PRONOUNCED ON: 7 May 2013

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 281 OF 2013

(Against the order dated 12.10.2012 in F.A . No. A/11/787 of the State Consumer

Disputes Redressal Commission, Maharashtra, Mumbai)

WITH IA/501/2013(STAY)

M/s Sagar Shopping Developers Acting through its partner, Mr. Saddruddin Mohammed

Maredia Having its office at Hotel Heritage Building, Sant Sauta Marg, Byculla (East),

Mumbai 400027

........ Petitioner (s)

Versus

Anil Dattatrey Kadam Through his Constituted Attorney, Ms. Amita Laxmikant Hatkar,

Residing at 24/P, Shefali Co-operative Housing Society Ltd., 62, Phirozsha Road, Santa

Cruz (West), Mumbai 400054

…….Respondent (s)

BEFORE:

HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Petitioner : Mr. Vikram Mehta, Advocate

For the Respondent/

Caveator : Mr. Sanjoy Kr. Ghosh, Advocate

Pronounced on : 1 st May 2013

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. The case of the complainant/respondent, Shri Anil Dattartray Kadam is that M/s

Sagar Shopping Developers, OP is a developer/builder. The OP was constructing flats in ‘Sagar Avenue-II’ and the complainant paid a cheque of Rs. 1,00,000/- as advance money and purchased flat bearing No. E-917, carpet area 451 sq. ft. @ Rs. 3400/- per sqare feet on 19.11.2005. Thereafter, the complainant gave other two cheques of Rs.

1,00,000/- each total being Rs. 3,00,000/- against the cost of the said flat. The OP issued a receipt for the same on 03.02.2006. The complainant asked the petitioner to execute the agreement but he put off the matter on one pretext or the other.

2. The construction of the building was commenced by the petitioner/OP as per the plans sanctioned by the Municipal Corporation of Mumbai. Thereafter, some disputes cropped up with the encroachers and purchasers of other building being Sagar Regency on 23.04.2004. Hon’ble High Court vide its order dated 23.04.2007, directed the petitioner not to construct the said Sagar Avenue-II building within 15 feet from another building being Sagar Regency. Consequently, the OP amended the plans of Sagar

Avenue-II building. The construction of Sagar Avenue-II was required to be demolished and fresh plans were submitted for approval of the Municipal Corporation.

3. In view of the above mentioned circumstances, the OP returned the interim amount of Rs. 3,00,000/- of the complainant vide letter dated 26.07.2007, but the complainant refused to accept the same and returned it. Ultimately, the complainant sent a legal notice dated 17.07.2007 for execution of sale deed in respect of the above said flat. The said legal notice did not evoke any response. Therefore, complaint was filed before the District Forum. The District Forum partly allowed the complaint. He directed the OP to execute sale deed in respect of flat measuring 451sq. ft. carpet area in Sagar Avenue-II @ 3400/- per sq. ft. within a period of 8 weeks from the receipt of the order passed by the District Forum and directed him to complete the incomplete work of the building project, if any.

4. The State Commission also dismissed the appeal.

5. We have heard the counsel for the petitioner at the time of admission of this revision petition. He submitted that the petitioner does not have any flat and the order passed by the District Forum cannot be executed. He also argued that no agreement was ever executed and the complainant is not bound by any agreement. It was argued

that the project was not approved by the local authority and as such the OP cannot be held liable for the same. Again, there was no violation whatsoever of Maharashtra

Ownershilp Flats (Regulation of the Promotion of Construction Sale Management and

Transfer) Act (In short, MOFA) of 1963.

6. Instead of coming to the point, the learned counsel for the petitioner has tried to stretch the things a bit far. In the petition itself, the petitioner himself admits that a sum of Rs. 1,00,000/- was accepted towards tentative booking in the Sagar Avenue-II. It is also admitted that the total sum of Rs. 3,00,000/- was obtained from the complainant. The petitioner did not enter in the agreement and as such he committed violation under the provisions of Section 4 of MOFA. The State Commission came to the conclusion that the project was sanctioned by the Local Authority in the year 2005 and permission was valid till 09.12.2007.

As per the Hon’ble High Court’s order mentioned above, it appears that the petitioner had encroached upon the property of another

Builder. The Hon’ble High Court had to interfere due to the omissions and commissions of the petitioner itself.

6. Again, the petitioner has not approached the consumer fora with clean hands. Although, he accepted Rs. 3,00,000/-, yet, till the filing of this revision petition, he is not willing to disclose the price of booking rate of per square feet. For the following reasons, the rate disclosed by the complainant @ Rs. 3400/- per sq. ft. appears to be correct. Sh. Vinod Bhanushali, property dealer stated that the booking rate of the flat in dispute was Rs. 3,400/- per sq.ft. The petitioner has tried to pull the wool in the eyes of the Law. The Brochure of the project produced by the petitioner mentions about the location and area of the flat. However, very smartly it does not indicate the selling rate. The petitioner who have sold many of the flats, did not enter into agreement to show that the rate per sq. ft. was higher than Rs. 3400/-. No such document saw the light of the day. It is also surprising to note that the receipt issued in favour of the complainant mentions about the name of project, floor and the flat No. to be sold to the complainant. This receipt is a substitute for the agreement. The privity of

the contract between the parties stand established. Certain harsh realities cannot be glossed over. Facts are the stubborn things. It is difficult to fathom why should anyone take a dallop of injustice from someone else because he is in a more influential position. The skimble-scamble explanation given by the petitioner does not help the cause of justice at all. If he has no place at Sagar Avenue-II, he must provide or create the same. The petitioner cannot befool the people like this. The building is ready and he must provide accommodation to the complainant.

7. It must be mentioned here that the District Forum had passed the order on

15.07.2011. Now, almost 2 years have elapsed. The said order has not been complied with. The complainant paid the amount of Rs. 3,00,000/- in the fond hope of getting the flat in the year 2007. Since then six years have elapsed. The attainment of justice is the highest human endeavor. Justice delayed Is not only

Justice denied- it is also Justice Circumvented, Justice mocked and the system of

Justice undermined.

8. We, therefore give 30 days time to the petitioner to comply with the order rendered by the District Forum, otherwise the petitioner will have to pay additional costs of Rs. 2,500/- per day to the complainant till the order is complied with. The executing court must take all the steps under which it is authorized to execute this order. The petitioner has wasted the time of the District Forum, State Commission as well as National Commission, for which we impose costs of Rs. 1,00,000/- upon the petitioner, which will 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, by way of demand draft in favour of P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within one month 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.

..…………………..………J

(J.M. MALIK)

PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Jr/10

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI


(From order dated 26.07.2012 in First Appeal No. 621 of 2007 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

WITH I.A. No. 1 OF 2012 I.A. No. 2 OF 2012 (Stay & Delay)

State Bank of Patiala Through its Manager Charkhi Dadri, District Bhiwani (Haryana)

… Petitioner

Versus

1. Ram Kishan Son of Sh. Jai Dayal Resident of House No. 7, New Canal Colony,

Gurdwara Road, Charkhi Dadri

2. Smt. Kailasho Devi, Wife of Ram Kishan Son of Sh. Jai Dayal, Resident of House

No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri

… Respondents

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. Bharat Arora, Advocate for

Mr. Sanjiv Kakra, Advocate

Pronounced on : 1 st May, 2013

ORDER


1. The complainants Mr. Ram Kishan and his wife Smt. Kailasho Devi, residents of Charkhi Dadri, opened various Fixed Deposit Accounts on different dates in the year 1993 onwards. The Branch Manager, State Bank of Patiala, Charkhi Dadri-OP-

4 (in the original complaint) took their signatures on various forms and other papers on the pretext of renewal of the FDRs. He did not issue the FDRs but issued the pass book. They were informed that the rules have since been changed, therefore, pass book was given to them. Thereafter, they approached the Bank to renew the pass book time and again but it did not produce the desired result. Then it transpired that their amount was fraudulently misused by some bank officials by way of converting their bank account into stock invest account. Moreover, when the OPs failed to return the money of the complainants, legal notice was sent to them but it did not ring the bell. Therefore, a complaint under section 12 of the Consumer

Protection Act 1986 was filed before the District Forum.

2. The District Forum vide its order dated 31.07.2007 allowed the complaint and directed the OPs to pay the maturity value of the FDRs as per details given in Para

No. 2 of the complaint alongwith interest @9% per annum from the date of maturity of each FDR till the date of payment. It also awarded costs in the sum of Rs.

2,000/-.

3. Aggrieved by that order, the petitioner preferred an appeal before the State

Commission. The State Commission dismissed the Appeal vide its order dated

26.07.2012.

4. We have heard the counsel for the petitioner. He made the following submissions. He argued that the complainants had approached the Bank and opened various Fixed Deposit Account for the purpose of Stock Investment. It is explained that due to the downfall in the stock market, the investment of the complainants eroded. It also came to light that there was a scam in the Bank and

FIR was lodged with the police against Bank’s own officers on 20.06.1996. Banking

Ombudsman examined all the material facts and dismissed the complaint made by the complainants vide order dated 21.01.2000. The complainants filed a criminal complaint.

5. Counsel for the petitioner vehemently argued that the complainants had signed the various documents dated 27.07.1994 under the heading “Payment of

Stock Invests from my account NO. 286” This document was signed by Smt.

Kailasho Devi in Hindi language. It is apparent that she could not write Hindi language properly. It was stressed that when the complainants signed the documents with open eyes, therefore, they should not be permitted to jibe their previous stand. We have perused the Photostat copy of the complaint which also bears the signatures of the complainants in Hindi language. It appears that both the complainants are not aware of the English language. The learned counsel for the petitioner further laid emphasis on the fact that this case is barred by time. It was argued that the FDR was opened in the year 1993 but the instant complaint was filed on 23.11.2000. He argued that the orders passed by the District Forum and State

Commission are perverse. The complaint should have been filed within 2 years.

6. The last submission made by the counsel for the petitioner was that Sh.

Ramdhan Goel, Special Assistant, State Bank of Patiala and Sh. Raghuvardayal

Aggarwal, Assistant Manager, State Bank of Patiala were convicted in a criminal case under section 408/467/468/471/201 that is for the mis-appropriation of amount and forgery etc. The counsel for the petitioner vehemently argued that these persons were not convicted in respect of the case in hand but they were convicted in the case of other three persons.

7. An attempt was made to louse up the real issue. It is true that in the order of the Magistrate, there is no mention of the complainants. Accounts of Sh. Hem Raj,

Smt. Basanti Devi, Sh. Krishan Lal were discussed. However, the judgment states that there were as many as 47 cases. This is an admitted fact the complainants also lodged complaint against the bank officials bearing the same F.I.R. number. The

Magistrate was pleased to observe:-

“28. No doubt, bank might have suffered losses of Rs. 5.00 lacs, as it was guarantor for the repayment of this stock invest invested by the depositors, because of lack of vigilance, the bank had to pay the penalty, but it is quite clear that accused Ramdhan Goel would use the amount account holder without making any entry of the credtor in their respective accounts and stock invest accounts. Thus, during those relevant period accused Ramdhan Goel would use the public money and he would deposit the said cash amount in the bank on the event of allotment of the share in the bank. The said modus operandi adopted by the accused clearly speaks volume of lack of supervision and vigil of the higher bank official that paved the way for the appointment of Ishwar Singh as a Special Auditor to unfold the entire scam. Auditor report in this case Ex. PW 6/A is valuable piece of evidence, which clearly shows the complicity to both the accused in defrauding the bank and modus operandi adopted by them to misuse the public fund.”

8. At the foot of para No. 31 it was further observed:-

“31………. Even otherwise, it is own contention of learned counsel for the accused Raghvar Dayal Aggarwal that in good faith, he would issue stock invest by signing on the some blank stock invest. Further, there is no force in his contention that stock invest used to be issued blank. This argument of ld. defence counsel is simply devoid of any force because stock invests are to be required to be issued after filing denomination the signature of the Incharge, who was accused

Raghvar Dayal Aggarwal and those were required to be signed by the account holders as well.”

9. Although, the case of complainants was not discussed in the said judgment, yet, it is clear that accounts of as many as 47 persons were changed from FDR to stock invest accounts without their consent. The District Forum observed:-

“We are also convinced with the arguments advanced by the complainant counsel that at the time of applying for allotment of shares in public issue, he would apply to the bank for issuance of a stock invest in his favour for the amount applied for in the public issue. Separate applications were to be made for separate public

issue applications. In return the Bank would keep the application money amount intact, out of total amount deposited in the account of applicants saving or FDs accounts if the applicant was successful in getting allotment of certain shares in a public issue of the company the company would send the stock invest attached with the application to the bank for collection of allotment money. In case the applicant was un-successful in getting allotment of shares, this stock invest issued by the bank was to be returned as such to the applicants by the company. In term the applicant would visit the bank and present the stock invest for collection i.e. for remove of the bank lien over the stock invest amount. By applying this scheme the authorities stopped the user of application money by the company as the share application money remained deposited in applicant’s bank accounts till allotment of share. For whole of this process the applicant was supposed to sign the application for issuance of stock invest as well as the stock invest itself. After allotment of shares the bank was duty bound to clear the stock invest amount in favour of the company making allotment only after comparing the stock investor signatures with the specimen signatures of the applicants but in the present complaint they failed to do so, which amounts to deficiency in service on the part of the respondents.”

10. The case of the petitioner hinges upon an application singed by Kailasho Devi in Hindi language. The whole of documents are in English language. Same is the position with the signatures of Ram Kishan. There is no evidence that they were aware of English language. The other formalities were given the go-bye. The Bank cannot wash its hands of its responsibility. The attitude of Bank adds a shocking dimension to the situation. The commission of scam further shows the negligence and dereliction of duty on the part of the higher authorities. By no stretch of imagination it can be said that the case is time barred. The complainant has continuous cause of action till they get their money back. We see no merit in the revision petition and dismiss the same and impose punitive costs of Rs. 50,000/-,

which will 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, by way of demand draft in favour of

P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within 45 days from today, otherwise 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.

..…………………………

(J. M. MALIK,J.)

PRES IDING MEMBER

……………….……………


MEMBER

Jr/8



with

I.As. No.1 & 2 of 2012

(From the order dated 12.1.2012 Appeal No.879/2006

of the State Commission, Haryana, Panchkula)

Indu Bala Satija W/o Shri Dharamvir Satija, R/o 443, Dr. Mukherji Nagar, Near M.C.,

Primary School, Delhi

.. .Petitioner

Versus

Haryana Urban Development Authority Through its Chief Administrator, Sector-12,

Faridabad Through Estate Officer, HUDA, Faridabad ….Respondent

BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Venkat Subramoniam T.R., Advocate

Pronounced on : 1 st May, 2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

By way of present revision petition, petitioner/complainant has challenged the impugned order dated 12.1.2012, passed in (First Appeal No.879 of 2006) by the State

Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State

Commission’).

2. Petitioner filed a complaint under Section 12 of the Consumer Protection Act,

1986 (for short, ‘Act’) stating that she was allotted Plot No.2551 in Sector-65, Faridabad, vide allotment letter dated 5.11.2001 at a tentative price of Rs.4,66,250/- She deposited

Rs.46,625/- alongwith the application and further deposited Rs.69,938/- within 30 days from the issue of the allotment letter. Thus, in all the petitioner deposited Rs.1,16,563/- with the respondent. Thereafter, respondent/opposite party demanded enhanced price of the plot but petitioner shown her inability to pay the enhanced price and by application dated 28.10.2002, she surrendered the plot and sought refund of the deposited amount. However, thereafter petitioner moved another application on

10.12.2002 whereby she requested the respondent for withdrawal of her earlier application dated 28.10.2002. Respondent vide memo No.8821 dated 25.3.2003 refunded a sum of Rs.33,973/- and deducted Rs.82,590/- out of the total deposit.

Alleging it as deficiency in service, petitioner invoked the jurisdiction of District

Consumer Disputes Redressal Forum, Faridabad (for short, ‘District Forum ‘) with the prayer to allot a plot at new rates or alternatively to refund her the deducted amount of

Rs.82,590/- alongwith interest@ 24% per annum from the date of deposit till actual realization.

3. Respondent contested the complaint and filed an affidavit stating that complaint under the provisions of Act is not maintainable since petitioner has surrendered the plot and she is no more owner of the plot. The amount has already been refunded to her as per respondent’s surrender policy. After taking refund, petitioner is no more a

‘consumer’ of the respondent and the complaint is liable to be dismissed.

4. District Forum, vide order dated 20.2.2006 allowed the complaint and passed the following directions;

“ i) The Respondent is ordered to allot the same plot to the complainant on the similar price on which it was originally allotted and in case the same is not found vacant and un-allotted then allot some other plot to the complainant in the same sector on the similar price.

ii) It is the option of the complainant that in case she does not want some plot to be allotted to her as ordered above, then she has the alternate option to get recover the deducted amount alongwith interest @ 12% per annum payable from the date of its deduction till its realization.

iii) The Respondents are further ordered to pay Rs.50,000/- on account of mental agony and harassment and further Rs.5,000/- on account of litigation expenses.”

5. Being aggrieved, respondent filed appeal before the State Commission which allowed the same, vide its impugned order and dismissed the complaint of the petitioner.

6. Hence, petitioner has filed the present revision petition. Alongwith it, petitioner has also filed an application seeking permission to raise additional grounds and produce documents.

7. We have heard the learned counsel for the petitioner and gone through the record.

8. It has been contended by learned counsel for the petitioner that State

Commission wrongly observed that document dated 10.12.2012 has not been proved by the petitioner. In fact, copy of the letter has been placed on record. It is further contended as per information received under the Right to Information Act, respondent has received letter dated 10.12.2012 from the petitioner. It is also contended by the counsel that petitioner immediately on acceptance of the cheque wrote back to the respondent protesting as to how it has deducted the amount from the deposit made by her. Moreover, petitioner in her surrender letter has stated that she is ready to continue with the allotment if the enhanced amount is reduced. Respondent despite reducing the enhanced amount did not intimate the petitioner and cancelled her allotment.

9. In support, counsel for petitioner has relied upon the decision of Supreme Court in “ Bhagwati Prasad Pawan Kumar versus Union of India (2006) 5 Supreme Court

Cases 311”

10. State Commission, while accepting the appeal of the respondent in its impugned order has observed;

“On behalf of the appellant-opposite party it is argued that the complainant had voluntarily surrendered the plot vide his application dated 28.10.2002 as she was not in a position to pay the enhanced price of the plot. In support of his argument learned counsel for the appellant has drawn our attention towards the application dated 28.10.20102 annexed at page 31 of the appeal the relevant part of which is reproduced as under;

“ TO,

THE ESTATE OFFICER H.U.D.A

SECTOR-12, FARIDABAD - 121 007.

SUB: SURRENDER OF PLOT NO.2551, SECTOR-65, FARIDABAD

RESPECTED SIR,

AS ALREADY INFORMED BY ME TO YOU ON 16-10-02 I AM UNABLE

TO PAY THE ENHANCED PAYMENT WHICH WAS DEMANDED BY YOU @

1421.99 PER SQ. MTR. AS PER YOUR LETTER NO.A-65/38584 DT. 4/10/02.

SIR YOU ALREADY KNOW THAT I PAID RS.46,625/- (On 29-1-01) and

RS.69,938/- (On 23-11-01), WHICH CONSTITUTE 25% OF THE SAID PLOT.

PLEASE REFUND ME BY ORIGINAL MONEY I.E. RS.1,16,563/-

(Rupees One lakh sixteen thousand five hundred sixty three only) AS I

HEREWITH SURRENDER THE ORIGINAL ALLOTMENT LETTER VIDE MEMO

NO.3103 DT.05-11-01.

THANKING YOU,

P.S. IF YOU WITHDRAW THIS ENHANCEMENT, THEN I READY TO ACCEPT

YOUR OFFER.

ENCL: ORIGINAL ALLOTMENT.

YOURS FAITHFULLY,

SD/-

(INDU BALA SATIJA)

443, DR. MUKHERJI NAGAR, NEAR

M.C. PRIMARY SCHOOL, DELHI

110009. ”

Admittedly, the request of the complainant was accepted and she was refunded Rs.33,973/- vide Memo No.8821 dated 25.3.2003, after deducting 10% of the consideration amount as per HUDA policy.

Learned counsel appearing on behalf of respondent-complainant has argued that the complainant had withdrawn her earlier application vide second application dated 10.12.2002 but the request of the complainant was not considered by the opposite party.

In our view the contention raised on behalf of complainant is without legs.

Complainant has failed to prove her application dated 10.12.2002 by summoning

HUDA record despite the fact that the onus to prove the same was upon the complainant. The complainant has failed to establish the alleged application dated 10.12.2002 submitted by her to the opposite party, by leading any cogent and convincing evidence and for that reason the photocopy of the alleged application produced before us cannot be taken into consideration.

The other aspect of the case is that the complainant had accepted the refund of Rs.33,973/- without any protest through cheque and therefore, once the complainant had encashed the cheque

, she was no more ‘consumer’ of the opposite party. Firstly, the complainant ceased to be a ‘consumer’ of the opposite party on the date she surrendered the plot on 28.10.2002 and thereafter when she encashed the cheque.

The other aspect of the case is that admittedly the complainant has already received the refund of Rs.33,973/- vide Memo No.8821 dated 25.3.2003 through cheque which was encashed by her without protest. It is well settled law that once the cheque already issued in favour of the complainant has beenencashed, no further cause of action exists in favour of the complainant.

Inference in this regard is made to case law cited as Bhagwati Prasad Pawan Kumar versus Union of India (2006-3) PLR 76

(SC), wherein it was concluded that the encashment of the cheques amounted to acceptance of the amount in full and final settlement of the claim. It was further laid down by the Hon'ble Apex Court that the protest and non-acceptance must be conveyed before the chequeswere encashed and if the cheques were encashed without protest, then it must be held that the offer stood unequivocally accepted and offeree cannot be permitted to change his mind after unequivocable acceptance of the offer. The fact of the instant case are attracted to Bhagwati Prasad Pawan Kumar’s case (supra) because the complainant had encashed the cheque without any protest.

As a sequel to our aforesaid discussions we are of the view that the complainant is not entitled for any relief. Once the complainant has surrendered the plot and received the refund without any protest, she is no more ‘consumer’ of the opposite party. District Consumer Forum has failed to appreciate the facts of the case in its true perspective. Hence, the impugned order cannot be allowed to sustain.

Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.

”

11. Firstly, we shall deal with the application seeking permission to raise additional documents which petitioner now wants to place on record. These additional documents now petitioner wants to place on record have been obtained under Right to Information

Act, 2012, Thus, the same have been obtained after the decision of both the fora below. Underthese circumstances, at this revision stage we cannot take note of such documents which were not before the fora below.

12. It is petitioner’s own case that she surrendered the plot in question and got the refund, as early as in the year 2003. Once petitioner surrendered the plot at her own, without there being any force, pressure or coercion, then she ceases to be a

‘consumer’. Moreover, petitioner has already taken the refund in the year

2003, now the clock cannot be reversed back by merely filing a complaint before the

District Forum on the ground that the rate of the plot has been reduced. It was with open eyes that petitioner submitted the surrender letter and took the refund.

13. In Bhagwati Prasad Pawan Kumar (supra), Apex Court has laid down;

“18.

Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal . In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters

of the Railways dated 7-4-1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later.

However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and non-acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An

“offeree” cannot be permitted to change his mind after the unequivocal acceptance of the offer.

19.

It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle.

Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the “offeree” was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the “offeree” had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act

”.

14. In the present case, there is nothing on record to show that petitioner was compelled by the respondent at any stage either to surrender the plot or take the refund.

15. Interestingly, petitioner having received the refund amount in the year 2003 i.e. more than 10 years ago and after enjoying that money and after surrendering the plot, now wants to have the ‘cake and eat it too’, This clearly shows malafide intention of the petitioner in filing the consumer complaint. Once, petitioner received the amount unconditionally and got thecheque encashed, under these circumstances, petitioner ceases to be a ‘consumer’ as per the Act. The privity of contract or relationship of consumer and service provider between the parties, if any, comes to an end the moment petitioner accepted the refund amount and got the cheque encashed.

16. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

17. There is nothing on record to show that impugned order passed by State

Commission is erroneous, or there is any illegality in the impugned order. Present petition being without any legal basis is meritless and the same is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

18. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules,

1987, within eight weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then she shall be liable to pay interest @ 9% p.a. till realization.

19. List for compliance on 5.7.2013.

…..…………………………J

(V.B. GUPTA)

Sg.


