Purshottam Udeshi & Ors. Vs. M/s. Ranjit Ginning & Pressing Co.
(P) Ltd. & Anr., (1977) 2 SCC 745, the Supreme Court explained the doctrine of Res
Ipsa Loquitor in the following words:-
“6. The normal rule is that it is for the plaintiff to prove negligence but as in some
cases considerable hardship is caused to the plaintiff as the true cause of the accident
is not known to him but is solely within the knowledge of defendant who caused it, the
plaintiff can prove the accident but cannot prove how it happened to establish
negligence on the part of the defendant. This hardship is sought to be avoided by
applying the principle of res ipsa loquitor. The general purport of the words res ipsa
loquitor is that the accident “speaks for itself” or tells its own story. There are cases in
which the accident speaks for itself so that it is sufficient for the plaintiff to prove the
accident and nothing more. It will then be for the defendant to establish that the
accident happened due to some other cause than his own negligence. Salmond on the
Law of Torts (15th Ed.) at p.306 states : “the maxim res ipsa loquitor applies whenever it
is so improbable that such an accident would have happened without the negligence of
the defendant that a reasonable jury could find without further evidence that it was so
caused”. In Halsbury’s Laws of England, 3rd Ed., Vol.28, page 77, the petition is stated
thus: “an exception to the general rule that the burden of proof of the alleged negligence
is in the first instance on the plaintiff occurs wherever the facts already established are
such that the proper and natural inference arising from them is that the injury
complained of was caused by the defendants negligence, or where the event charged
has negligence ‘tells its own story’ of negligence on the part of the defendant, the story
so told being clear and unambiguous”. Where the maxim is applied, the burden is on
the defendant to show either that in fact he was not negligent or that the accident might
more probably have happened in a manner which did not connote negligence on his
part ………”.
17. In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, Page 1388, Para 27,
wherein the Hon’ble Apex court has held, as under:“Res Ipsa Loquitor’, is a rule of evidence which in reality belongs to the Law of
Tort. Inference as to negligence may be drawn from proved circumstances by
applying the rule if the cause of the accident is unknown and no reasonable
explanation as to the cause is coming forth from the defendant”.
Further, it has held that :
“Negligence is the breach of a duty caused by omission to do something which
a reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as given in Law of Torts,
Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds
good. Negligence becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued. The essential
components
of
negligence are
three
:
’duty’, ‘breach’
and
‘resulting
damage’.
18. In V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC
513, at page 532, Para 50, it was held by the Hon’ble Apex court that :
“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”.
19.
It is well said that ‘Law is the backbone which keeps man erect’. It is unfortunate
that in their written statement dated 08.02.2000, OPs 1 to 6 did not explain the minute
details of the accident. They laid emphasis on the peripheral issues like jurisdiction,
question of ‘consumer’, giving free vehicle to the father of the deceased, etc. They have
kept the details of the incident under their hats. They did not state whether the children
were sent together or in groups. How many teachers were in the river, at the time of the
incident, is not mentioned. When all these facts are admitted, including the accident, the
OPs are to carry the ball in proving that the accident did not occur due to their mistake
because of their negligence. They alleged that the story put forward by the complainant
is concocted, but unfortunately, they have no story to put forward. The teachers should
have taken care of the children and the consent given by the father or the deceased
pales into insignificance. The children should not have been left in the river without any
expert and that too, without providing any life-saving jackets, pad, tubes, etc., to the
children, to be used at the time of swimming. Nobody, will throw the children in the river
without taking such like precautions. Either the teachers were ignorant and negligent or
they had never taken the students out like this.
20.
Now, we turn to the aspect of compensation. The deceased was a young child of
14½ years. He was to live the whole life. He was to serve his parents. He lost his life
due to negligence and dereliction of duty on the part of the OPs. This act has caused
mental agony, anger, anguish, frustration, sadness, etc., to the family of the deceased
child. Under these circumstances, we direct that OP Nos. 1 and 7 will pay a sum of
Rs.10,00,000/- with interest at rate of 9% p.a., with effect from the date of incident, i.e.
04.10.1997, till its realization. OPs Nos. 2 to 6 will pay Rs.1,00,000/- each, along with
interest @ 9% p.a. from the date of incident, i.e., 04.10.1997, till realization. The
principal of the school is also liable because he should have given instructions to the
above said OPs, either not to allow the children to enter into the water or to take
precautions at the time of taking bath, in the ‘Saryu’ river, by the children.
21.
OPs1 to 7 will also pay litigation charges to the extent of Rs.2,00,000/-, within 45
days, otherwise it will carry interest @ 9% p.a.,
till its realization. The complaint stands disposed of.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
..……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Dd/ 20
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1674 OF 2007
(From the order dated 10.04.2007 in First Appeal No. 1432/2006
of Gujarat State Consumer Disputes Redressal Commission)
Big Bazaar, Division of Pantaloon Retail (I) Ltd., Sarkhej – Gandhinagar Highway,
Near Iskon Temple, Ahmedabad
... Petitioner
Versus
Government of Gujarat, Through N.V. Patel, Head Clerk in the office of The Director,
Weights and Measures and Consumer Affairs Tol Map Bhavan, Sarangpur, Ahmedabad
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. S.K. Makkar, Advocate
Mr. Nitish Kumar, Advocate
Mr. Deepak, Advocate
For the Respondent(s)
Mr. P. Keshwani, Advocate
Mr. Aakarshan Aditya, Advocate
ONOUNCED ON : 15th APRIL 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 (for short ‘the Act’) against the impugned order dated 10.04.2007
passed by the Gujarat State Consumer Disputes Redressal Commission (for short ‘the
State Commission’) vide which appeal filed by the petitioner against the present
respondent / complainant, Director, Weights and Measures and Consumer Affairs,
Government
of
Gujarat,
against
the
order
passed
by
the
District
Forum, Ahemdabad was ordered to be dismissed and the order of the District Forum
was upheld.
2.
Briefly stated the facts of the case are that the petitioner / OP is a departmental
store known as Big Bazaar and it has many branches in the city of Ahemdabad and
other places. This store is a division of M/s. Pantaloon Retail (I) Ltd. and it is carrying
on retail business in various commodities and sells the same to the consumers. From
time to time, this store frames various schemes for attracting the customers in order to
promote their business. In the instant case, the store framed a scheme valid for
Republic Day on 26.01.2006 and declared this as a Mega Saving Day. The petitioner
published advertisements through newspapers / radio / posters on the occasion of
‘Mega Saving Day’ saying that various commodities shall be sold at prices less than the
usual prices. As per the version of the petitioner, there was a big rush of consumers on
the Republic Day outside the store and as the day progressed, it became impossible to
regulate the rush of the consumers. The petitioner floated a scheme on that very day,
according to which currency coupons of the value of Rs.50/- were to be issued and they
decided that only those persons shall be allowed to enter the store who purchase a
coupon after making a payment of Rs.50/-. It was also stated that the value of the
coupon, i.e., Rs.50/- will be adjusted towards the total price of the purchase made by
the consumers. It was also made clear that in case a consumer did not fully utilise the
amount of the coupon, the balance amount of the coupon shall be refunded to the
consumers. According to the petitioner, the basic purpose of issuing such coupons was
to regulate the entry of customers and there was no profit motive behind this step. The
other purpose was giving entry to genuine customers and exclude anti-social elements
or those persons who merely go inside the store for a stroll. As stated, on the aforesaid
day, the petitioner issued 3900 currency coupons of the value of Rs.50/- to the
consumers, who entered the store between 4 pm to 10 pm. Out of these 3900 coupons,
3712 coupons are stated to have been utilised by the consumers on the same day, i.e.,
26.1.2006 and 94 coupons were utilised on 27.01.2006. It is further stated that out of all
these coupons, only 68 coupons remained unaccounted and the petitioner gave
advertisement that the unutilised coupons could be utilised for making purchases from
the store. 35 more currency coupons were utilised by the consumers and 33 currency
coupons remained unaccounted for.
3.
On the other hand, the Department of Weights and Measures and Consumer
Affairs, Government of Gujarat filed a consumer complaint no. 22 / 2006 in the District
Forum against the petitioner saying that they had illegally collected Rs.1,95,000/- from
3900 consumers and hence adopted unfair / restrictive trade practice. The District
Forum vide order dated 30.11.2006 allowed the complaint and directed the petitioner to
pay Rs.1,95,000/- to the complainant along with interest @9% p.a. from the date of filing
of the complaint till realisation. They were also directed to pay Rs.10,000/- to the
complainant towards mental agony and costs of the complaint. The petitioner
challenged the order of the District Forum in the State Commission, but the State
Commission vide impugned order dismissed the appeal saying that the issuing of
currency coupons amounted to levy of entry fee and hence it was unfair trade
practice. It is against this order that the present petition has been filed by the petitioner
/ OP.
4.
At the time of arguments before us, learned counsel for the petitioner stated that
the petitioner by their aforesaid action, had only tried to regulate the entry of customers
in their store and had not committed any unfair trade practice. It was wrong to say that
they had imposed any entry fee for the customers. The learned counsel vehemently
argued that the contention of the District Forum that a shop-owner has no right to refuse
entry to the public, is incorrect. It is the absolute right of the shop-owner to restrict the
entry of customers in his store. In this case, it was not an entry fee but even if an entry
fee is imposed, it is a legally permissible practice, all over the Globe. Learned counsel
has drawn our attention to the statement made by the petitioner before the District
Forum in which it has been stated that a total of 3900 currency coupons of Rs.50/- each
were issued on 26.01.2006, out of which 3712 coupons were utilised by the customers
on that very day. On 27.01.2006, another 94 coupons were utilised by the
customers. The money had been refunded in 26 cases and only 68 currency coupons
were remaining, for which the customers could obtain deduction form the bill at any time
in future or get the money back. It has been stated in the petition that advertisement
were also given by the petitioner saying that people could come and get their money
back in response to which 35 more people had claimed refund and only 33 currency
coupons remained unaccounted for. The learned counsel further stated that on behalf
of the Government of Gujarat, a very junior officer of the rank of Head Clerk had filed
the complaint, which indicates that the matter had not been considered at senior levels
in the Government. He further stated that the observation of the District Forum that
Police force could be called to control the rush of people is not correct because the
scheme floated by the petitioner does not represent any unfair trade practice.
5.
On behalf of the respondent, Government of Gujarat, our attention was drawn to
an affidavit filed by Shri K.K. Dhoodhat, Controller Legal Metrology and Director of
Consumer Affairs, Government of Gujarat in which he has stated that the complaint, in
question, has been filed by Shri N.V. Patel, Head Clerk of the Department who was sent
on deputation as Consumer Protection Officer for a year in his office vide order dated
12.12.2005. The said N.V. Patel, Head Clerk, was authorised to file the present
complaint under the Act and copies of orders passed by the Government of Gujarat
have also been attached indicating that Shri Patel was competent to file the
complaint. The learned counsel for the respondent stated that it was the duty of the
State to look after the interest of the consumers. In the instant case, the petitioner had
given advertisement for observing ‘Mega Saving Day’, but the scheme of issuing
currency coupon of Rs.50/- was suddenly announced at 4:30PM. It amounted to the
collection of entry fee only and it is also not clear whether they charged similar fee
before 4:30PM on that day. Whatever step had been taken by the petitioner, had not
been pre-disclosed to anybody. Learned counsel, however, admitted that out of 3900
coupons issued, 3712 coupons had been adjusted on the same day. He further
mentioned that 33 persons had still not taken refund and it was not clear why they had
not done so.
6.
Both the parties have submitted their written submissions as well, which are on
record. In the written submissions made by the complainant / respondent, it has been
stated that the step taken by the petitioner amounted to restrictive trade practice under
section 2(1)(nnn) of the Act.
7.
We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us.
8.
The factual position of the steps taken by the petitioner in issuing currency
coupons of Rs.50/- and the number and value of coupons etc. is broadly accepted by
both the parties. Main point to be considered in the present case is whether the step
taken by the petitioner amounts to unfair or restrictive trade practice or not? It has been
stated categorically by the petitioner that they have a right to regulate the entry of
customers within their business premises and for that purpose, they can take all
requisite steps and such a step does not amount to any unfair trade practice. In the
present case, the petitioner floated currency coupons of Rs.50/- and made it obligatory
that anyone entering the store at that particular time shall have to buy a currency
coupon of Rs.50/-. It was, however, also clear that the amounts so charged shall be
adjusted towards the purchase of any goods / commodity from the store. It is an
admitted fact that out of 3900 coupons issued on that day, 3712 coupons were utilised
by the consumers on that very day, making it clear that they did not have to spend any
extra penny beyond the costs of the goods purchased. Even later on, more coupons
were got en-cashed and whatever small number was left un en-cashed, the petitioner
gave an open advertisement asking the coupon holders to get the refund, if they wanted
to do so. In our opinion, such an action taken by the petitioner does not amount to any
unfair or restrictive trade practice at all. The Government of Gujarat has drawn our
attention to section 2(1)(nnn) of the Act, which runs as under:-
“restrictive trade practice” means a trade practice which tends to
bring about manipulation of price or conditions of delivery or to affect
flow of supplies in the market relating to goods or services in such a
manner as to impose on the consumers unjustified costs or
restrictions and shall include—
(a) delay beyond the period agreed to by a trader in supply of such
goods or in providing the services which has led or is likely to lead to
rise in the price;
(b) any trade practice which requires a consumer to buy, hire or
avail of any goods or, as the case may be, services as condition
precedent to buying, hiring or availing of other goods or services;”
9.
It has been argued on behalf of the respondent that the imposition of arbitrary and
unannounced “entry charge” amounts to the imposition of a practice “which requires a
consumer to buy, hire or avail of any goods or as the case may be services as
‘condition precedent’ to buying, hiring or availing of other goods or services.”
10. We do not agree with this contention of the respondent that the buying of currency
coupons of Rs.50/- was a condition precedent to buying, hiring or availing of goods /
service etc. because the amount spent for the purchase of coupons was to be adjusted
towards costs of goods / services and any coupons which were left unutilised could be
got en-cashed. Had the petitioner not made a provision for encashment of unutilised
coupons, it could be stated that they had resorted to a restrictive trade practice. Section
2(1)(nnn) of the Act is, therefore, not applicable in the present case.
11. It is also observed that floating of schemes for attracting the customers or to give
them suitable incentives from time to time are accepted international business practices,
rather they should be encouraged and used for looking after the interests of the
consumers at large.
12. In the present case, therefore, it is held that there is no unfair / restrictive trade
practice on the part of the petitioner. The revision petition is, therefore, allowed and
orders passed by the State Commission and District Forum are set aside with no order
as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
RS/
I agree with the ultimate result arrived at by my learned brother, but I do not agree with
the observations that had there not been any provision for encashment of any unutilized
coupons, it could have come within the purview of restrictive trade practice. In a number
of trade fairs and exhibitions organized by the Government as well as private
entrepreneurs, entry fee is levied which is neither refundable nor adjustable in
purchase, but it does not fall within the purview of restrictive trade practice. This entry
fee is levied to regulate, rush and not to allow unwanted persons. Even, entry fee is
levied by Government for entering on the Railway platforms, Airports, etc. on the
persons going to see off or receive their guest which is not treated as unrestrictive trade
practice. Entry fees can be levied on customer for entry and sitting in a Restaurant to
regulate rush, otherwise any person without availing any services and making payment
will get right to occupy sitting capacity of Restaurant for hours causing inconvenience to
prospective customers. In such circumstances, a private person can impose entry fee
for entering in his business premises and currency coupons of Rs.50/- issued by the
petitioner does not fall within the purview of unfair / restrictive trade practice and petition
is allowed.
... (K. S. CHAUDHARI J.)
PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1202 OF 2008
(From the order dated 28.11.2007 in First Appeal No. 846/2007 of DELHI State
Consumer Disputes Redressal Commission)
ICICI Lombard General Insurance Co. Ltd. 5th Floor, Birla Towers,
25, Barakhamba Road, Connaught Place, New Delhi -110001.
... Petitioner
Versus
1. Smt. Chander Prabha W/o Sh. Bhupal Sood
2. Shri Bhupal Sood, S/o Shri B.C. Musafir Both resident of 1/20, Mehrauli, New Delhi
…. 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. Amit Tyagi, Advocate
For the Respondent(s)
Mr. Bhupal Sood
Respondent no. 2 in person
and also as A.R. for R-1
PRONOUNCED ON : 15th APRIL 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21 (a)(ii) of the Consumer
Protection Act, 1986 against the order dated 28.11.2007, passed by the Delhi State
Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.
846/2007. By this order, the State Commission dismissed the first appeal filed by the
petitioner against the order dated 25.07.2007 passed by District Forum New Delhi, vide
which the complaint filed by respondent no. 1 & 2 was allowed and the opposite party /
petitioner was asked to pay Rs.1 lakh as insurance amount to the complainants and a
sum of Rs.20,000/- as compensation for deficiency in service / mental agony,
harassment etc. and in addition, Rs.2,000/- were allowed as costs and litigation
expenses.
2.
Briefly stated the facts of the case are that respondent no. 1 & 2 are parents of
Manish Sood, since deceased, who met with an accident while driving the motorcycle
bearing No. HR-51 P 2154, registered in the name of M/s. Namo Alloys Pvt. Ltd. and
insured
with
the
petitioner. The
accident
occurred
on
24.08.2004
and
Manish Sood succumbed to his injuries on 02.09.2004. The complainants preferred a
claim on 23.03.2005 for a sum of Rs.1 lakh against ‘personal accident risk insurance’,
but the claim was repudiated on the ground that the appellant had not charged any
premium towards personal accident of the driver, as the vehicle was registered in the
name of a company. The District Forum did not accept the contention of the opposite
party and allowed the complaint. The State Commission also upheld the order in favour
of the complainant and it is against this order that the present petition has come up.
3.
At the time of hearing before us, the appellant was asked to explain the delay of 27
days in filing the present petition. It was found, however, that no application had been
given for the condonation of delay. The impugned order is dated 28.11.2007 whereas
the petition was filed on 24.03.2008, i.e., after a period of 117 days of the passing of the
order. After taking the permissible period of 90 days in filing the revision petition, there
is a delay of 27 days in filing the petition and no reasonable explanation has been given
for this delay. In the interest of justice, however, the delay is ordered to be condoned.
4.
On merits, it has been stated by the petitioner that the award passed by the District
Forum was in violation of the terms and conditions of the policy. The two-wheeler
package policy was in the name of Namo Alloys Pvt. Ltd. whereas the personal accident
cover is applicable only to the registered owner in person. No premium was charged for
personal accident cover and hence the complainants were not entitled to claim the
benefit of the insurance cover. Further, a juristic person obtaining two-wheeler package
policy and paying premium only towards third party property damage by vehicle is not
entitled to personal accident cover with respect to the death of the driver.
5.
We have examined the material on record and given a thoughtful consideration to
the arguments advanced before us. It is an admitted fact that the two-wheeler package
policy was in the name of a company called M/s. Namo Alloys Private Limited. The
basic premium as well as premium towards third-party property damage had been paid
but the premium with respect to personal accident cover had not been charged. We fail
to agree with the contention of the learned State Commission that ‘if the policy was
issued in the name of such firm, it squarely falls within the personal accident policy
covering the risk of owner driver of the vehicle, the deceased Manish Sood’. An
individual person cannot be treated owner of a Private Limited Co., a juristic person,
and in such circumstances, deceased is not covered by personal accident benefit in the
policy. Hence his parents are not entitled to get the benefit of insurance cover. The
orders passed by the District Forum and State Commission are therefore, set aside and
the present petition is allowed and complaint dismissed with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3793 of 2007
(From the order dated 30.8.2007 in Appeal No. 1047 of 2006 ofGujarat State
Consumer Disputes Redressal Commission, Ahmedabad)
New India Assurance Co. Ltd. D.R.O. – I Level – IV, Tower – II,
Jeevan Bharti Connaught Circus, New Delhi – 110001, Through its Manager
…
Petitioner/Opposite Party (OP)
Versus
Smt. Malti Bhikhabhai Bhoya R/o Bhensdhara, Taluka Dharampur District – Valsad,
Gujarat
… 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 :
PRONOUNCED ON
Mr. R.B. Shami, Advocate
Mr. Sayid Marsook, Advocate
16th April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order
dated
30.08.2007
passed
by
the
Gujarat
State
Consumer
DisputesRedressal Commission, Ahmedabad (in short, ‘the State Commission’) in
Appeal
No.
1047
of
2006
–
New india Assurance
Co.
Ltd.
Vs.
Smt. Malti Bhikhabhai Bhoya by which, appeal was dismissed and order of District
Forum allowing complaint was upheld.
2.
Brief facts of the case are that Complainant’s husband deceased Bhikhabhai,
after purchasing Tempo No. GJ-15X-4373, got it insured from OP/petitioner for a period
of one year commencing from 26.11.1999 to 25.11.2000. On 18.6.2000, tempo met
with an accident and owner of the tempo Bhikhabhai died on account of injuries.
Intimation was given to the Insurance Company regarding accident. It was further
alleged that Rs.6,21,792/- were spent on repairs. Claim form was submitted, but the
OP repudiated the claim. Alleging deficiency on the part of OP, complainant/respondent
filed complaint. OP/petitioner resisted claim and submitted that deceased’s tempo was a
goods carrying vehicle, but at the time of accident, the husband of the complainant was
transporting passengers and thus, violated terms and conditions of policy; so, not
entitled to get any claim and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties allowed complaint partially and directed OP to pay a sum
of Rs.2,60,000/- along with 9% p.a. interest from 20.4.2004 till payment and Rs.1500/as compensation and cost of the proceedings. 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 as insured vehicle was goods
carrying vehicle and at the time of accident insured was transporting passengers,
petitioner has not committed any deficiency in repudiating claim and learned State
Commission has committed error in dismissing appeal and learned District Forum
committed error in allowing complaint; hence, revision petition be allowed and complaint
be dismissed. On the other hand, learned Counsel for the respondent submitted that
order passed by learned State Commission is in accordance with law; hence, revision
petition be dismissed.
5.
It is admitted case of the parties that insured tempo was goods carrying vehicle
and at the time of accident, six persons were in the vehicle, out of them four persons
died and two were injured.
6.
Learned Counsel for the petitioner submitted that there was clear- cut violation of
terms & conditions of the policy, as the insured was carrying passengers instead of
goods; hence, there was no deficiency in repudiating claim. Perusal of Insurance Policy
reveals that it contains Clause ‘limitations as to use’, which runs as under:
“Use only for carriage of goods within the meaning of the M.V. Act,
1988. The policy does not cover use for organised racing pace
making reliability trail or speed testing. Use while drawing a trawler
except
the
towing,
(other
than
for
reward)
disabled mechanically propelled vehicle. Use
of
for
any
one
carrying
passengers in the vehicle except employees (other than the driver)
not
exceeding
six
in
number
coming
under
the
purview
of workmens Compensation Act, 1923”.
7.
Learned Counsel for the petitioner has drawn our attention to ‘General
Exceptions’ in respect of commercial vehicle package policy according to which,
Insurance Company is not liable for any damage if the vehicle is being used otherwise
than in accordance with the “Limitations as to Use”. As per Insurance Policy, insured
was entitled to carry six persons. Admittedly, there were not more than six persons in
the vehicle at the time of accident. No evidence has been adduced by the complainant
to prove that persons in the tempo at the time of accident were employees of the
insured. At the same time, no evidence has been adduced by OP/petitioner that
persons travelling in the vehicle at the time of accident were passengers. In such
circumstances, even if, it is presumed that six persons in the vehicle were not workers,
certainly vehicle was not having more than number of persons authorized as
employees. In such circumstances, petitioner was not entitled to repudiate the claim
in toto, but complainant was entitled to get compensation on non-standard
basis. Learned Counsel for the petitioner has placed reliance on I (2007) CPJ 23 (NC)
– National Insurance Co. Ltd. & Anr. Vs. Suresh Babu & Anr. in which for nonstandard clams, it was observed as under:
Secondly, if there is a flagrant violation of the term of the policy, the
Insurance Company cannot be directed to reimburse the Complainant
even on the basis of non-standard claim adopted by the Insurance
Companies. Relevant part of the said policy is as under:
“Non Standard Claims:
Following types of claims shall be considered as non-standard and shall
be settled as indicated below after recording the reasons.
Sr.No.
Description
Percentage of settlement
i.
Under declaration Deduct 3 years’ difference
of licensed
premium from the amount
carrying
of claim or deduct 25% of
capacity
claim amount, whichever is
higher
ii
Overloading of
Pay claims not exceeding
vehicles beyond
75% of admissible claim.
licensed carrying
capacity.
iii
Any other breach
of warranty/
Pay upto 75% of admissible
claim.
condition of
policy including
limitation as to use.
For breach of warranties/conditions which do not involve any saving in
premiums
or
any
additional
exposure
of
the
Insurers,
such
claims be considered as Standard Claims e.g. Route Permit”
8.
Thus, it becomes clear that if there is any breach of warranty or condition of policy
including limitation as to use, complainant is entitled to get 75% of the admissible claim
on non-standard basis, but the Insurance Company is not entitled to repudiate the claim
in toto.
9.
Learned Counsel for the petitioner also placed reliance on IV (2012) CPJ 493
(NC) – Naresh Kumar Vs. Reliance General Insurance Co. Ltd. & Anr. in which
repudiation of claim was held justified as goods carrying vehicle was carrying 20
persons as passengers. This citation does not help the petitioner, as in the present
case, only six persons were being carried in the vehicle, which were within permissible
limit. He also placed reliance on II (2008) CPJ 171 (NC) – Santosh Vs. National
Insurance Co. Ltd. in which repudiation of claim was held proper, as goods carrying
vehicle was carrying 50 persons at the time of accident. This citation also does not help
the petitioner in the light of above said discussion.
10.
Consequently, complainant is entitled to get 75% of the admissible claim, but
learned District Forum has committed error in allowing Rs.2,60,000/-. In such
circumstances, revision petition is to be allowed partly and petitioner is liable to pay only
Rs.1,95,000/- being 75% of the amount awarded by District Forum.
11.
Consequently, revision petition is allowed partly and impugned order dated
30.8.2007 passed by learned State Commission in Appeal No.1047 of 2006 Newindia Assurance Co. Ltd. Vs. Smt. Malti Bhikhabhai Bhoya is set aside and order of
District Forum dated 29.3.2006 in Complaint No. 9/2004 dated 20.2.2005 –
Smt.Maltiben Bhikhabhai Bhoya Vs. The New India Assurance Co. Ltd. is modified and
amount of Rs.2,60,000/- payable by the petitioner to the respondent is substituted by
Rs.1,95,000 and rest of the order is upheld. 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. 976 OF 2013
(Against the order dated 21.08.2012 in FA No.747/2011 of the State Commission,
Rajasthan)
Treasury Officer, Treasury Office, Tonk
……….Petitioner
Versus
Badri Prasad Sharma S/o Shri Chittar Lal Ji Sharma R/o Village Sitarampura
Tehsil Malpura Distt Tonk, Rajasthan
.........Respondent
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Petitioner
: Mr. Vinay K. Sharma, Advocate
For Mr. Milind Kumar, Advocate
PRONOUNCED ON: 16th April, 2013
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
The matter involved in the present proceedings concerns the claim of a retired
police official for reimbursement of medical expenses incurred by him. As the claim was
not admitted by the respondent, complaint no.367 of 2010 before District Consumer
Forum, Tonk, Rajasthan was filed. The District Forum dismissed the complaint. But the
appeal of the Complainant was allowed by the Rajasthan State Consumer
Disputes Redressal Commission in FA No.747 of 2011.
2.
The revision petition, challenging the order of the State Commission, has been
filed on behalf of the District Treasury Officer, Tonk with delay of 111 days. Perusal of
the application for condonation of this delay shows that a copy of the impugned order,
pronounced on 21.8.2012, was received by the counsel for the petitioner on 24.8.2012,
i.e. within three days. Thereafter, the revision petitioner has taken nearly six and half
months to file the petition before this Commission. In explanation of this long delay, the
application for condonation states as follows:“3. The learned Govt. Advocate sent all the relevant documents and
certified copy of the impugned judgment to the Law Department
regarding
opinion
for
filing
Revision
Petition
before
the Hon’ble National Commission.
4. The
Law
Department
processed
the
file
and
sent vakalatnama and instructions to file Revision Petition before
the Hon’ble National Commission.
5. Thereafter the Officer-In-Charge was appointed and contacted
the office of the counsel in the Third week of February 2013. The
Revision Petition was prepared and sent to the officer in charge
at Tonk, Rajasthan.
6. That after receipt of the affidavit some time was taken in the
translation of the relevant Annexures and after making the Revision
Petition complete in all respects the same is being filed without any
further delay.”
3.
It is evident from above that no attempt has been made to explain, with any
specific details, as to how much time was taken at individual stages of consideration of
the matter. Thus, there is no indication of the time taken by the Government Advocate
in sending the records to the department, having received the certified copy of the
impugned order within three days. Admittedly, after internal departmental decision to
file the revision petition, the counsel was contacted sometime in February, 2013, which
would make it an unexplained period of six months, from the date of the impugned
order.