…..…………………………

(REKHA GUPTA)

MEMBER


REVISION PETITION NO. 2350 OF 2011 with I.A. NO.1&2 OF 2011


of the State Commission, Chennai )

Consumer Protection Council Tamilnadu D-53, 2 nd Floor, 8 th Cross, Thillainagar

Tiruchirapalli – 18. 620 018 on behalf of …Petitioner no.1

A. Rajasekar

15, AVM Jothi Nagar, Kattur

Tiruchirapalli-19 ..Petitioner No.2

Vs.

The Managing Director

PLA MotorsTiruchi-1, ..Respondent no.1

The Regional Manager

Maruti Udyog, Chennai ..Respondent no.2

The Chairman,

Maruti Udyog, Delhi . ..Respondent no.3

BEFORE:



For the Petitioner : Mr. S. Pushpavanam, Secretary of the


Petitioner No.1 and also on behalf of Petitioner No.2

ORDER


Petitioners/complainants have challenged impugned order dated 27.9.2010 passed by State Consumer Disputes Redressal Commission, Chennai (for short, ‘State

Commission).

2, Petitioners filed a complaint before District Consumer

Disputes Redressal Forum, Tiruchi -I

(for short, ‘District Forum’) praying for directions to the respondents/opposite parties to provide a new car to the second petitioner or else pay full refund of the money paid. In addition to pay sum of Rs.20,000/- for mental agony, to pay Rs.1,00,000/- towards punitive damage and Rs.500/- to each complainant, towards cost.

3. The complaint was opposed by the respondents.

4. District Forum vide order dated 25.6.2007 allowed the complaint.

5. Being aggrieved by the order of District Forum, respondent no.1 filed appeal before the State Commission which allowed the same, vide impugned order.

6. Hence, the present revision. Alognwith it, an application seeking condonation of delay of 26 days has also been filed.

7. We have heard Shri S. Pushppavanam, Secretary of Petitioner No.1 and also on behalf of Petitioner no.2.

8. Though petitioners in their application have stated that there is delay of 26 days but as per Office report there is delay of 124 days.

9. It is contended by Petitioner No.1 that delay has occurred due to the fact that

Petitioner No.2 had some sinusitis problem and was under medical treatment for over a month and was incapacitated. Thus, delay is not willful. Petitioners have filed medical certificate also.

10. The impugned order was passed on 27.9.2010 and copy of which was received by the petitioner on 9.12.2010. However, revision petition has been filed on 11.7.2011.

Thus, there is delay of 124 days. Case of petitioners is that they received the certified copy of the impugned order on 15.3.2011. Petitioners have not stated as to by which mode they received this copy on 15.3.2011. However, as per endorsement made on the certified copy of the impugned order, it was delivered on 9.12.2010. So, this plea of the petitioners that certified copy of impugned order was received on 15.3.2011, is against the record.

11. Now coming to the grounds for condonation of delay, the main ground is that petitioner no.2 had medical problem due to sinusitis. As such there was delay in filing the petition. Petitioner No.1 has been vigorously pursuing the complaint of petitioner no.2. There is no explanation as to why petitioner no.1 was not vigilant enough to file the revision petition before this Commission within the period of limitation. Moreover, as per medical certificate of Petitioner No.2, it is nowhere mentioned that Petitioner no.2 was confined to bed or was immobilized.

12. It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact. 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.

13. 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 consumer fora

”.

14. Hon'ble Apex Court also observed in case “State of Nagaland Vs. Lipokao and others reported in 2005(2) RCR (Criminal) 414 that;

“Proof of sufficient cause is a condition precedent for exercise of discretion by the court in condonation of delay”.

15. Apex Court also in “D. Gopinathan Pillai Vs. State of Kerala and another, reported in (2007) 2 SCC, 322, held;

“When mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic ground only.”

16. Under the circumstances, reasons given in the application are taken as inadequate and insufficient to condone the delay of 124 days. Ratio of the above mentioned cases fully applies to the facts and circumstances of the present case.

Therefore, the grounds stated in the application cannot constitute sufficient cause so as to condone the delay in filing the revision petition.

17. Accordingly, we reject the application seeking condonation of delay.

Consequently, we dismiss the present revision petition being barred by limitation with cost of Rs.5,000/- (Rupees Five Thousand only).

18. Petitioners are directed to deposit the cost by way of demand draft in the name of

“Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules,

1987, within eight weeks from today. In case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a. till realization.


…..…………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI


(From the order dated 19.05.2010 in First Appeal No. 1561 of 2007 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

New India Assurance Company Ltd., through its duly constituted attorney Manager,

R.O. – I, Level 5, Tower – II, Jeevan Bharti, 124, Connaught Circus, New Delhi –

110001

... Petitioner

Versus

Konda Srinivasa Rao, son of Narasimbam, Opp. RTC Depot, Sabarigirisa Complex,

Kurnool Road, Ongole, Prakasam District,

Pradesh …. Respondent(s)

Andhra

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,


HON’BLE DR. B.C. GUPTA, MEMBER

Appeared on 08.04.2013 at the time of arguments,

For the Petitioner(s) Mr. Abhishek Kumar, Advocate

For the Respondent (s) Mr. Suyodhan Byrapaneni, Advocate

PRONOUNCED ON : 1 ST MAY, 2013

O R D E R

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 19.05.2010 passed by the Andhra Pradesh

State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as “State Commission”)inFirst Appeal No. 1561/2007 against the order dated

31.01.2007 passed in consumer complaint No. 216 of 2006 by the District Consumer

Disputes Redressal Forum, Prakasam, District Ongole.

2. Briefly stated, the facts of the case are that the complainant/ respondent is the owner of a bus bearing No. AP 27-U-5445 operatingbetween Kaudukur to Hyderabad and the said bus was insured for Rs. 9,00,000/- with the petitioner for the period from

21.01.2004 to 20.01.2005. The bus met with an accident on 30.11.2004 at Verapatnam when one of the drivers J. Srinivasa Rao escaped injuries, while the spare driver Chenchanah died and may passengers sustained injuries. A report was registered by the police under Section 279 and 304A of the IPC in case Crime No.

84/2004. The complainant got the vehicle repaired by spending a sum of Rs. 6,85,000/- and submitted insurance claim with the petitioner. The petitioner repudiated the claim on the ground that the bus had permit for allowing 20 passengers to travel, but at the time of accident, more than 25 persons were travelling in the said vehicle. As per the terms and conditions mentioned in the policy, only 20 persons are supposed to travel in the vehicle and hence, there was violation of the conditions of the policy. The District

Forum after considering the evidence on record, awarded a sum of Rs. 6,85,000/- along with interest @ 9% per annum with effect from 30.01.2005 (i.e. from after two months from the date of claim) till the date of realization and also directed to pay an amount of Rs. 1,000/- each, as compensation and as cost of the litigation. On appeal against this order, the State Commission held that the insurance company could have settled the claim on non-standard basis, if more passengers were travelling in the bus. The learned State Commission awarded 75% of the claim, saying that the insurance company should pay Rs. 5,13,750/- with interest @ 9% from 30.01.2005 till the date of realization, besides the compensation and cost awarded by the District Forum. They also, awarded Rs. 2,000/- as cost of the appeal and give a time of four weeks for compliance of the order. It is against this order that the insurance company / opposite party have filed the present petition.

3. At the time of hearing before us, the learned counsel for the petitioner stated that as per the original estimate, a sum of Rs. 10,00,000/- was required to be spent on repairs, but the amount actually spent was Rs. 6,85,000/-. The learned counsel invited our attention to the report of the surveyor dated 20.08.2005 and also report dated

26.07.2006, saying that the surveyor had assessed the loss as Rs. 2,36,785/-. It was a detailed report and had given description of all items of damage. However, the learned

District Forum and the State Commission chose to award much higher amounts than the report given by the surveyor, which cannot be justified. It was obligatory on the

State Commission to consider the report given by the surveyor and to give its finding on the same.

4. On behalf of the respondent, the learned counsel invited our attention to the order of the State commission, saying that the report of the surveyor had been duly considered by the State Commission, as mentioned in the body of the order. He also invited our attention to the order of the District Forum, in which it has been stated that the opposite party did not produce the documents, like survey report, photograph with negatives and original copies of estimation submitted by the complainant. The District

Forum therefore has drawn the presumption that these documents were in favour of the complainant. The report of the surveyor was produced first time in appeal.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is very clear from the facts of the case that the money spent for repair of the vehicle was Rs. 6,85,000/-, which was well within the amount for which the vehicle was insured. It is also clear from the record that the number of persons travelling in the vehicle at the time of accident was more than the permissible number. The State Commission therefore decided to award the claim on non-standard basis after taking into account the money actually spent for repair of the vehicle. We do not find any error or irregularity or illegality in this order and it has been made after considering the report of the surveyor as well. It has further been observed by the State Commission that the surveyor submitted his report 2 ½ years after the accident. The State Commission has also observed as to why a period of 2 ½ years was taken to repudiate the claim and that too by suppressing the original surveyor report.

6. In the light of above facts, it is very clear that the order passed by the State

Commission does not suffer from any infirmity on any score and the same is liable to be sustained. The petition is therefore dismissed and order of the State Commission upheld with no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)


..……………………………

(DR. B.C. GUPTA)

MEMBER

SB/4



(From the order dated 07.09.2012 in First Appeal No. 467/2002/Hr/RBT/1644/2008 and

468/2002/Hr/RBT/1643/2008 of the State Consumer Disputes Redressal Commission, UT Chandigarh)

National Insurance Co. Ltd., Regional Office SCO No. 337-340, Sector 35, Chandigarh, through its duly constituted attorney

... Petitioner

Versus

The Dhana Khurd Co-op. Transport Society Ltd., through its President

Sh. Laxmi Narain, VPO Dhana,

District Hisar. …. Respondent(s)

Tehsil Hansi,

BEFORE





For the Petitioner(s) Ms. Nandita Sharma, Advocate

PRONOUNCED ON : 1 ST MAY, 2013

O R D E R



Protection Act, 1986 against the order dated 07.09.2010 passed by the State Consumer

Disputes Redressal Commission, UT Chand igarh (hereinafter referred to as “State

Commission”) in First Appeal No. 467/2002 and 468/2002, National Insurance Co. Ltd.

Vs. The Dhana Khurd Coop. Transport Society Ltd., vide which the two appeals filed against the order passed by the District Consumer Disputes Redressal Forum, Hisar in complaint No. 856 and 859 of 1996 were ordered to be dismissed. The District Forum had allowed the two complaints and awarded a sum of Rs. 15,650/- and 16,980/- along

with interest @ 18% per annum from the date after three months of lodging of claims by the complainant till realization. The District Forum had also awarded a compensation of Rs. 10,000/- in each case on account of mental agony and harassment and a cost of Rs. 1,000/- in each case. The State Commission dismissed the appeals but stated that the interest of 18% awarded by the District Forum shall take care of the compensation for harassment and mental agony and hence the compensation of Rs.

10,000/- was disallowed. It is against this order that the present petition has been made.

2. Briefly stated, the facts of the case are that the complainant/ respondent Society was registered owner of Bus No. HR-39-0880, which was insured with the petitioner insurance company vide policy No. 420304/6308831/94 valid from 20.06.1994 to

19.06.1995. The said bus met with an accident on 04.02.1995 and a criminal case was registered at Police Station, Sampla, vide FIR No. 21 dated 04.02.1995. A claim was lodged with the petitioner and accordingly, a surveyor was appointed to submit his report regarding damage. In the meanwhile, the said bus again met with an accident on

16.05.1995 and FIR No. 122 dated 16.05.1995 was registered in the Police

Station, Sadar Hisar. A second claim was filed by the respondent Society regarding this accident as well. The petitioner / opposite party rejected both the claims vide letter dated 05.8.1996 on the ground that the driving license of driver Sant Lal son of Phool Singh stood expired on 26.01.1995, and it was later renewed from 26.09.1995 to 25.09.1998. As such, at the time of accident on both the occasions, the driver was not having effective and valid driving licence. The case of the complainant is that the driver should be presumed to hold driving licence unless he is disqualified from driving the vehicle by the Licensing Authority. The complainants filed complaint with the District

Forum which allowed both the complaints by common order dated 23.01.2002 and awarded compensation as stated in the preceding paragraph. Two separate appeals filed against the order of the District Forum were dismissed by the State Commission,

Chandigarh. It is against this order that the present revision petition has been filed.

3. The respondent in the case did not appear even after service of the notice and it was ordered to be proceeded against ex-parte.

4. There is a delay of 42 days in filing the present petition, but the application for condonation of delay has been filed by the petitioner in which it has been stated that on scrutiny of the file folder, the panel Advocate had discovered that the order of the

District Forum was not on record. The delay occurred because certain time was spent in procuring copy of the said order. The delay should be condoned in the interest of justice; otherwise the petitioner shall suffer irreparable loss.

5. The learned counsel for the petitioner stated that it was clear from record that at the time of both the accidents, the driver of the vehicle did not have valid driving license. The petitioner was therefore, well within his rights to repudiate the claim of the respondent for own damage. The learned counsel stated that as per Section 15 of the

Motor Vehicles Act, 1988, a licence should be renewed from the date of expiry, if an application for same was made within a period of thirty days from the expiry of licence. However, if such application for renewal was made after more than thirty days, the licence would be renewed from the date of its renewal at a subsequent date. In the instant case, it is an admitted fact that Sant Lal was holding a driving licence valid till

26.01.1995. The said licence was got renewed with effect from 26.09.1995, making it clear that the driver had no valid licence at the time of the two accidents. The petitioner insurance company was therefore, well within its rights to repudiate the claim filed by the respondent.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. There is a delay of 42 days in filing the revision petition. The petitioner has explained that time was spent in procuring copy of the order of the District Forum and hence the petition could not be filed in time. Although, the reasons do not seem to be convincing, yet looking at the facts and circumstances of the case, the delay is ordered to be condoned in the interest of justice.

7. The factual matrix of the case brings out that the licence of the driver had expired on 26.01.1995 and he got it renewed after a time of 7 ½ months in September, 1995. It is very clear that the driver was not having a valid driving license at the time of both the accidents. The learned counsel for the petitioner has drawn our attention to the citation 2007 (4) SCALE 292 Ishwar Chand & Ors. Vs. Oriental Insurance Company , in which the Hon’ble Apex Court made it clear that as per proviso to Section 15 (1) of the Motor Vehicles Act, 1988, it was very clear that if renewal application was not filed within thirty days, the renewal shall take effect from the date of the renewal. The Apex

Court held in that case that the driver did not have a valid license on the date of the accident. The learned counsel has also drawn our attention to the citation 2008 (3)

SCALE 570, Sardari & Ors. Vs. Sushil Kumar. The Hon’ble Apex Court held that the

Insurance Company was not liable to pay the claim, if the driver did not have a valid licence.

8. The District Forum has observed in their order that the burden of proof lies upon the petitioner / opposite party to prove that the driver of the bus was not holding any driving licence. However, the present petitioner had not been able to produce any record to this effect before the District Forum. We do not agree with this contention of the District Forum. A licence is duly issued by a Public Authority under the provisions of the Motor Vehicles Act. Even if the petitioner failed to prove that the driver was not having a valid licence, this factor does not validate the licence of the licence holder. It was the duty of the District Forum to go into the depth of the matter and ascertain the facts from the official record. The State Commission have also dismissed the appeals without giving any cogent reason about the validity of the licence.

9. In the light of above discussion, it is very clear that the orders passed by the

District Forum and the State Commission are not based on correct appreciation of the facts on record and they have allowed the claim, although it was very clear that the driver was not having an effective valid driving licence at the time of both the accidents. This revision petition therefore succeeds and the orders passed by the

District Forum and the State Commission are set aside. It is held that the complainant is not entitled to claim any compensation from the petitioner and both the complaints are ordered to be dismissed, with no order as to costs.

..……………………………



..……………………………


MEMBER

SB/4


NEW DELHI


(From the order dated 16.04.2007 in First Appeal No. 1053/2006 of the Gujarat State

Consumer Disputes Redressal Commission, Ahmedabad)

1. Shashi Kumar Mohata Dhun House, Mission Road, Bhadra, Ahmedabad 380 001

2. Mrs. Taramanidevi Purushottamdasji Mohata, Dhun House, Mission Road,

Bhadra, Ahmedabad 380001

... Petitioner (s)

Versus

IFFCO TOKIO General Insurance Co. Ltd., 45, Drive in Road,

Opp. Devmani Apartments, Navrangapura, Ahmedabad 380009

…. Respondent(s)

BEFORE



HON’BLE DR. B.C. GUPTA, MEMBER ppeared on 17.04.2013 at the time of arguments,

For the Petitioner(s)

For the Respondent (s)

NEMO

Mr. S. M. Tripathi, Advocate

PRONOUNCED ON : 2 nd MAY, 2013

O R D E R



Protection Act, 1986 against the order dated 16.04.2007 passed by the Gujarat State

Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as

“State Commission”) in First Appeal No. 1053 of 2006, Shashi Kumar Mohata & Anr.

versus Iffco Tokio General Insurance Company Ltd., vide which the appeal filed by the present petitioner against the order dated 17.08.2006 passed by the District Consumer

Disputes Redressal Forum, Ahmedabad in consumer complaint No. 644 of 2003, was ordered to be dismissed.

2. Briefly stated, the facts of the case are that Purushottam dasji Mohata, father of petitioner No.1 had taken a mediclaim policy from the respondent / opposite party, bearing No. 51000337, according to which there was a coverage of risk for Rs.

6,00,000/- for himself and Rs. 2,00,000/- for his wife, who is petitioner

No.2, Taramani Devi Purushottamdasji Mohata. The aforesaid policy was for the duration from 01.01.2002 to 31.12.2002. The petitioner No.1-Shashi Kumar Mohata is the son and power of attorney holder of Taramani Devi P. Mohata. The case of the complainant is that on 13.06.2002 morning, the policy holder Purushottamdasji Mohata, now deceased, was cleansing his right ear with ear cotton buds at his residence when their maidservant Geeta came forward carrying a tea-tray towards Shri Mohata. By chance, the leg of maid servant got entangled with the carpet with the result that the tea-tray fell on the head of Purushottamdasji Mohataand thereby, the cotton ear buds penetrated with force in his ear and blood started coming out. Shri Mohata was admitted to Breach Candy Hospital at Mumbai where he was subjected to intensive treatment during the next few months, but he could not survive and ultimately died on

19.11.2002. As per the case of the complainant, the opposite party was informed about the accident from time to time and also claims were filed before it, during the ongoing treatment of the policy holder. Additional claim was filed after his death, but the opposite party refused to entertain the same on the main ground that the policy holder died due to many other diseases, as made out from the medical report. The consumer complaint was filed before the District Forum, but it was dismissed vide order of the

District Forum dated 17.08.2006. An appeal against the said order was dismissed by the State Commission on 16.04.2007 at admission stage. The learned State

Commission held that the time gap between the incident of 13.06.2002 and the death on 19.11.2002 suggested that the incident of 13.6.2002 cannot be said to be the proximate cause for death on 19.11.2002, especially considering a number of complications of serious nature. It is against this order that the present revision petition has been filed.

3. The learned counsel for the petitioner has filed written arguments in the case dated

04.3.2013, in which he has taken the plea that as per the terms and conditions of the policy, 50% of the insured sum was promised in the event of permanent partial hearing disablement in both ears i.e. Rs. 3,00,000/-. 1% of the assured sum was promised per week in case of temporary total disablement which works out to beRs. 6,000/- per week for a maximum of 104 weeks. The learned counsel has further stated in the written arguments that after the incident on 13.06.2002, the policy holder had to be admitted in the hospital six times in Mumbai and Ahmedabad, but he could not survive and died on

19.11.2002. The maid servant Geeta responsible for the accident also died on

09.07.2002 and hence her affidavit in support of the version of the accident could not be filed. According to the learned counsel, it is a case of an accident and hence the claim should have been allowed by the opposite party. It is further stated that in the report given by the hospital after his death, one of the junior Doctors wrongly mentioned about the problems suffered by the deceased, based on mere assumptions. Actually, the cause of death was due to accident on 13.06.2002. A certificate dated 24.11.2005 given by the Breach Candy Hospital Trust by ENT surgeon shows that Shri Mohata died due to injury in the ear. The learned counsel submitted a copy of judgment made by the

National Commission in the Original Petition No. 173 of 2000 Padma Ramanathan Vs.

National Insurance Co. Ltd., in which it has been stated that death due to drowning in the swimming pool is also to be construed as death due to accident.

4. In reply, the learned counsel for respondent stated that there were concurrent findings of the District Forum and the State Commission and they were based on a correct appreciation of the facts and circumstances of the case. Regarding the injury in the ears due to the falling of tea tray being carried by the maid servant, the learned counsel says that this is a false story built by the complainants. Even if he was cleansing an ear with a cotton bud, the injury could not have taken place in both the ears. In fact, the story has been made after the death of maid servant Geeta in July,

2002 so that true facts could not be ascertained. The learned counsel further invited our attention to the observations made by the District Forum and State Commission, saying that the death was not caused by the accidental injury on 13.06.2002. Further, as per report given by the Sterlinc Hospital, Ahmedabad on 03.10.2002, patient was discharged in good general condition. The insurance policy in question is for accident and hence does not cover the present case.

5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. From the material on record, including medical reports, it would be clear that the deceased Purushottamdasji Mohata was suffering from a number of diseases and he died because of multiple reasons on 19.11.2002. We tend to agree with the findings given by the District Forum as well as the State Commission that the incidence of

13.06.2002 is a made-up story. It is highly improbable that the deceased would have suffered injuries in both ears, because the tea tray being carried by the maid servant fell upon him. He was admitted in the hospital a number of times and treated for multiple ailments, but could not survive. It shall be therefore, wrong to say that the cause of death was due to accident that allegedly took place on 13.06.2002. We therefore do not find any force in the revision petition and the State Commission and District Forum have not committed any illegality, irregularity or jurisdictional error in passing their orders. The revision petition is therefore ordered to be dismissed with no order as to costs.

..……………………………



..……………………………


MEMBER

SB/4


REVISION PETITION No. 2618 of 2012

(From the order dated 08.04.2011 of the Andhra Pradesh State Consumer

Disputes Redressal Commission, Hyderabad in Appeal no. 973 of 2009)

N Saidaiah Son of Papaiah Resident of Balempalli Village Damarcharla (M) Guntur

District

Petitioner

Versus

The Branch Manager New India Assurance Co. Ltd. Branch Office Station Road, Guntur

Andhra Pradesh

M/s Ramanjaneya Cold Storage Pvt. Ltd., N H 5, Lalpuram Ankireddypalem Post

Guntur 522 005 Andhra Pradesh

Respondents




Jatothu Vasram Son of Saida Resident of Narasapuram (V) Damarcharla Mandal

Nalgonda District Petitioner

Versus

The Branch Manager New India Assurance Co. Ltd. Branch Office Station Road, Guntur

Andhra Pradesh


Guntur 522005 Andhra Pradesh

The Branch Manager Syndicate Bank Main Branch Near Market, Guntur

– 1 Andhra

Pradesh

Respondents




Parisha Sabasiva Rao Resident of Sirigiripadu Veldhurthi Mandal Guntur District

Petitioner

Versus

The Branch Manager New India Assurance Co. Ltd. Branch Office Station Road,

Guntur Andhra Pradesh


Guntur 522005 Andhra Pradesh

The Branch Manager Syndicate Bank Main Branch Near Market, Guntur

– 1 Andhra

Pradesh

Respondents

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner Mr G S Mani, Advocate

Pronounced on 2 nd May 2013

ORDER

REKHA GUPTA

Revision petition nos. 2618, 2619 and 2620 of 2012 are filed by petitioners namely N Saidaiah, Jatothu Vasram, and Parisha Sabasiva Rao against a common order dated 8 th April 2011 passed by the Andhra Pradesh State Consumer

Disputes Redressal

Commission, Hyderabad (‘the State Commission’) in First Appeal nos. 973, 974 and 975 of 2009 whereby the State Commission allowed the First

Appeals by setting aside the orders dated 30.06.2009 passed by the District Consumer

Disputes Redressal

Forum, Guntur (‘the District Forum’).

The petitioners/complainants are farmers who in their complaints have alleged that their main occupation is agriculture and they have grown red chillies in their fields.

The petitioners/ complainants had stored 101, 116 and 101 bags of chillies respectively in the first opposite party no.1/ second respondent’s cold storage and agreed to pay

Rs.60/- per bag towards rent, when the stock was sold. The petitioners stored theirs chillies produced in the second respondent’s cold storage for obtaining a better market price at the best appropriate time.

Respondent no.1/ second opposite party - New India Assurance Co. Ltd., collected the premium from the farmers and gave standard fire policy and declaration policy for batch of stock with policy bearing nos. 11/9592 dated 08.04.2000, 5859 and

11/9592 respectively.

On 28.01.2001 a fire took place in cold storage of respondent no. 2 and chillies produced by the petitioners were burnt to ashes, causing loss of Rs.1,01,000/-,

Rs.1,16,000/- and Rs.66,000/- respectively. Immediately the petitioners approached the respondent no.2/ opposite party no.1 – the Cold Storage for seeking delivery of the stock or compensation. Respondent No. 2 assured the petitioner that the claim will be settled within two months from the date of accident of the fire.

The petitioners also approached respondent no. 1/ OP No. 2 regarding the insurance claim, compensation as per the policy issued by them, but they are postponed the matter on one pretext or the other but did not settle the claim of the complainants.

The respondent no. 1- the New India Assurance Company in their written statement have stated that the name of the petitioners was not found in the surveyor’s list as per his report. Hence, there were no claims by the petitioner. The respondent no.1 submitted that it could not settle the claim of the petitioners as their names were not found in the surveyor’s list. Respondent no. 1 further stated that that it had settled

1000 old cases and deposited the amount as per the National Commission’s directions.

The District Forum allowed the complaint in part in each case in terms as indicated below:

(i) “ The complainant is entitled for the value of 101, 116 and 101 bags of red chillies deposited by him in the cold storage of 1 st opposite party vide bond no. 389 and 223 as per the guidelines fixed by the National

Commission by the order dated 20.12.2006 including interest amount.

(ii) The 2 nd opposite party is further directed to pay Rs.1,000/- towards costs of litigation.

(iii) The amounts ordered above shall be paid by the insurance company, i.e., OP 2. No further compensation is awarded.

(iv) The claim against 1 st opposite party (in RP nos. 2618 and 2620 of 2012)

3 rd Opposite party in RP No. 2619 of 2012 are dismissed”.

Aggrieved by the orders of the District Forum, respondent no. 1 – New India

Assurance Company Ltd., filed an appeal before the State Commission. The State

Commission vide order dated 8 th April 2011 have stated as under:

“ The complainant has failed to establish that he had stored the red chillies with the opposite party no.1. The complainant could not give any cogent reasons for the first opposite party in issuing the bond no. 432 in favour of the Chintala Subba Rao and himself. It is pertinent to note that the assessment of

loss of the stock made by the surveyor does not speak of any storage or loss of stock of the complainant. The complainant failed to establish the two facets of the fact, obtaining of insurance coverage and actual loss of stock in the fire accident at opposite party no. 1, storage.

In the result FA nos. 972 to 976 of 2008 are allowed by setting aside the orders in Cc No. 473 of 2006, CC537 of 2006, CC no. 633 of 2006, CC no. 1070 0f 2006 and CC no. 1100 of 2006. Consequently the complaints are dismissed. There shall be no order as to costs” .

Hence, the present revision petition.

Along with the present revision petition an application for condonation of delay of

350 days have also been filed. The reasons given in the application for condonation of delay are as follows:

After the impugned judgment dated 08.04.2011, as per the State Commission’s registry’s record the free copy issued on 04.05.2011 but the same was not served on the petitioners. So the petitioners applied for the present certified copy on 08.11.2011.

The said certified copy was delivered on the counsel for the petitioners on 17.11.2011.

The counsel for the petitioners received the said certified copy of the said impugned order. Thereafter, he sent the certified copy of the petitioners. The petitioners due to their poor financial condition took some time to arrange money for arranging a lawyer at

New Delhi to approach this Commission. The local counsel took some time to contact the Delhi lawyer. The Delhi lawyer took some time to prepare the matter. The revision petitions have been drafted by the Delhi Lawyer in the 2 nd week of March 2012 and se nd the same to the petitioners’ local counsel at Hyderabad for petitioners’ approval. In the first week of April, the petitioners came to Delhi and signed the petitions. The signed petitions andvakalatanama have been handed over to the clerk of the Delhi lawyer for filing before this

Hon’ble Court. But the clerk of Delhi lawyer while leaving his job mixed up the present matter with the disposed file. The petitioners and the counsel was under the impression, the petitions have already been filed. On an enquiry, the counsel for the petitioner at Delhi came to know that the same has not been filed in time. With some effort the signed petitions were traced out in the week of July, 2012. The said file could not traced out due to the summer vacation and thereafter due to their being busy in reopening work. The said revision petitions filed immediately without any further delay before this Commission.

We have heard the learned counsel for the petitioner and have also gone through the records.

The counsel for the petitioner could not explain as to what happened to the free copy which was issued on 04.05.2011. He kept on stating that the local counsel who had been engaged by the three petitioners had failed to follow-up the case. However, he confirmed that no action has been taken against the said counsels and neither any complaint has been made against him to the Bar Council. Counsel for the petitioner also could not explain as to when the petitioners came to know about the order had been passed on 08.04.2011. He could not also give detailed reasons for the delay between the receipt of the certified copy of the order on 17.11.2011 to the second week of March when the revision petition is said to have been drafted by the Delhi Lawyer. In brief the petitioners have failed to explain this inordinate delay of 350 days, i.e., almost a year.

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 t hat “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 o bserved 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 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 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 bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar , 3rd Edition, 2005]”.

Accordingly, we find t hat there is no ‘sufficient cause’ to condone the delay of

350 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable.

Consequently, the present revision petitions being time barred by limitation are dismissed with no order as to cost.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish


REVISION PETITION NO. 3267 of 2012

(From the order dated 28.05.2012 in Appeal No. 07/2011 of H.P. State Consumer

Disputes Redressal Commission, Shimla)

M/s. Indusind Bank Ltd. Having its Office 1 st Floor, SCF- 23-24, Phase 3 B-2, Mohali,

Punjab Through its Authorized Representative Shri Vishal Hans

… Petitioner/Opposite Party (OP)

Versus

Shri Avtar Singh S/o Sh. Gopal Singh R/o Vill & P.O. Nerchowk, Tehsil Sadar, District

Mandi. H.P.

… Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER


For the Petitioner : Mr. Manish Sharma, Advocate

For the Respondent : Ex-parte

PRONOUNCED ON 2 nd May, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the Petitioner/OP against the impugned order dated 28.05.2012 passed by the H.P. State Consumer Disputes Redressal

Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 07/2011 – Avtar

Singh Vs. Indusind Bank Ltd. & Anr. by which, order of District Forum dismissing complaint was set aside and Petitioner/OP No. 1 was directed to pay Rs.50,000/- as compensation and Rs.5,000/- as litigation expenses to the complainant.

2. Brief facts of the case are that complainant/Respondent No.1 took a loan of

Rs.7,75,000/- for purchase of Truck No.HP65-930 on 25.3.2006 from OP No. 2 working under OP No. 1. Amount was to be paid in monthly instalments of Rs.19,775/-.

Complainant paid Rs.1,41,851/- as monthly instalments. On 5.7.2007, in the early

morning, agents of OP No. 1 forcibly removed truck from the custody of the complainant. OP No. 1 got several papers signed from the complainant at Chandigarh and assured him that vehicle would be returned soon after completion of certain formalities, but vehicle was not returned till date. Alleging deficiency on the part of OPs, complainant filed complaint before the District Forum with a prayer to get back

Rs.1,41,851/- deposited by him with interest and cost. OPs contested complaint and submitted that complainant does not fall within the purview of consumer, as the complainant is having more than 4 vehicles in his name and complainant also got financed other vehicle No. HP-65-1930. It was further alleged that District Forum has no jurisdiction and complaint is time barred. It was further alleged that cheque issued by the complainant were dishonoured and complainant failed to repay monthly instalments and intimated OPs his inability to pay the dues and in such circumstances, OPs were compelled to take back custody of the financed vehicle and have not committed any deficiency in providing service and prayed for dismissal of the complaint. Learned

District Forum after hearing both the parties dismissed complaint on the ground of territorial jurisdiction as well as on limitation in filing complaint. Appeal filed by the complainant/respondent was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. None appeared for the respondent even after service and respondent was proceeded ex-parte.

4. Heard learned Counsel for the petitioner and perused record.

5. Learned Counsel for the petitioner submitted that District Forum rightly dismissed complaint for want of territorial jurisdiction and limitation, but learned State Commission committed error in allowing complaint. It was further argued that complainant does not fall within the purview of consumer, as vehicle was purchased for commercial purposes; hence, revision petition be allowed and impugned order be set aside.

6. Perusal of record clearly reveals that loan documents were executed either at

Chandigarh or at Jalandhar. District Forum also observed that Head Office of the

Indusind Bank is at Jalandhar while Branch Office is at Chandigarh and no transaction

took place within the territorial jurisdiction of Distt. Mandi and learned District Forum rightly came to the conclusion that District Forum had no jurisdiction, as no cause of action arose within the jurisdiction of District Forum. Learned State Commission observed in the impugned order that vehicle was forcibly repossessed by OP No. 1 at place within the jurisdiction of learned District Forum; hence, learned District Forum had jurisdiction to deal with the complaint. Fact of forcibly possessing of vehicle has been denied by OP in its written statement and OP pleaded that vehicle was delivered by the complainant at Chandigarh. There is no evidence on record filed by the complainant to prove the fact that vehicle was forcibly removed by OP No. 1 from the village of complainant falling in District Mandi. No FIR was filed against OP and complaint also filed after about two years. On the other hand, OPs submitted in their written statement that complainant himself surrendered the vehicle at Chandigarh. In such circumstances, learned District Forum rightly observed that learned District Forum had no jurisdiction to deal with the complaint and learned State Commission has committed error in holding that learned District Forum had jurisdiction to deal with the complaint.

7. As far as limitation aspect is concerned, admittedly, complaint was filed on

6.7.2009 and, as per allegation in the complaint; possession of vehicle was obtained by

OP No. 1 on 5.7.2007 meaning thereby complaint has been filed after two days of expiry of limitation. Learned State Commission observed that due to Sunday on

5.7.2009, Complaint was filed on 6.7.2009 within limitation. Perusal of record reveals that, as per complaint, vehicle was repossessed by OP on 5.7.2007 and complaint was filed on 6.7.2009, just after two days of expiry of limitation, which can be condoned u/s

24-A of C.P. Act, hence this ground is devoid of force.

8. Learned Counsel for the petitioner further submitted that loan was taken for financing vehicle by the complainant for commercial purposes and in such circumstances, complainant does not fall within the purview of consumer under the C.P.

Act. Record reveals that complainant obtained another loan of Rs.8,00,000/- for vehicle

HP-65-1930 from OP No. 1. OPs in their written statement clearly alleged that complainant is having more than 4 vehicles in his name and this fact has not been denied by the complainant. In such circumstances, it becomes clear that complainant

has not availed services of OP for the purpose of earning his livelihood by means of self-employment and, as services have been availed for commercial purposes, complainant does not fall within the purview of consumer under Section 2 (d) of the C.P.

Act and learned District Forum committed error in holding that complainant falls within the purview of consumer. There was no occasion for the OPs to assail this finding before learned State Commission, as complaint had already been dismissed by District

Forum on other counts.

9. As the complainant/respondent does not fall within the purview of consumer under the C.P. Act and Ld District Forum had no jurisdiction to deal with the complaint, learned State Commission committed error in passing the impugned order, which is liable to be set aside.

10. Consequently, revision petition filed by the petitioner against the respondent is allowed and impugned order dated 28.5.2012 passed by learned State Commission in

Appeal No.07/2011 is set aside and complaint filed by the complainant/respondent is dismissed with no order as to costs.

..………………Sd/-……………

( K.S. CHAUDHARI, J)


..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER k



(From the order dated 19.05.2011 in Appeal No. A/10/1166 of Maharashtra State

Consumer Disputes Redressal Commission, Mumbai)

Shrikant Murlidhar Apte Block No.2, Niwara CHSL, Pandurang Wadi Road No.1,

Goregaon East, Mumbai – 400063 (Maharashtra)

… Petitioner/Complainant

Versus

Life Insurance Corporation of India Divisional Manager In-Charge, DO-III Divisional

Office 3 rd Floor, New India Building, Santacruz West, Mumbai

– 400054 (Maharashtra)

Through The Zonal Manager, Life Insurance Corporation of India, Western Zonal Office,

2 nd floor, Yogakshema, Nariman Point, Mumbai – 400021 (Maharashtra)

… Respondent/Opp. Party (OP)

BEFORE



For the Petitioner : In person

For the Respondent : Mr. Rajat Bhalla, Advocate

PRONOUNCED ON 2 nd May, 2013

O R D E R


This revision petition has been filed by the Petitioner/Complainant against the impugned order dated 19.5.2011 passed by the Maharashtra State Consumer

Disputes Redressal Commission, Mumbai

(in short, ‘the State Commission’) in Appeal

No. A/10/1166 – The Div. Manager, LIC Vs. Mr. Shrikant Murlidhar Apte by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner wanted to purchase 11 policies each of Rs.1,00,000/- from OP/respondent. Complainant deposited Rs.5,000/- with OP Agent Mr. Divakar Patkar on 11.11.2005. The complainant was examined by

authorized Medical Officer on 30.11.2005. Complainant further paid Rs.10,432/- to the aforesaid insurance agent by cheque. Complainant received 11 polices on

11.1.2006. On perusal, it was revealed that 7 polices out of issued 11 polices were showing excess monthly premium than what was quoted by aforesaid agent.

Complainant sent letter to OP for rectification of premium, but OP apprised that premium amount shown in the policy document was correct and quotation given by agent was incorrect. The complainant moved Insurance Ombudsman who turned down the request. Complainant alleging deficiency on the part of OP, filed complaint before

District Forum. OP/respondent contested complaint and submitted that premium was to be charged according to the OP polices and quotation of monthly premium made by agent was not final and binding on OP. It was further alleged that complainant had option to return Insurance Policy during “cooling off” period, if he was not satisfied with the policies and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to refund Rs.756/-, excess amount charged on the policies and further to pay Rs.25,000/- for mental agony and Rs.5,000/- as cost of litigation. Appeal filed by the OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. Heard petitioner in person and learned Counsel for the respondent at admission stage.

4. Petitioner vehemently submitted that respondent cannot charge excess premium from the quotation given by agent of respondent and learned District Forum rightly allowed complaint and learned State Commission has committed error in passing impugned order; hence, revision petition be allowed. On the other hand, learned

Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5.

Perusal of record reveals that as per petitioner’s letter dated January 25, 2006, respondent was charging Rs.45/- per month as excess premium, total in all on seven

policies than shown by agent Divakar Patkar. Perusal of statement dated 11.11.2005 given by Divakar Patkar shows that this quotation has not been issued by

OP/respondent. In such circumstances, if less premium has been shown by Mr. Patkar (family investment consultant), it cannot be binding on OP. To our utter surprise, Mr. Patkar has not been impleaded as a party by the petitioner in the complaint and on account of non-joinder of necessary party, complaint is liable to be dismissed because only Mr. Patkar could have revealed whether he gave the statement to the petitioner, which does not bear signatures of Mr. Patkar and if so given, under what circumstances it was given.

6. Learned State Commission while dealing at length rightly observed as under:

“The Insurance Agent is a Facilitator between the Insurance Co. and the prospective policy purchaser. He is an agent of consumer as well as

Insurance Co. He is not exclusive agent of Insurance Co. Moreover, he cannot bind the Insurance Co. if he gives quotation of any policy at lesser monthly or yearly premium than prescribed by the underwriting Insurance

Co. So in the instant case, even if there was a difference between the quotation of monthly or yearly premium in respect of 7 policies out of 11 policies purchased by the respondent from LIC through Mr. Divakar Patkar, Insurance Agent, that does not mean that LIC is bound to issue policies to the respondent at the rate quoted by the

Insurance Agent quoting wrong rates of premium on the part of the

Insurance Agent. Under such circumstances, there is no jurisdiction to

District Consumer Disputes Redressal Forum to pass an order of rectification and to direct LIC herein appellant to charge the premium in respect of the 7 policies directly in accordance with the estimation of premium given by Mr.Divakar Patkar, Insurance Agent which was lesser than LIC had fixed premium for certain policies. The agent cannot bind LIC in this way. We have already mentioned above that LIC Agent is a

Facilitator, he acts independently to help the consumer to procure

Insurance policies and he helps LIC to promote business and gets commission but his agency does not in any way bind LIC if he misquotes rates of premium in respect of few policies. Exactly this has happened in the instant case. Mr. Divakar Patkar had given quotation of certain amount to the respondent when respondent was going to catch 8.30 a.m. train in the morning. He hurriedly gave cheque to the agent and when he received policies, he found that out of 11 policies for 7 policies premium charged by

LIC was higher than quoted by the Insurance Agent. If this was the main grievance of the Complainant, respondent herein, he had 15 days ‘cooling off’ period from the date of receipt of all policies. He could have returned 7 policies with a request to cancel the policies and to refund the premium since premium quoted in the policies were not in accordance with the premium quoted by the Insurance Agent to him. There was 15 days

‘cooling off’ period and during this period respondent Shri Shrikant Apte could have cancelled those policies since not agreeable to him on account of higher premium mentioned in the policy than quoted by the Insurance Agent and should have been refunded back his premium amounts paid on those 7 policies. This is permissible under IRDA Regulation. Shri Apte did not avail of the said facility available

but continued to enjoy the policy and took up issue with the LIC authorities and also with the Insurance Ombudsman .Both of them rightly turned down his request. In our view, in the circumstances, LIC cannot be blamed for issuing 11 policies with monthly or yearly premium mentioned therein because once 15 days ‘cooling off’ period is over, the policy documents become binding on both the parties and contents therein are also binding on both of t hem”.

7. We concur with the finding arrived at by the learned State Commission and 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.

8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

..……………Sd/-………………



..…………Sd/-…………………


MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO.3842/2012

(Against the order dated 24.1.2012 in F.A. No.60/2011 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai)

N.Muthuvel S/o of Nallasamy, Residing at No. 5/145, Kattampudur, Chinnadhara puram, Aravakkurichi Taluk, Karur District, Tamil Nadu

Petitioners

Vs

1. The Senior Branch Manager Life Insurance Corporation of India, Unit II Branch,

No. 71-A, Chinnandan Koli Road, Karur-639001, Tamil Nadu

2. The Senior Manager (H), Life Insurance Corporation of India, Divisional Office,

Jeevan Prakash, Post Box No. 39, Gandhi Road, Thanjavur-613001, Tamilnadu

3. T.T.K. Healthcare Services Pvt. Ltd. Third Party Administrator (TPA), “Anmol

Palani” No. 88, 1.2 G.N. Chetty Road, T. Nagar, Chennai -600017 Tamil Nadu

Respondents

BEFORE :

HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER

HON’BLE DR.S.M.KANTIKAR, MEMBER

For the Petitioner : Mr. Abid Ali Beeran, Advocate

For the Respondent No.1&2 : Mr. U.C. Mittal, Advocate

For the Respondent No.3 : NEMO

Pronounced on 3 rd May, 2013

ORDER

PER DR. S.M. KANTIKAR

1. The petitioner/complainant preferred this Revision petition against the order of

Tamil Nadu State Commission Disputes Redressal Commission, Chennai in First appeal No.60/2011 dated 24.1.2012.

2. Facts in this case

On 31/07/2008 the Petitioner took a policy from OP1 under LIC’s Health Plus with Unit Linked insurance Plan (Table No.901).As per the terms and conditions of the said policy Clause 2[ii],states as follows; “ in the event of an insured

undergoing any specific Surgery in a hospital due to Accidental Bodily injury or

Sickness first occurring or manifesting itself after the date of cover commencement and during the cover period then, the insured is entitled to claim benefits.”

The Petitioner /Complainant suffered infected dentigerous cyst of left mandible

(lower law) and undergone an Oral Maxillofacial Surgery on 14.2.2009 at

Soundara Pandian Bone and Joint Hospital, Chennai; wherein total hospitalization expenditure amounted to Rs.254306/- for which he has claimed the same from the 1 st opposite party. The 3 rd opposite party on 23.4.2009 sent a claim rejection letter stating that claim submitted after 15 days of discharge from hospital, but on 15.6.2009 the OP-3 sent a demand draft for Rs.19,000/- towards hospitalization benefits only. The OP-2 sent another letter on 17.8.2009 saying that the complainant is not eligible for major surgical benefits as the surgery does not fall under the purview of policy condition. Thereby, on 29.1.2010 Complainant filed a complaint before District Consumer Disputes Redressal Forum, Karur (In short District forum-DF) against the opposite parties claiming payment of mediclaim amount of Rs.2,34,306/- towards the settlement of surgical benefits with

18% interest and Rs.5,00,000/- as compensation. The OPs denied the above contentions and claimed that as per policy conditions the complainant is not eligible for the Major Surgical Benefits (MSB) therefore it’s repudiated and only hospitalization benefit of Rs.19000/- was allowed.

3. The District Forum after considering all facts allowed the complaint by directing the opposite parties 1 to 3 to pay Rs.1, 20,000/- with interest at the rate of 9% from the date of complaint and Rs.40,000/- towards compensation and

Rs.2,000/- towards costs by finding deficiency of service against the opposite parties 1 to 3. The 3 rd opposite party remained ex-parte before the District

Forum.

4. The OP 1 & 2 filed an appeal FA No. 60/2011 before State Commission alleging the District Forum allowed the complaint erroneously as the surgery charges for facial treatment was not payable as it did not fall within any of the specified surgeries which are covered under the policy.

5.

The State Commission after hearing the parties and on the basis of evidence allowed the appeal holding that “the complainant failed to prove that the surgery undergone by him was only because of trauma or burns and not for cosmetic purpose and thereby the opposite parties rejection of claim in this regard cannot

be considered as deficiency of service. But the District Forum without going deep in to the terms and conditions of the policy, under which claim was made wrongly allowed the complainant and in our view the same should be set aside.”

6.

Hence, the present revision.

7.

There is a delay of 105 days in filing this Revision Petition, for the reasons mentioned in the application for condonation of delay, we condone the delay. We heard the Learned Counsel of both sides & have gone through the evidence on record.

8. The facts that OP-3, the Third Party Administrator (TPA) at first instance rejected the claim stating that complainant has filed claim form after 15 days of discharge from hospital. The OP allowed Rs.19,000/- only as a hospitalization claim after two months on repeated correspondence made by complainant. The

TPA has rejected the Major Surgical Claim made by the Complainant stating that

“the customer has requested for the payment of MSB saying that the surgery falls under the category of ORO MAXILLO FACIAL SURGERY; but, we got opinion from our medical team which says that the procedure has been done in the segmental resection of left side of mandible only and mandible only and mandible is not included in the facial bone and so this surgery does not come under the MSB list given”. In other words, the complainant has undergone a surgery called Oral and Maxillo facial Surgery due to infected dentigerous cyst left side of mandible was not covered under the policy terms and conditions as per Exhibit B2. The surgery undergone by the complainant was not due to trauma or burns and it was done for cosmetic purpose. Hence, the benefit for hospitalization of Rs.19,000/- alone was allowed.

9. We analyzed facts of this case point wise also noted the intentions opposite parties i.e. Insurers & TPA while processing of the claim and nature of harassment sustained by the insured one. Points for considerations are as; i) The complainant/petitioner was suffering from a disease- Infected dentigerous cyst in left mandible for which he got operated and incurred a certain expenditure of Rs.256306/-. The conditions and privileges referred in the policy documents of

Clause-2 deals with health related benefits payable subject to policy being in force. It is under the Clause 2(ii) in the same document the definition of Major

Surgical Benefit is given which is as follows:

“ In the event of an insured under this policy undergoing any specified surgery in a hospital due to accidental bodily injury or sickness first occurring or manifesting itself after the date of cover commencement and during the cover period then, subject to the terms and conditions of the policy the benefit amount, reckoned at the percentage of the sum assured as mentioned in the surgical benefit.

Annexure against the specified surgery performed shall be payable by the

Corporation”.

Therefore Complainant contended that he was sick due to suffering by pain from angle of left mandible to the center corresponds with central incisor and as the sickness arose during the policy in force, the claim is a bonafide claim.

ii) It is surprising and ridiculous to note that OPs denied the claim without understanding certain technicalities like “Mandible is not a bone of face..!!”