4.
Mr. Milind Kumar, learned counsel for the revision petitioner was given ample time
and opportunity to explain the delay. However, he admitted that he was not in a
position to add anything further to what had been stated in the application
for condonation.
5.
Consumer Protection Act, 1986, as declared in the STATEMENT OF OBJECTS
AND REASONS of the enactment is a piece of legislation “to provide speedy and
simple redressal to the consumer disputes.” Therefore, the question of limitation /delay,
in matters arising under this Act, acquires a special significance. The law, in this behalf,
has since been fully enunciated in the following decisions of Hon’ble Supreme Court of
India:-
6.
In Ram Lal and Others V. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed that—
“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 Section 5. If ‘sufficient
cause’ is not proved nothing further has to be done; the application
for condoation 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 bonafides may fall for consideration; but the scope of the
inquiry 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.
Again, 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.”
8.
In Anshul Aggarwal V.
New Okhla Industrial
Development
Authority,
IV
(2011) CPJ 63 (SC), it has been held that:“It is also apposite to observe that while deciding an application filed in such
cases for condonation of delay, the Court has to keep in mind that the
special period of limitation has been prescribed under the Consumer
Protection Act, 1986 for filing appeals and revision in consumer matters and
the object of expeditious adjudication of the consumer disputes will get
defeated if this Court was to entertain highly belated petitions filed against
the orders of the Consumer Foras.”
9.
Considering the law as laid down above, in the background of complete failure of
the petitioner to offer any reasonable explanation of this inordinate delay, it is felt that
the petition is liable to be dismissed on the ground of delay alone.
10.
Coming to the facts, it is necessary to keep the following dates before us in
context of the medical treatment undergone by the respondent/Complainant during the
period 7th to 26th September, 2009. Admittedly, payment towards renewal of the
Pensioner’s Medical Diary was made on 13.11.2009 i.e. subsequent to the period of
medical treatment. The District Treasury Officer effected renewal for the remainder of
the year i.e. from 13.11.2009 to 31.03.2010. The case of the Complainant was that
having paid the renewal fee with the penalty, the diary should have been renewed from
1.4.2009 and not from 13.11.2009.
11.
The view taken by the District Forum was that:-
“As per Rule-6(1) (B) there is clear provision that any reimbursement
can be done only after the renewal of the Medical Diary. Prima facie the
Complainant got his Medical Diary renewed on 13.11.2009. Hence, prior to
which reimbursement of the medical bills cannot be obtained.”
On the other hand State Commission has held that:-
“The learned counsel for the respondent could not satisfy us as to
how Rs.500/- was charged instead of Rs.400/- for renewal of the medical
diary however, the same was also renewed only for four months. The
appellant retired from service from a non-gazetted post and was staying in
his village after retirement. In such a serious disease of heart, the patient or
his attendents are not supposed to take all pre-cautions for getting the
necessary formalities completed in regard to medical diary in time. Their
first anxiety is to save the life of the patient. The person who had served the
State Government for a very long time and had also been contributing to the
medical fund, his claim should not have been rejected on such a casual
cursory manner.”
12.
In my view, the decision of the State Commission reflects correct appreciation of
the facts and the evidence in the matter. I therefore, do not find any merit in the revision
petition filed against the order of the State Commission. Therefore, revision petition
No.976 of 2013 is dismissed in limine on grounds of limitation as well as merit. No
order as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 354 OF 2007
(Against the order dated 22.02.2007 in Complaint Case No. 346/1992 of the Delhi State
Consumer Disputes Redressal Commission)
New India Assurance Co. Ltd. 87, M.G. Road Mumbai And Regional Office at Level V,
Tower-II Jeevan Bharti Building Connaught Circus New Delhi-110001 And also at
57, Punchkuian Road New Delhi-110001
…
Appellant
Versus
1. M/s Dimpsomania Export Through Proprietor Amit Sethi Kohat Enclave, Pitampura
Delhi
2. Post Master General Dept. of Posts, India Delhi Circle, Delhi
…
Respondents
FIRST APPEAL NO. 485 OF 2007
(Against the order dated 22.02.2007 in Complaint Case No. 346/1992 of the Delhi State
Consumer Disputes Redressal Commission)
Amit Sethi
Proprietor
of
M/s Dimpsomania Export
…
Delhi
67, Kohat Enclave
Pitampura,
Appellant
Versus
1. Post Master General Department of Posts, India Delhi Circle New Delhi-110001
2. New India Assurance Co. Ltd. 37, Panchkuia Road New Delhi-110001
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Insurance Company
For Post Office Deptt.
:
Mr. Niraj Singh, Advocate
:
Mr. Rajinder Nischal, Advocate
For M/s Dimpsomania Exports :
NEMO
Pronounced 16th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Being
aggrieved
by
the
order
of
Delhi
State
Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission) in
Complaint No. 346 of 1992, two cross appeals have been filed. While First Appeal No.
354 of 2007 has been filed by New India Assurance Co. Ltd., Opposite Party No.2
before the State Commission, First Appeal No. 485 of 2007 has been filed
by Shri Amit Sethi, Proprietor of M/s Dimpsomania Exports, Complainant before the
State Commission, for grant of 18% interest on the amount awarded by the State
Commission. Post Master General, Departments of Posts, who were Opposite Party
No.1 before the State Commission, have, however, not filed any appeal.
2.
Since the facts and the parties in both appeals are common/similar arising out of
the same consumer complaint, it is proposed to dispose of these appeals by one
common order by taking the facts from First Appeal No. 485 of 2007. The parties will be
referred to in the manner in which they were referred to in the complaint
i.e. Shri Amit Sethi, Proprietor of M/s Dimpsomania Exports as Complainant, Post
Master General, Department of Posts as Opposite Party No.1 and New India Assurance
Co. Ltd. as Opposite Party No.2.
3.
In its complaint before the State Commission, Complainant through its Proprietor
had contended that it had booked a consignment through air parcel from Delhi to
Colorado, USA under Post Office Receipt No. 147 dated 11.09.1990 to be delivered to
1st International Bank of Englewood and thereafter to M/sHeera Enterprises, INC 12274,
West
Saratoga
Avenue
receipt. Complainant had
Morrison
Colorado
obtained
Marine
(CO),
USA
Policy No.
as
per
the
postal
2131090100345
dated
11.09.1990 from Opposite Party No.2/Insurance Company covering all risks in respect
of articles contained in the parcel. When Complainant received intimation from
M/s Heera Enterprises, the consignee, that they had not received the consignment,
Complainant lodged a report with Opposite Party No.1/Post Master General, who stated
that the articles had been delivered to the addressee on 25.01.1991 at San Francisco,
California (CA), USA. A claim was also lodged with Opposite Party No.2/Insurance
Company, with whom the goods were insured, who rejected the same on the basis of
the report of the Opposite Party No.1 stating that the goods had been delivered to the
addressee. On receipt of this information, Complainant immediately wrote to Opposite
Party No.1/Post Master General pointing out that the consignment had been delivered
at California whereas it was booked for Colorado. Further, it was to be delivered to the
1st International Bank of Englewood and not directly to the addressee, for which
necessary documents had also been sent to the above Bank through State Bank of
India. Since Complainant did not receive any reply from either of the Opposite Parties
despite several letters and reminders, it filed a complaint before the State Commission
on grounds of deficiency in service against both the Opposite Parties. Complainant
contended that Opposite Party No.1 failed to deliver the parcel to the proper addressee,
as a result of which it was lost and since the parcel was insured against loss, damage
etc.,
Opposite
Party No.2/Insurance
Company should
have
indemnified
the
Complainant’s claim, which it failed to do. The State Commission was, therefore,
requested to direct the Opposite Parties to release Rs.4,48,000/- being the value of
goods alongwith 18% interest per annum and Rs.50,000/- for damages on account of
loss of business etc.
4.
Opposite Parties on being served filed written rejoinders denying that there was
any deficiency on their part. Opposite Party No.1/Post Master General stated that as
per the inquiry got conducted by them following receipt of the complaint by the
Complainant, it was found that the parcel had been delivered correctly to the addressee
on 25.01.1991 and, therefore, there was no deficiency in service on their part and the
complaint having no merit deserves to be dismissed.
5.
Opposite Party No.2/Insurance Company stated that a Surveyor of the rank of
Retired Superintendent of Police from CBI had been appointed, who concluded that the
entire transaction appeared to be fishy and there was some nexus between the
consignee and the Complainant. Further, it was inter alia doubted whether Complainant
being a new entrant as an exporter of jewels was likely to send goods worth more than
Rs.4 Lakhs to a party without payment in guarantee.
6.
The State Commission after considering the evidence on record, so far Opposite
Party No.1 is concerned, concluded that there was deficiency in service on the part of
Opposite Party No.1 limited to the extent that the parcel was not delivered to the correct
addressee i.e. the 1st International Bank of Englewood in Colorado and thereafter to
M/s Heera Enterprises but to a total different State i.e. California. The State
Commission further concluded that there was nomalafide on the part of Opposite Party
No.1 because though California and Colorado are two different States, their abbreviated
forms i.e. ‘CA’ and ‘CO’ respectively could have caused some confusion. However,
since there was no privity of contract between the Complainant and Opposite Party
No.1, Opposite Party No.1 was held liable to compensate the Complainant only on the
limited extent of damage or loss for the parcel, for which it had paid Rs.602/-. The State
Commission, therefore, directed it to pay Rs.10,000/- as compensation for this limited
deficiency in service.
7.
So far as Opposite Party No.2/Insurance Company is concerned, the State
Commission found them guilty of deficiency in service in not indemnifying the claim
since admittedly the insured goods were not delivered to the addressee and were thus
lost. The relevant part of the order of State Commission in this connection is
reproduced:
“13. As regards O.P.2, it has an independent contract with the
complainant. As a matter of fact, the complainant should have filed an
independent complaint against O.P.2 arising out of the contract of marine
insurance and should not have joined as co-respondent. The contract of
complainant with O.P.1 is of different nature and different kind. It was only
a contract of service for delivering a parcel at some place. Nothing more,
nothing less and nothing beyond that.
14.
However, in the instant case, O.P.2 has only relied upon the
Surveyor who was a retired Superintendent of Police who has given a
finding that there was some collusion and connivance between the
complainant and the consignee for raising a false claim. Whatever may
the reasons for the wrong delivery of the consignment, the insurance claim
of the insured has to be assessed independently. The insurance claim
was against the non-delivery or the loss of the consignment in transit. The
marine insurance policy was a comprehensive policy and covered the risk
of “loss” and therefore, delivery to a wrong person without the complainant
having received its cost comes within the “loss” suffered by the insured.”
The State Commission, therefore, directed Opposite Party No.2/Insurance Company to
pay the Complainant a sum of Rs.4,48,000/- against the insurance amount of marine
policy and Rs.10,000/- as compensation, which included cost of litigation.
7.
Hence, the present first appeals.
8.
Learned Counsel for Opposite Party No.1/Post Master General and Opposite
Party No.2/Insurance Company were present and made oral submissions. No one was
present on behalf of the Complainant. However, since service was complete, it was
decided to hear the case ex-parte.
9.
Learned Counsel for Opposite Party No.2/Insurance Company contended that the
State Commission erred in holding it responsible for deficiency in service. In fact, it was
Opposite Party No.1 who was responsible for not delivering the consignment to the
correct addressee as also concluded by the State Commission and the Insurance
Company cannot be held responsible for any deficiency on their part. Further, the
report of their Investigator who was a retired police officer had seriously challenged
the bonafides of the Complainant in respect of the consignment, including the value of
goods contained therein.
10.
We have heard learned counsel for parties and have also carefully gone through
the evidence on record. The fact pertaining to the insurance policy taken by the
Complainant covering all risks, including loss and damage, in respect of delivery of a
parcel
to
1st International
Bank
of
Englewood
and
for
further
delivery
to
M/s Heera Enterprises in Colorado, USA is not in dispute. It is also a fact that the
goods were lost during the validity of the insurance policy. Opposite Party
No.2/Insurance Company had repudiated the claim on the ground that there was some
doubt regarding the bonafides and veracity of the complaint as per the report of their
Surveyor. However, this is merely an observation of the Surveyor and has not been
substantiated or backed by any credible evidence and, therefore, we are unable to
accept this observation made by the Surveyor. Apart from this, it is an admitted fact
and not denied by the postal authorities that the goods were not delivered either to the
1st International Bank of Englewood or the addressee in Colorado apparently because
of somebonafide error due to the similarity in the abbreviations of the two States of USA
i.e.
Colorado (CO) where
the
consignment
was
to
be
delivered
and
California(CA) where the goods were purportedly delivered at some other address,
which could not be traced. Thus, it is established by credible evidence that the insured
goods could not be delivered to the consignee and was lost. Admittedly, it is not in
dispute that the consignment was insured inter alia against damage and loss. An
insurance policy has to be construed strictly on the basis of the terms and conditions
contained therein. In the instant case, as stated above, it has been established beyond
doubt and also concluded by the State Commission that the consignment was
lost. Therefore, since the goods were insured against such loss, Opposite Party
No.2/Insurance Company erred in not indemnifying the claim, which they were bound to
do in terms of the insurance policy. We, therefore, agree with the order of the State
Commission that the Insurance Company was guilty of deficiency in service in not
indemnifying the claim.
11.
We have also considered the contention of the Complainant for interest on the
awarded amount at 18% per annum. While we agree that interest on payment of the
awarded amount is justified in view of the fact that Complainant was deprived of using
this amount, we are of the view that 18% interest per annum requested for is very high
and that 9% interest per annum on the awarded amount would be just and reasonable.
12.
To sum up, First Appeal No. 354 of 2007 filed by Opposite Party No.2/Insurance
Company is dismissed. So far as First Appeal No. 485 of 2007 is concerned, in partial
modification of the order of the State Commission, we direct Opposite Party
No.2/Insurance Company to pay the Complainant 9% interest per annum on the
awarded amount from the date of filing of the complaint till its realization, in addition to
Rs.10,000/- as compensation for mental agony and litigation costs.
13.
Counsel for Opposite Party No.2/Insurance Company states that vide order dated
23.01.2009 this Commission had directed it to deposit the entire awarded amount with
the
State
Commission. If
that
is
so,
then
this
amount alongwith accrued
interest be released in favour of the Complainant and the balance of the amount, if any,
be paid by Opposite Party No.2/Insurance Company to the Complainant within a period
of 8 weeks.
14.
Both the present first appeal stands disposed of on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.2683 OF 2012
(From the order dated 23.12.2011 in First Appeal No.363/2011 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
Mr. Satish S/o Sh. Pardhan Singh R/o Village & P.O. Morkheri Tehsil & District Rohtak
Haryana
..…. PETITIONER
Versus
The United India Insurance Co. Ltd. Through its Divisional Manager D-Park, Rohtak
District Rohtak Haryana
..... RESPONDENT
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. N.K. Chahar, Advocate
PRONOUNCED ON: 16th April, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner against the order dated
23.12.2011 passed by the State Consumer Disputes Redressal Commission, Haryana
(‘State Commission’ for short) in First Appeal No.363 of 2011 by which the State
Commission allowed the appeal of the respondent / opposite party and reversed the
order dated 19.1.2011 passed by the District Forum, Rohtak and dismissed the
complaint filed by the petitioner.
2.
There is a delay of 73 days in filing this revision petition for which the petitioner
has filed an application for condonation of delay. The contents of this application are
vague and no explanation is offered in support of the request for condonation of delay. It
is submitted by the petitioner that the impugned order was passed on 23.12.2011 but he
received a copy thereof on27.4.2012 and thereafter he has filed the revision petition on
20.7.2012, i.e., within a period of 90 days which is the prescribed period of limitation. In
view of this, he submitted that there is no delay. Still in para 3 of his application, the
petitioner has said that even though there is no delay in filing the revision petition from
the
date
of
the
receipt
of
the
order,
he
has
submitted
the
application
for condonation because if the date of decision, i.e, 23.12.2011 is taken into
consideration, there is a delay in filing the revision petition. Explaining the delay, the
petitioner
has
stated
that
the
appeal
was
decided
ex
parte
in
the
absence of the petitioner and, therefore, he was not aware about the actual date of
decision. The petitioner, however, has not specified as to how and in what manner he
actually received the copy of the impugned order. In absence of any factual indication in
this regard, his claim of having received the impugned order on 27.4.2012 cannot be
accepted. On the other hand, perusal of certified copy of the impugned order placed on
record, we find that as per the endorsement, impugned order was delivered/dispatched
to the petitioner on 8.2.2012. If the impugned order was dispatched to the address of
the petitioner on 8.2.2012 by post and in the natural course of circumstances, it must
have been delivered to the petitioner within few days from the date of the dispatch. In
the circumstances, it is clear that there is a delay in filing the revision petition for which
no satisfactory or convincing explanation has been given by the petitioner. The revision
petition thus is liable for dismissal on this ground alone.
3.
As regards the merits, the petitioner had insured his Escort Tractor bearing
Registration No.HR-12D-2272 with the respondent/opposite party Insurance Co. for the
period from 7.1.2008 to 6.1.2009. During the period of insurance cover, the tractor was
stolen on 7.9.2008 for which the petitioner lodged the FIR in the concerned police
station on 8.10.2008. Intimation about the loss of tractor was given to the Insurance Co.
but when the petitioner submitted his claim, it was denied by the respondent. The
petitioner, therefore, filed a consumer complaint before the District Forum. The
respondent/opposite party contested the complaint on notice by the District Forum and
in its written statement it took the plea that the petitioner/complainant had
failed to inform the Insurance Co. well within the time regarding the alleged theft of the
vehicle and by doing so, he had violated the terms and conditions of the Insurance
Policy and, therefore, he was not entitled for insurable benefits. He, therefore, prayed
for dismissal of the complaint.
4.
On appraisal of pleadings of the parties and the evidence adduced by them on
record, the District Forum accepted the complaint and granted the following relief vide
its order dated 19.1.2011:“…..Accordingly, we hereby allow the present complaint with
the direction to the opposite parties to pay the IDV of the
vehicle of the vehicle i.e. Rs.110000/- along with interest @
9% p.a. from the date of filing the present complaint till its
realization and Rs.2500/- as litigation expenses to the
complainant maximum within one month from the date of
decision failing which the amount of award shall carry
interest @ 12% p.a. from dated 19.2.2011 onwards till its
realization to the complainant. However, complainant is
directed to complete the necessary formalities e.g. transfer
of R.C. subrogation letter and indemnity bond within a
week.”
5.
Aggrieved by the above order of the District Forum, the OP Insurance Co.
challenged the same in appeal before the State Commission which vide its impugned
order allowed it and set aside the order of the District Forum and dismissed the
complaint.
6.
We have heard Mr. N.K. Chahar, Advocate for the petitioner and perused the
record. It is not in dispute that the petitioner lodged the FIR in respect of the alleged
theft of the vehicle in question after a period of 30 days. Besides this, it is also seen that
the petitioner failed to inform the insurance Co. immediately after the alleged incident.
In the circumstances, in line with the judgement dated 9.12.2009 of the National
Commission in F.A. No.321 of 2005 in the case of New India Assurance Co. Ltd.
Vs. Trilochan Jane, the State Commission accepted the appeal of the OP Insurance
Co. and reversed the order of the District Forum. In the absence of anything put forth
before us to dispute the basic factual position by the petitioner, we do not find any
infirmity or illegality in the impugned order. We may note that in that case (Supra), the
delay in lodging the FIR was only of 2 days and that regarding the intimation to the
Insurance Co. was of 9 days but even this much of delay was treated as fatal and
considered as a serious violation of the conditions of the insurance policy. We,
therefore, agree with the view taken by the State Commission and dismiss the revision
petition in limine.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
…………Sd/-………..………..
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 436 of 2011
(From the order dated 14.07.2010 of the Maharashtra State Consumer Disputes
Redressal Commission, Mumbai, Circuit Bench at Aurangabad in Appeal no. 653 of
2006)
Suresh Baban Gadekar Resident of Nannaj, Tq. Jamkjhed District Ahemdnagar
Petitioner
Versus
1. ICICI Bank Through its Manager Registered Office at Racecourse Circle Vadodra –
390073
2. Branch Manager Regional Manager 1st Floor, Tapadia Circle Nirala Bazar,
Samarthnagar Aurangabad
3. Branch Manager 870/1 Suma House Bhandarkar Road Opposite Foodworld Pune –
411005 Through ICICI Bank Ltd. Ground Floor, Woodmall Plaza Opp. Raheja Gardens
LBS Marg, Thane – 400604
4. Salim Najir Sayyed Resident of Raj Chambers Kotla Stand, Gulf Icheir Tractor
Engines Ahmednagar
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
Mr Preetam Shah, Advocate
For the Respondents no. 1 to 3
Pronounced on 16th April 2013
Mr Love Kumar, Advocate
MEMBER
ORDER
REKHA GUPTA
Revision petition no. 436 of 2010 has been filed against the judgment and order
dated
14.07.2010
passed
by
the
Maharashtra
State
Consumer
DisputesRedressal Commission, Mumbai (Circuit Bench, Aurangabad) (‘the State
Commission’) in First Appeal no. 653 of 2006.
The brief facts of the case as per the petitioner/ complainant are as under:
Petitioner/complainant deposited Rs,1,00,000/- to respondent no. 4/opposite party
no. 4 for purchasing tractor of Eicher Co. on 28.04.2003 and took a loan from
respondent no. 3/ OP no. 3 of Rs.2,40,000/- @ 9% per annum interest was decided on
such loan. The petitioner purchased tractor MH 16 F 4388 and Registered at R T O.
Respondent no. 3 gave a table of statement about how to repay the loan to
petitioner and the petitioner as per it repay it. The petitioner has deposited Rs.73,240/for repayment of loan to respondent no. 3 out of it Rs.69,240/- were deposited from time
to time. The petitioner has given Rs.1,00,000/- to respondent no. 4 and one instalments
@ Rs.4000/- respondent no. 3 for depositing it into bank. But respondents no. 3 or 4 are
not giving its receipt to him.
Details of repayment to the Bank by the petitioner:
Rs.
Receipt no.
Date
4,000/-
997863
27.03.2003
11,240/-
574675
24.07.2003
5,000/-
1305212
12.11.2003
15,000/-
1216039
28.11.2003
10,000/-
1540873
28.01.2004
9,000/-
997858
12.02.2004
5,000/-
9997862
12.03.2004
10,000/-
1894037
05.06.2004
69,240/-
Even then on 23.06.2004, respondent no. 3 apprehended the petitioner and
drove away the tractor. After that on 10.03.2005, the respondent wrote a letter informing
they sold away the tractor. But on inquiring it to RTO by the petitioner he has been
informed that till date such tractor has not been transferred and it has been sold only for
Rs.1,60,000/-.
Due to seizure of tractor the petitioner has sustained a loss of Rs.1,80,000/-,
because he was giving it on rent for cultivating land and he was earning Rs.1,30,000/per month and the petitioner could not get Rs.1,30,000/- from it from the date of seizure.
Respondent no. 3 seized and disposed of tractor even though the petitioner is able to
pay. Respondent no. 3 has not taken any written permission for sale.
The respondents no. 1 to 3 on the other hand, in their written statement have
averred that “the Hon’ble Consumer Forum has no jurisdiction to try and entertain this
complaint as relation between complainant and opponent are debtor and creditor and
the complainant has obtained commercial loan of Rs.2,40,000/- from ICICI Bank Ltd.,
for purchase of Tractor Eicher 485 Vehicle bearing registration no. MH 16 F 4388. On
terms and conditions agreed between the complainant and opponents as per
hypothecation agreement bearing no. LFADR no. 00001205843. It is further submitted
that the complainant has not obtained the said loan under any scheme of the
Government for Educated unemployed person but obtained the said loan for
commercial purpose as per scheme of opponent. The complainant has agreed to pay
36 EMI/ instalments, i.e. first 5 instalments of Rs.4,000/- each and the sixth instalments
of Rs.31,530/- and so on up to 36 instalments starting from 1st June 2003 to May 2006
as per loan agreement. The complainant has executed hypothecation agreement and
other loan documents in favour of the opponent but the complainant has failed to pay
EMI regularly as agreed by him. The complainant has defaulted in making payment of
the instalments whenever the same fell due. On this count also the complaint of the
complainant are liable to be dismissed.
The respondents sold the said vehicle to a bonafide purchaser. It is further,
submitted by these opponents that the petitioner admitted in his complaint that “His
Financial Condition is Good”, but the petitioner on his own accord failed to repay
EMI/instalments of the said vehicle as agreed by him. The petitioner has failed to pay
EMI/ instalment from April 2004 on his own accord these fact shows that the petitioner
is a wilful defaulter and he admitted the fact in his complaint. On repeated request calls
and personal follow up on behalf of respondent the petitioner failed to pay the
instalments as agreed by him.
The petitioner voluntarily surrendered the said vehicle to the opponent on
23.06.2004. At that time surrender amount of Rs.37,420/- + bounces, penalty and
interest etc., was due from the petitioner. Thereafter, the respondent has issued notice
dated 12.07.2004 to the petitioner and gave due opportunity to the petitioner in spite of
the said notice the petitioner failed to settled his account with the respondent on his own
accord. Thereafter, the respondent after following due procedure of law and as per
vehicle loan agreement and hypothecation agreement on ____/___/200 disposed of the
said tractor for Rs.1,60,000/- and handed over the said vehicle and papers of the
vehicle to the purchaser and respondent deposited the amount of the sale proceeds of
the said vehicle in the loan account of the petitioner and started further action for the
recovery of the remaining loan amount and bounces, penalty and interest etc.
The District
Consumer Disputes Redressal Forum, Ahmednagar (‘the District
Forum’) considering all the facts of the case gave the following order:
“Interim order given is hereby confirmed.
Within 30 days from the date of judgement (a) opposite party no. 1 & 2, 3 jointly
or severally to give tractor No. MH 161 F 4388 in roadworthy condition to
complainant; (b) if said vehicle is defective, expenses to repair borne by
opponent no. 1 to 3; (c) opponent not to levy interest or fine on due instalments
for one month from opponent giving possession of vehicle to complainant for due
instalments from 23.06.2004 to possession of vehicle by complainant. And not to
recover expenses to take away vehicle from complainant and to keep it in their
possession, from complainant; (d) the instalment of complainant due on
23.07.2004 to be paid opponent within one month from the possession of vehicle
by complainant. And complainant seems that further instalment will be due in
each month respondent and complainant shall pay regularly to opposite
party; or
2.
If opponent has not given the seized vehicle of complainant to complainant’s
possession within 30 days, then within further 30 days; (a) opposite party no.1 to
3 jointly and severally shall pay to complainant the amount of Rs.69,000/- which
complainant had paid to them and Rs.1,00,000/- paid to opponent no. ; (b) The
above order para (1) considered to be cancelled.
3.
OP no. 1, 2 & 3 jointly and severally shall pay to complainant Rs.15,000/- for
mental agony and Rs.5,000/- as cost of complaint”.
Aggrieved by the order of the District Forum, the respondents 1, 2 & 3/OP no. 1, 2
& 3 filed appeal no. 653 of 2006 before the State Commission against the petitioner and
respondent no. 4/ OP 4. The State Commission vide order dated 14.07.2010 stated as
follows:
“We heard both the counsels and perused the record. It is an admitted fact that
petitioner obtained loan from respondent. It is also admitted fact that with the
assistance of said finance petitioner purchased tractor of Eicher company.
Petitioner in the complaint admitted that tractor purchased by him is used for hire
purpose for cultivation for which he used to charge money. Therefore, it can be
said that tractor had been purchased for commercial purpose. Petitioner claiming
compensation of Rs.13,000/- per month as he used to hire out the tractor to
others. In total he claimed Rs.1,80,000/- for the loss of his business. As
complainant himself mentioned in complaint that he used to hire out tractor to
others for cultivation, i.e., using it for commercial purpose, we are of the view that
complainant will not fall in the definition of ‘consumer’ as per Consumer
Protection Act. As the vehicle is used for commercial purpose complaint is not
maintainable. District Forum did not consider this primary issue while deciding
the complaint. On this ground, we are allowing the appeal. We pass the
following order:
(i)
Appeal is allowed;
(ii)
The impugned judgment and order passed by the Forum is hereby
quashed and set aside;
(iii)
Complaint stands dismissed;
(iv)
No order as to cost;
(v)
Copies of the judgment be issued to both the parties”.
Dissatisfied and aggrieved by the order of the State Commission the petitioner
has filed this present revision petition.
Along with the revision petition, the petitioner has filed an application
for condonation of delay of 59 days. The reasons given for the delay are as follows:
It is submitted to this Hon’ble Commission that the impugned order dated
14.07.2010 was received by the petitioner by post only on 02.10.2010.
During the second week of October 2010, the petitioner approached his local
counsel to discuss the consequences of the impugned order but the local counsel for
the petitioner was not available during the month of October, 2010, because of some
personal difficult of the counsel.