Exhibits A16 and B22 are the same documents. The contention available in the said document reveals that “the procedure done was a segmental resection of left mandible only. Mandible is not included in the facial bone. So this surgery does not come under the MSB list given. On this basis TPA has rejected the

Major Surgical Benefit Payment. In our opinion and our knowledge of Human

Anatomy the mandible is a lower jaw bone. We referred medical books Grey’s

Anatomy, Medical Jurisprudence by R.M.Jhala; Human Anatomy by

B.D.Chourasia, Modi’s Medical Jurisprudence & Toxicology in which defined clearly that the mandible is one of oro-facial part. In the case on hand the complainant undergone surgery of resection of mandible ( lower jaw). The respondents did not come forward with any documentary evidence to show that the surgery undergone by the petitioner is for cosmetic purpose. The mandible bone has not been shown as excluded portion for claiming the benefit under

Major Surgical Benefits. Therefore, it appears the intentional motive and unfair tactics of OPs to delay and deny the claim. iii) Very important point for our discussion which will throw light on the words “SICKNESS” and “ TRAUMA” in the present case. Both the words have different meanings in different contexts:

Referring to the policy Ex P 2, the conditions and Surgical Benefit Annexure- under the heading ORO-MAXILLAFACIAL SURGERY which reads as “Major reconstructive oro-maxilla facial surgery due to trauma or burns and not for cosmetic purpose”.

We need to analyse word by word the phraseology of the line supra. There is no doubt it was a major surgery and it is not reconstructive one. The diagnosis and indication for surgery was infected dentigerous cyst of left mandible. This is a disease means a sickness.

Now, if we focus whether TRAUMA is the cause and progression (etiopathogenesis) of infected dentigerous cyst ; which is the most important point of consideration to arrive conclusion in this case on hand. We referred several medical texts, literature and scientific research papers to know the weather trauma leads to “dentigerous cyst” Several studies and articles are published regarding Dentigerous Cyst due to trauma. The article titled “‘Conservative management of a dentigerous cyst secondary to primary tooth trauma.’ By Authors, Gondim JO, Neto JJ, Nogueira RL, et al; Dent Traumatol

2008 Dec; 24(6) :676-9 r eads as ”Trauma to the deciduous teeth may have severe consequences. Pulp necrosis is the commonly observed sequel in traumatized primary teeth and is one of the possible etiologic factors for the development of dentigerous cyst. Dentigerous Cyst is more commonly seen in mandibular third molar and maxillary canine region and is rarely associated with other teeth.”

10. Furthermore, due to pain in cyst region is due to infection which in turn aggravates the sickness. The infection and pain are very often occur due to any intra oral (inside mouth) trauma by simple mastication, any pricking

injuries, crushing of stones in mouth even the oral burns due to hot food or liquids consumption. Therefore, as per literature supra there is every possibility that intra oral TRAUMA/ BURNs lead to dentigerous cyst and which further progressed to infection. Then the complainant was operated for infected dentigerous cyst of left mandible.

The Surgical Benefit Annexure listed 49 items, but most are confusing and difficult to interpret by ordinary policy holder. It needs proper detail which are legible and understandable by the policy holder. It appears that the Insurance

Company and TPA may interpret MSB as per their whims and fancy which will be more beneficial to them only but not for the policy holder. The policy condition in this case on hand appears to be very vague which did not specify the word “TRAUMA”. The trauma may be recent or old or ancient one. It may be intra oral or extra oral, may be blunt. Most of the individuals did not notice or did not pay attention for such intra oral traumas. Therefore, we cannot rule out in this case that trauma to the primary teeth would have caused the development of the cyst. The trauma to the deciduous teeth should not be over looked since it results to any pathology(disease). Some types of dentigerous cyst the growth potential is apparently limited, but it can cause sufficient bone expansion to promote facial asymmetry, pain as in the present case. Many dentigerous cysts reach great dimensions before being diagnosed.

11. Refrreing to Clause 2(ii) and MSB annexure we in opinion that the complainant is eligible for the MSB claim benefits. As the complainant was SICK due to dentigerous cyst which be due to trauma which is one of the etiology and subsequent injuries or trauma in the oral cavity the cyst got infected; therefore the major surgery was performed which is not for cosmetic surgery purpose.

12. Hence, as per OPs own words it is clear that the petitioner has SICKNESS as well as TRAUMA. The contention of OP is wrong that “ the operation was not due to trauma or burns the claim could not be entertained”.

13. In the view of above discussions we set aside the order of State Commission.

The OPs have intentionally delayed the claim by wrong and on the technicality of terminologies. Therefore, non settlement of claim by which the consumer has suffered till date. Therefore, repudiation of the claim is unjustified. We feel the

Complainant should be compensated properly as per terms of the policy.

Repudiation of the claim itself is deficiency in service for which OPs are liable and it is necessary to impose punitive cost also. The insurance is contract of utmost good faith and the insured person takes the insurance policy by keeping faith on the company. But, his hopes and dreams shattered by the attitude of insurer when the issue of claim arises.!!. The insurance company and the TPA find several ways how to repudiate the claim even it is genuine one and harass the claimant and make him to run from pillar to post. It is just unfair and unacceptable. The Consumer Protection Act is social legislation; there is need to strike down such practices and need to give proper redressal to the consumers .

In fact ,the insurance companies should be magnanimous enough generous to award the claims at single window , without any hassle and with full co-operation.

14.

Therefore, in view of foregoing observations and discussions, this revision petition is allowed and proceeds to pass the following ORDER:

The Opposite parties 1 to 3 are directed to pay 60% of sum assured i.e.Rs.1,20,000/- with interest at the rate of 9% from the date of

Complaint and Rs.50,000/- towards compensation for deficiency of service and we impose Rs. 30,000/-as punitive costs upon the respondents for wasting the precious time of this commission and fora below, out of which Rs.

10,000/- will go to the complainants and Rs. 20,000/- be deposited with

Consumer Welfare Fund by way of demand draft in favor of “Pay and Accounts

Officer, Ministry of Consumer A ffairs”, payable at Delhi, Learned Registrar of this

Commission shall see compliance of the order under Section 25 of the

Consumer Protection Act, 1986. This order should be complied within a period of

45 days from today otherwise it will carry interest at the rate of 9% p.a. till its recovery.

..…………………………



……………….……………


MEMBER

Mss



(From order dated 20.12.2011 in First Appeal No. 1630 & 1680 of 2011 of the Haryana

State Consumer Disputes Redressal Commission, Panchkula)

Sangeeta Sharma W/o Sh. Sunil Sharma R/o Flat No. 306, GHS 34, Sector-20

Panchkula

… Petitioner (s)

Versus

M/s G.S. Promoters & Developers APS Group, SCO No. 409, Sector-20

Panchkula

… Respondent (s)

BEFORE:



For the Petitioner (s) : Mr. Sumit Chander, Advocate

For the Respondent (s) : Mr. Madhu Ranjan, Advocate

Pronounced on : May, 2013

ORDER


1. The facts germane to the case of Smt. Sangeeta Sharma, the complainant are these. She purchased flat No. 637 “Panchkula Heights” situated at Peermuchalla

Zirakpur, Punjab from M/s G.S.Promoters and Developers, Panchkula, , Opposite

Party, for a sum of Rs. 24,00,000/-. She paid a total sum of Rs. 22,00,000/- to the

OP. She was to pay a sum of Rs. 2,00,000/- at the time of delivery of possession of the flat, which was to be given on 30.11.2010. It was also stipulated in the agreement dated 11.05.2010 that in event of failure of delivery of the possession of the flat, the OP was under an obligation to pay the penalty of Rs. 9,000/- per month

(i.e. Rs.5/- per square feet per month). The OP neither delivered the possession nor

paid the penalty. The District Forum held that OP is guilty of deficiency in service and also of adapting unfair trade practice. The District Forum allowed the present complaint and gave the following directions:-

“i) The opposite party is directed to offer possession of the apartment in question to the complainant forthwith. However, the complainant will pay the balance amount of Rs. 2 lacs at the time of delivery of possession as agreed between the parties in the Agreement to

Sell (Exhibit C-1); ii) The opposite party is directed to refund/adjust the penalty/compensation @ Rs. 5/- per square feet per month to the complainant on super area of the apartment i.e. 1800 square feet on account of delay in offer of possession to be reckoned with 1.3.2011 till the date of offer of possession to the complainant alongwith simple interest @ 24% per annum thereon.

iii) The opposite party is directed to grant a compensation of Rs. 15,000/- to the complainant on account of its deficiency in service and adopting unfair trade practices and also for causing mental agony and unnecessary harassment to the complainant.

iv) The opposite party is directed to pay an amount of Rs. 5000/- to the complainant as costs of litigation.”

2. Aggrieved by that order, the OP filed an appeal before the State Commission.

3. The State Commission vide its order dated 20.12.2011, placed reliance on Apex

Court authority reported in the case titled “Sonic Surgincal Vs. National Insurance

Company Limited, reported in 2010 CTJ 2, it has been held by the Hon’ble Apex Court that expression ‘branch office’ in the Act means the branch office where the cause of action has arisen. Admittedly, in the present case, the flat in question of the complainant is located at Peermuchalla, Zirakpur, Punjab, therefore, complainant has no cause of action to file the c omplaint at District Forum, Panchkula.”

4. We have heard both the counsel for the parties. It appears that the State

Commission has wrongly applied the above said authority in this case. Section 4 of the said authority i.e. Sonic Surgical Versus National Insurance Co. Ltd. (Supra), it was held in para No. 4 & 5:

“4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at

Ambala.

5. Thus no part of the cause of action arose i n Chandigarh.”

5. In the instant case attention of the Commission was invited towards the agreement arrived between the parties. Agreement to sell clearly goes to show that this was made at Panchkula on 11.05.2010. It further stipulates:

“AND WHEREAS the above said buyer is interested to purchase a House/Flat

No. 637 at Level/floor Sixth of super area 1800 sq.ft. (approx.) including stilt area, lift, stairs etc. in the project Panchkula Heights situated at

Peermuchalla NSC Zirakpur (Pb) and the said House/Flat is under construction and free from all sorts of encumbrance i.e. sale, gift, mortgage, claims, charges, litigation etc.”

6. On the next page there is a note which is reproduced as follows:-

“NOTE: The installment will be acceptable only by way of cash or local cheques/DD in favour of G.S. PROMOTERS & DEVELOPERS payable at

Chandigarh/ Panchkula.”

7. The allotment letter was issued by the OP from Panchkula. The same was also filed on the record. It is thus clear that part of cause of action arose at

Panchkula.

8. This view further finds support from the two judgments of this Commission reported in Smt. Shanti Vs. M/s Ansal Housing & Construction Ltd. in First Appeal

No. 142 of 2001 and Neha Singhal Vs M/s Unitech Limited in First Appeal No. 426 of

2010. Consequently, we find that the order passed by the State Commission is not legally tenable, therefore, we set aside the same to this extent.

9. The State Commission has also discussed the entire case of the complainant. He did not pick up a conflict with the main order passed by the District

Jr/1

Forum. It was also mentioned that the District Forum has placed reliance on an authority of the Apex Court reported in the case of

“Ghaziabad Development

Authority versus Ba lbir Singh (2004(1)CPC 660” wherein the Supreme Court was pleased to hold:-

“ïf a consumer had to live in rented house due to delay in delivery of possession, he would be entitled to claim amount of rent he has paid during that period” It has been further observed by the Hon’ble Apex Court that “Compensation can be awarded no only for loss of goods but also for causing mental agony due to rendering of deficient service---- Such compensation is a check on arbitrary and capricious exercise of power of these bodies.”

10. We have also perused the judgment of District Forum. We see no flaw therein. Consequently, we accept the revision petition and restore the order passed by the District Forum. The petitioners are directed to comply with this order within

45 days from today or else, the opposite party will have to pay penalty of Rs. 1,000/- per day to the complainant, in addition, till the order is complied with.

..…………………………



……………….……………


MEMBER



(From the order dated 19.07.2012 in Appeal No. A/12/161 of Maharashtra State

Consumer Disputes Redressal Commission, Mumbai)

City Life Developers Agarwal Golden Chambers, 5 th Floor, Fund Republic Road, Plot

No. 13/A, Behind Balaji Telefilm, Off. New Link Road, Andheri West, Mumbai

– 400053

(Maharashtra)

… Petitioner/Opp. Party (OP)

Versus

1. Mr. Vencillous Fernandes R/o EC-30, B-202, Sai Seva Co-op. Hsg. Soc. Ltd. Sai

Leela Evershine City Vasai (East) 401205 (Maharashtra)

2. Mrs. Sandra Fernandes R/o EC-30, B-202, Sai Seva Co-op. Hsg. Soc. Ltd. Sai Leela

Evershine City Vasai (East) 401205 (Maharashtra)

… Respondents/Complainants

BEFORE



For the Petitioner : Mr. Vimal Khanna, Advocate

For the Respondents : Mr. S.B. Prabhavalkar, Advocate Proxy

PRONOUNCED ON 3 rd May, 2013

O R D E R


This revision petition has been filed by the Petitioner/Opposite party against the impugned order dated 19.7.2012 passed by the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No.

A/12/161 – City Life Developers Vs. Mr. Vencillous Fernandes & Anr. by which, appeal filed by the petitioner was dismissed as barred by limitation.

2. Brief facts of the case are that complainants/respondents filed complaint against the OP/Petitioner and learned District Forum vide order dated 12.12.2011, while

allowing complaint directed OP to give possession of flat after receiving payment of

Rs.7,94,563/- from the complainant. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order on the ground that appeal was barred by limitation and no application for condonation of delay was filed against which, this revision petition has been filed.

3. Heard learned Counsel for the parties at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in dismissing appeal, as petitioner was ready to file application for condonation of delay of six days; hence, revision petition be allowed and matter may be remanded back to the 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 appeal was filed with delay of six days. No application for condonation of delay was filed. During the course of arguments before the lea rned State Commission, petitioner’s Counsel sought permission to file application for condonation of delay, but permission was not given on the assumption that application for condonation of delay can be filed along with appeal only and not subsequently.

6. Application for condonation of delay is normally filed by the party with Memo of

Appeal, but there is no bar in filing such application even after filing appeal when fact of delay is brought to the notice of appellant by the Registry while examining defects or on raising objection by respondent or on suggestion of court hearing the appeal. Learned

State Commission ought to have allowed petitioner to file application for condonation of delay and only after considering application for condonation of delay, appeal should have been decided.

7. Consequently, we allow the revision petition and order passed by learned State

Commission in Appeal No. A/12/161 is set aside and petitioner is permitted to file

application for condonation of delay with the State Commission and learned State

Commission shall decide application for condonation of delay in accordance with law and proceed with the appeal. There shall be no order as to costs.

8. Parties are directed to appear before the State Commission on 29 th May, 2013.

..………………Sd/-……………



..……………Sd/-………………


MEMBER

k


FIRST APPEAL NO. 70 OF 2007

(Against the order dated 03.10.2006 in CC No. C-261/95 of the

Delhi State Consumer Disputes Redressal Commission)

1. Dhingra Maternity & Family Welfare Clinic T-182, Baljit Nagar New Delhi

2. Dr. (Mrs.) K. Dhingra Registered No. 4339 T-182, Baljit Nagar New Delhi

… Appellants

Versus

1. Miss Heena Joshi

2. Ms. Bhavna Joshi

3. Master Karan All children of Shri Shyam Sunder Joshi

4. Shri Shyam Sunder Joshi S/o Shri K.C. Joshi All residents of E-49/50, West Patel

Nagar New Delhi

… Respondents

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

For Appellants : Dr. (Mrs.) Krishna Dhingra, in person

For Respondents : Mr. Akshat Gupta, Advocate

Pronounced on 3 rd May, 2013

ORDER

PER VINEETA RAI, MEMBER

1. This first appeal has been filed by Dhingra Maternity & Family Welfare Clinic and its owner Mrs. K. Dhingra, Opposite Parties before the Delhi State Consumer

Disputes Redressal Commission (hereinafter referred to as the State Commission) and

Appellants herein being aggrieved by the order of the State Commission which had accepted the complaint of medical negligence filed by Miss Heena Joshi & others being the minor children and husband respectively of deceased Prem Lata(hereinafter referred to as the Patient).

2. As per the version of the Respondents/Complainants, Patient was got admitted in

Appellant No.1/Clinic on 17.09.1993 at about 1.00 p.m. with advanced and overdue pregnancy. She had no labour pain at the time of admission. She was administered Sintocin for inducing labour by Appellant No.2, which resulted in the birth of a male child at 2.20 p.m. However, because of the high dose of Sintocin administered at one go instead of gradually and slowly as per standard medical procedure, there was rupture of the uterus and due to excessive bleeding,

Patient collapsed in Appellant No.1/Clinic. Life-saving drugs such as Haemcasuly-IL were not available in the clinic and, therefore, Appellants asked Patient to be shifted to

Dr. B.L. Kapoor Hospital or any other hospital but before this could be done she passed away on 17.09.1995 and was cremated the following day. Being aggrieved by the medical negligence and deficiency in the treatment of the Patient causing her death,

Respondents filed a complaint before the State Commission and requested for compensation of Rs.10,00,000/- as also any other relief which was considered appropriate by the State Commission.

3. Appellants on being served filed a written rejoinder denying the above allegations. It was stated that Appellant No.2 is a highly qualified nurse/midwife with over 30 years’ experience and she handles only normal delivery cases. In the course of examination, if she arrives at an opinion that the delivery would not be normal, she refers the cases to either Dr. B.L. Kapoor Hospital or Sucheta Kriplani Hospital. In the instant case, the Patient was brought to Appellant No.1/Clinic with an overdue condition of pregnancy and without any previous case records pertaining to any prenatal checkups. When the Patient was placed on the table for examination, she screamed and went into precipitate labour and Appellant No.2 had no option but to handle the delivery in her clinic. A male child was born and placenta and membrane were fully delivered. However, thereafter the uterus became atonic which means that it was not contracting and there was extensive bleeding. Appellant No.2 proceeded to massage externally to facilitate uterine contraction and Methergin 0.2 mg was intravenously administered as also the Dextrose drip. However, on finding that the uterus was still in an atonic stage, Appellant No.2 as per standard medical procedure put the Patient on a drip of Pitocin, which also contained Oxytocin as it is universally acknowledged that this medication is necessary to control hemorrhage before taking the ultimate decision for hysterectomy. Appellant No.2 also simultaneously contacted nearby hospitals to move the Patient from her clinic and finally Dr. B.L. Kapoor Hospital, which is a hospital nearest to the clinic, agreed to receive the Patient and to conduct the required hysterectomy. According to the Appellant No.2, Patient was taken by the mother and relatives alive from the clinic of Appellant No.2 even though the excessive bleeding had

not stopped. It was contended that the Patient died at her residence and not in

Appellant No.1/Clinic, whic h means that the Patient did not heed Appellants’ advice to take her to the hospital. There was no medical negligence in the treatment of this

Patient and the drugs prescribed to her were after the delivery to check the hemorrhage and not prior to the delivery to precipitate the labour as wrongly contended by the

Respondents/Complainants.

4. The State Commission after hearing the parties and on the basis of evidence produced before it allowed the complaint by observing as follows :

“16. On examining the defence of OPs on the anvil of aforesaid criteria we find that this is a case of utter and grossest kind of negligence. Firstly the OP

No.2 was not at all a qualified person to undertake the delivery. She was only a

Midwife. Any person who does not possess the requisite skill or qualification is not entitled to take up the case even if he or she has a wide experience of dealing with delivery cases. Firstly she should not have taken the case and secondly she was not competent to confront with the complications arising from precipitate labour as the deceased was brought in overdue condition of pregnancy. The precipitate labour is known to be followed by acute hemorrhage and this situation could not have been anticipated by the OPs who were not well qualified and skilled for the treatment given by them.

17. Secondly the OPs administered labour inducing drug Pitocin containing the dangerous drug Oxytocin in high dose. This drug is always administered gradually because it has Oxytocin. So it was again medical negligence in administering drug which had such a risk that its high dose can cause excessive bleeding. Though the child was delivered after one hour of the arrival of the deceased at the clinic but this drug was induced within five minutes and as a result the deceased suffered excessive bleeding which ultimately resulted in her death in the clinic of the OP itself.

18. When a woman with overdue pregnancy goes into precipitate labour it takes some time for delivery to take place and therefore to say that everything became complicated and unanticipated within five minutes i.e. taking the deceased to the examination room, putting her on the examination table and then examining her and her going into precipitate labour is not correct. The deceased did not go into precipitate labour all of a sudden. She went into precipitate labour after administering the labour inducing drug Oxytocin in a high dose that also in one go. Such a treatment is highly unprofessional and negligent.”

The State Commission, therefore, directed the Appellants to pay a lump-sum compensation of Rs.1,00,000/- for limited deficiency in administering irrational and high dose of medicine to precipitate labour and without adequate arrangements for the treatment of the Patient.

5. Being aggrieved by the above order, the present first appeal has been filed.

6. Appellant No.2 (in person) and Counsel for Respondents made oral submissions.

7. Appellant No.2 while admitting that the Patient had come to her clinic after the due date of delivery stated that she had no knowledge about her past medical history since Patient had not brought any papers pertaining to any ante-natal check-ups. She was 38 years old and this was her fourth pregnancy. She reiterated that precipitate labour followed within minutes of her examining the Patient and she delivered a male child thereafter. The placenta and membrane was also completely delivered by 3.10 p.m. i.e. quite soon after the delivery but since the uterus was not contracting and the Patient was hemorrhaging, which did not get controlled despite the abdominal massage of the uterus, Patient was given injection Methergin to initiate contraction of the uterus. Since this also did not help, 5% Pitocin drip C-20 Units was administered in the prescribed manner and not as contended by the Respondents/

Complainants in one dose prior to the delivery. These facts are clearly indicated in the referral letter that she had prepared for referring the Patient to Dr.

B.L. Kapoor Hospital. Appellant No.2 also brought to our attention medical literature on the subject which had also been filed before the State Commission to support her contention that the treatment undertaken by her was standard case management to deal with Post-Partum Hemorrhage (PPH). This literature included Mudaliar and

Menon’s ‘Clinical Obstetrics’ Ninth Edition

, confirming the above standard treatment. Appellant No.2 further reiterated that although arrangements had been made to shift the Patient to Dr. B.L. Kapoor Hospital, her husband and relatives did not heed this advice and took her home where she expired. Under these circumstances, there was no medical negligence on her part and as a professional midwife she followed the standard case management and did her best to medically treat the unexpected PPH that occurred.

8. Learned Counsel for the Respondents/Complainants on the other hand stated that Appellant No.2’s contention that Pitocin was given to check the PPH and not to precipitate labour is not correct. The evidence relied on by the Appellant, namely, the letter written to Dr. B.L. Kapoor Hospital stating that the Pitocin drip was started after the delivery cannot be relied on since it is a fabricated document subsequently prepared as an alibi to counter the allegation of medical negligence because in this letter it is

stated that the delivery and the treatment was done on 19.09.1995 whereas the actual date of the delivery and the death was admittedly 17.09.1995 itself. Patient was cremated on 18.09.1995. Therefore, Appellant’s own defence instead of helping her in fact indicts by confirming that she had produced false evidence to hide her own negligence. Clearly, she has not been able to produce any credible evidence to prove that she was not guilty of medical negligence.

10. We have heard Appellant No.2 in person and Counsel for

Respondents/Complainants and have also gone through the evidence on record, including the medical literature on the subject.

Patient’s visit to Appellant No.1/Clinic with an overdue pregnancy is not in dispute. It is further admitted that she delivered a male child in that clinic and expired the same day. Appellant No.2 has vehemently denied Respondents/Complainants’ contention that the Patient died because Appellant

No.2, who is a midwife, administered a high dose of Oxytocin not gradually as is strongly recommended but at one go to induce labour and this resulted in the rupture of the uterus followed by uncontrolled hemorrhaging and death. After going through the evidence and records, we find substance in this contention of the

Respondents/Complainants which was also the finding of the State Commission because it is not possible to place any reliance on the document produced by the

Appellant indicating that Oxytocin was administered following the delivery and to check

PPH and not to precipitate the delivery. This is because in two places it is clearly stated in this document in Appellant No.2’s own handwriting that the delivery and hemorrhaging took place in her clinic on 19.09.1995, which is factually incorrect casting serious doubts in the veracity of this document and the bonafides of the

Appellant. Appellant has sought to explain this by saying that the date was wrongly written by her because of a bonafide error. However, we note that she has not mentioned this significant “error” in any of the documents filed by her before the State

Commission, including her written submissions nor has she filed any affidavit stating that the date was wrongly written by her through oversight/error. Appellant No.2 has, thus, not been able to produce any credible evidence to counter the complaint of medical negligence on her part.

11. We have also perused the medical literature on the potential risks of administering Oxytocin. No doubt it is the drug of choice for making the uterus contract to induce and accelerate labour and it is also the treatment to stop PPH bleeding. However, it is also well documented that there are major risks if this drug is administered too fast to a patient of high parity and late in labour since it could cause the uterus to rupture*.

(*Source : Article by Dr. C.M. Zelop, Dr. T.D. Shipp, Dr. A. Kohen et all from the

Department of Obstetrics and Gynecology, Massachusetts General

Hospital, Boston, USA)

In other words, in a pregnant patient Oxytocin is required to be given by intravenous infusion starting with small doses to be administered gradually. Looking at the present case and in the absence of any credible evidence produced by Appellant No.2 to support her contention, we are of the view that the Patient who was at risk being both high parity and late in labour was given Oxytocin prior to the delivery to precipitate labour undoubtedly in an irrational manner and not in small and gradual doses as per standard medical procedure, which caused her uterus to rupture leading to hemorrhaging and death.

12. In view of these facts, we agree with the State Commission that the treatment in this case was “highly unprofessional and negligent”. We, therefore, uphold the order of the State Commission and dismiss the present First Appeal. Appellants are directed to pay a sum of Rs.1,00,000/- as compensation to the Respondents/Complainants within one month, failing which it will carry interest @ 9% per annum from the date of this order till the date of payment. No costs.

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh




of the State Commission, Chandigarh)

The New India Assurance Company Ltd. Through its Divisional Manager SCO No.463-464,

Sector-35C, Chandigarh Also at: The New India Assurance Company Ltd. Regional Office-

I, 124, Connaught Circus, New Delhi – 110001.

..Petitioner

Vs.

Sh. Harpreet Singh R/o House No.1126, Sector-8-C, Chandigarh

….Respondent

BEFORE:



For the Petitioner : Mrs. Pankaj Bala Verma, Advocate

For the Respondent : Mr. H.S. Sandhu, Advocate with

Mr. Soumyajit Pani, Advocate

Pronounced on : 6 th May, 2013

ORDER


Petitioner/opposite party has filed the present revision petition under Section

21(b) of the Consumer Protection Act, 1986 (for short, ‘Act’) challenging order dated

14.1.2008, passed by State Consumer Disputes Redressal Commission, Chandigarh

UT (for short, ‘State Commission’), vide which appeal filed by the respondent/complainant was allowed.

2. Brief facts are that respondent purchased a Bolero Jeep bearing registration

No.CH03-F-0113 in the year 2001. The said vehicle was insured with the petitioner vide comprehensive insurance policy for a sum of Rs.4.58 lakh and valid up to 5.8.2003. On

9.8.2002, respondent on a visit to Delhi alongwith his friend Sh. Kamaljit Singh was travelling in the said vehicle. Respondent’s friend took the vehicle to see his relatives residing at C-62-B, Kalkaji, New Delhi. Unfortunately, the vehicle in question was stolen from that address and it was last seen between 6 A.M. to 6.30 AM on 10.8.2002.

Sh. Kamaljit Singh lodged a theft report with P.S., Kalkaji on 10.8.2002, vide F.I.R.

No.531 dated 13.8.2002. After completing investigation, police gave an untraced report, dated 29.5.2003. Respondent also informed of the loss to the Branch Manager, New

India Assurance Company, Sector 35C,Chandigarh on 10.10.2002. All relevant documents were submitted alongwith the claim including copy of the FIR and untraced

report. In spite of completing all the formalities, petitioner did not process the claim.

However, Petitioner vide letter dated 27.1.2004, informed the respondent that his claim was not maintainable as the said vehicle was being used by Sh.Kamaljit Singh as a taxi at the time of theft which was against the terms and conditions of the policy and thus repudiated the claim. Thereafter, respondent issued a legal notice dated 15.5.2004.

However, Petitioner refused to settle the claim. Hence, respondent filed consumer complaint praying that petitioner be directed to pay the insured amount of Rs.4,58,000/- with interest @ 24% per annum from the date of the theft of the vehicle till actual payment. It was prayed that petitioner be directed to pay further sum of Rs.2 lacs on account of interest and other charges payable to Mahindra and Mahindra Financial

Services Limited, which had granted loan to the respondent for purchase of the vehicle in question. Further, a sum of Rs.1 lac has been sought as compensation for mental agony and harassment alongwith Rs.11,000/- as litigation costs.

3. Petitioner in its written statement took the plea that respondent was not on a visit to Delhi on the relevant date. Instead the vehicle was hired from the respondent by Airtel for official purpose for Mr. Kamaljit Singh, working as an Engineer with Airtel,

C-25, Industrial Area, Phase-II, Mohali. Since, vehicle was being used as a taxi in violation of terms and conditions of the policy, the claim of the respondent was rightly repudiated. It has also been alleged that information of the alleged theft was given very late i.e. after a period of about two months, which is also a grave violation of the policy condition.

4. District Consumer Dispute Redressal Forum-I, Chandigarh (for short, District

Forum’) vide order dated 23.5.2007, dismissed the complaint.

5. Being aggrieved, respondent filed an appeal before the State Commission, which allowed the same.

6. Hence, this revision petition.

7. We have heard the learned counsel for the parties and gone through the record.

8. It has been contended by learned counsel for the petitioner that since vehicle in question was being used as a regular taxi, which is in violation of terms and conditions of the insurance policy, therefore respondent is not entitled to claim compensation treating it as a non-standard claim. The claim of the respondent was rightly repudiated and the impugned order under such circumstances cannot be sustained.

9. On the other hand, it has been contended by learned counsel for respondent that there is no evidence on record to show that vehicle in question was being used as a taxi which has been rightly held by the State Commission. The petitioner repudiated the

claim of the respondent arbitrarily and illegally. In support, learned counsel for respondent has relied upon following judgments; i) Rajiv Rathod versus Oriental Insurance Company Ltd.,

I (2003) CPJ 206 (NC) and

ii) National Insurance Company Ltd. versus Nitin Khandelwal

IV (2008) CPJ 1 (SC)

10. In the present case, the State Commission has overlooked the basic issue involved in this case, as to whether there has been violation of the terms and conditions of the insurance policy or not.

11. As per respondent’s case, vehicle was stolen on 10.8.2002 and FIR was got registered on 13.8.2002. However, intimation about theft of the vehicle was given to the petitioneronly on 10.10.2002. Thus, there was a delay of two months in informing the Petitioner about theft of the insured vehicle.

12. This Commission in “ New India Assurance Company

Ltd. versus Trilochan Jane, IV (2012) CPJ 441 (NC)” has observed as under;

“9. In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.

10.

Hon’ble Supreme Court of India in United India Insurance

Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that the terms of Policy have to be construed as it is and nothing can be added or subtracted from the same. The Policy provides that in the case of theft, the matter should be reported ‘immediately’. In the context of a theft of the car, word

‘immediately’ has to be construed strictly to make the insurance company liable to pay the compensation

”.

13. In the present case, admittedly there is delay of two months in informing the petitioner about theft of the vehicle, Thus, there is clear cut violation of the terms and conditions of the insurance policy. Since, there is violation of the basic conditions of the

insurance policy, the State Commission erroneously allowed the appeal of the respondent. The decisions of Rajiv Rathod and Nitin Khandelwal (Supra) cited by counsel for the petitioner are not applicable to the facts of the present case.

14. For the forgoing reasons, we allow this revision and we set aside the impugned order passed by the State Commission and restore the order of the District Forum.

15. No order as to costs.

…..…………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg/



(From order dated 28.11.2011 in M. A. No. 1027 of 2009 in First Appeal No.757 of

2009 of State Consumer Disputes Redresdsal Commission, Punjab, Chandigarh)

1. Shri Ravi Shankar Maharaj S/o Shri Kripa Ram Sharma R/o Sri Rawatpura Sarkar

Institute, Behind Power Grid, Chhattisgarh, Durg.

2. Satya Narayan Sharma S/o Late Shri Jagdish Parsad Sharma R/o Sharma Baans

Tall, Near Purana Bus Stand, Ganesh Ram Nagar, Raipur, Chhattisgarh.

………Petitioners

Versus

Guru Ram Dass College of Technical Education, Sangrur Through its Shri Narender

Gupta Being authorized representative of Mata Savitri Devi Mamorial Welfare Society,

Sangrur (Punjab)

BEFORE:

…… Respondent

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER


For the Petitioners : Mr. A. P. Dhamija, Advocate

For the Respondent : Mr. Amarjeet Singh, Advocate

Pronounced on: 6 th May, 2013

ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

Being aggrieved by order dated 28.11.2011 passed by State Consumer Disputes

Redressal Commission, Punjab (for short, ‘State Commission’) Petitioners/Opposite Parties no.1 and 2 have filed this revision.

2. Respondent/complainant filed a consumer complaint under Section 12 of the

Consumer Protection Act, 1986 (for short, ‘Act’) against petitioners before the District

Consumer Disputes Redressal Forum, Sangrur (for short, ‘District Forum’). In the complaint, it is alleged that petitioners have failed to fulfill their obligation and have no right to retain any fee paid by the respondent.

3. Petitioners were proceeded exparte before the District Forum. Thereafter, vide judgment dated 09.01.2007, District Forum allowed the complaint.

4. Being aggrieved by the order of the District Forum, petitioners filed an appeal before the State Commission. Alongwith it, an application seeking condonation of delay of 835 days was also filed.

5. State Commission, vide impugned order held that the delay of 835 days has not been properly explained. Therefore, it dismissed the application for condonation of delay and consequently appeal was dismissed as barred by limitation.

6. Aggrieved by the order of the State Commission, petitioners have filed this revision.

7. We have heard the learned counsel for parties and gone through the record.

8. Grounds on which condonation of delay was sought before the State Commission, read as under ;

“ 3. That the present appeal is filed against order dated 9.1.2007 passed by the Ld. Consumer Forum, Sangrur. The said order was passed exparte against the appellants. The appellants are ordinarily resident in Chhattisgarh. The appellants were not aware about the existence of any such orders or any information nor did the appellants have knowledge regarding the exparte order or subsequent execution orders. The appellants did not receive any certified copy of the impugned order.

4. That the appellants were shocked when they came to know about the pendency of execution proceedings of the impugned order before the Ld. Forum Sangrur on 31.3.2008. The counsel for the appellant applied for the certified copy of the impugned order on the same day and the Ld. Forum supplied the certified copy to the counsel on

8.4.2009. Thereafter, the counsel for the appellant appeared in the execution proceedings. The contentions of the appellant are further substantiated with the fact that the appellants operate from their registered office at Raipur Chhattisgarh and the area being far away from Sangrur where the impugned order was passed there was no way for the appellants to come to know about the existence of any proceedings before the Ld. Forum Sangrur.

5. That thereafter the counsel for the appellant approached the appellants about the future course of action and the appellants approached an Advocate at Chandigarh on 20.5.2009 alongwith the certified copy of the impugned order.

6. That the instant appeal was filed on 2.6.2009. So there is delay of 835 days in filing appeal is unintentional and bonafide as the appellants were not aware about the existence of any such order prior to

31.3.2009.

7. That the appellants have prima-facie good case in their favour, which in the humble submission of the appellants is likely to succeed on the basis of the grounds taken therein.

8. That the delay of 835 days in filing the Appeal is neither intentional nor as per will but the delay has been caused due to reasons mentioned above ”.

9. As per petitioners, District Forum has no territorial jurisdiction. Secondly, petitioners came to know only on 29.3.2009 about passing of the order by the District Forum, when some policemen came with bailable warrants at the residence of petitioner no. 2. Prior thereto, none of the petitioners were aware of the proceedings filed against them nor any notice was served upon them. Thus, there are sufficient grounds for condonation of delay.

10. Respondent in its reply to this petition has stated that petitioners have taken contradictory stand in the petition as well as in the application for condonation of delay filed before the State Commission. Petitioners cannot take any new ground before this

Commission. In revision petition, petitioners have stated that they came to know about the proceedings only on 29.3.2009, when some policemen came with bailable warrants at the residence of petitioner no.2. Whereas in application for condonation of delay, petitioners took the plea, that they were shocked when they came to know about the pendency of execution proceedings of the order before the District Forum on 31.3.2008.

11. State Commission, in the impugned order observed ;

“The appellants have admitted in the application that they had come to know of the impugned order on 31.3.2008 in the execution application on which they through their counsel had applied for a certified copy of the impugned judgment dated 9.1.2007.The appellants received the certified copy of the impugned judgment dated 9.1.2007 on 8.4.2009. It is very surprising that when the appellants had came to know in the execution proceedings on

31.3.2008 about the passing of the impugned order dated 9.1.2007 then there was no justification for the appellants to take a period of one year in getting a certified copy of the impugned judgment dated

9.1.2007 on 84.2009 i.e after more than one year. Similarly when the certified copy of the impugned judgment dated9.1.2007 had become available to the appellants on 8.4.2009 they were not justified in taking the time of about 54 days in filing the appeal when they already knew that it is belated by time.

The facts of the present case are peculiar which do not show if the appellants have been able to make out a case of sufficient cause. The appellants had come to know about the passing of the impugned judgment dated 9.1.2007 on 31.3.2008 and still the appellants took more than one year and obtained a certified copy of the impugned judgment dated 9.1.2007 on 8.4.2009. It was clearly intentional delay and even after getting certified copy of the impugned judgment dated 9.1.2007 the appellants spent about 52 days in filing the appeal. This delay is totally unexplained by the

appellants and, therefore, the grounds pleaded by the appellants do not constitute sufficient cause.

In the present case the appeal was required to be filed within a period of thirty days form the date of order but the appeal was filed after 835 days. Delay has not been properly explained. Therefore the application for condonation of delay is dismissed

”.

12. The main ground on which condonation of delay has been sought by the petitioners as per application filed before the State Commission is, that they came to know about the pendency of the execution proceedings of the impugned order on 31.3.2008. The counsel for the petitioners applied for certified copy of the impugned order on the same day and District

Forum supplied the certified copy on 8.4.2009. Thereafter, counsel for petitioners appeared in the execution proceedings. The appeal before the State Commission was filed on

2.6.2009. Further, it is stated that petitioners were not aware about the existence of any such order prior to 31.3.2008.

13. However, in the grounds of revision filed before this Commission, petitioners have taken a new plea that date mentioned in the application for condonation of delay as 31.3.2008 is a typographical error. In fact, the date of knowledge is “30 th March,2009”. At the same time, petitioners have taken another plea in the revision that :-

“The Petitioners only came to know only on 29.3.2009 when some policemen came with bailable warrants at the residence of petitioner no.2. Prior thereto, none of the petitioners were aware of the proceedings filed against them nor any notice was served on them as stated in the proceeding paragraph ”

14. Thus, as per Petitioners own case, there are three different dates when they came to know about passing of the order by the District Forum. The first date is 31.3.2008, when

Petitioners came to know about pendency of the execution proceedings. The second date is

29.3.2009, when some policemen came to the residence of Petitioner no. 2 with bailable warrants and third date of knowledge is that of 30.3.2009.

15. It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact.

16. Under th e Consumer Protection Act, 1986(for short, ‘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 835 days in filing of the appeal before the State Commission could not have been condoned without showing sufficient cause.

17. 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 the

Court are 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 ”.

18. We find that State Commission came to the right conclusion in rejecting the application for condonation of delay of 835 days in filing of the appeal before it and consequently dismissing the appeal being time barred. We do not find any infirmity or illegality in the impugned order. 19. Accordingly, present petition having no merits at all is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).

20. Petitioners are directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of d emand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A of

Consumer Protection Rules,1987, within eight weeks from today. In case, they fail to deposit the cost within prescribed period, then they shall be liable to pay interest @ 9% p.a. till its realization.

21. List on 12.07.2013 for compliance.

……..……………………J

(V.B. GUPTA)

( PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB



(From the order dated 23.05.2012 in First Appeal No. 211/2000 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla)

National Insurance Co. Ltd., Yamunanagar Branch, District Yamunanagar Haryana through Manager, Regional Office – I, Jeevan Bharati Building, 124, Connaught Circus,

New Delhi – 110001

... Petitioner (s)

Versus

M/s. Ruchira Papers Limited, Trilokpur Road, Kala Amb., District Sirmour, H.P. through

Shri Sushil Kumar Sharma

…. Respondent(s)

BEFORE

HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER



For the Respondent (s)

Mr. Kishore Rawat, Advocate

Mr. D.K. Mehta, Advocate

PRONOUNCED ON : 6 th MAY, 2013

O R D E R


Protection Act, 1986 against the order dated 23.05.2012 passed by the Himachal

Pradesh State Consumer Disputes Redressal Commission, Shimla (hereinafter referred to as “State Commission”) by which appeal filed by the present petitioner / opposite party against the order dated 14.05.2009 passed by the District Forum, Sirmour in complaint case No. 21/2005 presented on 18.03.2005 was partly allowed and the order of the District Forum was modified to the extent that instead of Rs. 10,61,210/-, a sum of Rs. 5,71,172/- was ordered to be paid by the petitioner to the complainant / respondent with interest @ 9% per annum from the date of complaint to the date of payment of the aforesaid amount of money in addition to litigation expenses of Rs.

3,000/-, awarded by the learned District Forum.

2. The brief facts of the case are that the complainant M/s. Ruchira Papers Ltd.,

Kala Amb, District Sirmour, Himachal Pradesh is a limited company and carries its business of manufacturing of kraft paper in their factory. The complainant got insured the building of factory, plant and machinery and other fittings through three cover notes

No. 20973, 22463, 22162 for a period of one year. It has been stated that on the night of 27 th / 28 th November, 2004, at about 3.00 A.M., an explosion took place in the rag digester working in the factory for manufacturing of kraft paper, which caused extensive damage to the building and injuries to the workers resulting in the death of two workers. The matter was reported to the police and an FIR was also registered. The claim was also lodged with the petitioner insurance company. The surveyor deputed by the petitioner assessed the damage to the digester at Rs. 2.5 lacs after taking into account the depreciation and excluding the value of salvage. The surveyor also assessed the loss to the building at Rs. 1,45,878/-. However, the claim was repudiated by the petitioner on the ground that this was not a case of explosion and hence the risk was not covered under the relevant policy.

3. It has been stated in the complaint that the process involves cutting the old gunny bags and feeding them into the rag digester and chemicals like soda ash / caustic soda are added along with fresh water. The same is cooked after closing the digester lid tightly with steam pressure for about three hours. After three hours of cooking, the pressure is released by opening the vent line after stopping the digester. The digester lid is then opened and cooked pulp is dumped on the floor by rotating the digester. It has been stated that on the night of 27 th / 28 th November, 2004, the digester exploded as a result of which the complete system of rag digester including its building drive unit and roof good badly damaged. The cooked hot rags pulp along with steam violently splashed out, causing injury to the labourers and resulting into the death of two of them. The complainant stated that the loss of digester amounted to Rs. 6,50,000/- and building damage was to the extent of Rs. 5,05,452/- and hence the total loss was Rs.

11,55,452/-. The complainant demanded a sum of Rs. 11,55,452/- along with compensation of Rs. 1,00,000/- and interest of 18% per annum. However, it was maintained by the petitioner insurance company that the Executive Director of the complainant Shri J.N. Singh had given in writing that the accident occurred due to mechanical failure of lid lock of the Digester; it was not the case of explosion and hence it was not covered under the terms and conditions of the policy. The petitioner also

obtained report from M/s. Z.V. Islam & Associates, which stated that there was no explosion.

4. The complainant then filed the consumer complaint No. 21/05 on 18.03.2005, which was decided on 14.05.2009 by the District Forum and the said Forum allowed the complaint and directed the petitioner to pay Rs. 10,61,210/- along with interest @ 9% per annum from the date of filing of the complaint and also Rs. 3,000/- as litigation expenses. The State Commission, in appeal, modified the said order and reduced the compensation to Rs. 5,71,172/- along with interest @ 9% per annum and Rs. 3,000/- litigation expenses. The State Commission allowed the claim for damage to the building to the extent of Rs. 1,45,878/- as stated by the surveyor. They also allowed a sum of Rs. 1,75,294/- for some other items involving dismantling etc., which were not recommended to be allowed by the surveyor and estimated the total money payable for damage to the building as Rs. 3,21,172/-. They also stated that the cost of the Digester was Rs. 8,00,000/- and after accounting for 50% of the value as depreciation and salvage value of Rs. 1,50,000/-, the balance Rs. 2,50,000/- was required to be paid and in this way, a total sum of Rs. 5,71,172/- (3,21,172/- + 2,50,000/-) was payable to the complainant. It is against this order that the present petition has been made by the insurance company.

5. At the time of hearing before me, the learned counsel for the petitioner Shri Kishore Rawat invited my attention to a copy of the ‘Standard File and

Special Fire Policy” (Material Damage) as issued by the petitioner company in the case.

He stated that the description of the ‘perils’ was given in the said policy and the mechanical failure was not covered under the definition of perils. The learned counsel invited my attention to the claim form dated 11.01.2005, initially submitted by the complainant, in which the cause of accident has been mentione d as “due to failure of safety lid lock of Digester”. Later on, the company submitted another claim form in which the cause of fire/accident has been stated to be “due to explosion”. The learned counsel stated that if the damage was due to explosion, the compensation could be awarded, but in that case also, damage done to the Boiler was to be excluded from compensation. The learned counsel argued at length that it was the own admission of the complainant including their own Executive Director, by which it was stated that the incident occurred due to failure of the safety lid lock of Digester. The report submitted by M/s. Z.V. Islam & Associations, who are Risk Management Insurance & Fire

Protection Consultants states that no fire/smoke was reported or seen before or after the accident and no fire fighting was requisitioned at any stage; no sound leading to explosion was heard or reported and hence it was not a case of explosion. The report given by the surveyor also stated that the damage occurred due to mechanical failure of lid lock of the Digester and the possibility of loss due to explosion was totally ruled out. The surveyor stated that the loss did not fall under the terms and conditions of the policy. The learned counsel further argued that even if it is stated that explosion had taken place, the loss for the boiler/digester could not be paid as per the terms and conditions of the policy. The learned counsel pointed out my attention to the finding of the State Commission where they have stated that the surveyor had not given any reason for excluding certain items involving damage to the building. He stated that the surveyor had given detailed reasons for excluding such items in his report. The claim should be restricted to be paid as per the report of the surveyor.

6. On the other hand, the learned counsel for the respondent/complainant stated that after the incident, the surveyor was appointed by the petitioner on 01.12.2004 and he visited the same day, but he had given his report after a long time in July,

2005. However, the report of the consultant M/s. Z.V. Islam & Associates was submitted before the surveyor’s report on 23.04.2005. Pointing out my attention to the contents of this report, the learned counsel stated that this report was based on presumptions only and they never visited the site of the accident. They had also stated that this was not their final interpretation / view and for further query, their Head Office at Bombay should be contacted. The learned counsel expressed the opinion that this report was not a reliable document and hence should not be dependent upon. He further stated that both State Commission and the District Forum had given concurrent findings regarding the incident and the same should be sustained. From a legal point of view also, while deciding the revision petitions, this Court should interfere only, if any substantial question of law was involved. In the present case, no such question of law had been raised by the petitioner. He stated that the learned State Commission had clearly brought out that the petitioner could not take the plea of “Exclusion Clause” regarding damage to the Boiler. The learned counsel stated that the order passed by the District Forum, should be restored and compensation should be given as awarded by the District Forum although the complainant/respondent had not filed any petition

against the order passed by the State Commission, by which the quantum of compensation was reduced from Rs. 10,61,210/- to Rs. 5,71,172/-.

7. In reply, the learned counsel for the petitioner stated that the order passed by the lower Court was perverse in the eyes of law and hence the same could be challenged by way of revision petition. In the wake of own admission by the complainant, the

District Forum or the State Commission should not have come to the conclusion that explosion had taken place.

8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. From the factual matrix of the case, it is very clear that there was an accident in the factory on night intervening 27/28.11.2004, which resulted in extensive damage to the building of the factory and the Digester and also several workers sustained serious burn injuries, resulting in the death of two of them. I agree with the observations made by the learned State Commission that it was a case of bursting. The bursting could be due to mechanical failure of the lock of the lid or due to any other reason, but the fact is clear that cooked and hot material from the Digester had fallen on the workers in the vicinity of the machinery. In this way, there seems to be a very thin line dividing the factum of explosion or non-explosion. It is true that the complainant themselves mentioned in the beginning about the failure of the safety lid lock of the Digester and later on, termed it as explosion, but the quantum of damage caused, appears to be the same as would have accrued due to explosion. I therefore, tend to agree with the finding of the District Forum and State Commission that the complainant need to be compensated under the terms and conditions of the “Standard

Fire and Special Perils Policy” issued by the petitioner in his favour. In so far as the quantum of compensation is concerned, the learned State Commission have based their findings regarding loss to the building on the report of the surveyor, which stated that the loss to the building was Rs. 1,45,878/-. The learned State Commission also allowed compensation for items involved in dismantling and masonry in walls and cement, plaster etc., for which they allowed a further sum of Rs. 1,75,294/-, making it a total of Rs. 3,21,172/-. The cost of Digester was also added after taking into account

50% depreciation and deducting the salvage value. I do feel that the order passed by the learned State Commission is based on a sound reasoning and correct appreciation of the facts and circumstances on record. There is no reason to award the

compensation as given by the District Forum because the respondent/petitioner have not challenged the findings of the State Commission.