The petitioner again contacted the said counsel to discuss the impugned order in
the second week of November 2010, wherein the petitioner was advised by the said
counsel to prefer a revision petition before the National Commission. The petitioner
contacted his counsel at New Delhi for filing revision petition in the third week of
November 2010. The counsel at New Delhi asked the petitioner to send the necessary
papers in order to draft the revision petition. Accordingly, the petitioner sent the said
documents to the counsel at New Delhi in the first week of December 2010. After
perusing the documents the counsel for the petitioner at New Delhi found that some of
the documents were missing. Immediately, the counsel again contacted the petitioner to
send complete papers in the second week of December 2010.
The petitioner sent the complete papers in the said revision petition to the
counsel at New Delhi in the third week of December 2010. Accordingly, the counsel
drafted the revision petition and sent the same to the petitioner for approval in the last
week of December 2010. By the last week of December 2010, the period for filing the
revision petition within time had expired.
The petitioner could not send the approved draft to the counsel of the petitioner
till the first week of February 2011, because the petitioner had encountered with a
serious health problem during the month of December 2010 and January 2011 and in
view of the matter some unintentional delay has been caused in filing the present
revision petition.
The petitioner was in Delhi for filing the said revision petition in the first week of
February 2010 and accordingly the petition was finalised and filed before this
Commission.
We have heard the counsel for the petitioner as well as the respondents and
have also gone through file carefully. The counsel for the petitioner could not explain as
to how the petitioner becomes a ‘consumer’ under the definition 2 (1) (d) of the
Consumer Protection Act, 1986. The petitioner in his own complaint has stated in
paragraph 8 as follows:
“Due to the seizure of tractor applicant has sustained a loss of Rs.1,80,000/-.
Because he was giving it on rent for cultivating land and he has earning Rs.1,30,000/per month and applicant could got Rs.1,30,000/- from it from the date of seizure”.
We are of the view that the State Commission also in their order has rightly come
to the conclusion that the tractor has been purchased for commercial purpose and
hence, the complainant will not fall under the definition of ‘consumer’ as per the
Consumer Protection Act, 1986. As the vehicle is used for commercial purpose hence,
the complaint is not maintainable. The District Forum did not consider this primary issue
while deciding the complaint.
The application for condonation of delay also gives no dates, name of the
counsel or detailed reasons to account for the delay. It is also stated that though the
petitioner had received the drafted petition sometime in December 2010, the petitioner
could not sent the brief of the draft to the counsel till the first week of February 2011
because, the petitioner had encountered with serious health problems during the month
of December 2010 and January 2011. This fact has not been supported by any affidavit
or medical certificate.
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 59
days in filing the present revision petition. Consequently, the present revision petition
being time barred by limitation is dismissed with cost of Rs.5,000/-. (Rupees five
thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 17th May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3871 OF 2011
(From the order dated 06.09.2011 in First Appeal No. 269/2010 of the Gujarat State
Consumer Disputes Redressal Commission, Ahmedabad)
Mistri Jayantilal Vithaldas, Near State Bank of India, At Post Taluka: Idar,
District Sabarkantha, PIN – 383430 Gujarat
... Petitioner
Versus
The Idar Nagrik Sahakari Bank Ltd., Jawanpura, Taluka : Idar, District: Sabarkantha,
Gujarat
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 02.04.2013 at the time of arguments,
For the Petitioner(s)
Mr. Mistri Jayantilal Vithaldas
Petitioner in person
For the Respondent (s)
Mr. Rauf K. Mansuri, Advocate
PRONOUNCED ON : 17th APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 against the order dated 06.09.2011 passed by the Gujarat State
Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as
“State Commission”) in First Appeal No. 269 of 2010, vide which the said appeal against
order
dated
10.02.2010
passed
by
the
District
Consumer
Disputes RedressalForum, Sabarkantha was ordered to be dismissed.
2.
Briefly stated, the facts giving rise to the present petition are that the
complainant Mistry Jayantilal Vithaldas and his family members deposited certain
amounts of money under fixed deposit with the respondent/opposite party,
the Idar Nagrik Sahakari Bank Ltd., which is registered as a Cooperative Bank. The
money was deposited under the Sahkar Laxmi Deposit Scheme introduced by the Bank
and a number of certificates were issued by the Bank in the name of the complainant
and his family members, undertaking the amount payable on maturity after a certain
period of years. The deposits were made on different dates during the years 1998. It
was indicated in the scheme that the rate of interest shall be 12 ½ % and fixed sums
shall be payable at the end of a particular period, as far example, in this case, a sum
of Rs. 34,240/- was payable at the end of 10 years. It was also mentioned that if the
investor desired to withdraw the amount within a period of three years, only the principal
amount would be returned without any interest. The period of ten years was to expire in
the year 2008 but the Bank decided to lower the rate of interest on such deposits in the
month of February, 2004, following certain circular issued by the Reserve Bank of India
(RBI) in the year 2002. The case of the complainant is that the bank was not authorized
to make any change in the rate of interest midway with retrospective effect and such
change should not have affected the rights of the investor. The complainant, on being
informed by the bank through public notice in February, 2004, regarding lowering of the
rate of interest, sent a letter dated 06.03.2004 saying that the opposite party had no
lawful right to make change of any kind. However, the bank sent a letter to him on
16.04.2004, saying that the prevailing rate of interest was applicable only to long term
deposits. The complainant lodged a report with the local Police Station, but it was held
in the said proceedings that it was a civil matter. At the time of maturity of the said
investment in the year 2008, the bank refused to pay him the amount already committed
and informed the complainant by letter dated 12.05.2008 that he was entitled to receive
his money along with interest as per the new policy only. The complainant lodged a
complaint with the District Forum pleading that he should be paid back the amounts
already committed by the bank along with a further penal interest of 3%. The District
Forum rejected the complaint, saying that the bank had reduced the rate of interest on
fixed deposits under the instructions of RBI and the bank was bound to follow the
directives of the RBI. They had also issued public notice in this regard and even
committed to pay 2% more interest than the new rates, if the fixed deposits were
renewed in time. The District Forum also observed that it was mentioned on the deposit
certificates that change in interest could be made on the directives of the RBI.
3.
An appeal was filed before the State Commission against this order. The State
Commission observed that the complainant should have filed the complaint in question
within two years from the date i.e. 16.04.2004, when the bank had sent a letter to the
complainant. The complaint was therefore, barred by limitation under Section 24A of
the Consumer Protection Act, 1986. The State Commission passed the said order
without going into the merits of the case. It is against this order, that the present petition
has come up.
4.
During the course of hearing before us, the petitioner personally presented his
case and vehemently argued that the bank had no right to reduce the rate of interest inbetween, when the period of ten years for which the fixed deposits were made was not
over. He further stated that when he invested the money with the bank in the year
1998, there was a binding contract between him and the bank and the terms of the
contract could not be altered later on. The complainant invited our attention to the
circular in question issued by the RBI on 10.10.2002, saying that the RBI had simply
asked to all Urban Cooperative Bank in the country to review their interest rates
structure on term deposits and take appropriate action to make them comparable with
rates offered by the Commercial Banks. Such kind of circular had not given any
direction to lower the rate of interest and in case, the rate of interest was reduced on
review, it could best be with prospective effect. Thecomplainant also invited our
attention to a letter written by the Deputy General Manager, Reserve Bank of India to
the respondent / opposite party on 07.10.2004 vide their letter No. UBD(AH)Com.
No….12.06.364/2004-05, in which it has been clarified that the deposit transaction
between the bank and its depositors is a contract and is subject to the terms and
conditions of that contract and the bank is liable for stringent action if they do not adhere
to the terms of acceptance of the deposit.
5.
The learned counsel for the respondent, invited our attention to the circular dated
10.10.2002 as mentioned above and stated that the following directive from the RBI, the
respondent bank passed a Resolution on 19.11.2003 in a Special General Meeting of
the Board of Directors, in which it was decided to reduce the rate of interest. For the
deposits in question, the rate of interest was reduced to 9% and a public notice to this
effect was also given in the newspapers and the depositors were asked to convert the
deposits under the Sahakar LaxmiDeposit Scheme during the period from 20.02.2004 to
20.03.2004 and they were offered 2% more interest than the new rate of interest. The
Bank had not therefore, indulged in any deficiency of service and hence the complaint
deserved to be filed. The counsel for the respondent also invited our attention to a
citation
quoted
in Jalgaon Janta Sahakari Bank
Ltd.
Versus Hrishikesh Prabhakar Kulkarni & Ors. reportedin IV (2012) CPJ 163 (NC),
saying that the National Commission has held that the bank was within its right to alter
rate of interest pursuant to reduction of rate of interest by the RBI.
6.
We have carefully considered the facts of the case and the arguments advanced
before us. It is admitted that the complainant and his family members had deposited
certain sums of money at different times from the year 1998 with the respondent bank
for a period of ten years and the rate of interest for the said deposit at that time was 12
½%. It was clearly committed by the bank that a fixed sum say Rs. 34,240/- shall be
paid to them on maturity after a period of ten years. The respondent bank have built up
their defence on the strength of the circular issued by the RBI in October 10, 2002. For
ready reference the said circular is reproduced as under:
“RESERVE BANK OF INDIA
URBAN BANKS DEPARTMENT,
LA GAJJAR CHAMBERS, ASHRAM ROAD,
POST BAG NO. 1,
AHMEDABAD – 380 009
Ref. UBD(AH)DC No. 519/13.04.01/2002-03
October 10, 2002
All Primary (Urban) Co-operative Banks
Dear Sir,
Interest rates on deposits offered by
Urban Co-operative Bank (UCBs)
1.
In
terms
of
instructions
contained
in
our
Central
Office
circular No.
UBD/BSD.1.28/12.05.01/2001-02 dated 31st January, 2002, Urban Co-operative Banks
are required to review their interest rate structure on term deposits of different maturities
and take appropriate action to make them comparable with the rates offered by
commercial banks.
2.
It has, therefore, been decided that UCBs should forward to us a statement on half
yearly basis indicating therein the rates of interest offered by them on deposits of
different maturity periods and whether the same are comparable with the rates offered
by commercial banks. First such statement for the half year ending December 31, 2002
may be forwarded to us by 15th January, 2003.
3.
Please acknowledge receipt of this circular.
Yours faithfully,
Sd/(A.V. Sabhapathy)
Deputy General Manager”
7.
A plain reading of the above circular makes it very clear that it is a general circular
issued to all Urban Cooperative Banks in the country asking them to review their
interest rates structure on term deposits and make them comparable with the rates
offered by the commercial banks. The respondent bank did their exercise in pursuance
to this circular and decided to reduce the rates of interest. However, the circular of the
RBI does not make it mandatory anywhere that any decision taken by the bank after
review shall have a retrospective effect. The bank was within its rights to reduce the rate
of interest but it cannot be made applicable to deposits already made with the
bank. The terms of the contract already made between the investor and the bank
cannot be changed retrospectively to the detriment of the investor. Moreover, when a
public notice was given by the petitioner, enunciating their new policy, the complainant
did write to the bank on 06.03.2004 that they were committing an illegal act. We
therefore, have no reason to agree with the conclusion arrived at by the District Forum
that there was no deficiency in service on the part of the bank as it was bound to follow
the directives of the RBI. The direction of the RBI was of a general nature aimed at
bringing reforms in the policies being followed by the bank and this circular in no way
impinges upon the right of the consumer/investor. We also, find no reason to agree with
the plea taken by the State Commission that the complaint should have been filed within
two years of the letter dated 16.04.2004 sent by the Bank. The complainant has
proceeded after the period of maturity of fixed deposits when the period of contract was
over and the bank refused to give the money as mentioned in the terms of the
contract. The complaint, therefore, cannot be called time barred under Section 24A of
the Consumer Protection Act. Regarding the case cited by the respondent (Supra), the
National Commission did not order the refund of excess amount as already paid by the
bank. Moreover, in the instant case, there is no specific direction by the RBI to reduce
the rate of interest.
8.
Based on the above discussion, the present petition succeeds, the order passed
by the State Commission and the District Forum are set aside and the respondent is
directed to pay the amounts in question to the complainant as per the terms and
conditions of the contract entered in the year 1998. It is also clarified that the
respondent shall pay a further rate of interest beyond the period of maturity at the new
rates adopted by the bank till the period of realization. No order is being passed as to
costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1932 OF 2012
(From the order dated 06.02.2012 in First Appeal No. 117/2012 of the Haryana State
Consumer Disputes Redressal Commission)
M/s. FIITJEE Limited, ICES House, 29-A, Kalu Sarai, Sarvapriya Vihar, New Delhi –
110016
... Petitioner
Versus
Shri Anil Kumar Jain, Father and natural Guardian Of Shri Samir Jain, Resident of N15/1, DLF Qutub Enclave, Phase-II, Gurgaon, 122002, Haryana
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 10.04.2013 at the time of arguments,
For the Petitioner(s)
Mr. Manu Yadav, Advocate Proxy
For the Respondent (s)
Mr. Pawan Kumar Ray, Advocate
PRONOUNCED ON : 17th APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 against the order dated 06.02.2012 passed by the Haryana State
Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as
“State Commission”) in First Appeal No. 117 of 2012, vide which the appeal against
order dated 20.12.2011 passed by the District Consumer Disputes Redressal Forum,
Gurgaon was ordered to be dismissed.
2.
The
brief
facts
of
the
case
are
that
Sameer
Jain,
son
of
the
complainant/respondent Anil Kumar Jain took admission in the Gurgaon Study Centre
of the petitioner, which is an institute for running coaching classes for students for
various entrance examinations and it is Limited Company incorporated under the
provisions of the Indian Companies Act, 1956. The admission was taken in a
Course namely CRP-2 year with Registration No. CTYSDSD2201060021, enrolment
No. CTYGR0680052 (C-6) and paid a fee of Rs. 68,930/- vide Receipt No. SD05-064350 dated 14.02.2006. It has been stated that in the month of April, 2006, the
petitioner/opposite party informed the son of the complainant to join its study centre in
Delhi instead of Gurgaon. The son of the complainant attended the Delhi study centre
for a few weeks till 15.5.2006 but he did not find proper environment of study and
teaching facilities at Delhi Centre. Moreover, he had to waste lot of time and money for
visiting Delhi from Gurgaon. Consequently, he withdrew from the admission in the
institute at Delhi and sought refund of his fees. Thereafter, a complaint was made with
the District Forum, Gurgaon, seeking directions to the petitioner / opposite party to
refund the balance amount of fees with interest from the date of deposit after deducting
reasonable charges for classes for one month. It was also requested that the opposite
party should be directed to pay a sum of Rs. 1,00,000/- on account of mental
harassment and agony. The District Forum after taking into account the evidence of the
parties, ordered to refund Rs. 56,442/- with interest @ 9% per annum from the date of
filing the complaint i.e. 14.02.2008. The opposite parties were directed to ensure
compliance of the order within a period of thirty days, failing which the complainant
would be entitled to interest @ 12% per annum from the date of the order till
realization. An appeal against this was heard by the State Commission and it was
ordered to be dismissed in limini as per impugned order.
3.
At the time of hearing before us, the learned counsel for the petitioner pleaded that
once the son of the complainant had started attending the classes at Delhi, there was
no reason for him to stop attending the classes at that Centre. The petitioner had
started fresh batch of trainees in April, 2006, and informed the son of the complainant to
join the study centre at Delhi. The learned counsel invited our attention to the grounds
of revision petition saying that there had been no deficiency of service on the party of
the petitioner. The complainant’s son had left the course voluntarily and for reasons not
known to the petitioner. Moreover, the petitioner had a policy of not inducting a new
student into a batch in the middle of the course. Further, the petitioners were following
a principle of ‘No Refund Policy’ and they did not fill the vacancy after the student, in
question, left the classes. The learned counsel has drawn our attention to the order of
the
National
Consumer
Disputes Redressal Commission
in FIIT
JEE
Ltd. Vs. Dr. Minathi Rath as reported in I (2012) CPJ 194 (NC) in support of his
arguments.
4.
The learned counsel for the respondent stated that the son of the complainant had
taken admission for the Gurgaon Study Centre run by the petitioner and this fact was
clear from entries in the enrolment form filled by the complainant’s son and was a part
of record. However, the petitioner forced him to attend the coaching classes at Delhi at
a place of training, which was 18 Kms. away from the Gurgaon. The complainant’s son
started attending the classes in Delhi under the impression that the centre shall be
shifted soon to Gurgaon but it was not done.
5.
We have examined the entire material on record and given thoughtful
consideration to the arguments advanced before us. From the copies of the documents
on record, it is very clear that the son of the complainant had taken admission in
Gurgaon study centre of the petitioner M/s. FIIT Jee Ltd. However, he was forced to
attend the classes at Delhi, the location of which was far away from the study centre at
Gurgaon. It is very clear that the son of the petitioner was required to spend a number
of extra hours for commuting to the Delhi Centre from his usual place of residence. He
therefore, chose to withdraw from the Delhi study centre and demanded refund of
money paid by him. We fully agree with the conclusion arrived at by the District Forum
and endorsed by the State Commission that the change of the study centre from
Gurgaon to Delhi had caused great inconvenience and harassment to the student and
resulted in loss of his time and time. We therefore, tend to agree with the orders
passed by the District Forum and State Commission. In the case cited by the petitioner
(supra) at the time of the arguments, the Learned National Commission ordered refund
of fees for the period the course was not attended by the student.
6.
In view of these facts, the revision petition is ordered to be dismissed and the
orders passed by the State Commission and District Forum are upheld with no order as
to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 142 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
1. M/s Chaithanya Nursing Home No. 80, 3rd Cross, P&T Colony R.T. Nagar
Bangalore-560032 Rep. by Dr. P.M. Patil
2. P.N. Patil, MBBS, MD Consulting Physician and Cardiologist Chaithanya Nursing
Home No. 80, 3rd Cross, P&T Colony R.T. Nagar
Bangalore-560032
…
Appellants
Versus
1. P. Puttaraju S/o Late Puttaiah
2. Vijayalakshmi W/o Sri P. Puttaraju Respondents 1 & 2 residing at 24/6, 4th Main Road
5th Cross, Venkatappa Block Ganganagar, Bangalore-560032
3.
M/s Mallya Hospital
No.2, Vittal Mallya Road
Bangalore-560001
Rep.
by
its
Administrative Officer/Superintendent
4. Dr. H.B. Chandrashekhar
5. Dr. R. Srinivas
6. Dr. P.T. Acharya
7. Dr. S. Sunder
8. Dr. Keshav Respondents 4 to 8 are at No.2, Vittal Mallya Hospital Bangalore-560001
…
Respondents
FIRST APPEAL NO. 185 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
1. Puttaraju S/o Late Puttaiah
2. Vijayalakshmi W/o Sri P. Puttaraju Both residing at No.52, R.H.B.C.S. Nandini Layout
2nd Stage Ramakrishna Nagar Bangalore-560096
…
Versus
1. P. Puttaraju S/o Late Puttaiah
Appellants
2. Vijayalakshmi W/o Sri P. Puttaraju Respondents 1 & 2 residing at 24/6, 4th Main Road
5th Cross, Venkatappa Block Ganganagar, Bangalore-560032
3.
M/s Mallya Hospital
No.2, Vittal Mallya Road
Bangalore-560001
Rep.
by
its
Administrative Officer/Superintendent
4. Dr. H.B. Chandrashekhar
5. Dr. R. Srinivas
6. Dr. P.T. Acharya
7. Dr. S. Sunder
8. Dr. Keshav Respondents 4 to 8 are at No.2, Vittal Mallya Hospital Bangalore-560001
…
Respondents
FIRST APPEAL NO. 197 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
1. Dr. H.B. Chandrashekhar Sri Ranga Pulmonary Clinic Abhishek Complex, Sampige
Road 17th Cross Corner Malleshwaram Bangalore-560003
2. Dr. R. Srinivas M/s M.S. Ramaiah Hospital MSR Nagar, Bangalore
3. Dr. P.T. Acharya M/s M.S. Ramaiah Hospital MSR Nagar, Bangalore
4. Dr. S. Sundar Mallya Hospital Vittal Mallya Road Bangalore-560001
5. Dr. Keshav M/s Mahaveer Jain Heart Centre No.8, Millers Tank Bund Road
Vasanth Nagar Bangalore-560052
…
Appellants
Versus
1. P. Putturaju No. 24/6, 4th Main Road 5th Cross, Vasanthappa Block Ganganagar,
Bangalore-560032
2. Vijayalakshmi No. 24/6, 4th Main Road 5th Cross, Vasanthappa Block
Ganganagar, Bangalore-560032
3. M/s Chaithanya Nursing Home Through Dr. P.M. Patil No. 80, 3rd Cross, P&T Colony
R.T. Nagar, Bangalore-560032
4. Dr. P.M. Patil No. 80, 3rd Cross, P&T Colony R.T. Nagar, Bangalore-560032
5. M/s Mallya Hospital Through Admin. Officer/ Supdt. No. 2, Vittal Mallya Road
Bangalore-560001
…
Respondents
FIRST APPEAL NO. 347 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
M/s Mallya Hospital
Through
its
Medical
Officer
Dr. Pradeep Naik
No.2, Vittal Mallaya Road Bangalore-560001
…
Appellant
Versus
1. Shri P. Puttaraju S/o Late Puttaiha
2. Smt. Vijaya Lakshmi W/o Shri P. Puttaraju Both are residing at M: 24/6
4th Main Road, 5th Cross, VAS
3. M/s Chaithanya Nursing Home No. 80, 3rd Cross, P&T Colony R&T Nagar, Bangalore
Through its Dr. P.M. Patil
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For M/s Chaithanya Nursing Home :
Ms. Kiran Suri, Ms. Aparna
Mattoo and Mr. Nakibur
Rahman, Advocates
For P. Putturaju & Ors.
:
Mr. E.C. Vidyasagar, Adv. &
Ms. Kheyali Sarkar, Adv.
For M/s Mallya Hospital
:
Mr. Naresh Kaushik, Adv.
For Appellants in FA/197/2006
:
Mr. B.S. Sharma, Adv. for
Mr. S.V. Joga Rao, Adv.
Pronounced 17th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Being
aggrieved
by
the
order
of
Karnataka
State
Consumer
Disputes Redressal Commission, Bangalore (hereinafter referred to as the State
Commission) in Complaint No. 71 of 2006, four separate First Appeals have been
filed. First Appeals No. 142 of 2006, 185 of 2006, 197 of 2006 and 347 of 2007 have
been filed by the Opposite Parties before the State Commission, namely,
M/s Chaithanya Nursing Home, M/s Mallya Hospital and Dr. H.B. Chandrashekhar &
others
respectively. The
fourth
appeal
has
been
filed
by
Complainants Shri P. Puttaraju and his wife Smt. Vijayalakshmi for enhancement of the
compensation awarded by the State Commission.
2.
Since the facts and the parties in all the four appeals are common/similar arising
out of the same consumer dispute, it is proposed to dispose of these appeals by one
common order by taking the facts from First Appeal No. 142 of 2006. The parties will be
referred to in the manner in which they were referred to in the complaint
i.e. Chaithanya Nursing Home and Dr. S.M. Patil as OPs No.1 and 2; Mallya Hospital as
OP No.3 and its Doctors i.e. Dr. H.B. Chandrasekhar (Chest Specialist), Dr.
R.Srinivas (Pulmonary
Specialist),
Dr.
P.T. Acharya (Neuro Surgeon),
Dr.
S. Sundar (Nephrologist) and Dr. Keshav (Cardiologist) as OPs No. 4, 5, 6, 7 and 8
respectively.
3.
Shri P. Putturaju and his wife Smt. Vijayalakshmi in their written complaint had
contended that on the intervening night of 19/20.10.1999 at about 1.30 a.m. their
son P.Rajashekhar (hereinafter referred to as the Patient), who was a final year medical
student, had a fall, which resulted in a head injury and he was admitted
toChaithanya Nursing Home/OP-1 for treatment of the same. After being administered
medicines and injections including for epilepsy from which the Patient did not suffer, he
was sent to Mallya Hospital/OP-3 for a CT Scan at about 2.30 a.m. Next day, his renal
condition was assessed after Complainants had complained that their son had no urine
output but he was not treated for the same nor was he referred to any other medical
institute for Haemodialysis. This situation led to prolonged congestive cardiac failure,
pulmonary oedema and multiple organ failure, which was wrongly diagnosed as viral
pneumonia or Adult Respiratory Distress Syndrome (ARDS). After the Patient went into
full respiratory distress, he was referred to Mallya Hospital/OP-3 on 21.10.1999, where
due to multi organ failure he passed away on 28.10.1999. Being aggrieved by the
medical negligence and deficiency in service because of which the Complainants’ highly
promising and only son, who would have become a doctor, had an untimely demise,
Complainants filed a complaint before the State Commission and requested that the
Opposite Parties be directed to pay them jointly and severally a compensation of Rs.19
Lakhs.
4.
On being served, Opposite Parties filed written rejoinders denying the allegations
made by the Complainants. OPs 1 & 2 i.e. M/s Chaithanya Nursing Home and Dr.
P.M. Patil stated that the Patient was brought to their nursing home with a history of
chronic epilepsy since childhood and due to an epileptic convulsion, he had a fall in the
kitchen and sustained a swelling in the right forehead and became unconscious. On
being brought to the nursing home the Patient was administered one ampule of Intra
Muscular Calmpose and after examination, during which he had another convulsion
coupled with vomiting, he was administered Epsolin 4 ampules (400 MG), in addition to
one more ampule of Calmpose and admitted to the ICU. Patient was referred
to Mallya Hospital/OP-3 for a CT scan of the skull and brain. He was brought back after
the CT scan in a stable condition. Unfortunately because of the Dussehara vacations
and despite attempts by OP-2 the results were made available only the next day, which
confirmed that the Patient had a right temporal bone fracture and mild diffuse
cerebral Oedema. OP-1 immediately started treatment, which included administration
of Manitol eight hourly. Patient was also given Taxim injection IV and continued with
tablet Eptoin for controlling the epileptic fits. Investigations/tests of blood, urine, ECG
and Chest x-ray indicated that the kidney functions, heart and lungs were normal. It
was specifically stated that there was no neurological deficit and the Patient’s condition
continued to improve and, therefore, on 20.10.1999 in the morning he was shifted from
the ICU to his room and IV fluids were discontinued and he was advised soft oral
diet. However, Manitol, Taxim injection
and
the
anti-epileptic
medicines Eptoin and Mazetol were continued. At about 5.30 p.m. when the Patient
was examined, he was normal. However, in order to evaluate the Patient further since
he had a history of epileptic convulsions, he was advised EEG. Patient stated that he
would get the EEG done at Medinova Hospital and requested for a reference
letter. Although OP-2 addressed the reference letter to Dr. Manjunath for EEG as also
his opinion on the same, Patient came back at 1.30 p.m. without getting the EEG done
on the ground that the machine was out of order and the concerned doctor was not
available. On enquiry Dr. Patil/OP-2 came to know that the Patient had lied to him since
on 21.10.1999 the ECG machine was in working status and Dr. Manjunath was also
available there. When the Patient came back, he complained of difficulty in breathing
and vomited once. When Patient’s condition continued to deteriorate and his
breathlessness
and
coughing
increased
and
since
the
ventilator
in
the Chaithanya Nursing Home/OP-1 was already engaged with some other patient, he
was shifted to Mallya Hospital/OP-3 where a ventilator was immediately available. It
was contended that at the time when Patient was shifted from Chaithanya Nursing
Home/OP-1 to Mallya Hospital/OP-3 for further management, he was fully conscious
and coherent in answering questions; pulse and BP was stable, respiratory rate was 56
per
minute.
Patient
was
admitted
in
the
ICU
of Mallya Hospital/OP-3
and
later Chaithanya Nursing Home/OP-1 came to know that he had died on 28.10.1999.
Therefore, Complainants’ allegation that the Patient’s clinical condition was not properly
diagnosed and assessed is totally incorrect and unfounded and he was given the due
medical attention and professional care as borne out by the medical case history papers
filed in evidence.
5.
Mallya Hospital/OP-3 as well as its Doctors i.e. OPs 4 to 8 also denied that there
was any medical negligence or deficiency in service on their part and stated that Patient
was
brought
to Mallya Hospital/OP-3
on
a
reference
from Chaithanya Nursing
Home/OP-1 in a very critical condition with a history of epilepsy, head injury and
respiratory distress with severe tachypnea and tachycardia. He was incubated and
connected to a ventilator, which is a life-saving procedure. Other supportive life-saving
medication was also started, including for the treatment for renal failure. In view of the
history
of
epileptic
seizures,
the
anti-epileptic
drugs
as
prescribed
byChaithanya Nursing Home/OP-1 were continued. Despite the best efforts made by
various specialist doctors to save his life, Patient passed away.
6.
The State Commission after hearing the parties and on the basis of evidence
produced before it partly allowed the complaint by inter alia concluding that the Doctors
had administered a number of anti-epileptic drugs which are known to have serious side
effects affecting the kidney and other organs without confirming through medical and
other diagnostic tests including an EEG that the Patient was suffering from
epilepsy. The relevant part of the order of State Commission in this connection is
reproduced:
“29.