9. In view of this discussion, the present petition is ordered to be dismissed and the order passed by the State Commission upheld with no order as to costs.

..……………………………



SB/4


REVISION PETITION NO. 3076 of 2012

(From the order dated 31.01.2012 in Appeal No. 511 of 2011 of Gujarat State

Consumer Disputes Redressal Commission, Ahmedabad)

1. Jagrut Nagrik Through their Trustee & Secretary Shri P.V. Moorjani Grahak

Suraksha Bhavan, Near Prerna School, Sangam Crossing, Karelibaug, Vadodara

2. Shankarbhai Solanki

3. Maltiben Shankarbhai Solanki At. 1, Shardha Park Society, 1 Near Samir Park,

High Tention Road, Subhanpura, Vadodara, Gujarat

… Petitioners/Complainants

Versus

1. The Divisional Manager Life Insurance Corporation of India Vadodara Divisional

Office 4 th Floor, Suraj Plaza

– II, Sayajigunj, Vadodara, Gujarat

2. Manager Life Insurance Corporation of India Dabhoi Branch, Opp. Commerce

College Nr. S.T. Depot, Dabhoi, Distt. Vadodara, Gujarat

… Respondents/Opp.Parties(OP)

BEFORE



For the Petitioners : Mr. Akhil Dave, Advocate

For the Respondents : Mr. U.C. Mittal, Advocate

PRONOUNCED ON 6 th May, 2013

O R D E R


This revision petition has been filed by the Petitioners/Complainants against the impugned order dated 31.1.2012 passed by the Gujarat State Consumer

Disputes Redressal Commission, Ahmedabad

(in short, ‘the State Commission’) in

Appeal No. 511/2011

– Jagrut Nagrik & Ors. Vs. The Manager, LIC & Anr. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that Complainant No. 2 obtained Insurance Policy

No.872846295 of Rs.6,00,000/- on the life of his daughter Unnati S. Patel on 25.4.2002, as Unnati was minor at the time of obtaining policy. Unnati died in July, 2004 and

Complainants No. 2 & 3 submitted claim papers to the OP/respondent, but OP denied benefits to be allowed in the policy and passed claim of Rs.2,25,000/- instead of

Rs.6,00,000/-, which was not accepted by the complainants. Matter was referred to

Ombudsman, but no purpose was served. Alleging deficiency on the part of OP, complainants filed complaint and claimed compensation of Rs.8,75,000/-. OPs resisted complaint, filed written statement and submitted that complainants are not entitled to get compensation of Rs.6,00,000/- under the disputed policy issued in the name of complainant’s minor daughter Unnati. Policy was issued on the basis of information given by the complainant in the proposal form. As per guidelines, insurance amount of minor policy should not exceed the total insurance of parents. Complainants submitted wrong information in the proposal form stating that total polices held by him in his name were to the tune of Rs.6,25,000/-, whereas policy of only Rs.1,25,000/- was in the name of the Complainant No. 2 and Policy No. 870296554 for Rs.5,00,000/- was in the name of complainant’s daughter Zankhana S. Patel. Complainant also did not disclose another policy of Rs.1,00,000/- in the proposal form, but later on after investigation, claim of Rs.2,25,000 with bonus of Rs.43,875/- was allowed. OP denying deficiency, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint partly and directed OP to pay Rs.2,25,000/- with bonus of

Rs.43,875/- with 9% interest from 10.1.2005 till realization. Complainant/petitioner filed appeal against the order of District Forum, which was dismissed by learned State

Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that under Section 45 of the

Insurance Act, the insurance policy cannot be called in question on the ground of misstatement after 2 years and learned District Forum has committed error in partly disallowing complaint and learned State Commission has committed error in dismissing appeal; hence, revision petition be allowed and full policy amount may be given to the complainants. 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 proposal form for the disputed policy on the life of minor daughter Unnati was filled by Complainant No. 2 who was Graduate in

Engineering and well educated person. He mentioned four policies worth Rs.6,25,000/- in his name, whereas on investigation, it was revealed that Policy No. 870296544 worth

Rs.5,00,000/- was not in his name, but in the name of his daughter Zankhana S.

Patel. As per guidelines dated 28.02.2002, which are applicable to the present case as

proposal form was filled on 8.4.2002, risk of minor could not exceed total amount of insurance on the lives of parents.

Clause ‘C’ Risk Plans – Minors of these guidelines runs as under:

“Maximum permissible rated-up Sum Assured upto Rs.50 lacs, but not exceeding the insurance du ly rated up on the proposer’s (father or mother) life, subject to total insurance on the lives of parents and children under all plans put together does not exceed the maximum permissible limit admissible to the person paying the premium.

(The maximum permissible limit admissible is the age related multiple of income that is taken for financial underwriting on the adult life)”

6. Thus, it becomes clear that deceased

Unnati’s policy could not have been for more than Rs.2,25,000/-, the amount of insurance coverage taken by Complainant No.

2, but complainant No. 2 submitted false and wrong information in the proposal form about amount of insurance coverage of polices in his name, whereas policy worth

Rs.5,00,000/- was issued in the name of another daughter of Complainant No. 2.

7. Learned Counsel for the petitioner submitted that policy cannot be called in question on ground of mis-statement after 2 years of issuance as per Section 45 of the

Insurance Act. He placed reliance on Civil Appeal No. 4186-87/1988 – Life Insurance

Corporation of India & Ors . Vs. Smt. Asha Goel & Anr . in which Hon’bleApex Court observed as under:

“Coming to the question of scope of repudiation of claim of the insured or nominee by the Corporation, the provisions of section 45 of the Insurance Act is of relevance in the matter. The section provides, inter alia, that no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that is suppressed facts which it was material to disclose. The proviso which deals with proof of age of the insured is not relevant for the purpose of the present proceeding. On a fair reading of the section it is clear that it is restrictive in nature. It lays down three conditions for applicability of the second part of the section namely : - (a) the statement must be on a material matter or must suppress facts which it was material to disclose ; (b) the supression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. Mere inaccuracy of falsity in respect of some recitals or items in the proposal is not sufficient.

The burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no

question of the policy being avoided on ground of misstatement of facts. The contracts of insurance including the contract of life assurance are contractsuberrima fides and every fact of material must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called in question.

For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. In this connection we may notice the decision of this Court in Mithoolal Nayak Vs. Life Insurance Corporation of India (AIR

1962 SC 814), in which the position of law was stated thus: The three conditions for the application of the second part of s. 45 are:

(a) the statement must be on a material matter or must suppress facts which it was material to disclose ;

(b) the suppression must be fraudulently made by the policy holder; and

(c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose”.

8. Thus, it becomes clear that policy can be challenged under Section 45 of the

Insurance Act only when (a) the statement is on a material matter; and (b) the policy holder must have known at the time of making the statement that it was false. Perusal of proposal form clearly reveals that Complainant No. 2 filled proposal form, who is

Graduate in Engineering and well educated person has shown policy of Rs.5,00,000/- in his name which was actually in the name of his daughter and from this fact it can very well be inferred that Complainant No. 2 was knowing at the time of making the statement that it was false statement depicting policy of Rs.5,00,000/- in his name. This statement was only the material matter because as per guidelines, the risk coverage of minor could not have exceeded the total insurance coverage of parents of the minor. Once these two conditions are fulfilled, Insurance Policy can be challenged on the ground of mis-statement even after 2 years of issuance of policy. On investigation, when this fact revealed that complainant’s insurance coverage was only to the tune of

Rs.2,25,000/-, OP/respondent has not committed any error in allowing claim only to the extent of Rs.2,25,000/- with bonus. Learned District Forum rightly directed OP to pay

Rs.2,25,000/- along with bonus amount and learned State Commission has not committed any error in dismissing appeal.

9. On the other hand, learned Counsel for the respondent placed reliance on (2008)

I SC 321 – P.C. Chacko and Another Vs. Chairman, Life Insurance Corporation of

India in which it was observed that :

“Misstatement by itself is not material for repudiation of the policy unless the same is material in nature. But, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. The

purpose for taking a policy of insurance is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered”.

Thus, it becomes clear that policy can be assailed on the ground of deliberate wrong answer on material issue.

10. We do not find any illegality, impropriety or jurisdictional error in the impugned order, which calls for any interference and revision petition is liable to be dismissed.

11. Consequently, revision petition is dismissed at admission stage with no order as to costs.

..………………Sd/-……………



..…………Sd/-…………………


MEMBER

k



(From the order dated 29.02.2008 in Appeal No. 2341/2007 of Karnataka State

Consumer Disputes Redressal Commission, Bangalore)

M/s. Bindu Promoters & Developers A Partnership Firm No.30/4, 46 th Cross 4 th Block,

Rajajinagar Bangalore – 560010 Karnataka Represented by its Managing Partner Mr.

Jayesh Z.Shah S/o Zaverchand N. Shah

… Petitioners/Opp. Parties (OP)

Versus

Mrs. Rekha S. Shiyal W/o Mr. Surendra B. Shiyal No.5, S.V. Lane, 3 rd Cross Chickpet,

Bangalore – 560053 Karnataka


BEFORE



For the Petitioners : Mr. Manjunath Meled, Advocate

For Mr. Subramaniyam Prasad, Advocate

For the Respondent : Mr. Shekhar G. Devasa, Advocate


O R D E R


This revision petition has been filed by the Petitioners/Opposite parties against the impugned order dated 29.2.2008 passed by the Karnataka State Consumer

Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in

Appeal No. 2341 of 2007 – Mrs. Rekha S. Shiyal Vs. M/s. Bindu Promoters &

Developers by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent paid a sum of

Rs.16,65,900/- to OP/petitioner for purchase of a flat. As per agreement, Rs.

17,49,825/- was to be paid by the complainant to OP. OP asked complainant to get the sale deed registered and pay balance amount, but as the complainant wanted to resell the flat to somebody else; so, he was not in a position to get the sale deed registered. In such circumstances, OP terminated the contact unilaterally and refunded the amount paid by the complainant, which was accepted by the complainant, under protest. Complainant filed complaint before the District Forum alleging deficiency on the part of OP and learned District Forum after hearing both the parties, dismissed complaint, as money had already been refunded. Appeal filed by the complainant was allowed by the State Commission vide impugned order and OP was directed to pay interest @ 12% p.a. on the amount refunded, from 30.6.2006 last date of payment, till refund of money 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 per impugned order, learned

State Commission directed petitioner to pay interest from the last date of payment till realization, but as submitted by complainant, last date of payment was shown as

30.6.2006, whereas last date of payment was 3.4.2007; hence, revision petition be allowed and petitioner be directed to pay interest from 4.4.2007 instead of

30.6.2006. On the other hand, learned Counsel for the respondent submitted that as per respondent’s affidavit, last date of payment is 30.6.2006 and in such circumstances, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. No doubt, respondent/complainant in paragraph 6 of his affidavit of evidence has shown payment starting from 11.4.2005 and shown last payment on 30.6.2006, but respondent has not given any cheque number regarding payment shown in paragraph

6. On the other hand, petitioner submitted Annexure P-9 depicting all payments made by respondent by cheques starting from 6.4.2005 to 3.4.2007, last payment of

Rs.15,900/- by cheque dated 3.4.2007. Perusal of statement of payment shown by the complainant does not tally with the statement given by OP, but total figure of payment is the same. As the payment has been received by OP by cheque issued by the complainant of Amanath Co-op. Bank Ltd., it would be appropriate to accept Annexure

P-9 submitted by OP and in such circumstances, it can be held that complainant made last payment by cheque on 3.4.2007 and learned State Commission has wrongly mentioned last date of payment as 30.6.2006 and to this extent, the impugned order is liable to be modified.

6. Consequently, revision petition filed by the petitioner against the respondent is partly allowed and petitioner is directed to pay interest @ 12% p.a. on Rs.16,65,900/- from 4.4.2007 instead of 30.6.2006, till date of refund of the money to the

Complainant. Parties to bear their own costs.

..……………Sd/-………………



..………Sd/-…………………


MEMBER k



(Against order dated 04.07.2011 in First Appeal No. 261 of 2007 of the

Rajsthan State Consumer Disputes Redressal Commission, Jaipur )

1.Goyal Hospital & Research Centre Pvt. Ltd. Through its Managing Director, 961/3,

Residency Road, Opposite Rotary Bhawan, Jodhpur.

2. Dr. Anand Goyal C/o Goyal Hospital, 961/3, Residency Road, Opposite Rotary

Bhawan, Jodhpur.

3. Dr. Sharda Mathur, R/o Happy Home, Sardarpura Police Station, Jodhpur.

4.Dr. Shobha Pareek, R/o, 4F –80, Shashtrinagar, Near Power House Road, Jodhpur.

…Petitioners

Versus

1. Kishan Gopal Shukla S/o Sh. Mool Chand, R/o 1A 4, Madhuvan Colony, Jodhpur.

2. Rajiv Sharma S/o S.S. Sharma, R/o 12, High Court Colony, Jodhpur.

…Respondents

BEFORE:

HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER

For the Petitioner(s) : Dr. Sushil Kumar Gupta, Advocate

For the Opposite Part(s) : Mr. Manish Kumar, Advocate

Pronounced on 7 th May, 2013

ORDER


1. This Revision Petition has been filed by the Goyal Hospital & Research Centre

Pvt. Ltd and its doctors Dr.Anand Goyal, Dr.Sharda Mathur and Dr.Shoba Parikh as Petitioners challenging the Impugned Order passed by State Consumer

Redressal Commission, Circuit Bench, Jodhpur, Rajasthan,(in short State

Commission) order dated 04/07/2011 in which State Commission upheld the

Order of District Forum and further enhanced the compensation from 3,77,000/- to 6,82,000/-.

Facts in brief

Facts of the Complainants: Smt. Vibha Sharma (Vibha) wife of Complainant no.

2 Mr Raju Sharma, consulted Dr. Kailash Dubey on 11.02.1999 for her health problems who diagnosed her as volvular disease of the heart and advised her for further checkup from some Cardiologist. Accordingly, on 12.02.1999 complainant took his wife to, as per complainant, Dr. Anand Goyal (OP-2), who claimed himself a Cardiologist, conducted tests pertaining to heart problems on Vibha

Sharma and diagnosed as Mitral Stenosis with Mitral Regurgitation (MS with MR) and started treatment. Meanwhile, Vibha became pregnant kept visiting regularly to Goyal Hospital for her pregnancy checkup with Dr. Sharada Mathur (OP-3) and for heart problems check up with Dr.Goyal (OP-2) till her 8 months of pregnancy i.e. till October 1999.During this period there was no improvement in the health of Vibha. During the course of the treatment, she was admitted twice to Goyal Hospital from 25 – 27/8/1999 and 21-23/10/1999 for minor complainants. During 8 th month of pregnancy on 27/10/1999 Vibha visited the

Goyal Hospital and the OP-3 referred her to Dr. R.K. Vyas, a Cardiologist for opinion. Dr.R.K.Vyas who on examination advised urgent hospitalization and further undergo delivery operation at the earliest. On same day by evening at about 5 pm OP-3 performed caesarian operation of Vibha and delivered a male baby. After delivery, Vibha’s condition deteriorated and landed in to coma and shifted to ICCU after four hours and on the next morning, she was declared dead on 28/10/1999. It is also stated that after delivery no relatives of Vibha were allowed to meet her.

Facts of Respondents:-

1) Dr. Anand Goyal (OP-2) denied the allegations of complainants that he was not competent Cardiologist to treat heart ailments. He has not denied the fact that “Consultant Physician and Cardiologist” printed on his prescription slip. As per him, he gave proper treatment for heart ailment of Smt. Vibha and did not commit any negligence. OP-3 contended that she treated Vibha only for her pregnancy and she had no concern with the heart ailment as well as role of anesthesia. As per OP-3 she has given correct and proper treatment to

Vibha for pregnancy and time to time referred her to OP-2 for treatment of her heart ailment. Whatsoever and when on 27.10.99 as per the advice of Dr.

R.K. Vyas, Cardiologist, her caesarian operation was conducted that time also he had not committed any negligence. As per him, Dr. R. K. Vyas himself was present during operation. As per him, no negligence was committed during the operation. He also contended that pre-anesthetic test of

Vibha was done and before operation, her hemoglobin was also fully known. After operation, Smt. Vibha Sharma regained consciousness. As per

OP-1, no one of them commit any negligence and whatever services required to be provided in view of illness of Smt. Vibha, no deficiency therein and prayed for dismissal of complaint.

2) Aggrieved by the death of Vibha complaint No.496/2005 was filed in District

Forum (DF),Jodhapur alleging medical negligence of the OP No. 1 and other treating doctors. The DF vide it’s order dated 1/9/2006 held the Opposite parties guilty of medical negligence the parties and directed OPs to pay Rs.

3, 77,000/- .

3) Aggrieved by the order of District Forum both the parties filed appeals before State Commission. The petitioners herein preferred to file an appeal

No.267/2007 while respondents/complainants filed an Appeal No. 94/2006 for an enhancement of award amount.

4) During the arguments before State Commission objections OPs raised objections as below:

“that this complaint is not sustainable because the complainant no. 1 is father of Vibha Sharma. Vibha Sharma was married, hence, he has no right to file this complaint. This objection in our opinion is not liable to be allowed. The entire proceedings before the Distt. Forum and this

Commission are conducted as a summary proceeding. Father of Vibha

Sharma was with her during her treatment right from the beginning and filing of complaint by him and complainant no. 2 who is her husband cannot be said to be wrong. This objection was also correctly rejected by

Distt. Forum. The other objection of Opposite parties was that a criminal case in this matter was also filed in the court of Chief Judicial Magistrate which was dismissed. In our opinion, dismissal of criminal case does not put any bar in filing complaint for compensation before the Consumer

Forum”.

2. The State Commission considering the evidence on record, the entire patient history and test reports concluded as follows:

“The allegation of medical negligence leveled by the complainants has been proved. We have discussed this in detail herein above. In brief, we would like to say that there is no direct proof available regarding treatment of heart related disease as these facts that what Line of Treatment was given, what medicines were prescribed are not available. Why patient was not referred to Cardiologist for up to eight months, Dr.

Goyal himself is not Cardiologist and he had not advised for abortion at the early stage, he was not available in the operation theatre during delivery option and nor any other cardiologist was called there. Whereas, it was the duty of Goyal

Hospital to make available Cardiologist at the time of operation of patient suffering from such serious ailment. After the delivery option, not allowing relatives to go inside and meet also create doubts. Suddenly after four hours shifting Vibha Sharma to ICU and declaring her death next day in the morning. ”

The State Commission held respondents liable for deficiency in service and

medical negligence. State Commission allowed another appeal No.94/2006 and granted enhancement of compensation.

3. The State Commission by its common order dated 4/7/2011 disposed of both the appeals and rejected the appeal of petitioners and enhanced the compensation in favor of the complainants totaling Rs.6,82,000/-

4. Hence, the present revision is before this Commission.

5. The learned counsel appearing for both the parties made oral submissions and vehemently reiterated the submissions made by the two parties before the State

Commission. I have carefully perused the entire material placed on record and the contentions of both the parties and also written arguments submitted by learned advocates appearing for both the parties. Several Medical texts, literature and authorities are referred.

6. At the outset it is necessary to note the undisputed facts that; on 12/02/1999

Vibha (wife of C-2 & daughter of C-1) suffered difficulty in breathing and uneasiness and was taken to OP-1 and consulted OP-2. The consultation/ prescription slips and medical records (Annexure 1 to 22) maintained by the complainant and opposite party hospital amply establish that the patient was suffering from heart ailment as MS with MI. The OP-2 Dr. Anand Goyal who is post graduate- Doctor of Medicine (MD Gen Med) was not a Cardiologist who examined Vibha Sharma on 12/2/1999. After clinical assessment and proper investigations and by 2 D Echo study , the per Annexure 4,5 & 6 diagnosis in this case mentioned as “Early Pregnancy and MS with MR, Enlarged LA,

Moderate Non Calcific Mitral Stenosis” and advised Doppler study. In simple words Vibha was in early pregnancy and suffering from the Heart Valve Disease.

Accordingly, advised her for complete rest and avoid use of salt (Sodium). The

OP-3 Dr.Sharada Mathur a Gynecologist of same hospital (OP-1) diagnosed her pregnancy of 2 months. Therefore, she was under treatment of OP 2 & 3. During follow treatment for her pregnancy, she visited Dr.Sharada Mathur (OP-3) on

8/5/1999, 14/6/1999, 15/7/1999 and 19/8/1999. During the follow up period on account of uneasiness Vibha was admitted for two days 25/8/1999 to 27/8/1999 and 21/10/199 to 23/10/1999. The condition of patient Vibha did not improve but deteriorated in-spite of treatment of respondents.

7. On 27/10/1999 the breathlessness and uneasiness increased she was taken to respondent’s hospital (OP-1). She was examined by Dr. Sharada Mathur who referred her to Dr.R.K.Vyas,a Cardiologist. The two prescriptions slips are marked as Annexure 20 and 21 (on page 314,316 and 318 of paper book). On

the page 318 (Ex. 21), the letter head of Dr.R.K.Vyas dated 27/10/99 mentioned a diagnosis of Vibha as “RHD, Mod.Mitral Stenosis, Mitral Insufficiency with Atrial fibrillation, CCF” and mentioned the advise for “Hospitalization and plan for delivery by Caesarean as early as possible with explained risk during surgery”.

Accordingly OP-3 conducted Cesarean Section operation and delivered male baby, after delivery patient went in to Coma, shifted to ICCU, but unfortunately died on next day morning of 28/10/1999. Now, under the given set of facts, I am required to determine as to whether there is medical negligence on the part of OP no- 2,3 and 4 in the diagnosis, follow up and treatment of young pregnant woman.

8. It is also noteworthy that as already discussed supra, the OP 2 himself stated that he being holder of degree MD was competent to treat heart ailment and he has not denied the fact “ Consultant Physician and Cardiologist” is printed on prescription slip. In his objections in para 2(9) specifically admitted that he did not consider any need for terminating the early pregnancy of Vibha seeing good condition of her health. Accordingly it becomes an admitted position that without having any such degree of specialization in heart disease he started treatment for heart disease (MS with MR) of Vibha from 12.2.99 and continued treating till her last breath on 28/10/1999.

9. In my opinion the OP 2 & 3 committed deficiency in service by not proper referral and treated as a Cardiologist right from the beginning till prior to

27.10.99. In this connection it is very important to observe the evidence given by

Dr. R. K. Vyas on 12/6/2006 which will throw light. Dr.R.K.Vyas is a Cardiologist qualified as having diploma in cardiology from Vienna City, Austria. Dr. R. K.

Vyas has clearly stated that Dr. Anand Goyal was not a cardiologist. He in this context stated that “it is correct that any doctor even if he is simple M.D., cannot claim of being cardiologist i.e. Specialist in Heart Disease.” Dr. Anand Goyal properly got printed consultant physician as also cardiologist on his letter pad which he certainly was not competent and qualified to write this and he in this regard misled and created wrong position.

10. As per Indian Medical Council (Professional Conduct, Etiquette and Ethics)

Regulations 2002 dated 11 th March, 2001, the duties and responsibilities of the physician have been notified.

Clause-B Sub-clause 1.1.3 states as under:

“ No person other than a doctor having qualification recognized by

Medical Council of India and registered with Medical Council Of

India/State Medical Council(s) is allowed to practice Modern System of

Medicine or Surgery.”

Similarly, Clause B-1.2.1 states as under:

“ the physician should practice methods healing founded on scientific basis and should not associate professionally with anyone who violates this principle.”

Even otherwise, undergoing several trainings, attending workshops in

Cardiology did not confer qualification of ardiologist. Hence it is not recognized by MCI or Rajasthan State Medical Council.

OP 2 submitted that on 25/3/1999 Vibha was patient of Mitral Stenosis with

Mitral Regurgitation Garde I disease which is not safe to do Medical

Termination of Pregnancy (MTP). But in this regard Dr. R. K. Vyas in his statement on oath stated that “ keeping in view the disease of Vibha and treatment in this regard and entire condition; it was the safest course for her to get her M.T.P. performed on 25.3.99 itself i.e. at her early pregnancy stage itself.” The Annexure 6 denotes Vibha was in early pregnancy. Dr

R.K.Vyas further submitted that it would have been the safest course to get her M.T.P. done because the risk to the life of patient increases with the duration of pregnancy stage increasing.

Therefore, it is crystal clear that the

OP 2 was well aware and he anticipated the complications of MS/MI during pregnancy who ought to have advised MTP in early pregnancy or would have been referred to Cardiologist for proper management By not doing so, it can be said that there is a Medical negligence on the part of the OP-2.

It is pertinent to note here that the follow up prescriptions slips of Vibha cleanly disclose that the OP-3 a Gynecologist who was also have not prudently thought of taking opinion of Cardiologist in early pregnancy of VIbha. or she whould have prudent enough to advise for termination of pregnancy(MTP). Dr.

Anand Goyal in his reply and affidavit has not stated anywhere that he himself was present at that time in the operation theatre. He though has stated that he was present in the hospital.

To arrive a conclusion in this case; I have referred Hon’ble Apex Court’s rulings , the MCI Regulations 2002 and medical texts and scientific journals, articles;

11. I may now refer the Medical background on the points relevant to this case:

To enrich myself regarding treatment aspects of such patients of Pregnancy with Mitral Stenosis; I have referred several medical texts, research articles, and references like

i) A review article “ Mitral Stenosis and pregnancy: Current concepts in anaesthetic practice ” cited in Indian Journal of Anaesthesia

2010;54:439-444 ; ii) “Management of Cardiac Disease in Pregnancy” cited in journal

Continuing Education in Anesthesia,Critical Care and Pain Vol 9 ,2,2009 iii) “Mitral Stenosis before,during and after pregnancy ” cited in

Iranian Cardiovascular Research Journal Vol 1,No 1,2007,2. These three articles elaborately discussed about the care, management and also role of anesthetist in such patients. Some of important text is as stated below:

Disease and complications:

The Mitral Stenosis is most common cardiac valvular problem in pregnant women with rheumatic heart disease (RHD) being most important cause.As a result of hemodynamic changes associated with pregnancy,previously asymptomatic patients develops symptoms or complications during pregnancy.If the symtoms persists despite optimal medical treatment invasive treatment shold be considered like per cutaneous mitral volvulotomy(PMV). The patients with

MS should ideally be evaluated before pregnancy.

Maternal (pregnant) cardiac complications, such as pulmonary oedema and arrhythmias, occurred in 35% of the pregnancies. The incidence of maternal cardiac complications correlates with the severity of the mitral stenosis (67% for severe, 38% for moderate and 26% for mild disease).

Regarding the Surgical management-

If mitral stenosis is diagnosed before pregnancy, percutaneous mitral

Commissurotomy (PMC) is preferred. During pregnancy, the second trimester is the preferred period for any invasive procedure. Percutaneous mitral

Valvuloplasty (PMV) provides palliation for pregnant women with mitral stenosis, and the reported success rate is nearly 100%. Successful balloon valvuloplsty increase the valve area to >1.5 cm 2 without a substantial increase in mitral regurgitation.Valve replacement is reserved for severe cases with calcified valve and in mural thrombus where the maternal mortality is 1.5-5% and the foetal loss is 16-33%.

Regarding Anesthesia in such patients:

The role of the anesthetist is important by providing good labour analgesia. Most reports have recommended vaginal delivery under epidural anesthesia, unless obstetrically contraindicated. Caesarean section is indicated for obstetric reason only. Tachycardia, secondary to labour pain, increase flow across the mitral valve, producing sudden rises in left atrial pressure, leading to acute pulmonary oedema. This tachycardia is averted by epidural analgesia without significantly altering the patient hemodynamics. In a study by Goldszmidt and other, only 29-

31 % of the 522 women with heart disease required caesarean section and nearly 70% of them underwent vaginal delivery under epidural analgesia.

General anesthesia has the disadvantage of increased pulmonary arterial pressure and tachycardia during laryngoscopy and tracheal intubation. Moreover, the adverse effects of positive-pressure ventilation on the venous return may ultimately lead to cardiac failure.

12. I may now refer the Law on the points relevant to this case, as laid down by

Hon’ble Apex court as what constitutes Medical Negligence? The judgment of

Hon’ble Supreme Court in Malay Kumar Ganguly Vs Dr. Sukumar Mukharjee

& ors, (2009) SSC 221,III (2009) CPJ 17(SC); wherein it has been observed as follows:

“Even the matter of determining deficiency in medical service, it is now well settled that if representation is made by a doctor that he is a specialist and ultimately turns out that he is not, deficiency in medical services would be presumed.”

Further the Hon’ble Supreme Court in Jacob Mathew V State of Punjab &

Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that,

“ a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”

Therefore the instant case is relevant in respect to OP-2 Dr.Anand Goyal, and in view of above facts, medical negligence per se is established.

In the Bolam’s case

(Bolam Vs. Frien Hospital Management Committee

(1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view.

(i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; in this present case it is ‘NO’ the Opposite party- 2 is qualified doctor but not a Cardiologist as per MCI regulations.

(ii) Whether the doctor adopted the practice (of clinical observation diagnosis

– including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field.

(iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when

the dispute was being adjudicated. My view on the points No (ii) & (iii) are “ NO” as the Opposite Party No 2,3 & 4 did not adopt standard of practice in proper diagnosis, referral and further management.

13. Applying all the above principles in the instant case, I am convinced that there was a medical negligence – admittedly, the Opposite parties are qualified doctors but they have not used their best professional judgment and due care in treatment of complainant’s wife right from beginning.

14. The State Commission has correctly pointed out the vital evidence and appreciated the preponderance of probability pointing to the negligence and deficiency in service of all the Opposite parties and fixed liability on the OP No 2.

15. To summarize the findings in this case; It is clear that as per MCI norms OP-2 is not qualified to treat Smt. Vibha who was the patient suffering from volvular disease. It was a risky that a doctor who is not qualified and competent to do so which amount to therapeutic misadventure. There is no evidence which may show that the OPs have given proper treatment during course of pregnancy. The

OP-2 if he is a Cardiologist should have performed intervention like Percutaneus

Mitral Valvutomy(PMV) or Commisurotomy. But, on 27/10/1999 at the elevent hour i.e. after the lapse of 8 months of pregnancy the OP 2 & 3 referred such critical patient Vibha to Dr.R.K.Vyas, a Cardiologist; this is not acceptable and not a standard of medical practice at all. I also observe here that some element of negligence by an anesthetist Dr. Shobha Pareek (OP-4). The patient

Vibha was in CCF (Congestive Cardiac Failure) the standard and preferred practice to anesthesia spinal anesthesia. But, OP-4 administered General

Anesthesia for Caesarian Section instead of better option of trying vaginal delivery with Combined spinal-epidural analgesia which would produces good analgesia without major hemodynamic changes. Therefore, I am of the firm view that there is medical negligence by all the opposite parties mainly OP No.2.

All the dreams of the complainant about his deceased wife who was a teacher were shattered and the child is deprived of mother; it is due to the negligent act of Opposite Parties. Hence, his pain obviously cannot be compensated completely in terms of money.

16. Therefore, this revision petition is dismissed and confirm the order passed by

State Commission. However, for the purpose of reducing his financial liability and in the interest of justice, I, further impose Rs. 1,00,000/-as punitive costs upon the petitioners for wasting the precious time of this commission and consumer fora below.

17. Furthermore it is important to discuss that, this case on hand throws ample light upon rampant unethical medical practices in India. It is most common in present days that nursing homes, hospitals provide facilities like diagnostic Laboratory,

Radiology or Sonology units without a specialists like Radiologist, Pathologists.

Such units are managed by unqualified or untrained staff. It appears that such

doctors have erased the Hippocratic Oath from their mindset and more active in a business of profiteering by coercive methods and by creating false impression in the minds of patients at large. The Apex Court in various judgments has clearly observed that; unless the person hold a necessary qualification, should not perform job of the Specialist. I would like to set this as an advisory /direction to the statutory bodies like Medical Council of India (MCI) and Health Ministry to initiate steps to strike down such practices of medical professional who are posing as a specialist or misrepresenting as a super specialist without any approved qualification by statute or controlling authority. In other words it is a

“QUACKRY” that treating the patients in absence of valid degree. Such misleading display of qualifications or misrepresentation will harm the quality of health system in India. Subsequently the innocent patients are victimized financially and also lose their precious life. For such instances the entire medical fraternity cannot be branded as lacking in integrity or competence “because of some bad apples”. Copies of this order be sent to Medical Council of India (MCI) and Health Ministry for information.

In view of the foregoing observations and discussions, I proceed to pass the following Order:

The petitioners are directed to pay Rs.6, 82,000/- along with additional punitive cost of Rs.1,00,000/- out of which Rs. 50,000/- will go to the complainants/respondents and Rs. 50000/- be deposited with Consumer Welfare

Fund by way of demand draft in favor of “Pay and Accounts Officer, Ministry of

Consumer Affairs”, payable at Delhi, Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act,

1986. This order should be complied within a period of 45 days from today otherwise it will carry interest at the rate of 9% p.a. till its recovery.

Copies of this order be sent to Medical Council of India and Health Ministry for information and necessary action.

……………….……………


MEMBER





Delhi Development Authority Vikas Sadan, INA New Delhi

… Appellant

Versus

Mr. Vas Dev S/o Shri Sidhu Ram R/o 43, Madan Park East Punjabi Bagh New Delhi-

110026

… Respondent

BEFORE:



For Appellant : Ms. Girija Wadhwa, Advocate

For Respondent : Mr. Bharat Sachdeva, Advocate


ORDER


1. This first appeal has been filed by Delhi Development Authority (DDA), Appellants 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 which had allowed the complaint of Vas Dev,

Respondent herein and Original Complainant before the State Commission.

2. FACTS:

Respondent had contended that he registered for a Middle Income Group (MIG) flat under the Appellant’s New Pattern Housing Registration Scheme, 1979 and deposited a sum of Rs.4500/- for this purpose. Since he was transferred to Suva, Fiji for a period of 3 years on a Government of India assignment, he informed Appellant about the same vide letter dated 21.12.1983 and also furnished the fresh address with the request that further correspondence be made at this address. He was allotted

Priority No. 26269 under the scheme. After waiting for about 10 years, during which time no allotment of an MIG flat to him materialized, Respondent came to know in 1989 that Appellant had a provision for the registrants under the 1979 Scheme for conversion of their registration from MIG to Self-Financing Scheme (SFS) and he, therefore,

requested the Appellant for change of registration to the SFS. Appellant agreed to his request and as directed by the Appellant he deposited Rs.500/- as processing fees for conversion from MIG to SFS and also complied with other formalities, including sending the required documents alongwith a letter dated 15.05.1989. Vide letter dated

13.09.1989 Respondent was informed that his request for conversion had been accepted and the transfer/adjustment of registration money from MIG to SFS would be worked out by the concerned office in due course. When Respondent contacted

Appellant’s office he was initially informed that his file had been misplaced and, therefore, he provided documents to help in its reconstruction. Thereafter, he was informed that the original file had been traced and according to it he was not considered for registration under SFS since he did not pay the stipulated amount of Rs.11,326/-

. Respondent was shocked since he did not receive any communication in this respect and he, therefore, made a number of representations, including to the Vice Chairman,

DDA. He was thereafter advised by a telegram, which he received on 03.07.1995, that he could apply under a new 8 th SFS, the last date being the next day i.e.

04.07.1995 when the scheme closed. He subsequently received another communication informing him that the closing date had been extended to

29.07.1995. He thereafter vide his letter dated 10.07.1995 informed the Appellant that he would accept the offer provided the cost of the flat is charged at the rate prevalent for the same size flat in 1989. Since he did not receive any communication for the same and he was informed during a personal meeting that it may not be possible to allot him a

SFS flat since conversion proceedings were never completed, he again requested for consideration for an MIG flat with the same priority number as he had in 1989, which was declined by the Appellant vide letter dated 22.08.1995. Being aggrieved by the gross deficiency in service on the part of Appellant in not handing over possession of the MIG flat for which registration had been made in 1979 and thereafter not agreeing to the conversion from MIG to SFS category and finally rejecting his request for reversion for allotment of a MIG category flat, Respondent filed a complaint before the State

Commission and sought the following reliefs :-

“(i) To allot a flat to and in the name of the complainant under SFS scheme against his registration No. 551 under HUDCO 1979 and to pay the complainant the damages to the tune of Rs.5,00,000/-.

(ii) Or in the alternative, to direct the OP to pay to the complainant the difference of the cost of the flat prevailing in the market in comparison to the price in 1989 along with refund of the amount deposited by the complainant with interest and to pay to the complainant the damages to the tune of Rs.50,000/.”

3. Appellant on being served filed a written rejoinder stating that it was not possible to immediately allot the MIG flat to the Respondent, for which he was registered in

1979, because over a lakh of people had applied under the scheme and the construction of the flats was being done in stages. Respondent’s Priority No. 26269 was quite low in the list of registrants. Thereafter he changed his mind and requested for allotment of a flat under SFS category. Respondent never paid the differential amount of Rs.11,326/- for changing his registration from MIG to SFS.

Respondent’s contention that he did not receive the letter dated 06.03.1990 because it was sent to a wrong address is not correct since the said letter was never returned undelivered by the postal authorities. Appellant also denied that they had misplaced the original file of the

Respondent. In fact, even though Respondent did not deposit the amount of

Rs.11,326/-, following his representations, his case was processed and he was given another chance to apply for allotment of SFS flat under the 8 th SFS and it was mentioned in the telegram that the last date was 04.07.1995. However, when the date was extended to 29.07.1995, Respondent was again sent a letter on 14.07.1995 clearly stating this fact. Respondent did not apply for the SFS under the 8 th SFS and requested for reverting his registration again from SFS to MIG which was declined as there was no such provision available under Appellant’s Housing Schemes or under the terms and conditions of the allotment/brochure etc. Thus, 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 and directed the Appellant to pay the

Respondent a lump sum compensation of Rs.2 Lakhs by observing as follows:

“12. In our view there is no documentary evidence produced by the OP to show as to how much difference of payment he was required to make.

According to the OP the complainant was informed that he had to make payment of Rs. 11,362/- but he never made the payment and as consequence the allotment was cancelled.

13. Be that as it may the fact remains that the complainant who was abroad was not only made to wait for ten long years from 1979 to 1989

after his request for conversion of MIG to SFS category was acceded to but at the same time the OP was guilty of not informing the complainant as to the difference of amount which he was to make as the alleged telegram never reached the complainant.

14. The objection that the complaint is barred by limitation has no substance as cause of action in such like cases is of continuing and subsisting nature and continues till the grievance is redressed by the service provider through written communication.

15. Now the situation is that there is no flat available nor priority of the complaint either in the MIG or in the SFS category is available as the priority expired in the year 1999. The grievance of the complainant is that demand letter dated 6 th March 1990 was depatched at the wrong address and was never received by him whereby the OP had demanded payment of Rs. 11,326/-.

16. Taking overall view of the matter and holding the OP guilty for deficiency in service in not sending the communication at the appropriate address available on record which was a changed address and also not intimating the complainant about the difference of payment to be made, we deem that lump sum compensation of Rs. 2 lacs shall meet the ends of justice for the loss suffered by the compla inant.”


6. Learned counsel for both parties made oral submissions.

7. Counsel for the Appellant reiterated that allotments of MIG flats under the 1979 scheme were being made as per the priority list and it was under these circumstances that the Respondent whose Priority Number was quite low did not get this flat early and in the meantime he opted for conversion of registration from MIG to SFS which was agreed to. A letter was sent at the address given by the Respondent to pay sum of

Rs.11,326/- which he failed to do. Even when he was given a second chance vide letter dated 14.07.1995 to apply for the 8 th SFS, he did not pay any heed to the said advice and asked for conversion of the registration from SFS to MIG which was rightly declined since there was no such provision under any of the terms and conditions of allotment or under the Housing Scheme. It was further contended that since the Respondent had not pai d any amount towards registration of the flat, he was not a ‘consumer’ as defined under the provisions of the Consumer Protection Act, 1986. Under the circumstances, the State Commission erred in allowing the complaint and awarding the compensation of Rs.2 Lakhs.

8. Counsel for the Respondent on the other hand stated that did the Respondent did not receive the letter dated 06.03.1990 from the Appellant informing him to pay

Rs.11,326/- since as is evident from the letter on record (page 35 of the paper-book) that the Appellant had sent it to a blatantly incomplete address where even the house number was not mentioned. Since Appellant was responsible for this lapse, which ultimately resulted in the Appellant not agreeing to the request for conversion of the registration from MIG to SFS at the 1989 rate and also not agreeing subsequently to reconsider his request for MIG flat as per his priority number in 1979, the Appellant was grossly negligent and guilty of deficiency in service and the State Commission had rightly awarded him compensation for the same.

9. We have considered the submissions made by learned counsels for the parties and gone through the evidence on record.

Respondent’s applying under the Appellant’s scheme of 1979 for allotment of an MIG flat and his not being able to get the same for several years is not in dispute. It is also an admitted fact that he made a request for conversion of his registration from MIG to SFS and this was agreed to by the Appellant on his paying the processing fees. It is also an admitted fact that the Appellant subsequently did not consider Respondent under the scheme stating that he did not pay the sum of Rs.11,326/- which was necessary for the conversion of his registration from

MIG to SFS. Respondent has explained this by stating that he did not receive the letter sent by the Appellant as it was not sent to the correct address. We find substance in this contention of the Respondent because from the evidence on file, namely, the letter from the Appellant dated 06.03.1990, wherein the demand for Rs.11,326/- had been raised, the address is blatantly incomplete. It is addressed to

“VasDev, Poorvi Punjabi Bagh, New Delhi-110026”. Punjabi Bagh is a huge colony and in the absence of writing the house number, namely, “43, Madan Park”, it was virtually impossible for the letter to have reached the Respondent. Appellant’s contention that it should be deemed to be served since it was not received back under the circumstances is not acceptable. Thereafter, while it is a fact that Respondent’s request for conversion to SFS was refused following several personal meetings and representations, we note that the telegram sent to him with the advice to apply for the 8 th SFS was received only a day prior to the closure of the scheme, because of which it was not reasonable for

Appellant to expect him to respond within less than 24 hours. Of course the last date

for applying under the 8 th SFS was later extended to 29.07.1995. However, since it was a new scheme Respondent sought some clarification/confirmation whether he would be charged as per the rates application for the earlier scheme from the Appellant, to which he did not receive any response. It was under these circumstances that he requested for restoration of his application for allotment of an MIG flat as per his priority number, which, we note, also not agreed to by the Appellant.

10. From the above facts, it is apparent that the Appellant had been both negligent and tardy in dealing with this case on number of occasions, including in not sending the important letter dated 06.03.1990 demanding Rs.11,326/- from the Respondent for conversion from MIG to SFS to his actual address, thereafter misplacing Respondent’s file and subsequently giving him very little time to consider the option for applying under the new scheme i.e. 8 th SFS and also not giving him the required clarification because of which he had no option but to seek reversion to the MIG scheme. The State

Commission after considering all these facts had rightly arrived at the finding that the

Appellant was responsible for making the Respondent wait for several years and thereafter since no flat was now available either in the MIG category or in the SFS category as the priority expired in 1989, there was need to adequately compensate the

Respondent. We agree with the finding of the State Commission, including the compensation of Rs.2 Lakhs awarded to the Respondent which is reasonable and justified.

11. We, therefore, uphold the order of the State Commission and dismiss the present

First Appeal. Appellant is directed to pay the Respondent the sum of Rs.2 Lakhs within one month from the date of this order. No costs.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



(Against the order dated 28.11.2008 in SC Case No. 06/0/07 of the

West Bengal State Consumer Disputes Redressal Commission, Kolkata)

United India Insurance Co. Ltd. Branch Office

– Serampore,

K.M. Saha Street, Serampore Dist. Hooghly, West Bengal Having its regd. office at 24,

Whites Road, Chennai Through their Regional Office No.1 Kanchanjunga Building

Bara Khamba Road New Delhi

… Appellant

Versus

Oriental Rubber Works 67/25, Strand Road Kolkata-700006 West Bengal

… Respondent

United Bank of India Kolkata Branch 4, Narendra Chandra Dutta Sarani Kolkata-

700001 … Proforma Party

BEFORE:



For Appellant : Mr. V.S. Chopra, Advocate

For Respondent : Mr. Dikshabrata Choudhuri, Adv.


ORDER


1. United India Insurance Co. Ltd., Appellant herein and Opposite Parties before the

West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the State Commission) have filed the present First Appeal against the order of the State Commission which had allowed the complaint of deficiency in service filed by Oriental Rubber Works, Respondent herein and Complainant before the State

Commission.

2. FACTS:

Respondent, who is a partnership firm carrying on the business of manufacturing of rubber products like hospital sheets, gumboots, rain coats, ground sheets, air pillows etc. which they supply to various Hospitals, Railway, Defence Ministry and in the open

market, had taken a Standard Fire and Special Perils Policy on 20.07.2004 from

Appellant-Insurance Company to cover the stocks of raw material and finished goods against various perils for a total sum of Rs.75 Lakhs. The insurance policy was valid till

19.07.2005 and the raw material and finished goods were hypothecated to Union Bank of India. On 05.06.2005 at 11.00 p.m. a fire broke out in the factory/workshop of the

Respondent, as a result of which extensive damage was caused to the raw material, finished goods as also to the building. It was controlled by the Fire Services after several hours. The incident of fire was reported to the Police and also to the

Appellant/Insurance Company vide letter dated 06.06.2005 with a request to depute a

Surveyor to assess the loss. Appellant/Insurance Company appointed one

M.N. Zutshi as Surveyor, who visited the site on three occasions and after conducting a detailed survey submitted its report to the Appellant/Insurance Company. Respondent on the basis of stocks lying in the finished goods section of the factory and other items destroyed claimed an amount of Rs.43,85,817/-. Respondent later came to know that the Surveyor had assessed the loss at Rs.33,91,954/- but despite requests, the

Surveyor’s report was not made available to the Respondent. Also despite several reminders to the Appellant/Insurance Company, the claim was not settled by them. Being aggrieved by the deficiency in service in not settling the claim on the part of Appellant/Insurance Company, Respondent filed a complaint before the State

Commission and requested that the Appellant/Insurance Company be directed to pay it a sum of Rs.43,85,817.30 being the amount claimed in respect of the loss of damaged raw materials and finished goods with interest @ 12% per annum from 05.06.2005 till its realization as also Rs.50,000/- as compensation for harassment, mental agony etc.

3. Appellant/Insurance Company on being served filed a written reply denying that there was any deficiency in service on their part. It was stated that the Surveyor, who had been appointed to assess the loss could not finalize its report because fake and fabricated documents were supplied by the Respondent and further there was noncooperation regarding production of some other documents. The insuree/Respondent also deliberately concealed information from the Surveyor that a large portion of the goods, which were destroyed in the fire, were items which had been rejected by the

departments of Government of India as also not entertained since these were supplied after the stipulated date. The above facts were confirmed by Argus Associates, an

Investigator, appointed to look into this aspect as also government departments. The

Appellant/Insurance Company, therefore, repudiated the claim on 13.12.2007 (i.e. during the pendency of the proceedings before the State Commission) in terms of Policy

Condition No. 8 of the insurance policy, which inter alia provides that if any fraudulent claim is made on the basis of a false declaration to obtain benefits under the policy, then all benefits shall be forfeited. In the instant case since false claims had been made by suppressing that large number of rejected items had been included in the loss incurred and, thus, misleading the Surveyor, the claim was rightly repudiated.

4. The State Commission after hearing the parties and on the basis of evidence produced before it, allowed the complaint by observing as follows :

“The contention of the Insurer is that materials are available before them showing that the validity of the order for delivery of the concerned goods, expired on 31.3.2005 and the materials placed for delivery were rejected by the Authority who placed the order for such goods and such rejection being prior to the date when fire broke out the said goods could not be treated as goods for delivery to the said Authority under their order.

In this connection we have considered the materials available before us and we do not find that insurance coverage was only for materials which were made ready for delivery under any particular valid order. On behalf of the Insurer also no Clause of the Policy was shown for the purpose of holding that compensation would be paid by the Insurer only for the finished products which are covered by a valid delivery order.

In absence of any such materials coverage of the policy has to be treated as available to the insured for the raw materials and finished goods lying within the premises as covered by the said policy. In the present case there is no dispute that raw materials and finished goods were damaged by the fire. The Surveyor’s report shows also clearly the said fact showing damage by fire of the goods belonging to the insured. In such circumstances rejection of the goods or expiry of the valid order for delivery, do not appear to be a factor for consideration.

In view of the above findings as regards no requirement for a valid order or rejection of some materials, the alleged application of Clause 8 of the policy also does not appear to be justified as in view of such findings the disclosure by the insured of validity of the orders has no bearing.”

The State Commission, therefore, directed the Appellant/Insurance Company to pay the

Respondent the amount assessed by the Surveyor regarding the loss caused i.e.