… The epilepsy, prior to the admission to the OP1 Hospital of the patient,
and before the fall, is not established. Though eminent, scholarly, Doctors
treated the patient, there is a failure of not foreseeing the complications, and not
overcoming them, and ultimately pleads helplessness. They could not control
the various complications in the course of the treatment. The complainant has
not established the administration of over dosage of drugs. Literature by itself is
not sufficient in that regard. The complainants should have clarified by giving the
quantum of the actual dosage of medicines given, and the required dosage of the
medicine, as per literature, should have been administered, which is not done in
this case. There is an admission by the OPs Doctors regarding the side effects
on the medicines administered. The young Doctor without any serious complaint
before the alleged fall underwent treatment from the OPs 1 to 8 developing
serious diseases ended in his death, as the ultimate result within a span of less
than 15 days treatment. Under these circumstances, the negligence & deficiency
in service is established against OPs. …”
The State Commission after considering the bills and receipts produced and the facts
and circumstances of the case, partly allowed the complaint and directed OPs-1 and 2
to pay a compensation of Rs.1.00 Lakh. OPs No. 3 to 8 were also directed to pay a
compensation of Rs.2.00 Lakhs to the Complainants with interest @ 10% per annum
from the date of complaint till realization. Cost of Rs.2000/- was also ordered to be paid
by each of the Opposite Parties. Hence, the present set of appeals.
7.
Learned Counsel for the parties made oral submissions.
8.
Learned Counsel for Chaithanya Nursing Home/OP-1 and Dr. P.M. Patil/OP-2
reiterated that the Patient’s father himself had stated that the Patient had a history of
epilepsy and this coupled with the fact that within a short span of his admission he
suffered a seizure followed by vomiting, was adequate to conclude that the Patient did
have epilepsy. Therefore, to control the epileptic fits, he was given standard antiepileptic medicines and a number of other drugs as required were also given after
conducting a series of tests, which included ECG, CT Scan, Blood, Urine tests etc.
which confirmed that the heart, kidney and lungs were normal. Patient was referred for
an EEG but the Patient came back without getting the EEG conducted, for which
Opposite Parties cannot be held responsible. It was also stated that because of the
correct treatment given by highly qualified Doctors to the Patient his condition
substantially improved from the time of his admission and it was only in the afternoon of
20.10.1999 that Patient started complaining of acute breathlessness and because the
ventilator though present in the hospital was not immediately available, Patient was
shifted to Mallya Hospital/OP-3 in the best interest of his health. It was specifically
stated that at the time of his discharge, there was no symptom of renal failure. The
Karnataka
Medical
Council,
who
had
investigated
this
incident,
had
also
exonerated Chaithanya Nursing Home/OP-1 as also Dr. S.M. Patil/OP-2 of any medical
negligence or deficiency in service on their part.
9.
Learned Counsel for Mallya Hospital/OP-3 as well as counsel for OPs 4 to 8
stated that the Patient was admitted to Mallya Hospital/OP-3 in a critical condition on
21.10.1999 following a reference from Chaithanya Nursing Home/OP-1 to provide him
ventilator support for further management with a diagnosis of ADRS, seizure and head
injury. At the time of the admission, Patient had also developed acute renal failure,
pulmonary oedema and also respiratory failure. After clinical evaluation and laboratory
tests the required medicines were prescribed and some medicines including those
prescribed for controlling epileptic fits by OP-1 was continued since abrupt withdrawal of
these medicines is medically contraindicated. Patient had come in a critical condition
and all efforts were made by highly qualified doctors in a well-equipped hospital using
their best professional judgment to treat him and save his life.
10.
We have heard learned counsel for parties and have also carefully gone through
the evidence on record. Patient’s admission in Chaithanya Nursing Home/OP-1 in an
unconscious state after a fall is not in dispute. It is also in evidence that a number of
clinical and diagnostic tests were done on the first day, which indicated that there was
no abnormality in Patient’s lung, kidney or heart functions. A CT scan conducted that
evening and whose results were available next day indicated a right temporal bone
fracture and mild cerebral oedema. However, what is important to note is that antiepileptic medicines were given to the Patient reportedly on Complainants giving this
information and without conducting any diagnostic or clinical tests specifically the
required EEG and blood test. Complainants have, however, vehemently denied that
they had told that their son had a history of epilepsy. Even though the EEG was not
conducted on the second day, the anti-epileptic medicinesEptoin and Mazetol continued
to be administered and in the referral letter Mallya Hospital/OP-3 were also told that
Patient had epilepsy, for which he was being given drugs. Even Mallya Hospital/OP-3
without conducting any EEG or other tests and on the basis of OP-1’s referral letter
continued
the
anti-epileptic
drugs
despite
the
fact
that
OP-6/Doctor
from Mallya Hospital/OP-3 had stated before the State Commission in his crossexamination that it is necessary before starting anti-epileptic drugs to ensure that the
Patient had epilepsy and that an EEG can be conducted even on an unconscious
patient to verify this fact. We note that it has also come in evidence before the State
Commission and is further borne out by extensive medical literature on the subject that
irrational
administration
of
anti-epileptic
drugs
can
cause
serious
side
effects. Manitol for example can cause fluid overload, pulmonary oedema as also
progressive renal failure, all of which are ailments which the Patient did not have at the
time of his admission in Chaithanya Nursing Home/OP-3 as is clear from the medical
history of the Patient filed by Chaithanya Nursing Home/OP-1 but which later occurred
and
contributed
to
his
death
in Mallya Hospital/OP-3. The
contention
of Mallya Hospital/OP-3 and its Doctors (OPs 4 to 8) that anti-epileptic drugs were
continued on the ground that immediately stopping these drugs is contraindicated
appears to be somewhat of a lame excuse for irrationally administering drugs without
proper diagnosis. Thus, there appears to be a nexus between the irrational and
unwarranted administration of anti-epileptic drugs and the Patient’s serious renal and
other medical conditions which consequently developed when he was under treatment
in Chaithanya Nursing Home/OP-1 and Mallya Hospital/OP-3.
11.
What constitutes medical negligence is now well established through a number of
judgments of this Commission as also of the Hon’ble Supreme Court. Based on the
touchstone of the Bolam’s test, one of the principles is that 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. Looking at the facts in the instant case, it is very clear that this practice was not
adopted
by
the
Doctors
at
either Chaithanya Nursing
Home/OP-1
or Mallya Hospital/OP-3, who admittedly administered anti-epileptic drugs on a Patient
without conducting the required clinical or diagnostic tests, including the most widely
used EEG and blood tests to confirm epilepsy. In the instant case, by not exercising this
due care, medical negligence is writ large on the part of bothChaithanya Nursing
Home/OP-1 and Mallya Hospital/OP-3 and their Doctors. Admittedly OPs administered
anti-epileptic drugs when there was no medical evidence that the Patient had epilepsy,
which resulted in serious side effects and medical problems. In view of these facts, we
agree with the finding of the State Commission that there was medical negligence on
the part of all Opposite Parties.
12.
The State Commission had directed Chaithanya Nursing Home/OP-1 and Dr.
S.M. Patil/OP-2 to pay Rs.1.00 Lakh and to Mallya Hospital/OP-3 and its Doctors (OPs
4 to 8) to pay Rs.2.00 Lakhs to the Complainants. Looking at the facts of this case,
including the fact that the Patient’s promising and productive career as a prospective
doctor, which would have been of enormous benefit to his economically poor parents
and to the community at large, was cut short by his death, the compensation awarded
by the State Commission is much less than what is warranted in the instant case. We
are, therefore, of the view that a compensation of Rs.4 Lakhs to be paid jointly and
severally by Chaithanya Nursing Home/OP-1 and Dr. S.M. Patil/OP-2 and a similar
compensation of Rs.4 Lakhs to be paid jointly and severally by Mallya Hospital/OP-3
and its Doctors/OPs 4 to 8 would meet the ends of justice.
13.
To sum up, First Appeals No. 142 of 2006, 197 of 2006 and 347 of 2006 filed
by Chaithanya Nursing Home & Anr. (OPs 1 & 2), Dr. H.B. Chandrashekhar & Ors.(OPs
4 to 8) and Mallya Hospital (OP-3) respectively are dismissed and the order of the State
Commission of medical negligence against them is upheld with the modification of
enhanced compensation as stated in para-12 of the order. Rest of the directions of the
State Commission to Opposite Parties regarding interest on the awarded amount and
the cost are also upheld. First Appeal No. 185 of 2006 filed by the Complainants stands
partly allowed. Opposite Parties are directed to pay the awarded amounts to the
Complainants within a period of 8 weeks.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 279 OF 2008
(Against the order dated 30.04.2008 in Complaint No. 29/2006 of the
Punjab State Consumer Disputes Redressal Commission, Chandigarh)
New India Assurance Co. Ltd. Bharat Nagar Chowk Ferozepur Road Ludhiana
Through Manager Regional Office-I Jeevan Bharti Building 124, Connaught Circus New
Delhi-110001
…
Appellant
Versus
M/s Trimurti Tablewares Ltd.
Through
its
Managing
Director
Village Bhagpur
Machhiwara Road Kohara District Ludhiana Punjab
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Kishore Rawat, Advocate
For Respondent
: Mr. V.K. Sharma, Advocate with
Mr. Suryakant Sharma, Advocate
Pronounced on 18th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by New India Assurance Company Ltd., Opposite
Party before the Punjab State Consumer Disputes RedressalCommission, Chandigarh
(hereinafter referred to as the State Commission) and Appellant herein being aggrieved
by the order of the State Commission which had allowed the complaint of
M/s Trimurti Tablewares Ltd., Original Complainant before the State Commission and
Respondent herein.
2.
FACTS :
Respondent-Complainant
M/s Trimurti Tablewares Ltd.,
a
limited
company,
contended that it was running the business of manufacturing glass tumblers, bottles and
other
gift
items
of
glass
in
its
factory
premises
at
Village Bhagpur, Machhiwara Road, Kohara, District Ludhiana, for which he had taken a
cash credit limit of Rs.75 Lakhs and a term loan of Rs.307.50 Lakhs from Indian
Overseas Bank for its building, plant, machinery and stocks etc. RespondentComplainant got the building, plant, machinery, accessories, raw material and finished
goods/products insured with Appellant/Insurance Company on 15.09.2003 for Rs.430
Lakhs, i.e. Rs.130 Lakhs for building, Rs.250 Lakhs for plant and machinery and Rs.50
Lakhs for stocks of all kinds of powder, chemical sand, LDO, RFO, LPG, raw material,
packing material and other finished and unfinished goods of similar nature stored in the
insured premises. Respondent-Complainant surrendered the cash credit limit and the
term loan of the Indian Overseas Bank and opened a new account with State Bank of
Bikaner and Jaipur in December, 2003.
3.
In the night intervening 6/7.6.2004 there were strong winds and storm
accompanied with heavy rain which created a flood like situation in the area of the
industrial unit of the Respondent-Complainant causing massive damage/loss to both the
factory as also the raw and finished material making the entire unit inoperative. The
matter was reported to the Appellant-Insurance Company as also State Bank of Bikaner
and
Jaipur. On
receipt
of
this
information,
senior
officers
of
both
the
Appellant/Insurance Company and the Bank visited the factory premises on 07.06.2004
and the Surveyor appointed by the Appellant-Insurance Company took the necessary
documents in possession and also signed the books of accounts, sale book, register,
purchase book, production register and the packing material register etc. and noted the
damage
caused
to
the
building,
plant,
machinery
as
also
material/stocks. A videographic film was also prepared. Respondent-Complainant on its
own appointed a private technician-contractor M/s Nibhiulla Contractors & Technicians,
who after inspecting the premises and machinery concluded that a sum of
Rs.47,71,310/- was needed to repair the machinery. Two other Contractors/Fabricators
appointed by the Respondent-Complainant to assess the loss caused to the building
and on account of labour opined that it was to the tune of Rs.11,71,242/- and
Rs.8,73,022/- respectively. Apart from this, since stocks of Quartz Power, Soda Ash,
Calcite Sand, Fedopar powder etc. as also finished glass were damaged/destroyed, the
loss assessed was Rs.18,15,918/- and electric fittings of Rs.98,800/- were also
destroyed. The total loss in this way came to Rs.1,59,28,247/-. The Surveyor
appointed by the Appellant-Insurance Company had estimated the total loss as being
Rs.78,75,995/- and Surveyor had also obtained the signature of the Managing Director
of the Company on the consent letter dated 09.07.2004 and he never doubted any of
the documents submitted by the Respondent-Complainant. Although the AppellantInsurance Company assured the Respondent-Complainant that the claim would be
settled for the above amount within shortest possible time, they failed to do so and
instead repudiated the claim vide letter dated 29.12.2004 on the plea that the
Respondent-Complainant had made false and exaggerated claims by fabricating bills
and thus violating the terms and conditions of the insurance policy because of which the
entire claim was repudiated. Being aggrieved by the wrong repudiation of their
insurance claim, Respondent filed a complaint before the State Commission on grounds
of deficiency in service and requested that the Appellant-Insurance Company be
directed to settle the insurance claim and pay sum of Rs.78,75,995/- on account of loss
suffered by it with 9% interest from 07.06.2004 till the date of actual payment and
Rs.10,000/- as litigation costs.
4.
Appellant-Insurance Company on being served filed a written rejoinder and denied
that the claim was wrongly repudiated. It was also denied that the Surveyor had in his
report assessed the loss at Rs.78,75,995/-. In fact the total claim had been calculated
at Rs.32,79,530/- vide the report dated 13.10.2004. However, even this amount was not
admissible since Respondent-Complainant had violated Policy Condition No.8 of the
Standard Fire and Special Peril Policy which provided that if there is any false
declaration made or used in support of a claim, then all benefits under this policy shall
be forfeited. In the instant case, admittedly a false and fraudulent claim was made
since the samples drawn by the Surveyor of various raw materials were sent
to Shriram Institute for Industrial Research for investigation and as per the report
received from that Institute, the purity results were either less or nil in respect of Cobalt
Oxide, Arsenic Trioxide, Selenium, Zirconium Oxide and Sodium Sulphate etc. Thus,
these
were
just
waste
materials
which
had
been
stored
in
the
insured
premises. M/sVardhman Soap (India), from whom these goods had been purportedly
bought according to the Respondent-Complainant, declined that the goods were bought
from them. In view of the above facts, admittedly, a false and fraudulent claim was
made and, therefore, the Insurance Company had rightly repudiated the same.
5.
The State Commission after hearing the parties and on the basis of evidence
produced before it, partly allowed the complaint by observing as follows :
“21. … It is not disputed in the present case that there was devastating
storm and a flood like situation was created and the industrial unit of
complainant was filled with water and there was heavy damage/loss. The
complainants cannot be deprived of some compensation when their
industrial unit was insured with the respondents. There may be Policy
Condition No.8 of Standard Fire and Special Peril Policy but that does not
mean that the respondents can take the shelter under this policy condition
and repudiate the claim of the complainant, which is otherwise proved to
be genuine. If the repudiation in such like cases is permitted, the
Insurance Companies can always exploit this clause in each and every
case. Some information given by the claimant would always be found to
be false for one reason or the other. The complainant alleges to have
suffered the loss to the tune of Rs.1,59,28,247/-. It may be exaggerated
but after reducing the value of goods/bills which were found by the
respondents to be false, the Surveyor has assessed the value to the tune
of Rs.32,79,530/- and the respondents are not ready to grant even this
much amount.
22.
The only question in this case was that certain claims were made by
the claimants which were disbelieved by the respondents and the value of
those items were already reduced by the Surveyor from the amount
assessed. The loss was originally assessed at Rs.78,75,995/- which was
reduced to Rs.32,79,530/-. The respondents should not squeeze the
complainants still further. However, the complainant is also not entitled to
more as the claim made by them was found to be false on certain
aspects. Moreover, the complainant cannot claim Rs.78,75,995/- as they
have already given consent letter for an amount which is very close to
Rs.32,79,530/-.
23.
Accordingly, we partly allow this complaint costs of Rs.10,000/- and
direct the respondents to pay an amount of Rs.32,79,530/- to the
complainant with interest @ 9% from the date of repudiate i.e. 29.12.2004
till the date of payment.”
6.
Being aggrieved by the order of State Commission, the present first appeal has
been filed.
7.
Learned Counsels for both parties made oral submissions.
8.
Learned Counsel for the Appellant-Insurance Company while reiterating the facts
as stated before the State Commission contended that since an insurance policy is a
contract between two parties and its terms and conditions have to be construed strictly
in terms of what is written therein, the claim was rightly repudiated for violation of Policy
Condition No.8 of the insurance policy taken by the Respondent-Complainant. The
State Commission while acknowledging that the Surveyor had rightly concluded that the
claim in the instant case was false and fraudulent, yet partly allowed the same without
appreciating the sanctity of Condition No.8 in terms of contract between the two
parties. Counsel for the Appellant-Insurance Company also brought to our notice a
judgment of this Commission in M/s R.S. Metals Pvt. Ltd. v. New India Assurance
Co. Ltd. [I (1993) CPJ 1 (NC)], wherein this Commission had taken suomoto cognizance of a similar provision and concluded that in view of the fraudulent
claim made, the Insurance Company was fully justified in repudiating the entire claim.
9.
Counsel for the Respondent-Complainant on the other hand stated that the actual
loss suffered by the Respondent-Complainant was much higher than the awarded
amount. However, despite this, it accepted the finding of the State Commission on the
vastly reduced claim of Rs.32,79,530/-. As pointed out by the State Commission, the
Surveyor had reduced Respondent-Complainant’s genuine claim on the grounds that
some documents could not be verified and other reasons as recorded by the State
Commission and, therefore, Respondent-Complainant had already suffered a loss on
account of deduction of these amounts from the genuine claim. Under the
circumstances, it would be unfair to repudiate the entire claim. In view of the vastly
reduced claim amount, there was, thus, no scope or reason for any further deduction.
10.
We have carefully considered the submissions of learned Counsel for both parties
and have also gone through the evidence on record. The fact that RespondentComplainant had taken insurance policies from the Appellant-Insurance Company in
respect of his factory, machinery as also stocks lying therein is not in dispute. It is
further a fact that in the floods that occurred on 6/7.6.2004 substantial damage was
caused to all three items as confirmed by the Surveyor in its report. We further note that
the Surveyor had drastically reduced the originally assessed loss of Rs.78,75,995/- to
Rs.32,79,530/- payable to the Respondent-Complainant on the grounds that some
necessary documents were not supplied to it to verify the claim and further some raw
materials which had been sent for analysis to Shriram Institute for Industrial Research
clearly indicated that it had negligible purity value and, therefore, these were not
saleable items and had little market value. Counsel for the Appellant-Insurance
Company has vehemently argued that in view of Policy Condition No.8 the entire claim
was rightly repudiated and the State Commission erred in not appreciating this fact. We
are unable to accept this contention because in a large number of consumer cases
pertaining to insurance claims that have come up before us, Insurance Companies
based on the Surveyor’s report have reduced the claim amount when claims are not
verifiable by documentary and other evidence and because the insuree had not been
able to produce evidence to controvert Surveyor’s findings. We have accepted that in
such cases the Surveyor rightly deducts these amounts from the insurance claim. In
the instant case, we also note that the Surveyor has deducted and drastically reduced
the claim amount by not entertaining those claims which could not be verified or were
found to be false. Under these circumstances, it would not be fair or reasonable to
reject even the genuine claims of the insuree which had been verified and found to be
correct by the Surveyor. We, therefore, agree with the finding of the State Commission
that the Appellant-Insurance Company was liable to settle the reduced insurance claim
of the Respondent-Complainant in respect of his genuine and proved loss amounting to
Rs.32,79,530/- and uphold the same.
11.
The present first appeal, therefore, stands dismissed. Appellant-Insurance
Company is directed to settle the claim and pay a sum of Rs.32,79,530/- to the
Respondent-Complainant as per order of the State Commission. Counsel for the
Appellant-Insurance Company informs that a sum of Rs.20 Lakhs had already been
paid to the Respondent-Complainant. If that be so, then Appellant-Insurance Company
is directed to pay the Respondent-Complainant remaining amount of Rs.12,79,530/with interest @ 9% per annum from the date of repudiation i.e. 29.12.2004 till the date
of payment within a period of 8 weeks.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO.329 of 2008
(From the Order dated 23.06.2008 in Complaint Case No.4/2007
of the State Consumer Disputes Redressal Commission, Rajasthan)
Swiss World Cargo India Pvt. Ltd. 501/502, Solitaire Corporate Park, 167, Guru Har
Govindji Marg, Andheri(E) Mumbai-400093
.. Appellant
VS.
1.
United India Insurance Co. Ltd. 24, Whites Road, Chennai-600 014
2.
The Regional Manager, United India Insurance Co. Ltd. Sahara Chambers,
Tonk Road, Jaipur
3.
Sr. Branch Manager, United India Insurance Co. Ltd. Jangid Bhawan, M.I.
Road, Jaipur
4.
M/s. P.V. Jewellers, A proprietary concern through Its Proprietor, Padam Chand
Dhadda, Ganesh Bhawan, Partaniyon Ka Rast, Johri Bazar, Jaipur
.. Respondents
BEFORE: HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
For the Appellant
: Ms. Yashmeet Kaur, Advocate
For the Respondent
: Mr. Ravi Bakshi, Advocate
Nos. 1 to 3
For the Respondent
No.4
: NEMO
PRONOUNCED ON:
18.04.2013
ORDER
ASHOK BHAN, J., PRESIDENT
Appellant which was the Opposite Party No.4 before the State Commission
has
filed
this
Appeal
against
order dated 23.06.08 passed by the State
the
Consumer
judgment
and
Disputes Redressal
Commission, Rajasthan (in short, ‘the State Commission’) in Complaint Case No.
4/07 whereby the State Commission dismissing the complaint against the Appellant
reserved the liberty to the Respondent Insurance Company to proceed against them
and their agents for recovery of the sum payable by them to the Complainant.
FACTS:-
Complainant/Respondent No.4 filed a complaint before the State Commission
against the Opposite Party Nos. 1 to 3 Insurance Company and the Opposite Party
No.4 – Air Carrier/Appellant herein. The controversy between the parties was regarding
a shipment of precious and semi-precious stones of the value of US$ 47,605.83
(equivalent to Indian Currency of Rs.22,50,000/-) which was sent to M/s. Brochier
Vulliod, France by the Respondent No.4/Complainant through M/s. Aargus Global
Logistic Pvt. Ltd., Jaipur agent of the Appellant Air Carrier. The said shipment was
insured with the Respondent Nos. 1 to 3 Insurance Company. However, the said
shipment never reached to its destination and on enquiry made from the Appellant, it
was revealed that the said shipment was misplaced enroute as per information received
from the Zurich Office. Despite the efforts being made, Appellant could not trace the
shipment. Complainant lodged a claim with the Respondent Insurance Company which
was not settled. Complainant, being aggrieved, filed the complaint before the State
Commission seeking a direction to the Respondent Insurance Company to pay a sum of
Rs.33,73,750/-.
Complainant had settled the claim with the Appellant. Appellant had paid a sum
of Rs.1,298/- to the Complainant in full and final settlement of the claim against
them. In the complaint, the Appellant was arrayed as Opposite Party No.4 as a
proforma party. No relief was sought against the Appellant. State Commission allowed
the complaint against the Respondent Insurance Company and directed it to pay a sum
of Rs.22,50,000/- to the Complainant as value of the goods in question and sum insured
under the insurance policy along with interest @ 9% p.a. from the date of filing of
complaint, i.e. 21.02.07 till payment. Rs.20,000/- were awarded as costs. Complaint
against the Appellant was dismissed. However, the State Commission made the
following observations in its order:-
“
However, it is made clear that the opposite party
nos. 1 to 3 Insurance Company are free to proceed
against the Carriers (Opposite Party No.4) and their
agent for recovery of the sum payable by them to the
complainant-insured, in accordance with the law and
condition no. 13.2 of the policy and with these
observations and directions, the counter claim of the
opposite party nos. 1 to 3 Insurance Company stands
disposed of accordingly. “
Respondent Insurance Company has accepted the order passed by the State
Commission and did not file any appeal. Appellant which was the Opposite Party No.4
before the State Commission has filed the present appeal alleging that since the
Appellant had been arrayed as proforma party in the complaint and had already settled
the claim with the Complainant, State Commission has erred in reserving liberty with the
Respondent Insurance Company to proceed against them and their agent for recovery
of the sum payable by them to the Complainant.
We have heard the Ld. Counsels appearing for the Appellant and the Respondent
Insurance
Company
at
some
length. None
is
present
on
behalf
of
the
Complainant/Respondent No.4.
Appellant was arrayed as proforma party. State Commission in its order recorded
a finding that the Complainant had settled the claim with the Appellant on payment of
Rs.1,298/-. State Commission dismissed the complaint against the Appellant. The only
grievance of the Appellant is that in view of the fact that he had been shown as
proforma party and had already settled the claim with the Complainant, State
Commission has erred in reserving liberty with the Respondent Insurance Company to
proceed against them or their agent for recovery of the sum payable by them to the
Complainant. The relief claimed by the Appellant in this appeal cannot be granted as
the complaint against them has already been dismissed by the State Commission. No
relief has been granted against them. The plea taken by the Appellant that since it had
already settled the claim with the Complainant, the Respondent Insurance Company
could not be granted liberty to proceed against them, cannot be accepted at this stage.
As and when the Respondent Insurance Company initiates proceedings for recovery of
the amount from the Appellant, it would be open for the Appellant to raise the defence
that the Insurance Company cannot proceed against them as the dispute between the
Appellant and the Complainant had already been settled. With these observations, the
First Appeal is dismissed. No order as to costs.
…………….. . . . . .
(ASHOK BHAN J.)
................
(VINEETA RAI)
MEMBER
Yd
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 750 of 2007
(From the order dated 23.10.2007 in Complaint Case No.294/01
of the State Consumer Disputes Redressal Commission, Maharashtra)
Uttamchand C. Sanklecha, Flat No. 51, Poornima Colaba Causeway, Mumbai
…..Appellant
Maharasthra
Vs.
Life Insurance Corporation of India, Central Office, Yogakshema, Jeevan Bima Marg,
P.B. No.19953 Mumbai
… Respondent
BEFORE: HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
For the Appellant
: Mr. Jay Savla and Ms. Shilpi Chowdhary,
Advocates
For the Respondent
: Ms. Harvinder Chaoudhary, Mr. Nishesh
Sharma and Ms. Ashwathi, Advocates
PRONOUNCED ON:
18.04.2013
ORDER
ASHOK BHAN, J., PRESIDENT
Complainant/Appellant herein has filed this Appeal against the judgment and
order dated 23.10.07 passed by the State Consumer Disputes Redressal
Commission, Maharashtra (in short, ‘the State Commission’) in Consumer Complaint
No. 294/01 wherein the State Commission partly allowing the complaint has directed
the Respondent to refund a sum of Rs.3,470/- to the Appellant for the expenses
incurred by him for medical tests. Respondent was also directed to pay interest @
7% p.a. on the amount of Rs.1,00,000/- to the Appellant from 1.4.2000 to
30.06.2000 along with compensation of Rs.1,000/- and costs of Rs.1,000/-. All the
amounts were directed to be paid within one month from the date of receipt of order
failing which the amount would carry interest @ 12% p.a. from the date of passing of
order till payment.
FACTS:Complainant/Appellant aged 68 years approached the Branch No.898 of the
Respondent Insurance Company for purchase of a Policy on his own life in response to
a special plan published by the Respondent for senior citizens called “Nav Prabhat”. As
directed by the said branch, Appellant underwent various medical tests such as stress
test, ECG, Chest X-ray, urine test, blood test, Opthalmic Report, Serum Cholesterol etc.
He was also examined by the Medical Doctors of the Respondent. Since the policy was
to be closed on 31.03.2000, Appellant deposited a sum of Rs.1,00,000/- on 28.03.2000
through a cheque which was got encashed by the Respondent. Policy was not issued
by the LIC to the Appellant. Appellant wrote a letter to the Chairman, LIC to which reply
was sent by the Respondent stating that it was not feasible for them to offer any plan of
insurance to him considering his age. According to the Appellant, since all his medical
reports were normal and he was hale and hearty, the LIC should not have rejected his
proposal on the ground of his age. Complainant, being aggrieved, filed the complaint
before the State Commission seeking a direction to the LIC to pay Rs.6,00,000/- being
the sum insured as compensation, Rs.1,00,000/- towards expenses, mental harassment
and interest and Rs.25,000/- as costs of the proceedings.
On being served, Respondent entered appearance and filed its written statement
resisting the complaint on the grounds; that after receiving the medical reports of the
Appellant, it was decided by the medical and actuarial authorities of LIC to not to offer
the said plan to the Appellant; that the Appellant was informed about rejection of his
proposal vide letter dated 30.06.2000 and amount of Rs.1,00,000/- was also refunded to
him vide cheque No.711739 dated 3.07.2000; that the floating of the scheme for senior
citizens or its closure was the right of the Respondent and the Appellant had no right to
interfere in the policies being sold to the members at large.
State Commission, after considering the facts, pleadings and evidence led by the
parties, held that the LIC has got every right to either accept the proposal or to reject the
proposal. But the LIC should have courtesy, at least towards senior citizens like the
Complainant to convey him the reasons as to why his proposal was dropped. State
Commission held the LIC guilty of deficiency in service in not paying any interest on the
amount refunded to the Appellant. Accordingly, State Commission partly allowed the
complaint and directed the Respondent LIC to pay a sum of Rs.3,470/- to the Appellant
spent by him for the medical tests in addition to interest @ 7% p.a. on the refunded
amount of Rs.1,00,000/- from 1.4.2000 to 30.06.2000. Rs.1,000/- were awarded
towards compensation apart from costs of Rs.1,000/State Commission in its order held as under :-
“
As has been rightly argued by counsel for the
respondent Ms. M.H. Dulla, we do agree with her that LLIC has
got every right to either accept the proposal or reject the
proposal. The mere fact that a person is paying insurance
premium and filing proposal form and opting for Nav Prabhat
plan floated by LIC, that does not mean, that ipso facto he gets
vested right to claim Nav Prabhat insurance policy from LIC. It
the choice of LIC either to accept proposal or to reject it.
We are sorry to note that a joint public sector company
like LIC retained the amount of Rs.1 lakh of a senior citizen
aged about 68 years for more than 3 months and simply
refunded the amount of Rs.1 lakh without paying interest
thereon. “
Respondent has accepted the order passed by the State Commission and did not
file any appeal. However, the Appellant has filed the present appeal seeking
enhancement of the compensation.
We have heard the Ld. Counsel for the parties at length.
Ld. Counsel appearing for the Respondent relying upon the judgment of Supreme
Court in “Life Insurance Corporation of India vs. Raja Vasireddy Komalavalli
Kamba & Ors. (1984) 2 scc 719” contends that since the proposal of the Appellant was
dropped by the Respondent considering his age and the amount deposited was also
refunded to the Appellant, no binding contract has come into being between the
Appellant and the Respondent and, therefore, the Respondent was not liable to pay the
compensation. We find substance in this submission. Appellant aged 68 years
submitted a proposal with the Respondent LIC for issuance of the policy called Nav
Prabhat and deposited a sum of Rs.1 lakh along with medical reports. Considering his
age and the medical reports, Respondent dropped his proposal and refunded the
deposited amount of Rs.1,00,000/- vide cheque No.711739 dated 3.07.2000. No
binding contract had come into being between the Appellant and the Respondent as the
proposal made by the Appellant had not been accepted by the Respondent. Supreme
Court in Raja Vasireddy’s case (supra) has held that “mere receipt and retention of
the premium until after the death of applicant or the mere production of the documents
is not acceptance”. The general rule of the contract of insurance is that concluded
contract will come into force only on the acceptance of the offer made by the insurer.
That till the acceptance
of the proposal, the binding contract does not
come into force between the proposer and the insurer. Relevant observation of the
Supreme Court reads as under :-
“
The mere receipt and retention of premium until after the
death of the applicant or the mere preparation of the policy
document 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, Pg.986wherein it has been states 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 offerer, 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.”
We agree with the view taken by the State Commission that the Respondent
Insurance Company has the right to either accept the proposal or reject the same. In the
present case, admittedly, the Respondent insurance company did not accept the
proposal and issue the policy. In Manoj Balmukund Aggarwal vs. LIC of India –
Revision Petition No.1170/2006 decided on 29.10.2009, this Commission, relying
upon para 13 and 14 of the judgment in Raja Vasireddy Komalavalli Kamba (supra)
held that till the issuance of the policy, no binding contract comes into existence
between the parties and the insurance company is not liable to pay the sum assured.
State Commission has rightly rejected the claim of the Appellant for the sum
insured. Since the Appellant is a senior citizen, State Commission considering this fact
has awarded a sum of 3,470/- spent by the Appellant on medical tests. State
Commission has also awarded interest @ 7% p.a. on the amount of Rs.1 lakh which
was kept by the Respondent Insurance Company from 1.4.2000 to 30.06.2000. We do
not find any infirmity in the order passed by the State Commission.
For the reasons stated above, the appeal filed by the Appellant seeking
enhancement of the compensation is dismissed without any order as to costs.
…………….. . . . . .
(ASHOK BHAN J.)
................
(VINEETA RAI)
MEMBER
YD/*
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
REVISION PETITION NO. 4782 OF 2012
(From order dated 17.04.2012 in First Appeal No. A/09/138 of the State Consumer
Disputes Redressal Commission, Maharashtra, Mumbai)
Sou. Sindhu Kailash Gawade Age: 45 about 45 years, Occupation: Housewife,
Residing at: At Post Rajgurunagar, Taluka : Khed, Mali mala, Wada road, Behind Tip
Top Laundry District: Pune
…… Revision Petitioner/(original complainant)
Versus
Gurudatta Construction c/o. Maruti Balu Thite, aged: about 47 years, occupation:
builder, At post Warude, Taluka: Khed, District : Pune 410505
…... Respondent/original opponent)
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Rahul Gandhi, Advocate
Pronounced on: 22nd April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/complainant has field the present revision petition under Section
21(b) of the Consumer Protection Act, 1986(for short, ‘Act’) challenging order dated
17.4.2012, passed by the State Consumer Disputes Redressal Commission, Mumbai
(for short, ’State Commission’).
2.
Brief facts that petitioner/complainant gave contract for construction of her house to
respondent/o.p, vide agreement dated 25.11.2002. It is alleged that while constructing
the house, respondent used material of inferior quality and no proper water roofing was
done. Petitioner complained to the respondent and also sent him a notice. Due to
deficiency on the part of the respondent, petitioner filed a consumer complaint before
District Consumer Disputes Redressal Forum, Pune (for short, ‘District Forum’).
3. Respondent in its reply took the plea that he started construction of the house of the
petitioner as per her opinion. It is further stated that he agreed to do the additional work
apart from the agreement for which petitioner assured to give consideration for
additional work. Respondent made the construction as per R.C.C. design. Petitioner
has made vague allegations against him and has not filed any certificate of expert
person for showing the lacuna in the construction
4.
District Forum, vide order dated 14.12.2008, partly allowed the complaint and
passed the following order;
1). “The respondent shall pay amount of Rs.2,00,000/- to the
applicant, for causing deficiency in construction of the house of
the applicant, within eight weeks from the date of receiving this
judgment. If the said amount is not paid within the above period,
then the respondent shall pay interest at the rate of 6% per
annum to the applicant till the realization of entire amount.
2).
5.
The other demands of the applicant are dismissed”.
Being aggrieved by the order of District Forum, respondent filed an appeal for
dismissal of the complaint, whereas, petitioner filed an appeal for enhancement.
6.
Vide impugned order, State Commission dismissed the appeal of the petitioner
and allowed the appeal of the respondent. In the result, complaint filed by the petitioner
before the District Forum was dismissed.
7.
8.
Hence, the present revision.
We have heard the learned counsel for the petitioner and gone through the
record.
9.
Learned counsel for petitioner has assailed the impugned order on the ground
that District Forum had appointed a Court Commissioner who visited the premises.
However, respondent did not raise any objection to the appointment of the Court
Commissioner. Thus, deficiency in the construction has been fully established by the
petitioner.
10.
On the point of limitation, it has been contended by the counsel that when it came
to the notice of the petitioner regarding short-fall of the construction, he gave a notice
and as such limitation in filing the complaint shall start run from the date of service of
the notice. Moreover, respondent never raised any objection with regard to the
limitation. Learned counsel has relied upon the following judgments in support of its
case;
(i)
Ram Sarup Gupta(dead) by L.R.s v. Bishnu Narain Inter
College and others,
AIR 1987, Supreme Court, 1242(1) ;
(ii)
Lucknow Development Authority v. M. K. Gupta, AIR, 1994,
Supreme Court, 787;
(iii)
Ramaniyam Real Estates Ltd. v. Triveni Apartments Owner
Welfare Association,
AIR 1999 Madras, 24;
(iv)
Narain Prasad Aggarwal (D) by LRs. vs. State of M. P,
AIR 2007, Supreme Court, 2349;
(v)
Kandimalla Raghavaiah & Co.v. National Insurance Co. &
Anr,
2009 (7) SCC 768 and
(vi)
Trans Mediterranean Airways v. Universal Exports & Anr,
2011 (10) JT 624.
11.
It is an admitted case, that agreement for construction of the house was executed
on 25.11.2002 between the parties and final payment was made, vide receipt dated
19.8.2003. As per averments made in the complaint, cause of action for filing of the
present case arose on 20.09.2005 when notice dated 17.8.2005 was issued to the
respondent to do the incomplete work. So, on the face of it, the consumer complaint,
which has been filed before the District Forum on 23.12.2005, is beyond the period of
limitation. Admittedly, no application for condonation of delay had been filed.
12.
It is well settled principle of law that any relief can be claimed under the Act,
within two years from the date on which the cause of action accrues.
13.
Section 24-A of the Act, deals with this situation which is reproduced as
under;
“24-A. Limitation period :- (1) The District Forum, the State
Commission or the National Commission shall not admit a
complaint unless it is filed within two years from the date on which
the cause of action has arisen.
(2)
Notwithstanding anything contained in sub- section (1) a
complaint may be entertained after the period specified in subsection (1), if the complainant satisfies the District Forum, the
State Commission or the National Commission, as the case may
be, that he had sufficient cause for not filing the complaint within
such period.
Provided that no such complaint shall be entertained unless
the National Commission, the State Commission or the District
Forum, as the case may be, records its reasons for condoning
such delay”.
14.
The above provision is clearly peremptory in nature requiring the Consumer
Fora to see at the time of entertaining the complaint, whether it has been filed within
the stipulated period of two years from the date of cause of action.
15.
Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus
National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took
view of the observations made in case State Bank of India v. B.S. Agricultural
Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009
CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing
with the same provision, has held:
“8. It would be seen from the aforesaid provision that it is
peremptory in nature and requires consumer forum to see
before it admits the complaint that it has been filed within
two years from the date of accrual of cause of action. The
consumer forum, however, for the reasons to be recorded
in writing may condone the delay in filing the complaint if
sufficient cause is shown. The expression, ‘shall not admit
a complaint’ occurring in Section 24A is sort of a legislative
command to the consumer forum to examine on its own
whether the complaint has been filed within limitation
period prescribed thereunder. As a matter of law, the
consumer forum must deal with the complaint on merits
only if the complaint has been filed within two years from
the date of accrual of cause of action and if beyond the
said period, the sufficient cause has been shown and
delay condoned for the reasons recorded in writing. In
other words, it is the duty of the consumer forum to take
notice of Section 24A and give effect to it. If the complaint
is barred by time and yet, the consumer forum decides the
complaint on merits, the forum would be committing an
illegality and, therefore, the aggrieved party would be
entitled to have such order set aside”.
In para No.13, it has been held by the Hon’ble Supreme Court
“The term “cause of action” is neither defined in the Act nor in
the Code of Civil Procedure, 1908 but is of wide import. It has
different meanings in different context, that is when used in
the context of territorial jurisdiction or limitation or the accrual
of right to sue. Generally, it is described as “bundle of facts”.,
which if proved or admitted entitle the plaintiff to the relief
prayed for. Pithily stated, “cause of action” means the cause
of action for which the suit is brought. “Cause of action” is
cause of action which gives occasion for and forms the
foundation of the suit. In the context of limitation with
reference to a fire insurance policy, undoubtedly, the date of
accrual of cause of action has to be the date on which the fire
breaks out”.
16.
On the point of recurring cause of action reference may be made to the
observation made by the Hon’ble Supreme Court in Raja Ram Maize Products etc. Vs.
Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it
has been held ;
“10. The concept of recurring cause of action arising in a matter of this
nature is difficult to comprehend. In Balakrishna Savalram
Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan,
AIR 1959 S.C. 798 it was noticed that a cause of action which is
complete cannot be recurring cause of action as in the present
case. When the workers demanded that they should be allowed
to resume work and they were not allowed to resume work, the
cause of action was complete. In such a case the workers going
on demanding each day to resume work would not arise at all.
The question of demanding to allow to do work even on refusal
does not stand to reason.”
17.
The observations made by the Hon’ble Apex Court in the authoritative
pronouncements discussed above, are fully attracted to the facts and circumstances of
the present case.
18.
In the case in hand, no application under Section 24A of the Act, was filed
before the District Forum.
19.
None of the judgments cited above are applicable to the fact of the present
case. Even case of Kandimalla Raghavaiah & Co. (supra) does not help the
petitioner rather it goes against him.
20.
Looking from any angle, we find that the complaint filed by the petitioner
before the District Forum was barred by limitation. Thus, State Commission while
dismissing the complaint, has not committed any error. Moreover, there is no
infirmity or illegality in the impugned order.
21. The present revision petition having no legal merits is hereby dismissed with
costs of Rs.10,000/- (Rupees Ten Thousand only).
22.
Petitioner is directed to deposit the cost by way of demand draft in the name
of “Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules,
1987,within four weeks from today. In case, petitioner, fails to deposit the cost within
prescribed period, then she shall be liable to pay interest @ 9% p.a. till its
realization.
23. List on 24th May, 2013, for compliance.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4255 OF 2010
(Against the order dated 30.07.2010 in Appeal No.242/2008
of the State Commission, A.P.)
1.
Surya Estates Construction Firm, Represented by K.Surya Prakash H.No.12-7233, Mettuguda, Secunderabad, Andhra Pradesh
2.
K.Surya Prakash S/o Kishanlal Managing Director, M/s Surya Estate
Age : Years, Occ.: Business H.No.12-7-233, Mettuguda, Secunderabad, Andhra
Pradesh
....... Petitioners
Versus
1.
Venkateshwara Sarma S/o Punnaiah Sastry Age : 67 years, Occ. : Retd.
Employee, R/o Flat No.G-1, Plot No.11-2-127, Surya Residency
Mylargadda, Secunderabad Andhra Pradesh
2.
Smt. Praveena D/o Y. Ramaswamy Age : 37 years, Occ. : Employee, R/o Flat
No.G-2, Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra
Pradesh
3.
Smt. Jaitunnisa W/o Mirza Yousuf Baig Age : 57 years, Occ. : House Wife
R/o Flat No.101 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad
Andhra Pradesh
4.
Ch. V.Shivasankaram S/o Ch. V.Sastry Age : 37 years, Occ. : Employee, R/o
Flat No.102 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad,
Andhra Pradesh
5.
G.S.S.A. Rama Rao S/o G.S.R. Murthy Age : 52 years, Occ. : Employee, R/o
Flat No.201 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad,
Andhra Pradesh
6.
Smt. Suman Pillai W/o NRK Pillai Age : 29 years, R/o Flat No.202 Plot No.11-2127, Surya Residency Mylargadda, Secunderabad,
Andhra Pradesh
…... Respondents
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Kailash Pandey, Advocate with
Mr. Ranjeet Singh, Advocate
For the Respondent
:
Mr. Y.V.S.S. Sharma, Advocate with
Mr. P.Prabhakar, Advocate for R-1 to 6
Pronounced on : 22nd April, 2013
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Being
aggrieved
by
order
dated
30.7.2010,
passed
by
Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (short,
“State Commission”) petitioners/opposite parties have filed present revision petition.
2.
Brief facts as per complaint are that respondents/complainants are owners of
respective flats in Surya Residency Apartment, Mylargadda, Secunderabad. The said
apartments were constructed by petitioner no.1/opposite party no.1, represented by
petitioner no.2/opposite party no.2, its Managing Director. Petitioner no.2 entered into
agreements for sale of flats with respondents in July, 2002. Flats were handed over,
vide registered sale deeds in the year 2003, with some unfinished works and promised
to complete the unfinished works within one or two months. Respondents made
personal visits to the office of the petitioners and requested them to complete the works
which were left unfinished. However, there was no response from the petitioners. It is
stated that following are the unfinished works and defects which were not rectified by
the petitioners :1.
Flooring of stilt area (Parking area) at ground floor is not
properly done which is left unfinished, the cellar floor
unfinished without plastering.
2.
Electrical works i.e. earthing is not properly done.
3.
Electrical wiring on ground floor and also other floors are not
properly done.
4.
Electrical meter/meter boards are fixed to old boards which
are not replaced with new ones.
5.
Watchman room and his accommodation is not provided.
6.
Manholes are not properly covered with iron safes.
7.
Leakages from ceiling at IInd floor and other floors are not
rectified which causes dampness to the rooms.
8.
Safety guards or safety measures are not taken to cover
electric meters.
9.
Ladder is not provided for the overhead tank.
10. Roof over the staircase to stop the flowing of rain water is not
provided.
11. Name Boards of flat owners and the name boards of the
Apartment is not provided.
12. Parking areas are not marked and parking space was not
provided to the flat owners who purchased car parking though the
amount of car parking was collected by the builder/opposite party
no.2 from the flat owners.
13. Existing borewell work i.e. to dig more depth in getting ground
water which was left to the fate of the complainants and the same
was not done by the opposite parties in spite of several repeated
requests, neither the new bore well is provided nor the old motors
are replaced with new motors.
3.
It is further alleged that Petitioner no.2 did not take any permission from Water
Works Sewerage Department for regularizing the water connection to the said
flats. Due to the threat of immediate disconnection of water supply from the Water
Works Department, respondents were forced to pay Rs.1,70,000/- for regularizing the
water connection. It is also alleged that though possession of flats was delivered to the
respondents in the year 2003, petitioners executed a separate document for reallotment of car parking space to the fifth respondent on 28.3.2005, leaving rest of the
work unfinished from that date onwards. Respondents also got issued a legal notice
dated 23.11.2005. Alleging deficiency in service, respondents approached District
Consumer Disputes Redressal Forum-I, Hyderabad (For short, “District Forum”) to
direct the petitioners for following works to be done :
a.
To direct the petitioners rectify the defects in the
construction of flats owned by the respondents and
order to complete the unfinished works within a
stipulated time.
b.
To direct the petitioner no.2 to pay compensation of
Rs.1 lakh for mental agony, damages and hardship
suffered by the complainants.
c.
To award costs in favour of the respondents.
d.
To direct the petitioner no.2 duly take steps for
regularization of water connection for the flats owned
by the respondents with Water Works Department”.
4.
Petitioners filed their counter denying most of the allegations made in the
complaint. They have stated that as per agreement, respondents have to pay the
amounts for providing electrical meters. Since, respondents have not paid the amount,
petitioners with their own amount provided electrical meters. It is stated that there is no
agreement to provide safeguards to cover the electrical boards. Petitioners have also
alleged that they have allotted the parking areas to those who had purchased and paid
the amount. It also states that at the time of handing over the possession, there was
sufficient water in the bore well and availability of groundwater depends upon rains and
many other factors which are not in their control. The complaint filed by the respondents
is barred by limitation, as respondents entered into agreement with the petitioners in the
year 2002 and sale deeds were executed in February, 2003. Thus, limitation for filing
the complaint ends by February, 2005. There is no deficiency in service on their behalf
and complaint merits dismissal with exemplary costs.
5.
District Forum, vide order dated 3.1.2008, dismissed the complaint.
6.
Being aggrieved, respondents filed appeal. The State Commission partly allowed
the same, vide its impugned order.
7.
Hence, the present revision.
8.
We have heard the learned counsel for the parties and gone through the record.
9.
Short question which arise for consideration is as to whether complaint filed
before the District Forum was within the period of limitation or not. As apparent from
record, the complaint was filed in the year 2006. Plea with regard to the cause of action
as averred in the complaint is reproduced as under ;
“ Cause of action arose when the opposite party No.2 entered
into an Agreement for the development of the Apartment of
sale of flats with the complainants on July, 2002 and other
subsequent dates and the opposite party No.2 executed Sale
Deeds in favour of the complainants in the year 2003 and
when the opposite party no.2 entered into an Agreement with
the
complainants
No.5
on
28.3.2005,
and
when
the
complainants got issued a legal notice to opposite party No.1
& 2, and on 7.12.2005, the opposite party no.2 issued a reply
notice, the cause of action arose at Hyderabad.”
11.
District Forum in this regard in its order observed ;
“According to the complainants the opp. Party no.2 entered
into an agreement for sale of flat with the complainants in the
month of July, 2002 and handed over the flats possession to
the complainants under registered sale deed in the year 2003.
When admittedly, the complainants agreed that they have
taken the possession of flats in 2003 what stopped them not to
file the complaint here before the Forum immediately. The
cause of action start from the date of the possession and the
limitation is two years from the date of taking of the
possession. Complainants filed this complaint in the year
2006. Without filing sec. 24-A petition for the condonation of
the delay. ”
It further held ;
“In this case also complainants have not filed Sec.24-A, petition
Consumer Protection Act for the condonation of delay. If the
complainants filed Section 24-A petition then this Forum may
condone
the
delay
and
may
be
given
an
order
on sympathetical grounds. But the complainants have not taken
any steps for filing of Sec.24-A petition. When there are any
defects in the construction of the flats it is the mandatory duty
on the part of the complainants to raise the same within two
years from the date of taking of possession of the flats. What
happened to the complaints in not raising any disputes
regarding the construction work within two years after taking the
possession of the flats is not known. Ex.A12 which is the
allotment for car parking space is favour of complainant no.5, if
the car parking space is not allotted to the complainant no.5
then he has every right to file complaint regarding car parking
space construction. The flat is different from the car parking
space. So, the averments of the complaint in paragraph no.7
regarding the defects of the flats are not allowed up to point
no.11
After perusing the Advocate Commissioner’s report the learned
advocate Commissioner clearly stated that there is no markings
for car parking on the stilt area. But the complainants have not
prayed about the car parking space in the prayer.”
12.
It is well settled principle of law that any relief can be claimed under the
Consumer Protection Act, 1986 (for short as ‘Act’), within two years from the date on
which the cause of action accrues.
13. Section 24-A of the Act deals with this situation which is reproduced as under ;
“24-A. Limitation period :- (1) The District Forum, the State
Commission or the National Commission shall not admit a
complaint unless it is filed within two years from the date on
which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1) a
complaint may be entertained after the period specified in subsection (1), if the complainant satisfies the District Forum, the
State Commission or the National Commission, as the case
may be, that he had sufficient cause for not filing the complaint
within such period.
Provided that no such complaint shall be entertained unless
the National Commission, the State Commission or the District
Forum, as the case may be, records its reasons for condoning
such delay.”
14. The above provision is clearly peremptory in nature requiring the Consumer Fora to
see at the time of entertaining the complaint, whether it has been filed within the
stipulated period of two years from the date of cause of action.
15. Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National
Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of
the observations made in case State Bank of India v. B.S. Agricultural Industries,
2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:“12.
Recently, in State Bank of India Vs. B.S. Agricultural Industries,
2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while
dealing with the same provision, has held:
“8.
It would be seen from the aforesaid provision that it is
peremptory in nature and requires consumer forum to see
before it admits the complaint that it has been filed within
two years from the date of accrual of cause of action. The
consumer forum, however, for the reasons to be recorded
in writing may condone the delay in filing the complaint if
sufficient cause is shown. The expression, ‘shall not admit
a complaint’ occurring in Section 24A is sort of a legislative
command to the consumer forum to examine on its own
whether the complaint has been filed within limitation
period prescribed thereunder. As a matter of law, the
consumer forum must deal with the complaint on merits
only if the complaint has been filed within two years from
the date of accrual of cause of action and if beyond the
said period, the sufficient cause has been shown and
delay condoned for the reasons recorded in writing. In
other words, it is the duty of the consumer forum to take
notice of Section 24A and give effect to it. If the complaint
is barred by time and yet, the consumer forum decides the
complaint on merits, the forum would be committing an
illegality and, therefore, the aggrieved party would be
entitled to have such order set aside.”
In para No.13, it has been held by the Hon’ble Supreme Court ;
“The term “cause of action” is neither defined in the Act nor in
the Code of Civil Procedure, 1908 but is of wide import. It has
different meanings in differentcontexts, that is when used in the
context of territorial jurisdiction or limitation or the accrual of
right to sue. Generally, it is described as “bundle of facts”.,which
if proved or admitted entitle the plaintiff to the relief prayed for.
Pithily stated, “cause of action” means the cause of action for
which the suit is brought. “Cause of action” is cause of action
which gives occasion for and forms the foundation of the suit. In
the context of limitation with reference to a fire insurance policy,
undoubtedly, the date of accrual of cause of action has to be the
date on which the fire breaks out.”
16.
The Apex Court in State Bank of India v. B.S. Agricultural Industries, II (2009)
CPJ 29 (SC) SLT 793 = (2009) 5 SSC 121, held as under ;
“12. As a matter of law, the Consumer Forum must deal with
the complaint on merits only if the complaint has been filed
within two years from the date of accrual of cause of action and
if beyond the said period, the sufficient cause has been shown
and delay condoned for the reasons recorded in writing. In
other words, it is the duty of the Consumer Forum to take
notice of Section 24-A and give effect to it. If the complaint is
barred by time and yet the Consumer Forum 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.”
17.
On the point of recurring cause of action reference may be made to the
observation made by the Hon’ble Supreme Court in Raja Ram Maize Products etc. Vs.
Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it
has been held ;
“10. The concept of recurring cause of action arising in a matter
of
this
nature
is
difficult
to
comprehend.
In Balakrishna Savalram Pujari Waghmare v.
Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it
was noticed that a cause of action which is complete cannot be
recurring cause of action as in the present case. When the
workers demanded that they should be allowed to resume work
and they were not allowed to resume work, the cause of action
was complete. In such a case the workers going on demanding
each day to resume work would not arise at all. The question of
demanding to allow to do work even on refusal does not stand
to reason.”
18. It is well settled that by serving the legal notice or by making representation, the
period of limitation cannot be extended by the petitioner. In this context, reference can
be made toKandimalla Raghavaiah & Co. (supra), in which it has been held;
“By no stretch of imagination, it can be said that Insurance
Company’s reply dated 21st March, 1996 to the legal notice
dated 4th January, 1996, declining to issue the forms for
preferring a claim after a lapse of more than four years of the
date of fire, resulted in extending the period of limitation for the
purpose of Section 24A of the Act. We have no hesitation in
holding that the complaint filed on 24th October, 1997 and that
too without an application forcondonation of delay was
manifestly barred by limitation and the Commission was
justified in dismissing it on that short ground.”
19. Thus, on the face of it complaint filed before the District Forum was barred by
limitation and no application for condonation of delay had been filed on behalf of the
respondents. Under these circumstances, State Commission has committed grave
irregularity in setting aside the well-reasoned order passed by the District
Forum. Accordingly, we allow the present revision petition and set aside the order
passed by the State Commission and restore the order of the District Forum.
Consequently, the complaint of the respondents filed before the District Forum stand
dismissed.
20.
Parties shall bear their own cost.
……………..……..………J
(V.B. GUPTA)
(PRESIDING MEMBER)
…………………….……….
(REKHA GUPTA)
(MEMBER)
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1424 of 2008
(From the order dated 31.01.2008 in Appeal No. 33 of 2002 State Consumer Disputes
Redressal Commission, UT Chandigarh)
Rajinder Kumar S/o Mehar Chand R/o Village & P.O. Brahampur Tehsil Anandpur
… Petitioner/Complainant
Sahib Distt. Ropar (Punjab)
Versus
United India Insurance Co. Ltd. Through its Regional Manager, Regional Office Sector
17 Chandigarh Indian Overseas Bank Railway Road, Nangal Tehsil Anandpur Sahib
Distt. Ropar (Punjab) Through its Branch Manager
… Respondents/Opposite Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
Mr. Narender S. Yadav, Advocate
Mr. A. Anandan, Advocate
For the Resp. No.1
For the Res. No. 2
PRONOUNCED ON
Mr. P.R. Sikka & Mr. Amit Sikka, Advocates
Mr. M.P. Bansal, Advocate
22nd April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
impugned order dated 31.01.2008 passed by the State Consumer Disputes Redressal
Commission, UT, Chandigarh (in short, ‘the State Commission’) in Appeal No. 33 of
2002 – United India Insurance Co. Ltd. Vs. Rajinder Kumar by which, while allowing
appeal, order of District Forum allowing complaint was set aside.
2.
Brief facts of the case are that complainant/petitioner obtained loan of Rs.85,000/-
from OP No. 2/Respondent No. 2 on 7.7.2000, and purchased three buffaloes @
Rs.25,000/- each. Complainant got all the three buffaloes insured from the OP No.
1/Respondent No.1. One of the insured buffaloes suddenly fell ill and died on
24.12.2000 at about 3.30 P.M. Post mortem was conducted on 25.12.2000, and
intimation was given to OPs on the same day. Claim lodged by the complainant was
repudiated by OP. Complainant alleging deficiency on the part of OP No. 1, filed
complaint before the District Forum. OP No. 1 resisted claim and submitted that
complainant did not give intimation to OP No.1 immediately after the death of buffalo
and no opportunity was afforded to the OP to inspect the carcass of the buffalo, which is
in violation of Clause 7 of the Insurance Policy. It was further alleged that intimation of
death of buffalo was received in OP’s office on 9.1.2001, and independent investigator
appointed by OP opined in his report dated 17.1.2001 that buffalo, which had died was
not insured one and prayed for dismissal of complaint. OP No. 2 admitted grant of loan
and further submitted that intimation regarding death received by OP No. 2 was
forwarded to OP No.1. Learned District Forum after hearing both the parties, allowed
complaint and directed OP No. 1 to pay Rs.25,000/- along with 9% p.a. interest. OP
No.1/Respondent No. 1 filed appeal before learned State Commission and learned
State Commission vide its impugned order set aside order of District Forum and
dismissed complaint against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that learned District Forum rightly
allowed the complaint, as intimation was given by the complainant to OP No. 1 in time,
even then, learned State Commission has committed error in allowing appeal and
dismissing complaint; hence, revision petition be allowed and impugned order be set
aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that
order passed by learned State Commission is in accordance with law, which does not
call for any interference and revision petition be dismissed. Learned Counsel for the
Respondent no. 2 submitted that no relief has been granted by Fora below against him;
hence, revision petition be dismissed.
5.
Perusal of record clearly reveals that, as per allegation of the complainant, buffalo
died on 24.12.2000 and post mortem was conducted on 25.12.2000. As per Clause 7
of the Insurance Policy, it was obligatory on the part of insured to give immediate
intimation of death of buffalo to the office of the Company, which had issued the policy
and further, provide the Insurance Company all opportunity of inspecting the carcass
until at least the expiration of 24 hours after such notice to the Company. Complainant
failed to prove any written intimation to the Insurance Company immediately after the
death of buffalo. As per record, intimation dated 29.12.2000 sent by the complainant
reached the office of the respondent on 9.1.2001, whereas body of the buffalo must
have been disposed of after post mortem on 25.12.2000 and admittedly, there was no
opportunity with the Insurance Company to inspect the carcass before its
disposal. Thus, there was clear violation of Clause No. 7 of the Insurance Policy and
learned State Commission has not committed any error in passing impugned order and
setting aside order of District Forum allowing complaint.
6.
Learned Counsel for the respondent further submitted that as per Investigator’s
report, Buffalo which died was not insured one. Learned Counsel for the petitioner
submitted that as per post mortem report, the deceased buffalo contained Tag No.
1685, which was insured one. Petitioner has not filed affidavit of doctor conducting post
mortem and in such circumstances, it is not proved beyond doubt that buffalo which
died was insured one, as OP/respondent had no opportunity to verify this fact.
7.
In the light of above discussion, we do not find any infirmity, irregularity or
jurisdictional error in the impugned order and revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3453 of 2012
(From the order dated 06.03.2012 in M.A. No. MA/09/596 in Appeal No. A/09/547 of
State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at
Nagpur)
Sachin Rameshrao Randive R/o Near Railway over Bridge, Ballarpur, Teh. Ballapur,
Distt. Chandrapur
… Petitioner/Complainant
Versus
National Insurance Co. Ltd. Through Branch Manager, Branch Chandrapur, Office at –
Above Bank of India, Jaipura Gate, Chandrapur, Teh. & Distt. Chandrapur
… Respondent/Opposite Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
Mr. Rahat Bansal, Advocate
For the Respondent
Mr. Ravi Bakshi, Advocate
PRONOUNCED ON
22nd April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
impugned order dated 06.03.2012 passed by the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai, Circuit Bench at Nagpur (in short, ‘the State
Commission’) in M.A. No. MA/09/596 in Appeal No. A/09/547 – Sachin Rameshrao
Randive Vs. National Insurance Co. Ltd. by which, application for condonation of delay
of 70 days was dismissed. Consequently, appeal was also dismissed.
2.
Brief facts of the case are that complainant/petitioner filed complaint before
District Forum against OP/respondent, which was dismissed by District Forum vide
order dated 4.4.2009. Petitioner filed appeal against order of the District Forum along
with application for condonation of delay of 70 days and State Commission vide
impugned order while rejecting application for condonation of delay, dismissed appeal
being time barred.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that petitioner explained delay in
filing appeal, but learned State Commission has committed error in dismissing appeal;
so, revision petition be allowed and impugned order be set aside and matter may be
remanded back to the learned State Commission for disposal on merits. 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 learned State Commission dismissed application
for condonation of delay of 70 days on two counts, namely; no explanation was given by
the petitioner as to why he was residing at village Kavathala, whereas in complaint he
had given address of Ballarpur and secondly, petitioner was neither admitted in any
hospital during the relevant period, nor prescription chit was produced on record.
6.
Perusal of record reveals that petitioner submitted before learned State
Commission in application for condonation of delay that petitioner was running his
business in village Kavathala, Taluka Gadchandur, District Chandrapur. No doubt,
petitioner mentioned address of Ballarpur, District Chandrapur in his complaint, but
while residing at Ballarpur, he can carry on his business at village Kavathala, which is
also in the same District Chandrapur. Merely because petitioner failed to give any
explanation about his residence at village Kavathala, application for condonation of
delay ought not to have been dismissed by learned State Commission.
7.
As far other documents in support of medical certificate, petitioner has appended
prescription dated 22.5.2009 given by same Dr. Vinod D. Nagrale, who has issued
medical certificate for two months and twelve days. In such circumstances, it appears
that learned State Commission has inadvertently mentioned that prescription chit was
not produced on record, which was very much on record.
Merely because petitioner
was not admitted in the hospital, medical certificate issued by Dr. Nagrale cannot be
brushed aside and learned State Commission ought to have condoned delay of 70 days
in filing appeal.
8.
Consequently, revision petition is allowed and order dated 6.3.2012 by passed by
learned State Commission dismissing M.A. No. MA/09/596 in Appeal No. A/09/547 is
set aside and M.A. No. MA/09/596 is allowed subject to payment of Rs.5,000/- as costs
to be deposited in the Legal-aid Account of the State Commission, Maharashtra and
consequently, order dismissing appeal No. A/09/957 is set aside and matter is
remanded back to the learned State Commission, Maharashtra to decide it on merits
after giving an opportunity of being heard to both the parties.
9.
Parties are directed to appear before the learned State Commission, Maharashtra
on 15th July, 2013. A copy of this order be sent to the State Commission, Maharashtra.
..…………………Sd/-…………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 744 OF 2007
(Against the order dated 23.10.2007 in CC No. C-375/1998 of the Delhi State Consumer
Disputes Redressal Commission)
Manager Parmarth Mission Hospital 23/7, Shakti Nagar Delhi-110007
…
Appellant
Versus
Yudh Vir Chauhan S/o Shri Shiv Raj Singh R/o 1288, Block G and JU Pritampura, Delhi
…
Respondent
FIRST APPEAL NO. 16 OF 2008
(Against the order dated 23.10.2007 in CC No. C-375/1998 of the Delhi State Consumer
Disputes Redressal Commission)
Yudh Vir Singh Chauhan Son of Shri Sheoraj Singh Resident of 128-B, Block G&JU
Pitam Pura, Delhi-110007
…
Appellant
Versus
Manager Parmarth Mission Hospital 23/7, Shakti Nagar Delhi-110088
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Parmarth Mission Hospital
: Mr. Neeraj Dutt Gaur, Advocate
For Mr. Yudh Vir Chauhan
: Mr. J.K. Bhola, Advocate
Pronounced 22nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Being
aggrieved
by
the
order
of
the
Delhi
State
Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission) in
Complaint No. C-375 of 1998, two cross appeals have been filed. While First Appeal
No. 744 of 2007 has been filed by Manager, Parmarth Mission Hospital, Opposite Party,
First Appeal No. 16 of 2008 has been filed by Shri Yudh Vir Singh Chauhan, Original
Complainant before the State Commission seeking enhanced compensation. Since the
facts and the parties in both appeals are common/similar arising out of the same
consumer complaint, it is proposed to dispose of these appeals by one common order
by taking the facts from First Appeal No. 744 of 2007. The parties will be referred to in
the
manner
in
which
they
were
referred
to
in
the
complaint
i.e. Shri Yudh Vir Singh Chauhan as Complainant and Parmarth Mission Hospital as
Opposite Party.
2.
In the complaint against Opposite Party-Hospital, Complainant had stated that his
wife (hereinafter referred to as the Patient), who had earlier been admitted in the
Opposite Party-Hospital and delivered two children in the same Hospital, was admitted
for delivery in the Opposite Party-Hospital on 22.05.1997 and gave birth to a male child
through cesarean section. Since there was infection in the uterus, this was also
removed. While performing the surgery Doctors of the Opposite Party-Hospital
negligently left a sponge like specimen of 17 x 17 Cm. and a tag of 11 Cm. in the
abdomen of the Patient. Since the Opposite Party-Hospital did not have basic
requirements of a nursery and other facilities, Complainant was asked to take his wife
and new born child to Jaipur Golden Hospital, which was 20 Kms. away and due to this
reason the infant expired after three days. After 10 days of the surgery, Patient
experienced acute stomach pain and she visited the Opposite Party-Hospital number of
times and also paid fees for the same but the problems persisted. On 25.02.1998 when
the pain became unbearable, Patient was admitted to the Opposite Party-Hospital
where Doctors asked her to undergo ultrasound and x-rays at Apollo X-Ray
Centre,Roop Nagar, Delhi and
also
at Anant Imaging
Centre
at
Ashok, Vihar,
Delhi. However, the disease could not be diagnosed and, therefore, Patient was
advised to undergo a surgery in the Opposite Party-Hospital. Although she was
prepared for the same, the concerned Doctor declined the surgery on the ground that
his mother was unwell. Patient continued her treatment as advised by the OP-Hospital
and spent approximately Rs.2.00 Lakhs, which she paid to Opposite Party-Hospital, and
also Rs.50,000/- on the x-rays and other diagnostic tests as per the advice of the
Doctors in the Opposite Party-Hospital. On 09.05.1998 Complainant was told that his
wife had Australia Antigen and he was advised by Opposite Party-Hospital to get his
wife admitted in some other hospital for treatment. She was, accordingly, admitted in
Bara Hindu Rao Hospital where after undergoing tests Doctors conducted a surgery
during which a sponge like specimen and a tag in the stomach of the Patient were
removed. Patient died on 26.05.1998. Complainant made a complaint to the Lt.
Governor as also to the Police Authorities but because of the influence of the Opposite
Party-Hospital, satisfactory action on the same was not taken. Complainant, therefore,
issued a legal notice to the Opposite Party-Hospital, to which there was no
response. Complainant, therefore, filed a complaint before the State Commission on
grounds of medical negligence and deficiency in service against the Opposite PartyHospital and requested that the Opposite Party-Hospital be directed to pay him (i)
Rs.10.00 Lakhs as compensation for the loss caused to him and his two minor children;
(ii) Rs.2.50 Lakhs spent on medical treatment; (iii) Rs.2.50 Lakhs for deficiency in
service and Rs.11,000/- as litigation expenses. Thus, a total amount of Rs.15.11 Lakhs
was sought as compensation.
3.
Opposite Party on being served filed a written rejoinder denying that there was
any medical negligence or deficiency in service on their part. Patient had come to the
Hospital on 22.05.1997 in a serious condition and though this was a high risk
pregnancy, all attempts were made to save the child and the mother. A cesarean
section was conducted and a premature child was delivered, who unfortunately passed
away in another hospital where he had been transferred because he required special
nursery care which was not available in the Opposite Party-Hospital. Further, since
relatives of the Patient were on the staff of Opposite Party-Hospital, special medical
attention and care was given to the Patient. Since there was profuse bleeding which
could not be controlled, after taking opinion from other professional colleagues, the
uterus was also removed in the interest of Patient’s health. She was discharged in
perfect condition with no complaints for approximately nine months, whereafter Patient
visited the Opposite Party-Hospital with complaint of abdominal pain for which she was
advised
investigations. She
was diagnosed
as sub acute intestinal obstruction
cause?, adhesion?, tuberculosis. A surgery was planned on 09.05.1998 but was
deferred since Patient tested positive for Australia Antigen, which is a very dreaded
disease and which affects the liver and can cause death. There was also high risk of
transmission of this disease to the persons conducting the surgery. Patient was,
therefore, put on anti-tuberculosis and other supportive medicines and after she showed
improvement, she was discharged in a satisfactory condition on 18.05.1998. It was
contended that in fact Patient died at Bara Hindu RaoHospital because during the
surgery conducted there the ileum got perforated. There was no medical negligence or
deficiency in service in the treatment of the Patient at Opposite Party-Hospital and,
therefore, the complaint being without any basis may be dismissed.
4.
During the pendency of the complaint before the State Commission, the
Investigating Officer, dealing with the criminal case instituted by the Complainant
against the Opposite Party-Hospital, requested State Commission for setting up of a
medical board for expert opinion, which was set up vide orders of the Government of
NCT of Delhi and its opinion made available to the State Commission and which inter
alia concluded that the presence of the foreign objects was responsible for Patient’s
medical problems and subsequent death.
5.
The State Commission after considering the evidence on record, including the
opinion of the medical board concluded that there was a clear case of medical
negligence on the part of Opposite Party-Hospital since a foreign body like sponge tag
was left in the abdomen of the Patient during the surgery on 22.05.1997 at Opposite
Party-Hospital. However, it did not accept the opinion of the medical board that the
presence of the foreign body was the cause of the death. In this connection, the
relevant observations of the State Commission are reproduced :
“17. It is a case where there is clear negligence of having left foreign
body like sponge tag that might have been causing recurring pain but we
refuse to accept that the presence of foreign body was the direct cause of
death. It might have caused some problem in the form of some infection
and other problem but in no way this could have contributed to the direct
cause of death which at the first instance was found to be cardiac
arrest.
18.
In our view there is no convincing evidence to show that the
presence of foreign articles like sponge and tag was direct result of the
death. It is not understandable as to how board reached to the conclusion
while giving answer to the first question as to the cause of death being
cardiac arrest. However, the opinion in respect of other queries was that
the case of death might have accelerated by the presence of sponge or
tag like foreign body which might have caused some infections.”
The State Commission, therefore, awarded compensation of only Rs.50,000/- and
Rs.10,000/- as litigation costs by stating that taking an overall view of the matter,
particularly the long gap between first operation and the second operation during which
period the Patient did not suffer any major problem except recurring pain in the
abdomen and because she died not due to the sponge or tag left in her body but due to
cardiac arrest.
6.
Being aggrieved by the finding of medical negligence/deficiency in service and the
lesser compensation, present First Appeals No. 744 of 2007 and 16 of 2008 have been
filed by the Opposite Party-Hospital and the Complainant respectively.
7.
Learned Counsel for both parties made oral submissions.
8.
Learned Counsel for Opposite Party-Hospital contended that the State
Commission erred in finding it guilty of medical negligence in the absence of any
evidence that the foreign material found in the body of the Patient had been left there
negligently during surgery at the Opposite Party-Hospital. In this connection, it doubted
the finding of the Bara Hindu Rao Hospital on the ground that that Hospital did not
preserve and make available for inspection the foreign body i.e. the sponge like
substance purportedly recovered from the Patient’s body during the operation
conducted on 26.05.1998 at Bara Hindu Rao Hospital. Apart from this, Bara
Hindu Rao Hospital did not conduct any post mortem and the death certificate clearly
mentioned that the cause of death was cardiac arrest. Under these circumstances, the
State Commission erred in finding the Opposite Party-Hospital guilty of medical
negligence. If at all medical negligence had to be attributed, it would be to specific
Doctors and the Opposite Party-Hospital cannot be burdened with the same. Further,
since Opposite Party-Hospital is a charitable institution charging very nominal fees from
its patients, Complainant’s contention that he had spent over Rs.2.00 Lakhs in the
Patient’s treatment is baseless.
9.
Counsel for the Complainant on the other hand stated that as per the directions of
the State Commission, Government of NCT of Delhi had set up a medical board which
opined that since no surgical operation had been conducted between the operation on
22.05.1997 performed at Opposite Party-Hospital and the operation on 26.05.1998
performed at Bara Hindu Rao Hospital, it was clear that the foreign body had been left
during the first surgery at Opposite Party-Hospital. Counsel for the Complainant further
pointed out that the State Commission erred in disbelieving the opinion of the medical
board which clearly concluded that the death occurred because of the foreign substance
left in the body of the Patient during the surgery at Opposite Party-Hospital. The State
Commission has given no cogent reasons for disagreeing with the opinion of medical
experts. Counsel for the Complainant reiterated that over Rs.2.00 Lakhs had been
spent on medical treatment of the Patient at Opposite Party-Hospital, where fees
charges was about Rs.2000/- per day. Keeping in view the above facts, including the
conclusion that there was medical negligence on the part of Opposite Party-Hospital,
the State Commission erred in granting only a paltry compensation.
10.
We have heard learned counsel for parties and have also carefully gone through
the evidence on record. Patient’s admission in Opposite Party-Hospital on 22.05.1997
where she underwent two surgeries is not in dispute. It is also an admitted fact that
Patient experienced abdominal pain for several months thereafter, for which she
underwent treatment in Opposite Party-Hospital and a surgery conducted at Bara
Hindu Rao Hospital confirmed that a sponge and a tag were found in her
abdomen. The State Commission as the first Court of fact had also concluded that
even though the specimens were not preserved by Bara Hindu Rao Hospital, there was
no
reason
to
disbelieve
the
report
of
Bara
Hindu Rao Hospital
in
this
connection. Opposite Party’s contention that the foreign body could have been left
during some other procedure in the intervening period does not inspire much confidence
since there is no evidence that Patient had undergone any other surgical procedure
between the first surgery at Opposite Party-Hospital and the second one at Bara
Hindu Rao Hospital, where the foreign objects were detected. Apart from this, the
medical board of Doctors set up by the Government of NCT of Delhi on direction of the
State Commission after going through the relevant records and papers had reached an
unequivocal conclusion that the death of the Patient was because of presence of foreign
body in her abdomen and in view of this clear opinion of medical experts, we are unable
to comprehend why the State Commission without discussing or referring to any other
evidence to the contrary concluded that the foreign body in the abdomen was not the
cause of Patient’s death. It may also be mentioned here that ‘Cardiac Arrest’ is a term
commonly used to explain the reason for death but this observation in the death
certificate cannot be used to preclude the causes that led to cardiac arrest – in this case
the foreign body left in the Patient’s abdomen.
11.
The principle of what constitutes medical negligence is now well established in a
series of judgments of the Hon’ble Supreme court, including in Jacob Mathew Vs.
State of Punjab & Anr. [(2005) 6 SCC 1] and Achutrao H.Khodwa Vs. State of
Maharashtra [AIR 1996 SC 2377], wherein it has been inter alia observed that a
medical practitioner must bring to his task a reasonable degree of skill and knowledge
and must exercise reasonable degree of care provided). Hon’ble Supreme Court
in Achutrao H. Khodwa (supra) while discussing this principle in the context of the
above case concluded that since a foreign body was left in the system during the
surgery, it clearly indicated that reasonable degree of care was not taken and, therefore,
it amounted to medical negligence. In the same judgment, the Hon’ble Supreme Court
has also held that the State must be held vicariously liable once it is established that the
death was caused due to negligent act of its employees. Following the above two
principles in the instant case, it is clear that the Opposite Party-Hospital is guilty of
medical negligence on both counts.
12.
The State Commission had while concluding medical negligence awarded a
compensation of Rs.50,000/- on the ground that though medical negligence had been
established, it was not the direct cause of the Patient’s death. We have earlier in the
order concluded that in view of the opinion of medical experts, we are not in agreement
with this part of the order of the State Commission. Under the circumstances, there is
adequate justification for enhanced compensation. Considering the fact that a young
woman of 27 years had died leaving behind her two minor children as also her husband,
thus, depriving them of the care and company of a mother and spouse, which is
admittedly an invaluable loss for them, we are of the view that an enhanced
compensation of Rs.4.00 Lakhs would be reasonable and justified in the instant case.
13.
To sum up, First Appeal No.744 of 2007 filed by Opposite Party-Hospital is
dismissed. In respect of First Appeal No. 16 of 2008, we partly allow the same and
partially modify the order of the State Commission by enhancing the compensation from
Rs.50,000/- to Rs.4,00,000/-. Opposite Party-Hospital is directed to pay this
amount alongwith litigation costs of Rs.10,000/- to the Complainant within a period of 12
weeks.
14.
Both the present first appeal stands disposed of on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NTAIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2380 OF 2011
With
(I. A. No. 01 of 2011 for Stay)
(From order dated 19.04.2011 in First Appeal No. 557 of 2011 of the M. P.
State Consumer Disputes Redressal Commission, Bhopal)
M.P. Housing Board, through the Estate Officer, Deen Dayal Nagar, Gwalior (M.P.)
…. Petitioner
Versus
Madhav Nagar Vikas Samiti, through O.P.Goyal, son of Sh. Phool Chand Goyal, R/o: L37, Madhav Nagar, Gwalior (M.P.)
…… Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. R. S. Banthia, Advocate
Pronounced on: 23rd April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 19.04.2011, passed by M.P. Sate Consumer
Disputes Redressal Commission, Bhopal (for short, ‘State Commission’), petitioner/o.p
has filed the present revision petition.
2.
Respondent/complainant filed a complaint under Section 12 of the Consumer
Protection Act, 1986 (for short, ‘Act’) against petitioner for quashing of demand for
general expenses for the period from 1.4.2002 to 31.3.2008 levied by the petitioner,
vide notification No. 8/02 dated 15.2.2002, being against the law and also prayed for
compensation of Rs.10,000/- for mental agony and cost of Rs.3,000/-.
3.
Complaint was contested by the petitioner.
4.
District Consumer Disputes Redressal Forum, Gwalior (for short,
‘District Forum’) vide order dated 29.11.2010, accepted the complaint.
5.
Aggrieved by the order of District Forum, petitioner filed an appeal before the
State Commission. Alongwith the appeal, application under Section 15 of the Act
seeking condonation of delay of 85 days was also filed.
6.
State Commission vide its impugned order, dismissed the appeal on the ground
of limitation.
7.
8.
Hence, this revision.
We have heard the learned counsel for the petitioner and gone through the
record.
9.
Main ground on which condonation of delay before the State Commission was
sought reads as under;
“That the certified copy of the said appeal was procured on
30.11.2010 which was sent by the local advocate to the divisional
office on 14.12.2010. The head office of the Housing Board is
situated at Bhopal and because of that reason the Gwalior office
sent the file to the head office at Bhopal in the first week of
January. The post of Chief Legal Advisor at Bhopal had become
vacant and in his place the new Legal Advisor who is a retired
District and Sessions Judge joined office in the first week of
March after which only a decision for filing the said appeal was
taken and the appeal filed after appointing the advocate. There
has been a delay of 85 days in filing the same”.
10.
State Commission, while dismissing the appeal observed ;
“ This appeal is bared by 85 days for which the reason assigned is
that after the judgment dated 29.11.2010 the copy thereof was
made available on 30.11.2010 which was forwarded to the Board’s
office on 14.12.2010. It is stated that since the head office of the
housing board is situated at Bhopal, it is necessary as per system
of the Board to first obtain permission for filing appeal against the
order passed against the board. The matter could not be
processed further as the post of Chief Legal Advisor was lying
vacant and it was only when a retired District & Sessions Judge
was appointed as Chief Legal Advisor that the sanction was
granted and the appeal was filed in which delay of 85 days
occurred. We find that right from the beginning, the copy of the
order was made available to the housing board on the next day,
the housing board was lethargic and sent copy to the head office
on 14.12.2010. Specific dates have not been given about the post
of Legal Officer lying vacant. No details were given as to who was
officiating in his post. We find that the delay has not been
satisfactorily explained and dismiss the appeal on the ground of
limitation”.
11.
Before this Commission petitioner has filed additional affidavit of Its Estate
Officer stating that;
“the post of Chief Legal Advisor remained vacant from 1.1.2011 to
14.2.2011 when only additional charge was entrusted to Chief
Vigilance Officer of the Petitioners’ Board though no decisions were
taken with respect of filing of the appeals before the M. P. State
Consumer Disputes Redressal Commission wherein the subject
matter of the case required consideration at the level of the Chief
Legal Advisor who is a retired District Judge”.
12.
In the entire affidavit, it has nowhere been stated that during the above period no
petition/appeal was filed by Petitioner’s Board before any other judicial fora. Affidavit is
absolutely silent on this aspect.
13. Under the Act, a special period of limitation has been provided to ensure
expeditious disposal of cases. Complaint has to be disposed of within 90 days from
the date of filing where no expert evidence is required to be taken and within 150 days
where expert evidence is required to be taken. The inordinate delay of 85 days has
not been sufficiently explained before the State Commission.
14. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial
Development Authority–IV (2011) CPJ 63 (SC) has held that while deciding the
application filed for condonation of delay, the Court has to keep in mind that the
special period of limitation has been prescribed under the Act for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the
consumer disputes will get defeated if the appeals and revisions which are highly
belated are entertained. Relevant observations made by Apex Court read 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 fora”.
15.
Accordingly, we hold that State Commission rightly rejected petitioner’s
application for condonation of delay. We do not find any infirmity or illegality in the
impugned order. Present revision petition having no legal merits is hereby dismissed
with cost of Rs. 5,000/-(Rupees Five Thousand Only)
16.
Petitioner is directed to deposit the cost by way of demand draft in the name of
“Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules,1987, within
four weeks from today. In case, petitioner fails to deposit the cost within prescribed
period, then it shall be liable to pay interest @ 9% p.a. till its realization.
17. List on 24th May, 2013, for compliance.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 277 OF 1998
Gujarat Scheduled Caste Development Corporation Through its Office at Block No.10
IInd Floor, Dr.Jivraj Mehta Bhavan Old Sachivalay, Gandhinagar
… Complainant
Versus
1. Ahmedabad Mahila Nagrik Co-operative Bank Ltd
2. The Incharge Chairman Ahmedabad Mahila Nagrik Co-operative Bank Ltd
3. Kum. Ritaben Shah Incharge Manager Ahmedabad Mahila Nagrik Co-operative
Bank Ltd All 3 R/o M/4/73, Shop No.45-46 Shastrinagar Shopping Centre
Naranpura, Ahmedabad
… Opposite Parties
AND
ORIGINAL PETITION NO. 278 OF 1998
Gujarat Scheduled Caste Development Corporation Through its Office at Block No.10
IInd Floor, Dr.Jivraj Mehta Bhavan Old Sachivalay, Gandhinagar
… Complainant
Versus
1. Ahmedabad Urban Co-op. Bank Ltd.
2. Sh.Surendra N. Rajput Managing Director and Chairman Ahmedabad Urban Co-op.
Bank Ltd.
3. Sh.Jayendra R.Shah Incharge Manager Ahmedabad Urban Co-op. Bank Ltd. All 3,
R/o Vishala Commercial Centre Near Dinesh Chambers, Ashram Road Ahmedabad
4. Sh.Naishad S.Shah, Branch Manager Ahmedabad Urban Co-op. Bank Ltd.
Sarangpur Branch, 12/127, Anand Cloth Market Sarangpur, Odhav Road,
Ahmedabad
… Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE DR. DR. S. M. KANTIKAR, MEMBER
For the Complainant in both cases
For Opposite Party No.1
: Mr. D.M.Ahuja, Advocate
: Ms. Manisha C. Shah, Advocate
in OP 277/98
with Mr.S.R.Patel, Official Liquidator
For the Opposite Party
Nos. 2 & 5 in OP 278/98
: Mr. M.A. Khan, Advocate
Pronounced on 23.04.2013
ORDER
JUSTICE J.M.MALIK
1.
The key question which falls for consideration is “Whether Section 112
of Gujarat Co-operative Societies Act, 1961, which runs as follows:“112. Save as expressly provided in this Act, no Civil
Court shall take cognizance of any matter connected with the
winding up or dissolution of a society under this Act; and
when a winding up order has been made, no suit or other
legal proceedings shall lie or be proceeded with against the
society or the liquidator, except by leave of the Registrar, and
subject to such terms as he may impose:
Provided that, where the winding up order is cancelled, the
provisions of this section shall cease to operate so far as the
liability of the society and of the members thereof to be sued
is concerned, but they shall continue to apply to the person
who acted as liquidator”.
the absence of ‘leave’ of the Registrar strikes a snap in proceeding further?”. We are
of the considered view that in view of this provision of law, here lies a rub in proceeding
further, in these two above said cases. This is the Law of Land and we must respect it,
though this is for the benefit of few Directors and detrimental to the public at
large. These cases also reveal how, our so-called politicians leave no stone unturned in
leading the gullible people up the garden path.
2.
Now, the facts deserve a look. This order shall decide the above said two
complaint cases which are between the same parties but the branches of the
respondent Bank are different and employees are different. The same entail similar
questions of law. Consequently, both the complaints are being decided by one
judgment.
3.
Gujarat Scheduled Caste Development Corporation, the Complainant is an
autonomous body created under the Gujarat State Development Act, 1985 and its
object is to strive towards upliftment of the Members of the Schedule Caste
Community. Ahmedabad Mahila Nagrik Co-operative Bank Ltd., is registered
under the provisions of Co-operative Societies Act, 1961, OP1, the Incharge
Chairman, OP2, and Kum.Ritaben Shah, Incharge Manager, OP3, the employees of
Bank situated at Naranpura have been arrayed as OPs in OP 277/1998 , while
Ahmedabad Urban Co-operative Bank Limited, OP1, Sh.S.N.Rajput, Managing Director
and Chairman, OP2, Sh.Jayendra R.Shah, OP3 and Sh.Naishad S.Shah, OP4, the
employees of the Sarangpur Branch, have been arrayed as OPs in OP 278/1998.
4.
In
both
the
cases,
OP2
informed
the
higher
authorities
of
the
complainant that they were offering the services of paying higher rate of interest at
13.5%
p.a.,
and
15%,
p.a.,
respectively,
in
each
of
the
cases,
if
fixed
amount is deposited with them for a period of three/six months. As per decision
dated 09.09.1996, taken by the Special Committee, the complainant deposited a sum of
Rs.50,00,000/- @ 13.5% p.a. with OP1 Bank in Case No. 277/1998 for a period of three
months, on 18.09.1996, vide FDR No. 9169. The complainant further deposited a sum
of Rs.1.00 crore on 28.09.1996 in the same case, vide FDR No.9170. Likewise, the
complainant deposited Rs.50.00 lakh for a period of six months, @ 15% p.a. vide
FDR No.nil, which will, however, be referred to as FDR No.3, with OP1 in Case
No.278/1998. The complainant imposed a condition that no loans were to be given
out of the said deposited amount and the OPs were to return the said deposited
amounts, along with interest, on the date of maturity.
5.
On 18.12.1996, the complainant Corporation, through its Chief
Accounts Officer, addressed a letter to Kumari Ritaben Shah, with the request that the
maturity amount along with interest be sent to the complainant, after maturity in
respect of FDR No.9169. It did not evoke any response. Thereafter, another letter
was written to Kumari Ritaben Shah by the complainant with the request to refund
Rs.50.00 lakh, along with interest. It was also requested that FDR No.9170 dated
28.09.1996 for Rs.1.00 crore had also matured on 28.03.1997 and since the
Corporation was in need of money, therefore, the said amount, along with interest be
sent to the complainant. Copies of both the letters have been annexed as Annexures
A and B, respectively. However, those letters were not replied by OPs. Another letter
dated 03.01.1997, Annexure-C, was also sent by the complainant. To this letter, OP3
sent a reply on 31.12.1996 informing that OP2 had made
a representation to the
Hon’ble Chief Minister of Gujarat to renew the FDRs of various Boards and
Corporations of Gujarat Government and the Chief Minister had assured the same to
OP2. Therefore, Kumari Ritaben Shah requested the complainant Corporation to return
the FDRs to her for renewal of the same. She also requested the complainant to
contact the Hon’ble Chief Minister of Gujarat, in this context, copy of which is annexed
as Annexure-D.
6.
The complainant was not satisfied with this explanation. It again sent another
letter dated 17.01.1997 to refund the total amount of Rs.1,50,00,000/-, with interest. It
also warned the OPs that if the said amount was not returned, it would take
legal action against them, vide letter annexed as Annexure-E. Thereafter, reply was
sent by Kumari Ritaben Shah, wherein it was stated that the Chairman and the other
office bearers of OP1 were making sustained efforts for the purpose of return of
aforesaid amount as well as collecting deposits and the matured fixed deposit
amount with interest would be refunded by the end of March, 1997. The said letter is
annexed herewith as Annexure-F.
However, the said amounts were not refunded, subsequently, as well.
7.
Thereafter, a request was made to the Reserve Bank of India vide letter
dated 23.04.1997 by the complainant to give proper directions to OPs, copy of which
is annexed as Annexure-G. The Reserve Bank of India sent a reply to the
complainant stating that
they
are
trying
to
collect
the
necessary information and would thereafter, take necessary action, if necessary, vide
letter dated 19.05.1997, copy of which is annexed as Annexure-H. However, no action
was taken by the Reserve Bank of India, till date.
8.
Sh.Gopalbhai Solanki, Chairman of the complainant wrote another letter dated
06.05.1997 to OP2, wherein, a request for refund of the amount was made. Copy of
the said letter is annexed as Annexure-I with the complaint, but the OPs did not care
to reply to it. Another letter was sent on 19.05.1997 by the Chief Accounts Officer, to
OP3, copy of which is annexed as Annexure-J. The Chief Accounts Officer wrote
another
letter
dated
22.09.1997
wherein
request
for refund of the amount was made, copy of which is annexed as Annexure-K, along
with the complaint. Ultimately, the present complaint cases were filed with the prayer
to refund Rs.1,50,00,000/-, with interest @ 13.5% p.a. from the date of deposit till its
realization, and exemplary damages of Rs.75.00 lakh be paid to the complainant. It
was further prayed that OPs 1 to 3 be directed to pay Rs.50,000/- each, as costs in
OP 277/98. In the second case, (OP 278/1998) it was prayed that the OPs be
directed to refund Rs.50.00 lakh with interest @ 15% from the date of deposit, till
actual realization, exemplary damages of Rs.25.00 lakh and to pay costs of Rs.50,000/to the complainant.
9.
DEFENCE:
The OPs enumerated the following defences in their written statement. They have
denied all the allegations. It is alleged that the complaints are barred by limitation and
provisions of Consumer Protection Act, 1986. The jurisdiction of this Commission has
also been called into question. It is submitted that the complaints are barred by the
principles of delay, laches, estoppel and acquiescence. The OPs are not expected to
render any service. They do not manufacture or sell any goods. There is no
relationship of a Trader and Consumer or Buyer between the parties. The
complainant is not a ‘consumer’. The complainant is not a ‘person’ as defined under
the Act. The complaints are barred by plurality of remedies. This is not a consumer
dispute, but it is in essence of civil suit. The OPs are not aware about the ‘constitution’,
‘status’ or ‘objects’ of the complainants. The complainants are guilty of gross
misconduct. As a matter of fact, the complainant has failed and neglected to
discharge its duty and obligations and to achieve its objects under the Gujarat
Schedule Caste Development Act, 1985.
10.
OP 1 is a Co-operative Society, registered under the Gujarat Co-operative
Societies Act. OP2 is an honorary Chairperson and is not a ‘person’ or a ‘trader’ as
defined under the said Act. The relationship between the parties are governed by a
contract
that
of
a
‘borrower’
and
‘lender’. This
is
a
monetary
contract/transaction simpliciter between the parties. The OPs, except OP1, have
been wrongly joined as parties. Payment of interest or borrowing funds are purely
financial transactions. The OPs were not aware of any alleged decision or deliberation
or discussion dated 09.09.1996 taken by the alleged Special Committee or any other
Committee of the complainant. The complainant Corporation is a statutory corporation
and it has its own rules and regulations and other legal provisions regarding its
affairs and financial affairs and management. It is alleged that some of the office
bearers of the complainant, out of personal greed and some other considerations,
have entered into the contract with OP1 to lend money at higher rates than usually
offered by OPs.
11.
The OPs have further alleged that according to the complainants, it seems that
the complainants had lent and advanced a sum of Rs.50.00 lakh to OP1 at higher
rate of interest than prevailing in the Co-operative Banking Sector. It is alleged that
complainant and its office bearers have taken unfair advantage and adopted unfair
trade practice by extracting higher rate of interest from a poor Co-operative Society,
which was facing financial crisis. The complainant itself admitted that aforesaid
amount was lent for three months from 09.09.1996 to 08.12.1996. It further seems that
the
complainant
had
lent
and advanced
Rs.1.00
crore
to
OP1
on
28.09.1996 on payment of interest at higher rate. The complainant had requested
to refund the amount of Rs.1,50,00,000/- with interest, on or before 01.01.1997, vide its
letter dated 30.12.1996, but the OPs could not pay as requested on account of
circumstances beyond the control of the OPs. The alleged default has taken place
as early as on 18.12.1996 and 30.12.1996 and the present complaint cases have
been filed after more than one year, i.e. in 1998 and thus the same are not tenable
and deserve to be dismissed forthwith, being barred by limitation.
12.
The OP further submitted that the Government of Gujarat has issued a directive
to all the Statutory Corporations of the Government of Gujarat on 09.10.1997 and
resolved to extend the period of fixed deposit of government Statutory Corporation for
the period of two years from the date of maturity. RBI had also looked into the affairs of
the Bank under Section 35 of the Banking Regulations Act and made its report, dated
18.09.1998, the relevant portion of which reads as under:“VII. That the non-performing assets of the Bank as on
31.03.1998, 99.7 of its total advances i.e. Rs.2535.57
lakh. That the erosion in the value of Bank Assets are
estimated at Rs.1614.85 lakh”.
13.
The present Board of Directors was constituted in February, 1998. They are
trying to recover the dues and reduce the non-performing assets. However, the picture
is quite hazy. No salary or remuneration was paid to the staff members or the Board of
Directors,
since
about
one
year. The
written
statement
was
filed
on
15.02.1999. There has been gross mismanagement and negligence of Board of
Directors, many irregularities are committed, amounting to criminal misappropriation of
funds, conspiracy, fraud, tampering with record, fabrication of evidence, etc. The OPs
have also approached the Government of Gujarat to grant protection as OP1 is a Cooperative
Society
and
the
object
of
for upliftment and advancement
the
said
Society
of
was
the women in
general and economically backward class, in particular. In pursuance of the said
approach, the Government of Gujarat has issued a Resolution and directed all the
Statutory Corporations under the Gujarat Government for automatic extension of
deposit
for
a
further period of two
deposits have matured as early as
on
years. According
18.12.1996 and
on
to
OPs,
the
01.01.1997. The
complaints have been filed on 09.10.1998, therefore the complaints are barred by
time. The
complainant,
being
a
Government Statutory Corporation, repeatedly intimated and threatened the OPs and
its office bearers to take coercive measures. The complainant also threatened to take
unlawful means against the office-bearers of OPs for the alleged claims of the
complainant.
14. The order sheet goes to show that this Commission was informed as back as on
10.09.2008 that the Bank had gone into liquidation and an Administrator has been
appointed. Thereafter the complaint was dismissed in default. Subsequently, it was
restored. Vide order dated 04.02.2011, Liquidator was arrayed as one of the OPs. On
03.03.2011,
the
complainant
stated
that
the
Liquidator
had
been
appointed under Section 110 of the Gujarat Co-operative Societies Act, 1961
and the complainant had sought permission from the Registrar to grant ‘leave’ to
proceed with the complaint, which application is still pending. The case was adjourned
to 22.09.2011. It
is
clear that
till
the pendency of this
case, no
permission was granted by the Gujarat Co-operative Society. On 06.03.2013, we
passed the following order:
“Mr. Swapnil Chauhan, Proxy counsel for the Complainant
present. He is from Gujarat. He submits that the main counsel Mr.
D.M. Ahuja is lying sick as he is suffering from fever and has not
appeared in Gujarat High Court or any other Court for the last two
days. It is very very strange that the counsel for the petitioner is
not interested to argue the case. We have perused the last date
order when the other’s counsel were present, he did not appear.
He appeared subsequently when the other counsel had gone. The
other’s counsel have come all the way from Ahmedabad. It was
his duty to tell the counsel not to go to Delhi and waste the time
and money. So he is liable to pay cost to Ms. Manisha C.
Shah. This question is kept open and will be decided on the next
date of hearing.
It is also transpired that the complainant has to take permission
from the Registrar of the Cooperative Societies. It is stated that
now he is taking the permission. The full details that when he
applied for the permission and what is the status of the permission,
it should be placed before this Commission on 08.04.2013. No
other opportunity shall be granted”.
15.
We have heard learned counsel for the
parties. Counsel
for
the Liquidator, Ms.Manisha C.Shah pointed out that they are paying the money to
the complainant on ‘pro-rata’ basis. They have already paid a sum of Rs.1.00 lakh to
the complainant. She submitted that they will not shirk to pay the amount to the
complainant as per its share. Counsel for the OPs have raised no dispute about the
payment of the above said amount. If the interest is on the higher side, that is the result
of the agreement entered into between the parties. The agreement does not appear to
be illegal, unconscionable or brought through fraud. The Liquidator has already paid
Rs.1.00 lakh towards the amount claimed in the complaints. The Liquidator has also
showed the Commission that the complainants will further pay the amount as per ‘pro
rata’ basis.
16.
We have already referred to Section 112 of Gujarat Co-operative Societies Act,
1961. This Act clearly puts a bar in proceeding with these cases. The application with
the Registrar of the Gujarat Societies is pending for the last four years. It appears that
he is reluctant to grant permission. The complainants should seek the permission from the
Registrar
and then they can institute
the
cases,
or the
complainants
wait until the winding up order is cancelled in their favour.
17.
Again, Section 166 (2) of the said Act, runs as follows:“166 (1) Save as expressly provided in this Act, no Civil or
Revenue Court shall have any jurisdiction in respect of -(a) xxxx
(b) xxxx
should
(c ) xxxx
(2) While a society is being wound up, no suit or other legal
proceeding relating to the business of such society shall be
proceeded with or instituted against the society or any
member thereof, or any matter touching the affairs of the
society, except by leave of the Registrar, and subject to such
terms as he may impose”.
18.
Moreover, Section 167 of the said Act, further lays down as under :“Save as otherwise provided in this Act, no suit shall be
instituted against a society, or any of its officers, in respect of
any act touching the business of the society, until the
expiration of two months next after notice in writing has been
delivered to the Registrar or left at his office, stating the cause
of action, the name, description and place of residence of the
plaintiff and the relief which he claims, and the plant shall
contain a statement that such notice has been so delivered or
left”.
19.
In view of these circumstances, it appears that the complaint cases are pre-
mature. We, therefore, dismiss both the complaints but allow the complainants to file
fresh
suits/complaints after
serving
the
requisite notices, before the
appropriate forum, including the consumer forum, and the exclusion of time spent in
these
proceedings before this
Commission
as
well
as
in
the
liquidation proceedings shall be considered in view of Apex Court’s authority reported
in Laxmi Engineering Works Vs. P.S.G. Industrial Institute – (1995) 3 SCC 583.
.…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
dd/25 &26
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1115 OF 2012
(From the order dated 19.12.2011 in First Appeal No. 1549/2005 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
1.
Khanna Automobiles, Opposite Aggarsen College, Chhachhrauli Road, Jagadhri
2.
Hero MotoCorp Limited, (Formerly Hero Honda Motors Ltd., Head Office 34,
Community Centre, Basant Lok, Basant Vihar, New Delhi through its duly authorized
signatory
... Petitioner
Versus
Shri Rajesh
Kumar,
son of Shri Jarat Kumar,
resident of Khizri
P.O. Khiztabad,
Tehsil Chhachhrauli, District Yamuna Nagar
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 10.04.2013 at the time of arguments,
For the Petitioner(s)
Mr. N.P. Sharma, Advocate
Ms. Girija Wadhwa, Advocate
For the Respondent (s)
Mr. Pawan Kumar Ray, Advocate
PRONOUNCED ON : 23rd APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed against the order dated 19.12.2011 passed by
the Haryana State Consumer Disputes RedressalCommission, Panchkula (hereinafter
referred to as “State Commission”) in First Appeal No. 1549 of 2005, vide which appeal
against
the
order
dated
18.07.2005
passed
by
the
District
Consumer
Disputes Redressal Forum, Yamuna Nagar was ordered to be dismissed.
2.
The facts of the case are that the respondent/ complainant purchased a Hero
Honda Splendor Motor Cycle on 13.02.2004 for a sum ofRs. 40,765/-. It has been
alleged by the complainant that there was a leakage of Mobil oil from the chamber since
the date of purchase of the vehicle. The complainant visited the dealer and made
complaints regarding defects. Despite attempts to repair the vehicle and also changing
some of the parts, the defects could not be removed. The complainant filed the
consumer complaint with the District Forum. The District Forum was pleased to allow
the complaint and directed the opposite party/petitioner to replace the vehicle or to
refund Rs. 40,765/-, the cost of the vehicle along with interest of 12% per annum from
the date of making the complaint till realization and also to pay Rs. 10,000/- on account
of mental agony/harassment as well as cost of proceedings. An appeal against this
order was also ordered to be dismissed by the State Commission, saying that the
complainant had proved manufacturing defect in the vehicle in question.
3.
The learned counsel for the petitioner, at the time of arguments before us, invited
our attention to the conditions of warranty as contained in the service booklet, saying
that it was obligation of M/S. Hero Honda to repair the vehicle or to replace those parts,
which are considered to be cause of malfunctioning, free of charge of both labour and
material. The petitioner has been attending to the complaints of the respondent from
time to time. Even after filing the consumer complaint, the respondent brought the
motor cycle for third free service to them on 15.12.2004, having run 4655 Kms.
already. The complainant reported about oil leakage for the first time on 15.12.2004
and it was rectified by the petitioner on that very day. The learned counsel further
stated that the District Forum had relied upon the reports of two experts
namely Jasbir Singh Proprietor of Perfect Repair, Chhachhrauli and Gurmeet Singh,
Proprietor of M/s. Sidhu Automobiles, Jagadhriand passed their order on the findings
given in these reports. There was however, no material to establish that these two
persons had proper expertise about the issue. Two affidavits had also been given on
behalf of Gurmeet Singh and Jasbir Singh, which were both attested on 24.06.2005
while the case had already been adjourned for arguments on 18.05.2005. It was not
clear how these affidavits had been brought on record. The learned District Forum had
also mentioned about these affidavits in their order. The learned counsel further stated
that the respondent had been using the vehicle for the last many years and he was not
required to be given any relief.
4.
In reply, the learned counsel for respondent stated that the defect of leakage of oil
from the vehicle had been fully established from the material on record. It was also
clear from the facts of the case and the reports of the two experts that petitioners had
failed to repair the oil leakage. The learned counsel confirmed that the vehicle was
running even at the moment, but the defect of leakage of oil remained.
5.
We have examined the entire material on record and given our thoughtful
consideration to the arguments advance before us. The District Forum had ordered the
petitioners to replace the vehicle in question or to refund the cost of the motor cycle
along with 12% interest. The State Commission also dismissed appeal against this
order. It is however, made out from the facts on record and also admitted by the
complainant / respondent that the vehicle has always been in running condition till
date. The contention of the petitioner is that the oil leakage was first reported to them
on 15.12.2004 and it was rectified the same day. It is quite evident that there is no
justification to ask the petitioners to replace the vehicle at this stage or to refund the
cost of the vehicle to the respondent given the fact that the vehicle has already run for a
number of years. We also find weight in the contention of the petitioners that the
opinion of the experts produced by the other party is not convincing, because no
certificate etc., has been produced to establish that they had the requisite expertise in
the matter. Affidavits of experts were not filed before case was fixed for final arguments
and in such circumstances, these affidavits could not have been considered by District
Forum.
7.
In the light of these facts, the petition is ordered to be accepted, the complaint is
dismissed and the orders of the State Commission and District Forum are set aside with
no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 372 OF 2008
(Against the order dated 27.05.2008 in CC No. 142/1999 of the
Delhi State Consumer Disputes Redressal Commission)
Dr. Sharma Nursing Home Through its Principal Officer Dakshna Road, Vishwas Nagar
Shahdara, Delhi-110032
…
Appellant
Versus
Ms. (Late) Geeta Through her Legal Representatives
a)
Smt. Shyama Devi W/o Late Uttam Chand
b)
Miss Babita D/o Late Uttam Chand
c)
Miss Pooja D/o Late Uttam Chand
All residents of 32/99, Bhikam Singh Colony Gali No.10, Vishwas Nagar Shahdara,
Delhi-110032
…
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Mr. Gaurav Kakar, Advocate
For Respondents
: NEMO
Pronounced on 23rd April, 2013
ORDER
PER VINEETA RAI, MEMBER
Respondents
1.
This First Appeal has been filed by Dr. Sharma Nursing Home through its
Principal Officer, Appellant herein and Opposite Party before the Delhi State Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission)
being aggrieved by the order of the State Commission, who allowed the complaint of
medical negligence filed against it by Ms. Geeta, Complainant before the State
Commission.
2.
FACTS :
Respondent-Complainant had visited the Appellant-Nursing Home for treatment
of medical problems on 09.04.1997. These problems, however, persisted and
Respondent-Complainant found herself becoming unfit to work. Following the Dilation &
Curettage (D&C) procedure that was done on Respondent-Complainant, her condition
deteriorated and ultimately she found that her hands and legs were not working. When
she approached a Government Hospital for further treatment and advice, she was
informed that she had become permanently disabled upto 30%. She contended that
this disability occurred because of the unnecessary surgical procedure of D&C
conducted on her and, therefore, issued a notice to the Appellant-Nursing Home on
grounds of medical negligence in operating on her although the ultrasound indicated
that there was no abnormality and as a result of the unnecessary surgery she had
become permanently disabled. On not getting a satisfactory response, RespondentComplainant filed a complaint before the State Commission on grounds of medical
negligence and deficiency in service and requested that Appellant-Nursing Home be
directed to pay her a lump-sum compensation of Rs.10.00 Lakhs since she was earning
Rs.4000/- per month and since she was maintaining her widowed mother and other
members of the family, as also any other relief as considered appropriate including
litigation costs.
3.
Appellant-Nursing Home on being served filed written reply denying the above
allegations
and
stated
that
the
Respondent-Complainant
was
diagnosed
withamenorrhoea for two months, vaginal bleeding and lower abdominal pain and it was
stated that Respondent-Complainant herself wanted that the D&C procedure be
conducted. Therefore, after taking written consent of her brother, who had
accompanied her, D&C procedure was done under general anesthesia which was
administered by a Doctor who was an MD in Anesthesia and in a well-equipped
operation theater. Respondent-Complainant was discharged in a satisfactory condition
and asked to come back after the histo-pathological report of the tissue which had been
sent for culture was received. However, Respondent-Complainant did not turn
up. Since the surgery was conducted by well-qualified Doctors after proper examination
of Respondent-Complainant and she was discharged in a satisfactory condition, there
was no medical negligence on the part of Appellant-Nursing Home and the complaint
appears to be concocted with some ulterior motive best known to RespondentComplainant.
4.
During the pendency of the complaint before the State Commission and 4 years
after the D&C procedure, Respondent-Complainant passed away on 23.08.2001 and
her Legal Representatives were brought on record to pursue the case.
5.
The State Commission on the basis of evidence produced before it concluded
that the Respondent-Complainant was subjected to D&C procedure which was not
required in view of normal ultrasound report, which stated “uterus is of normal size and
echo-pattern. Minimal fluid seen in the cavity. No sac of POCs seen. No fibroid or
mass lesion seen. POD is clear. No pelvic or adenexal mass lesion seen. No vesicle
calculus or mass lesion seen”. This unnecessary surgery as certified by Bara
Hindu Rao Hospital resulted in restriction of movement of both hands, legs and elbows
of Respondent-Complainant indicating 30% disability. The State Commission also took
note of the fact that Respondent-Complainant passed away 4 years after the
surgery. The State Commission, therefore, concluded as follows:
“10. The aforesaid circumstance of ultrasound report necessitating no
such
operation
amounts
to
negligence
which
resulted
in
30%
disability. Though the complainant has subsequently died, may be, due to
certain other reasons but not due to the operation, we deem that a lump
sum compensation of Rs.50,000/- which shall also include the cost of
litigation, shall meet the ends of justice.”
6.
Being aggrieved by the above order, the present first appeal has been filed.
7.
Learned counsel for Appellant-Nursing Home was present and made oral
submissions
before
us. No
one
was
present
on
behalf
of
Respondent-
Complainant. However, a reply on behalf of Respondent-Complainant was submitted in
respect of the appeal filed by Appellant-Nursing Home essentially reiterating the facts
as stated in the original complaint before the State Commission.
8.
Learned counsel for the Appellant-Nursing Home stated that the State
Commission erred in concluding that an unnecessary D&C procedure was
conducted. Even though the ultrasound did not show any specific abnormality, the
medical examination of the Respondent-Complainant revealed that she had come with
a history of incessant and continuous vaginal bleeding because of which it was
necessary to conduct the D&C procedure. This was conducted after proper clinical and
diagnostic examination by well-qualified Doctors and after taking due care and,
therefore, the disability with which Respondent-Complainant suffered could not be
attributed to the above surgery.
9.
We have heard learned Counsel for the Appellant-Nursing Home and have also
gone through the evidence on record, including the written submissions made on behalf
of
the Respondent-Complainant before the State Commission
as also this
Commission. The fact that Respondent-Complainant visited the Appellant-Nursing
Home where a D&C procedure was conducted is not in dispute. It is also a fact that this
D&C was done although the ultrasound report indicated no abnormality as is clear from
the specific finding that the uterus was normal; minimal fluid was seen in the cavity; no
sac of POCs was seen; no fibroid or mass lesion was seen, POD was clear; no pelvic
or adenexal mass lesion was seen; and no vesicle calculus or mass lesion was
seen. Counsel for the Appellant-Nursing Home has sought to explain the reasons for
conducting the D&C procedure despite the ultrasound finding being normal by stating
that this was necessary because Respondent-Complainant was having continuous
vaginal bleeding. However, from the case history of the Respondent-Complainant
which was filed in evidence, we note that the Consultant at the Appellant-Nursing Home
had in fact stated that the Respondent-Complainant had amenorrhoea for 2
months. Amenorrhoea is the absence of menstrual period in a woman of reproductive
age and, therefore, Appellant-Nursing Home’s contention that Respondent-Complainant
was having continuous and incessant bleeding for several days is not borne out by the
medical evidence on record. Even if she had experienced some bleeding for a few
days, there was no medical evidence to indicate that D&C, which is a surgical
procedure under general anesthesia, was necessary in the instant case especially in
view of the normal ultrasound report.
10.
What constitutes medical negligence is now well-established through a catena of
judgments of the Hon’ble Supreme Court of India (e.g. in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1]) and essentially three principles are required to be followed:
(i) Whether the doctor in question possessed the medical skills expected of an ordinary
skilled practitioner in the field at that point of time; (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
and (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.
11.
Applying these principles to the present case, it is apparent that Appellant-
Nursing Home was guilty of medical negligence in carrying out the D&C procedure in
the absence of any diagnostic or clinical evidence to support the need to conduct this
procedure because of which the Respondent-Complainant suffered a disability. In view
of the above circumstances, we agree with the finding of the State Commission that
there was medical negligence on the part of Appellant-Nursing Home in conducting an
unnecessary surgery and uphold the same in toto.
12.
The present First Appeal is, therefore, dismissed. Appellant-Nursing Home is
directed to pay the Legal Representatives of the Respondent-Complainant a sum of
Rs.50,000/- within a period of 6 weeks.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2048 of 2008
(From the order dated 18.01.2008 in Appeal Nos. 826/2007 (Haryana)/RBT/712/2007
and Appeal No.677/2007 (Hry)/RBT/07/2008 of State Consumer
Disputes Redressal Commission, UT Chandigarh)
1. Partap Singh S/o Sh. Jagmal Singh
2. Smt. Shakuntla W/o Sh. Partap Singh
3. Jagmal Singh S/o Sh. Shiv Singh,
All residents of Shiv Colony, Railway Station, Kosli, Tehsil Kosli, District. Rewari
… Petitioners/Complainants
Versus
1. Mahavir Singh Yadav, LVO, The Kosli Cooperative Sehkari Agricultural and Rural
Development Bank Society, Kosli, District Rewari
2. The Manager, The Kosli Cooperative Sehkari Agricultural and Rural Development
Bank Society, Kosli, District Rewari
3. Distirct Manager, The Kosli Cooperative Sehkari Agricultural and Rural Development
Bank Society, Kosli, District Rewari
4. The Administrative Director, The Haryana State Cooperative Agricultural and Rural
Development Bank Society Ltd., SCO No. Sector-2, Panchkula.
… Respondent/Opposite Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
Mr. Alok Sangvan, Advocate
For the Resp. No.1
Mr. Madhurendra Kumar, Advocate
For the Res. No. 2 to 4
PRONOUNCED ON
Mr. Rajvir Singh, Advocate
23rd April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/complainants against the
impugned
order
dated
18.01.2008
passed
by
the
State
Consumer
DisputesRedressal Commission, UT, Chandigarh (in short, ‘the State Commission’) in
Appeal No. 826/2007 (Hry)/ RBT/712/2007 and Appeal No. 677/2007 (Hry)
/RBT/07/2008 – Pratap Singh & Ors. Vs. Mahinder Singh Yadav & Ors. by which, while
allowing appeal, order of District Forum allowing complaint was set aside and complaint
was dismissed.
2.
Brief facts of the case are that complainants/petitioners entered into an
agreement on 18.2.2005 to purchase agricultural land for Rs.34.50 lakhs and paid
Rs.4,00,000/- as earnest money to the vendors with the promise that they will get the
sale
deed
executed upto 30.3.2005,
failing
which,
earnest
money
would
be
forfeited. Complainants applied for loan with OPs/respondents and deposited
Rs.4,000/- each for processing of loan on 21.2.2005. OP No. 4 sanctioned loan of
Rs.21,31,000/- vide letter dated 28.2.2005 and all the formalities for obtaining loan were
completed by the complainants. Later on, OP No. 4 vide letter dated 9.3.2005
sanctioned loan of Rs.30,00,000/- as per collector rate list, but loan was not released.
From time to time, period of executing deed was got extended by the complainant, but
as OP failed to release the loan amount and complainant failed to make payment under
agreement to sell, Vendor forfeited the earnest money of Rs.4,00,000/-. Complainants
alleging deficiency on the part of OPs filed complaint and claimed Rs.4,10,000/- as
compensation along with interest. OPs contested complaint and submitted that loan
was never sanctioned and complainants never completed formalities; hence, complaint
be dismissed. Learned District Forum after hearing both the parties, allowed the
complaint and directed OPs to pay Rs.4,10,000/- and further directed to pay Rs.30,000/as compensation and Rs.2200/- as cost of litigation along with 12% p.a.
interest. Appeal filed by the petitioners for enhancement was dismissed and appeal
filed by the respondents 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 petitioners submitted that even after sanction of loan,
respondents have not released loan and committed deficiency and learned District
Forum rightly allowed complaint, but learned State Commission has committed error in
passing the impugned order; hence, revision petition be allowed and impugned order be
set aside. On the other hand, learned Counsel for the respondents 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 petitioners entered into an agreement for purchase
of land and applied for loan to respondents, but petitioners have failed to place any
document on record regarding sanction of loan. Learned State Commission has
observed as under:
“11.
Now only question to be seen is whether complainants are
consumers and there is deficiency on the part of appellants and
respondent No. 4 in not sanctioning loan or if the loan had been
sanctioned then in disbursing the same. Complainants had not
placed on file any documents showing that the loan in favour of
complainants had been sanctioned by the appellants and respondent
No. 4. The letter annexure C-21 dated 16.3.2005 which was issued
by Haryana State Coop./Agricultural and Rural Development Bank
Society
Ltd.
to Kosli Coop Sehkari Agricultural
and
Rural
Development Bank Society permitted the society to enhance the
sanction of the loan upto 90% instead of 75% against hypothecation
of the property. They were further allowed to adopt the value of land
@ Rs.21,31,000/- per acre or the actual rate as per registry in all the
three cases referred. Therefore, this letter does not show that the
Haryana State Coop. Agricultural and Rural Development Bank Ltd. –
Head office had sanctioned loan or had given any direction to the
Primary coop. agr. And Rural Development Bank Ltd. to sanction
loan. The case was still at the processing stage.
12.
Complainants were only prospective customers/loanees. It
was the discretion of the bank either to sanction the loan or to refuse
the same. No cause of action had arisen in favour of the
complainants as the loan had not been sanctioned. If any indirect
loss has been suffered by the complainants for not sanctioning of
loan by the appellants and respondent No. 4 then appellants and
respondent No. 4 are not to blame. It cannot be said that they had
committed any deficiency in service. The complainants do not come
in the definition in service. The complainants do not come in the
definition of ‘consumer’. It is not the case that loan had been
sanctioned and the appellants and respondent No.4 had not mala
fide disbursed the loan. The loan is sanctioned strictly according to
the policy of appellant No. 3 i.e. the Haryana State Coop. Agri. and
Rural Development Bank Ltd. Even appellants had written letters
dated 19.7.2005 and registered letter dated 1.8.2005 requiring
complainants to remove certain deficiencies so that process of
disbursement of loan could be finalized but they refused to accept
those letters.
13.
The counsel for appellants has referred to an authority
of Hon’ble National
Commission
titled
M/s. Sree Kanaka Durga Hatcheries Pvt. Ltd. Vs. State Bank of India
– 2002 (2) CPC 617 to contend that even if sanctioned loan remained
in the file of bank and no sanctioned letter was delivered to the
complainant and thereafter bank decided not to go ahead with grant
of loan due to unfulfilment of certain conditions by the complainant
then in that case bank did not commit any deficiency in service. In
the present case loan had not been sanctioned at all as the
complainants did not complete certain formalities. Therefore,
appellants had not committed any deficiency in service”.
6.
Thus, it becomes clear that petitioners could not place any document showing
sanction of loan by the respondents and letters dated 28.2.2005 and 9.3.2005 are not
loan sanction letters but they merely convey the value of land per acre for approval of
loan. Petitioners never gave earnest money under agreement to purchase land, under
any assurance of release of loan by respondents. Even after sanction of loan, it was not
obligatory on the part of respondents to release applied loan and in such circumstances,
learned State Commission has not committed any error in passing impugned order and
setting aside order of District Forum allowing complaint.
7.
We do not find any illegality, irregularity, or jurisdictional error in the impugned
order and revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioners against respondents 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. 658 of 2012
(From the order dated 17.01.2012 of the Odisha State Consumer
Disputes Redressal Commission, Cuttack in Appeal no. 783 of 2011)
Ram Lal Aggarwalla Advocate and Notary New Colony, Pithapur Cuttack – 753001
Odisha
Petitioner
Versus
1. Bajaj Allianz Life Insurance Co. Ltd., 1st Floor, Santi Kunja Building Plot no. 2332,
Ward no. 23, Link Road, Cuttack – 753012
2. Bajaj Allianz Insurance Co. Ltd. G E Plaza, Airport Road Yerawada, Pune – 411006
3. UTI Bank Ltd., Presently Known as Axis Bank AUL House, Jayashree Plaza
34, Dolamundai, Badambadi Square Cuttack – 753009
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
IN PERSON
Pronounced on 23rd April 2013
ORDER
REKHA GUPTA
Revision petition no. 658 of 2012 has been filed against the order dated
17.01.2012
in
First
Appeal
no.
783
of
2011
of Odisha State
Disputes RedressalCommission, Cuttack (‘the State Commission’).
Consumer
The brief facts of the case given by the petitioner/ complainant in his complaint
are as follows:
In the year 2006, the Branch Manager Mr Harjot Singh on behalf of Bajaj Allianz
Life Insurance Company without considering the ability and capability of annual gross
total income of the petitioner/ complainant, with malafide intention, to achieve his target,
executed in the name of the petitioner/complainant, a policy unit Gain Super Diamond
Policy no. 00162900015 dated 06.03.2006 as a regular annual premium for
Rs.2,00,000/- to be paid for twenty four years without consent, wish and will of the
petitioner/ complainant and issued a letter dated 02.05.2006.
Moreover, they played games with the funds without authorisation. Therefore, the
fund was reduced to Rs.1,36,000/- which the petitioner/ complainant has to be paid by
the company. The petitioner/complainant wanted detailed switching from the company
to verify the authentication of switching on dated 06.12.2010, but the company denied
the same. The petitioner/complainants demanded through postal registered AD on
dated 08.12.2008 but the company yet not have sent the details which the respondent
opposite party is supported to be said. The company has also to refund Rs.17,777/- as
mortality charges during the period of policy as lapsed for second premium till date of
surrender of the policy. The levy of mortality charges is unwarranted by the law. The
respondent/ opposite party no. 1 debited Rs.2,00,000/- from a running policy no.
0012075550 as Unit Link Single which was opened by the petitioner/complainant on
24.10.2005 as Annexure E 1, 2, 3 at page no. 37 to 39 and credited the amount in the
policy no. 0016290015 on 06.03.2006 by the company.
The respondent – Bajaj Allianz Life Insurance in their written statement have
explained that the petitioner/ complainant’s policy in question is an unit (market) Linked
policy and law is now well settled that such policies are speculative in nature and the
same are taken for investment purpose and as such the policy holder of such policies
are not consumers and disputes relating to such policies are not sustainable before the
Consumer Forum. On this score the complaint is liable to be dismissed.
The petitioner/complainant has not approached this Hon’ble Forum with clean
hands. The petitioner/complainant has suppressed vital material facts before
this Hon’bleForum
that
the
wife
of
the
petitioner/
complainant
namely Tarini Agrawal was a I C approved agent of the answering opposite party
bearing IC No. 10000939544 during the relevant period and all the transactions relating
to the petitioner/complainant’s policies were made through her as per the conscious
consent
of
the
petitioner/complainant.
But
deliberately
the
petitioner/
complainant has not impleaded his wife Tarini Agarwal as a part to the complaint.
-
the petitioner/ complainant in his complaint petition has raised many disputed and
complicated facts which cannot be adjudicated in the Consumer Forum and on this
score alone the complaint is liable to be dismissed.
-
the petitioner/ complainant being an experienced advocate and a notary, is a
conscious educated person and therefore, the presumption is that he cannot take an
insurance policy without being satisfied about the nature and terms and condition of the
policy. In fact the petitioner/ complainant has taken the policy with an oblique motive for
unlawful gain. It seems that from the very beginning the petitioner/complainant has
proceeded with a pre-planned manner to provide business to his wife and to earn
Commission from the said business through his wife and thereafter to close/surrender
the policy with some please and other and to take back the entire policy premium
amount from the company. The aforesaid conduct of the petitioner/ complainant is
sufficient to dismiss the complaint with exemplary cost.
-
the petitioner/complainant has levelled personal allegations against the branch
Manager by name without impleading him as a party to the complaint which is bad in
the eye of law. However, it is submitted that no prudent person would believe the story
and allegation of the petitioner/complainant that the policy was issued without the
knowledge and consent of the petitioner/ complainant. The wife of the petitioner/
complainant is an agent of this policy and the proposal form has been filled up with pen
by either the wife/agent or the petitioner/ complainant on 17.02.2006 in which it is
clearly written that the premium amount is Rs. 2 lakh and the premium term of 24 years.
The petitioner/ complainanthas put his signature in the specified row of the proposal
form. Besides, the presumption is that as an authorized agent the wife of the
petitioner/complainant is aware about the benefits or loss in a particular policy.
Therefore, the allegations levelled in this paragraph are false, fabricated, baseless and
the same are hereby denied. The petitioner/complainant is put to strict proof of the
same. Even for the sake of argument if its assumed that at the time of taking the policy
the petitioner/complainant was ignorant about the details of the policy, but after receipt
of the policy certificate and the terms and condition of the policy, he could have returned
the policy in the free look period of 15 days as contained in clause no. 14 of the policy
document.
-
the policy being an Unit Linked policy and is dependent on the market volatility
and the value may go up or may come down depending upon the market condition. The
fund switching has been done strictly on the basis of the written requests of the
complainant in the prescribed forms.
-
the petitioner/complainant has been supplied with the copies of the fund switching
forms submitted by him on different dates.
-
the quantum of the mortality charges has been determined as per the declared
rate as contained in the policy document and on the basis of the age of the policy holder
in strict guidelines of IRDA. The petitioner/complainant is liable to pay the said amount
in terms of the policy and the claim for the refund of the said amount is unsustainable in
the eye of law.
-
the said amount was transferred to the new policy no. 0016290015 in accordance
with the instruction of the petitioner/ complainant as partial surrender amount of the first
policy no. 0012075550.
-
the said amount has been deposited against the premium of the new policy, i.e.,
policy no. 0016290015 as per the instruction of the petitioner/complainant and this fact
is admitted by the petitioner complainant in the preceding paragraphs including his
letter.
The
District
Consumer
Disputes Redressal Forum,
Cuttack
(the
‘District
Forum’) vide its order dated 23.11.2011 has stated as follows:
“During the course of argument the petitioner/complainant submitted a lot of
allegations against the respondent/ opposite parties including forgery of his
signature on so many documents on different dates. He has also argued that he
has not applied on 27.04.2006, 22.05.2006, 24.05.2006, 13.06.2006, 16.06.2006,
18.08.2006, 12.09.206 and 18.09.2006 for switching off the fund. Such
allegations regarding forging of his signature cannot be resolved by the
Consumer Forum in a summary procedure. On the other hand the learned
counsel for the respondent/ opposite parties submitted that the policy in question
relates to the year 2006 and soon after deposit of the first premium of
Rs.2,00,000/- the policy documents were issued to the petitioner/ complainant
but the petitioner/ complainant did not avail the free look period within 15 days
from the date of receipt of the bond if he was not interested to continue the
policy. So according to him the complaint filed on 12.07.2010 is barred by Law of
Limitation. Though a petition for condonation of delay is available with the record
but it was not moved and no order was passed on the said petition. So, the
complaint was filed beyond the period of limitation. The fact that the wife of the
petitioner/complainant was the agent under the opposite parties is not disputed. It
is also not disputed that the petitioner/ complainant is an advocate and a Notary.
The plea that he received the policy documents at a belated stage is not
satisfactorily proved by the petitioner/ complainant. He being an educated person
he cannot take a plea that he was not aware of the terms and conditions of the
policy and the fact that the scheme under which the money was invested was for
a period of 24 years with annual premium of Rs.2,00,000/-. The further allegation
of the petitioner/complainant that the money had been transferred from one fund
to another without his consent resulting in substantial reduction in the total value
of the investment is also not acceptable because it depends on the market
volatility and the value may go up or come down depending upon the market
condition. It is also not disputed that in the meanwhile the petitioner/complainant
had surrendered the policy bond and got the money prematurely after deduction
of mortality charges and other charges as per the terms of the policy. The
investment made by the petitioner/complainant was to gain profit. Hence, it was
invested for commercial purposes and therefore, the petitioner/ complainant is
not a consumer under the opposite parties. The State Commission, Odisha in
First Appeal no. 162 of 2010 in the case of Smt Abanti Kumari Sahoo vs Bajaj
Allianz Life Insurance Company Ltd., have held that the money of the
petitioner/complainant invested in the share market is no doubt a speculative
gain and the speculative investment matter does not come under the Consumer
Protection Act and accordingly, the State Commission dismissed the appeal.
In view of the aforesaid discussions and findings of the State Commission, we
are of the opinion that the present complaint is not maintainable under the
Consumer Protection Act, 1986 and as such it is dismissed being devoid of
merit”.
Aggrieved by the order of the District Forum, the petitioner filed an appeal before
the State Commission. The State Commission vide order dated 17.01.2012 has stated
as follows:
“The District Forum observed that admittedly the complainant is an advocate
having vast experience and is also a Notary. His wife Tarini Agrawal was the
recognised agent of the insurance company. In such circumstances, the
allegation of fraud being practised on him in the matter of issuance of policy is
totally unacceptable. The Forum also observed that the policy having been taken
for investment of the premium amount in the share market, which is for
speculative gain, the complaint did not come within the purview of the Consumer
Protection Act, 1986. In this connection, the Forum placed reliance on the
decision of this Commission in the case of Smt Abanti Kumari Sahoovs Bajaj
Allianz Life Insurance Company Ltd., (FA no. 162 of 2010).
After hearing the complainant, who argued the matter on admission personally,
and going through the relevant documents available in the LCR, we see no
reason to differ from the finding recorded by the learned District Forum.
Accordingly, we reject the appeal memo at the admission stage”.
Dissatisfied by the order of the State Commission, the petitioner has filed this
present revision petition before us.
The grounds given in the revision petition are more or less repetitive of the
original complaint/ first appeal of the petitioner.
We have heard the petitioner in person and have also gone through the records
carefully. It is an undisputed fact that the petitioner is an advocate having vast
experience of a notary by taking policies through his wife who is the registered agent of
Bajaj Allianz Insurance Co. Ltd. Though he claim that he does not have income but it is
seen from the record that he had taken the following policies:
Policy no.
Product
Payment
Premium
Premiu
Life
received
Type
m
Insuranc and
amount
e
Ride
receive
Premiu
Premiu
d
m
m
2872
2872
0
2872
2872
0
24.10.200 Single
1,00,00
1,00,000
0
5
0
1,42,000
0
2,00,000
0
date
00060711
CashgainEcono
16.05.200 1st Year
46
my
5
00060711
-do-
20.12.200 Renewal
46
5
00120755
Unitgain –Single
50
00120755
-do-
50
CI
Premium
Premium
Premium
25.10.200 Top
5
HCB
up 1,42,00
Premium
0
00162900
Unitgain Super
06.03.200 1st Premiu
2,00,00
15
Diamond
6
m
0
TOTAL
4,47,74
4,47,744
4
It is also seen from the proposal form and also a copy of the letter dated
02.05.2006 from the respondent that the policy no. 00166290015 under Product Unit
Gain Super Diamond was for an amount of Rs.10,00,000/-. Date of commencement is
06.03.2006 and the date of maturity is 06.03.2030, premium paying term 24 years and
Frequency of payment is “annual” and the instalment premium was Rs.2,00,000/-.
It is not understood on what ground the petitioner has thereafter stated that it was
the Bajaj Allianz Life Insurance Company without considering the ability and capability
of annual gross total income with malafide intention to achieve his target Branch
Manager Mr Harjot Singh executed in the name of the complainant, a policy unit Gain
Super Diamond Policy no. 0016290015 dated 06.03.2006 as a regular annual premium
for Rs.2,00,000/- to be paid for 24 years without consent and wish of the
petitioner/complainant and issued a letter dated 02.05.2006. From the proposal form on
record it is seen that the petitioner himself filled in the proposal form for unit Gain Super
with premium of Rs.2.00 lakh with premium term of 24 years on 17.02.2006. He had
made transactions through wife Tarani Agarwal who was the agent and her agent code
no. was 1000093544. In the same proposal form some earlier policies taken are also
mentioned. It is clearly mentioned in the proposal form that the premium frequency is
annual. This proposal form has been signed by the petitioner himself and the insurance
consultant report has also been given by Tarini Agarwal. In column no.2 of the same
where against a question the applicant, the spouse, child/ parent/ relative of IC or of
employee or Bajaj Allianz Life Insurance Company, she has mentioned “YES”.
Petitioner has not been able to give any evidence regarding allegation of forgery,
fraud and misrepresentation. In view of the foregoing reasons we find that there is
nojurisdictional 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.10,000/- (Rupees ten thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, 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 31st May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 714 of 2008
(From the order dated 24.8.2007 in Appeal No. 1100/2005 of Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
Capt. V.P. Mohan (Retd.) S/o late M.S. Nair, No. 118, Prasanthi Nilayam,
Mooapa Layout, Babusapalyam Bangalore – 560084
… Petitioner/Complainant
Versus
1. Dr. M.Shantha Kumar Medical Director, Sathya Hospital, No.1, 199312, 192411,
C. Ramaiah Layout, Kammanahalli Main Road, St. Thomas Town Road, Bangalore –
560084
2. Dr. Raja Reddy Administrative Officer Sathya Hospital, No. 1, 199312, 192411,
C. Ramaiah Layout, Kammanahalli Main Road, St. Thomas Town Road, Bangalore –
560084
3. Sri Muthappa, Mag Security Services No. 42/1, Subannapalya, Banaswadi Main
Road, M.S. Nagar Post, Bangalore – 560033
…Respondents/Opposite Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
Mr. S. Nandakumar, Advocate
For the Respondents
Ex-parte
PRONOUNCED ON 23rd April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
impugned order dated 24.08.2007 passed by the Karnataka State Consumer
Disputes Redressal Commission,
Bangalore
(in
short,
‘the
State
Commission’)
in Appeal No. 1100/2005 – Capt. V.P. Mohan (Retd.) Vs. Dr. M. Shantha Kumar
& Ors.by which, while allowing appeal, order of District Forum allowing complaint was
set aside and complaint was dismissed.
2.
Brief facts of the case are that complainant/petitioner’s daughter Ms. Seena was
going on scooty with her sister’s son Abhishek on 4.10.2003 and met with an accident
due to negligence and rash driving of four wheeler. Seena and Abhishek sustained
injuries. Public gathered over there and Seena was taken by public in bleeding
condition to the nearest Sathya Hospital. Injured Abhishek gave telephone number to
other persons who informed to the complainant. Then, complainant along with his
friends and relatives went to Sathya Hospital and all of them requested the security staff
to allow admission of Seena for immediate treatment, but security staff refused and
stated that no doctor is available, though, injured reached Hospital at about 2.55
P.M. Then, Seena was taken to Santhosh hospital, who allowed the victim for treatment
but she succumbed to death due to loss of blood. It was further alleged that behaviour
of security staff was indifferent due to instructions of the authorities of Sathya Hospital
to not allow accidental cases without their permission. Alleging deficiency on the part of
OPs/respondent, complainant filed complaint before the District Forum. OPs resisted
complaint, filed written statement and submitted that injured was not brought to the
Hospital and complainant does not fall within the purview of consumer. It was further
alleged that Sathya Hospital has got a separate legal entity, as such, the Medical
Director or the Administrative Officer are not right persons to represent it. It was further
alleged that Mr. Muthappa is not the proprietor of M/s. Mag Security Services; hence,
complaint may be dismissed for non-joinder of necessary parties. Learned District
Forum allowed the complaint and directed OP to pay 3,00,000/- jointly and severally
with cost of Rs.10,000/-. OP filed appeal which was allowed by learned State
Commission vide impugned order against which, this revision petition has been filed.
3.
Respondents did not appear; hence, they were proceeded ex-parte.
4.
Heard Learned Counsel for the petitioner and perused record.
5.
Perusal of complaint reveals that security staff of the OP/Respondent hospital did
not permit the victim to enter inside the hospital. When the victim herself was not
admitted to the hospital and was not provided any treatment and no consideration was
paid or agreed to be paid by the victim or her relatives, complainant does not fall within
the purview of consumer and learned State Commission has not committed any error in
passing impugned order and dismissing complaint.
6.
Record further reveals that complainant has improved his complaint by filing
affidavits of complainant and other witnesses depicting the fact that even request to
nurses for allowing victim to the casualty was disallowed on the pretext that no doctor
was available to provide medical treatment. There is no averment in the complaint that
nursing staff also refused entry of victim in the hospital. It has clearly been mentioned
in Paragraph 7 of the complaint that security staff bluntly refused to allow victim in the
hospital on the ground that no doctor was available. When only security staff refused
entry of victim in the hospital, Respondent Nos. 1 & 2 cannot be held responsible in any
perspective, as neither they, nor their nursing staff refused entry of injured Seena in the
hospital. As per affidavits of witnesses, doctor was not available at that time. As per
complaint, security staff also apprised that doctor is not available in the hospital. In
such circumstances, there was no occasion to allow entry of victim in the hospital, who
was in critical condition and who succumbed to death while taking to another
hospital. Statement of Ravi Kumar recorded by police under Section 161 Cr.PC filed by
the complainant as Annexure P-5, clearly reveals that he took injured first
to Sathya hospital where she was not given any treatment and then he took her in the
same auto to Santosh Hospital. In such circumstances, there was no occasion for the
complainant and other witnesses to affirm this fact in their affidavit that in
their presence nurses on duty did not allow victim in the casualty ward of the hospital
and no reliance can be placed on the statement of complainant and other witnesses.
Learned District Forum also dismissed application for cross-examination of these
witnesses, though, District Forum ought to have allowed this application in the peculiar
circumstances of the case.
7.
When the doctor was not available at the hospital, security staff even if refused
entry of victim in the hospital has not committed any deficiency, as in the absence of
doctor, there was no occasion to allow entry of patient in a critical condition to the
hospital because no medical assistance could have been provided even if admitted in
the hospital. It is unfortunate that victim died while taking to Santosh Hospital. In such
circumstances, there is no deficiency on the part of security staff also.
8.
OPs specifically stated in their written statement that M/s. Sathya Hospital has got
a separate legal entity and Medical Director or the Administrative Officer are not right
persons to represent the Hospital. It was further alleged that Mr. Muthappa is not the
Proprietor of M/s. Mag Security Services. Petitioner has not filed any evidence to prove
the fact that OP Nos. 1 & 2 represent Sathya Hospital and they are responsible for any
deficiency on the part of Sathya Hospital. Petitioner has also not filed any evidence to
prove the fact that Shri Muthappa is the Proprietor of M/s. Mag Security Services and
M/s. Mag Security Services was providing security in theSathya Hospital. In such
circumstances, complaint was liable to be dismissed against OP and learned District
Forum committed error in allowing complaint, but learned State Commission has not
committed any error in allowing appeal and dismissing complaint. We do not find any
illegality, irregularity or jurisdictional error in impugned order passé by learned State
Commission and revision petition is liable to be dismissed at admission stage.
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. 1147 of 2013
(From the order dated 06.09.2012 of the Punjab State Consumer
Disputes Redressal Commission, Chandigarh in First Appeal no. 1468 of 2008)
DTDC Courier and Cargo Limited Regional Office at B /1/ 01 Naraina Industrial, Phase
II, New Delhi Through Shri Rakesh Kumar Sinha Authorised Representative
Petitioner
Versus
Amardeep Singh Son of Shri Sukhdev Singh Resident of Patel Nagar Pathankot and
Partner of M/s Med Vision 35 Improvement Trust Pathankot
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr M K Sinha, Advocate
Pronounced on 23rd April 2013
ORDER
REKHA GUPTA
Revision petition no. 1147 of 2013 has been filed against the order dated
06.09.2012 passed by the Punjab State Consumer Disputes RedressalCommission,
Chandigarh (‘the State Commission’) in First Appeal no. 1468 of 2008 whereby the
State
Commission
has
confirmed
the
order
of
the
District
Consumer
Disputes Redressal Commission, Gurdaspur (‘the District Forum’).
The brief facts of the case as per the respondent/complainant are as follows:
“That the respondent/ complainant is doing the business under the name and style
of M/s Med Vision, 35, Improvement Trust, Pathankot and used to send the goods/
equipment’s through HDTC courier Branch, Pathankot. Hence, the complainant is a
consumer to the petitioner/opposite party. The respondent/complainant has send a
courier parcel containing medical equipment, through the opposite party no.1 / petitioner
i.e., DTDC Courier Ltd., Pathankoton behalf of his firm M/s Me division to M/s Larson
and Tourbo Ltd., 32, Shivaji Marg, Moti Nagar, New Delhi vide docket no. 236473503
dated 16.09.2006 but the parcel was not delivered to M/s Larson and Tourbo Ltd.,
32, Shivaji Marg, Moti Nagar, New Delhi till today.
The respondent/ complainant had approached the petitioner/ opposite party no. 1
number
of
times
personally
and
also
have
contacted
over
phone.
The
respondent/complainant also approached to the petitioner/ opposite party no. 2 on
phone and requested them to locate the parcel or to compensate him. The
respondent/complainant also moved a letter dated 24.02.2007 to the petitioner opposite
party no.2 regarding the delivery of courier to the addressee, but of no use. It is
pertinent to mention here that the complainant has sent a legal notice to the opposite
parties through counsel but the opposite party did not give any reply to the legal notice
dated 24.04.2007of the respondent/ complainant.
The respondent/ complainant has written the exact value of the goods i.e.,
2,53,050/- as per the rate list according to the letter dated 18.04.2007 issued to the
respondent/ complainant by the Larsen and Tourbo Ltd.”
The petitioner/ opposite party in their written statement have stated that the
present complaint is not maintainable in the present form, as the complaint is barred by
limitation. The claim against the replying opposite party can be filed within one month as
such the complaint is liable to be dismissed.
All the terms and conditions of the replying petitioner/ opposite parties were read
over to the respondent/ complainant at the time of booking of the consignment and the
respondent/complainant has accepted the terms and conditions at the time of booking
the consignment as such the replying petitioner/ opposite parties are liable in case of
any damages occurred during the course of business, to the extent of Rs.100/-. No
declaration of consignment was disclosed by the respondent/ complainant at the time of
its booking.
The District Forum vide order dated 29.05.2008 have stated as follows:
“For the reasons recorded above, the complaint were acceptance to be allowed.
Petitioner/opposite parties are directed to pay Rs.1,35,000/- as the price of the
equipment got booked through it by the respondent/complainant along with
Rs.10,000/- as compensation litigation charges and on account of mental agony
and harassment to be suffered because of all this. Compliance of this
order be made within a month from the receipt of the copy of the order”.
Aggrieved by the order of the District, the petitioner filed an appeal before the State
Commission. The State Commission vide their order dated 06.09.2012 has stated as
follows:
“In view of the above discussion, we are of the opinion that the District Forum
has rightly allowed the complaint, the impugned order is perfectly legal, valid
and does not call for any interference. There is no merit in this appeal and the
same is accordingly, dismissed with costs. Litigation cost are assessed at
Rs.5,000/-.
The appellants had deposited an amount of Rs.25,000/- with this Commission
along with the appeal on 22.12.2008. They also deposited another sum of
Rs.47,500/-. This amount of Rs.72,500/- with interest, if any, accrued thereon be
remitted by the Registry to the respondent/complainant by way of a cross
cheque/demand draft after the expiry of 45 days”.
Dissatisfied by the order of the State Commission, the petitioner has filed the
present revision petition before us.
Along with the revision petition, the petitioner has filed an application
for condonation of delay of 93 days, but as per the office report, there is a delay of 96
days. The reasons given for the delay in the application by the petitioner are as follows:
“The petitioner/revisionists after receiving the order on 17.09.2012 send the
same to the local counsel for legal opinion which was only made available to him on
27.12.2012. Thereafter the file along with the opinion was sent to the Zonal Office at
New Delhi. The Zonal Office after citing its opinion on the file sent the opinion for further
recommendation from the Head Office at Bangalore which was only approved on
10.03.2013 thereafter, the present revision petition has been filed”.
We have heard the learned counsel for the petitioner and have carefully gone
through the records of the case.
There is no explanation as to why the local counsel who has not been named,
took over three months to give his opinion. Thereafter the file is said to have been sent
to the Zonal Office at New Delhi and then the Head Office at Bangalore. But no dates
have been mentioned. It is also mentioned that the opinion was only approved on
10.03.2003. Learned counsel for the petitioner could not explain that being a courier
company itself why transit of files and records should have taken almost three months.
The revision petition was filed on 22.03.2013.
The