Rs.33,91,954/-, Rs.20,000/- as compensation and Rs.2000/- as costs within a period of two months from the date of the order, failing which the entire amount was to carry interest @ 10% per annum for the entire period of default till realization.


6. Learned counsel for both parties made oral submissions.

7. Counsel for the Appellant/Insurance Company while reiterating the facts as stated before the State Commission contended that the subsequent enquiries indicated that the loss assessed by the Surveyor had to be revisited since 70% of the finished items destroyed in the fire were rejected items. In this connection Counsel for the

Appellant/Insurance Company brought to our notice a letter written by the Government of India, Ministry of Defence indicating that a large number of items (Boot Knee) had been rejected by them and also that orders for over 7000 pairs of Boot Knee were cancelled since Respondent failed to supply the same within the extended delivery period. While all these issues alongwith the report of the Investigator was being reexamined by the Surveyor, Respondent without waiting for the final report of the

Surveyor filed a complaint before the State Commission. Counsel for the

Appellant/Insurance Company further brought to our notice what it termed as the

“second report” of the Surveyor M.N. Zutshi confirming the report of the Investigator and agreeing that action under Policy Condition No. 8 would be attracted.

8. Counsel for the Respondent on the other hand stated that the above contentions were not factually correct. The Surveyor had in his detailed survey report taken into account all facts, including deducting 10% from the assessed amount to adequately take care of rejections, old stocks, obsolescence as well as remaining unaccepted and undelivered stocks, the facts of which were not suppressed by the Respondent. The

Surveyor had also taken into consideration the profits and associated selling overheads and made necessary deductions of the same as per the calculation in its survey report. Therefore, the question of rejecting the claim in terms of Policy Condition No.8 of the insurance policy was not justified.

The letter written by the Surveyor which the Appellant/Insurance Company has termed as the “second report” is only a communication to the Appellant/Insurance

Company commenting on the report of the Investigator and confirming that the rejected items had been taken into account and necessary deductions made in its survey report and further on the basis of some observations advising that Policy Condition No.8 could

be attracted. Counsel for the Respondent contended that these conjectural observations and did not impact on the loss assessed by the Surveyor. The State

Commission after considering all these facts had rightly concluded that the

Appellant/Insurance Company was not justified in repudiating the claim and should have settled the claim in terms of the report of the Surveyor.

9. We have considered the submissions made by learned Counsel for the parties and have gone through the evidence on record. The facts pertaining to the Respondent taking an insurance policy for his goods from the Appellant/Insurance Company and a fire taking place in the insured premises, in which a number of stocks were destroyed, is not in dispute. Further, it is a fact that the Surveyor appointed for the purpose assessed the loss at Rs.33,91,954/-. Appellant/Insurance Company has sought to challenge the report of the Surveyor by stating that as per facts that came to light following an investigation conducted by an Investigator and confirmed by the reports from

Government Departments, Respondent had suppressed from the Surveyor that many of the items which were destroyed had in fact very little market or saleable value because these were rejected items or were unaccepted, undelivered and obsolescence items. After going through the report of the Surveyor, we are unable to accept this contention of the Appellant/Insurance Company because we note that the Surveyor in in Paras 13 and 14 of his report has made the necessary deductions from the profits and associated selling overheads to take care of rejections, old stocks, obsolescence as well as unaccepted and undelivered items while assessing the loss. We also agree with the Respondent’s contention that the communication dated 17.10.2007 by the Surveyor is not a second survey report and is only an internal communication. In any case, the

Appellant/Insurance Company could not have appointed a second Surveyor or asked the same Surveyor to give another survey report without the knowledge and behind the back of the insuree/Respondent. The report of the Surveyor is an important document and its finding has to be relied on unless it is controverted or contradicted by evidence challenging the same. This is well settled through a number of judgments of this

Commission as also of the Hon’ble Supreme Court of India, including in Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. & Anr.

[(2009)

8 SCC 507]. In the instant case, Appellant/Insurance Company has been unable to show us any reasons for rejecting or disbelieving the report of the Surveyor especially since as stated earlier the Surveyor has while assessing the loss made the necessary deductions in respect of the rejected and old stocks, unaccepted and undelivered goods as also the profits and associated selling overheads from the price of the stocks wherever required. Moreover, as observed by the State Commission, there is no clause in the policy that the compensation would be paid to the insuree only for the finished goods which are covered by a valid delivery order.

10. Keeping in view these facts, we agree with the order of the State Commission that the valid claim of the Respondent was wrongly repudiated. We, therefore, uphold the order of the State Commission and dismiss the present First

Appeal. Appellant/Insurance Company is directed to pay the Respondent a sum of

Rs.33,91,954/- as the loss assessed by the Surveyor alongwith Rs.20,000/- as compensation and Rs.2000/- as costs within a period of two months, failing which the amounts shall carry interest @ 10% for the period of default.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh




State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun )

Dr. Naveen Agrohi Kasturi Nursing Home Nehru Chowk Near B.S.M. Tiraha Roorkee,

District Haridwar

……Appellant/Opposite Party

Versus

Shri Parvas S/o Shri Rashid R/o Village Garhi Sanghipur P.O. Landhaura, Tehsil and

District Haridwar

……Respondent/Complainant

BEFORE:

HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER

For the Petitioner : Mr. Guruinder Singh, Advocate

For the Respondent : Mr. Madhurendra Kumar, Advocate

Pronounced on 7 th May, 2013

ORDER

PER DR. S.M. KANTIKAR

1. This revision petition has been filed under Section 21(b) of

Consumer Protection Act,1986 against the order passed by the

Uttarakhand State Consumer Disputes Redressal Commission , Dehradun

(hereinafter State Commission) in First appeal No89/2007 on 19/03/2012

2. The facts of the case, in brief

The Complainant Mr Parvas sustained severe injuries due to his scooter accident on 28.07.2003 while going to Roorkee. Some of people on road took him to the nursing home of Opposite party -Dr. Naveen Agrohi and got him admitted there. Dr. Naveen Agrohi, took x-rays of right leg and diagnosed that there was fracture of right leg of the complainant. The doctor operated upon the leg and implanted a rod/plate in it. After the operation, the complainant complained of severe pain in his leg. The OP took the x-ray of the leg after four days and told that the bolts used for fixing the rod/plate had loosened. The doctor again operated the leg and

replaced the bolts for which again Rs 1000/- was paid by complainant apart from more than Rs. 15,000/- which he had already spent in the first operation. He remained in the nursing home for 23 days and paid Rs.

4,000/- for medicines, Rs. 4,200/- for 7 bottles of blood during this period.

On the day of discharge the complainant complained of the pain in the leg, but the doctor assured him that it would subside gradually, but the pain persisted. When he went to the doctor and complained him of the severe pain, he took the x-ray of the leg and told that the bolts had broken due to extra tightening of the plate. He remained in the nursing home for three days and the leg was kept in a stretched position with the help of a machine, but the pain did not subside. The doctor plastered the leg this time, but the complainant could not get any relief. The complainant consulted another doctor named Dr. Ajay Kumar of Roorkee, who took another X-ray and diagnosed that the leg was not properly operated. The complainant took this new x-ray plate to the opposite party who did not listen but scolded him. As a result, he went to Safdarjang Hospital, New

Delhi on 29.01.2004 for treatment. He remained there up to 23.02.2004 and spent a sum of Rs. 40,000/- on treatment. Due to the negligence of

Dr. Naveen Agrohi, his right leg got shortened and started limping. This led the complainant to file a consumer complaint before the District Forum,

Haridwar and the District forum allowed the complaint and directed the opposite party to pay to the complainant a sum of Rs 40,000/- towards the expenses incurred by the complainant in his treatment, Rs. 25,000/- as compensation and Rs. 1,000/- towards cost of litigation expenses within a month from the date of the order.

3. Against the order of district forum respondent filed a FA 89/2007 in the state commission. The State Commission after hearing the parties and on the basis of evidence produced before it dismissed the appeal by observing as follows:

The learned counsel for the appellant vehemently pleaded that the appellant

– doctor has not committed any negligence in the treatment of the respondent – complainant. According to him, the respondent had recovered and the fractured bone had healed up. However, for postoperative care, he was advised to visit the appellant after 40 days from the date of discharge, but he failed to do so. On 25.10.2003, he slipped in the bathroom and suffered another fracture in the same leg. He was again treated for the same and was advised to take some medicines as well to do some exercises. But the respondent, instead of adhering to the appellant’s advice, went to Safdarjang Hospital, New Delhi. The learned

counsel argued that if the respondent had started limping after the treatment received from Safdarjang Hospital, then the appellant should not be blamed for the limpness. The learned counsel further pleaded that the respondent failed to produce any expert evidence in support of the allegations made against the appellant”. State commission relied on several judgments of National Commissison -

1. Sarangapani vs. Bone & Joint Clinic; 2008 (1) CPR 380 (NC).

2. Mohd. Istiqar vs. Dr. Rajesh Gupta; 2005 (1) UC 401.

3. V. Mohan Rao vs. Miot Hospitals & Anr. ; 2008 (1) CPR 15 (NC)

4. Abdul Gaffar vs. Dr. Dinesh Sharma & Ors.; 2010 (1) UAD 357.

5. Anil Kumar Gupta vs. Dr. Mukesh Jain; 2008 (2) CPR 213 (NC).

The dispute is with regard to the negligence committed by the appellant in conducting this surgery. According to the respondent, while implanting the rod/plate, the appellant had not properly tightened the bolts. The bolts got loosened and the appellant had to re-operate the leg just after 4 days of the first operation. Again, when the respondent complained of pain in the leg, he was told that the bolts had broken as these were tightened more.

But the appellant has not accepted these averments made by the respondent. In contra, the appellant has averred that he had done dressing of the leg after 4 days of the operation and had not conducted any surgery as alleged by the respondent. According to the appellant, the fractured bone had healed up. If any complication had arisen, it was due to sustaining injuries on 25.10.2003, when the respondent slipped in the bathroom. He visited the appellant, who after making necessary investigation, put him on traction. However, the respondent did not adhere to the appellant’s advice and went to Safdarjang Hospital, New Delhi. If he started limping after recovery then it may be due to some negligence made in treatment by the doctors of the Safdarjang Hospital and it should not be correlated with the surgery conducted or treatment given by the appellant. The respondent remained in the nursing home of the appellant from 28.07.2003 to 19.08.2003. The surgery was conducted on

02.08.2003 and, as alleged by the respondent; he was re-operated after 4 days for tightening the bolts. According to the appellant, he had done only dressing and not a re-operation. If it was a dressing of the wound, then it should have been in a regular manner and hospital’s record should show it, but no such evidence has been produced by the appellant. The appellant’s contention that the respondent was advised to visit after 40 days and he had not adhered to the advice of the appellant, is also not tenable because Paper No. 54 shows that the respondent had visited the appellant on 20.09.2003. The contention of the respondent that the pain persisted gets support because the appellant has prescribed some medicines for pain.Even after three months, the respondent’s leg had not healed up completely because the same right leg had sustained injury.

The respondent’s fall while walking cannot be said incidental, but certainly it was because of the fact that he was unable to walk properly. The complication in the injured leg aggravated and after three months, he decided to go to Safdarjang Hospital, New Delhi. He remained there from

19.01.2004 to 23.02.2004. The surgery conducted and treatment given by the doctors of the Safdarjang Hospital, New Delhi could ultimately help the

respondent because he has not alleged any complication after this treatment except some limpness while walking. Therefore, in this case, we are of the well considered view that the facts of the case speak for themselves and, therefore, the principle of res ipsa loquitur will apply as laid down by the Hon’ble Supreme Court in the case of Savita Garg vs.

National Heart Institute; (2004) 8 SCC 56 and which has also been relied upon by the Hon’ble National Commission in the case of Saroj Chandhoke vs. Ganga Ram Hospital & Anr.; III (2007) CPJ 189 (NC).

The case laws cited by the learned counsel for the appellant cannot help him because the facts of above cited cases are quite different from the facts of the instant case. So far as the sum awarded by the District Forum as cost of treatment, compensation etc. is concerned, it cannot be said to be on the higher side, keeping in view the plight of the respondent as revealed from the facts of the case and, therefore, the order impugned does not require any interference. For the reasons aforesaid, the appeal is dismissed and the order passed by the District Forum, Haridwar is confirmed. No order as to cost s.”

4. Learned counsel appearing for both the parties made oral submissions and vehemently reiterated the submissions made by the two parties before the

State Commission. I have carefully considered the entire materials placed on record and the contentions of both the parties and also arguments as also referred the Medical Literature.

5. The petitioner is a qualified orthopedic surgeon MBBS,D.Ortho. On perusal of the hospital case paper which clearly shows that he has diagnosed this case as Right Sub-trocantric fracture and performed the necessary operation with the skill and care. The said DHS operation (Dynamic Hip Screw ) is the most preferred treatment which every orthopedic surgeon performs for Sub trochantric fracture. He performed dressing only on 4 th day and the allegations of reoperation are baseless. It is to be noted that complainant fell in the bathroom and due to which again the pain exaggerated and the screws are broken or loosened. Even otherwise it is most important on the part of patient to follow up advice of doctor that is strict rest and no weight bearing for at least 4 weeks. Therefore, if the patient did not follow the instructions there are likely chances of breaking of screws. The complainant did not prove the mere averments made in the pleadings like broken screws or shortening of leg. The state commission opined that the leg was not operated properly, therefore the respondent given only pain killers to the complainant.

6. I have perused admission and discharge record whereas there is no document or any evidence which proves the negligence of the doctor. DHS surgery require lot of post operative care since healing of sub-trocahntric fracture takes lot of time. The respondent instructed the complainant to walk with support.

7. The complainant thereafter visited Safdurjung Hospital. The hospital records of Safdurjung Hospital did not mention about wrong treatment during first surgery but they have corrected the treatment by removal of implant and done

ORIF (Open Reduction with Internal Fixation) which is also another line of treatment in such cases. The State Commission also did not point out or mention about shortening of leg. The issue medical negligence is now well established by number of judgments of this commission and Hon’ble supreme court. I rely upon an authority “ Martin F. D’Souza vs. Mohd. Ishfaq

AIR 2009 SC 2049” the Hon’ble Apex court observed that “Simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse”. The another authority in the case decided by this

CommissionIn Gaurav v Escorts Medical Centre Ltd & Anr. CPR 182

(NC) which observed that “Medical opinion may differ with regard to course of action to be taken by a doctor treating a patient, but as long as a doctor acts in manner which is acceptable to medical profession and Court finds that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffer a permanent ailment, it would be difficult to hold doctor to be guilty of negligence”. In another case Dr. Biswanath Das v Bijoy Sinha Roy and Ors 2008 (1) CPR 282 (NC) this commission observed as “The doctors have acted in accordance with the practice accepted as proper by the authors of medical books cannot be held guilty of negligence.”

8. It is submitted that the good results in an operation can only be achieved after proper follow-up and compliance of necessary instructions given by the

Doctor to the patient. Therefore, a Doctor cannot be held negligent if he has performed the operation according to standard norms and medical practice, but thereafter patient should take due care of himself. It is submitted that in the present case, it is clear that the Respondent/ complainant had not taken due care of himself as per the instructions and advices given by the

Petitioner. It is evident from the fact that Respondent suffered fall in the bathroom leading to DHS plate’s screws broken.

9. Therefore, in my opinion there is no negligence on the part of appellant who has done DHS operation. DHS is the most suitable implant for these fractures cited in Indian Journal of Orthopedics Vol. 34 No. 2 of April, 2000. This treatise enforces the fact that long plate DHS is the best treatment for proximal femoral fractures which was administered to the

Respondent/Complainant by the Petitioner. It is submitted that the DHS method of treatment for the past many decades since Dynamic Hip Screw

(DHS) began in the 1950s, that DHS allows not only stable fixation of

anatomically reduced trochanteric fractures but also a guided collapse and impaction of the fragments in the unstable fracture. The implant will therefore slide distally (remote) and laterally until a new area of bony support is reached. The fracture will usually unite in spite of some shortening of leg.

Hence, the State commission’s judgment failed to appreciate the medical treatises in proper perspective. The State Commission and DF erred herein because both have made observations only based on mere presumptions in absence of any proper evidence, even there is no document to show the complainant spent more than Rs.40000/-.

Therefore, I conclude by allowing this revision petition. No costs.

…………………….

Dr.S.M.Kantikar

Member



(Against the order dated 18.10.2012 in FA No.146/2008 of the State Commission,

Haryana)

1. Shriram Transport Finance Co. Ltd. Branch Yamuna Nagar,

Opposite Raghunath Mandir, Jagadhari Road, Yamuna Nagar Haryana

2. Shriram Transport Finance Co. Ltd. SCF N.101-102, Phase –XI, Mohali Punjab

……….Petitioner

Versus

Jaspal Singh S/o. Shri Prem Singh R/o House No.5, Shivpuri-B Colony, Kansapur

Road, Yamunagar Tehsil Jagadari, District Yamuna Nagar Haryana

.........Respondent


(Against the order dated 18.10.2012 in FA No.147/2008 of the State Commission,

Haryana)

1. Shriram Transport Finance Co. Ltd. Branch Yamuna Nagar,

Opposite Raghunath Mandir, Jagadhari Road, Yamuna Nagar Haryana

2. Shriram Transport Finance Co. Ltd. SCF N.101-102, Phase

–XI, Mohali Punjab


Versus

Ranjeet Singh S/o. Shri Jaspal Singh R/o House No.5, Shivpuri-B

Colony, Kansapur Road, Yamunagar Tehsil Jagadari, District Yamuna Nagar Haryana

.........Respondent

BEFORE

HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER

For the Petitioner : Mr. Lenin Singh Hijam, Advocate

In both cases

PRONOUNCED ON: 7 May 2013

ORDER

PER MR.VINAY KUMAR, PRESIDING MEMBER

RP No.121 of 2013 is filed against order of Haryana State Consumer

Disputes Redressal Commission in FA No.146 of 2008. The State Commission has dismissed the appeal of the OPs/Shriram Transport Finance Co. Ltd. and confirmed the order of the District Forum, allowing the complaint. Similarly, RP No.122 of 2013 is against the order of the Haryana State Consumer Disputes Redressal Commission in

FA No.147 of 2008. In this case also the State Commission has dismissed the appeal of OPs/Shriram Transport Finance Co. Ltd and confirmed the order of the District

Forum, allowing the complaint.

2. Both matters emanate from identical sets of facts resulting in identical orders from the District Forum. In both cases, the appeal has been dismissed by the State

Commission in the following terms:-

“From the record, it is established that the employees of the appellants-opposite parties got the relevant documents i.e. Registration

Certificate, Route Permit etc illegally from the DTO Office, Jagadhari and thus, deprived the complainant to ply his vehicle to earn his livelihood as well as repay the financed amount. Moreover, the appellants-opposite parties did not comply with the orders of the District Consumer Forum in which appellants-opposite parties were directed to release the Registration

Certificate and Route Permit etc of the vehicle owned by the complainant.

Thus, having considered the facts and circumstances of the case as well as the observation made by the District Forum, as mentioned above, we are of the view that the appellants-opposite parties without any reasons retained the relevant documents of the vehicle with them. Their act and conduct stands proved on the record and they have rightly been held deficient in their services. The District Forum after considering each and every aspect of the case has rightly accepted the complaint and issued directions to the opposite parties as mentioned above. Thus, no interference in the impugned order is called for.”

3. Mr. Lenin Singh Hijam, Advocate, representing the revision petitioners in these two matters, also agreed that the circumstances pertaining to the two transport vehicles were very similar and therefore, they could be taken up for disposal together.

Accordingly, the two revision petitions are taken up for disposal through this common order.

4. The main issue involved in this case was failure of the OPs to hand over the registered documents as well as the route permit to the Complainant. According to the

Complainant, he had applied for transfer of the vehicle in his name. District Transport

Officer Yamuna Nagar, had also transferred the vehicle in his name from the name of the seller. However, two employees of Shriram Transport Chandigarh (OP-2) obtained these documents from the office of the DTO. Despite repeated requests, the registration certificate and the route permit were never returned to him. Due to this, he was neither able to get the vehicle insured in his name nor use it for transportation purposes. Allegedly, the default in payment of instalments of the loan was in this background. The written response of the OP before the District Forum merely carries a bland denial of this.

5. The District Forum gave an interim direction on 28.3.2007 requiring the RP/OP to release the registration certificate and route permit to the respondent/Complainant. Significantly, the OPs neither complied with this direction nor did they challenge it before the State Commission. Therefore, the District Forum has noted, in its final order of 18.12.2007, that the interim direction of 28.3.2007 had acquired finality qua the OPs/Shriram Transport Finance Co. Ltd. In the final order the direction to return the registration certificate and route permit was reiterated by the

District Forum directing the OPs to pay the Complainant Rs.10,000/- per month from

1.11.2006 till the release of the documents. The order of the District Forum, has been upheld in the impugned order.

6. Counsel for the revision petitioner was heard at length on this main issue of failure to hand over the registration documents as well as route permit to the Complainant in violation of the specific directions of the District Forum given on 28.3.2007. Learned counsel argued that their case before Fora below was that the registration documents and the route permit were a matter between the vendor of the vehicle and the purchaser. The revision petitioner, as the financing agency, has nothing to do with it. However, learned counsel is unable to point out what evidence was led before the Fora below on this specific issue. Even the written response before the District

Forum is unable to substantiate this claim.

7. On behalf of the revision petitioner reliance has been placed on the decision of the Hon’ble Supreme Court in Suryapal Singh Vs. Siddha VinayakMotors & Anr.

[II(2012) CPJ (SC)] . This is a matter in which the Apex Court had held that in a hire purchase agreement, financier is the real owner of the vehicle and a person who take the loan retains the vehicle only as Bailee/Trustee. The Financer has right to repossess the vehicle for non-payment of hisinstalments. However, learned counsel did not clarify as to how this decision is relevant to the facts of the present case. The real

issue in the present case was different. It was inability of the Complaint to operate the vehicle resulting in default in repayment which in itself was caused by failure of the

RP/OP to hand over the registration papers and the route permit.

8. It is contended in the revision petition that the burden of proof in this behalf rested with the Complainant himself. Allegedly, he had failed to produce any specific evidence in support of his claim. It needs to be pointed out that neither the revision petitioner nor the arguments of the counsel make any attempt to explain how this contention was pursued before the Fora below. It is therefore just an attempt to improve the case of the petitioner in revision. The District Forum was very right in holding that the interim direction of 28.3.2007 had acquired finality qua the OPs as it was not challenged before the State Commission.

9. In the result, I find no ground to interfere with the concurrent findings of the fora below. The revision petition Nos.121/2013 and 122/2013 are held to be devoid of any merit and are dismissed as such. No order as to costs.

.………………Sd/-…………

(VINAY KUMAR)

PRESIDING MEMBER s./-


NEW DELHI


(From the order dated 11.07.2011 in First Appeal No. 1313 of 2006 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Sahil Chhibber, son of Shri Naresh Kumar Chhibber, resident of Kothi No. 43, Dass

Road, near Railway Bridge, Ferozepur Cantt.

... Petitioner

Versus

Life Insurance Corporation of India, through its Branch Manager, LIC Building, Malwal

Road, Ferozepur City, Through the Manager (Legal), The Life Insurance Corpn. Of

India, Divisional Office Sector-17, Chandigarh

…. Respondent(s)

BEFORE





For the Petitioner(s) Mr. Suresh Kumar Chhiber, AR of the petitioner

For the Respondent (s) Ms. Jaya Tomar, Advocate


O R D E R


This case has been filed as an appeal under Section 21 of the Consumer

Protection Act, 1986 against the order dated 11.07.2011 passed by the Punjab State

Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as

“State Commission”), vide which the first appeal filed by the respondent-Life Insurance

Corporation of India (LIC) against the order dated 22.08.2006 of the District Consumer

Disputes Redressal Forum, Ferozepur was ordered to be accepted and the order passed by the District Forum in Consumer Complainant No. 258 of 2006, accepting the complaint was set aside. Although, this case has been filed as an appeal under Section

21 of the Act, yet it is being treated and decided as revision petition, because second appeal is not admissible in cases under the Consumer Protection Act, 1986.

2. The main issue in the present case revolves around the fact that the insured person went missing in the year 2003 and has not been heard of till today. After he went missing, the policy, in question, lapsed for non-payment of premium by the due date. The kith and kin of the insured deposited the requisite premium, but after a lapse of about one year from the due date. The insurance company says that the policy can be revived only if medical reports are submitted along with the premium being deposited by the close relatives. The said reports cannot be submitted since the person has been missing till date. The issue, therefore, arises whether the lapse of the policy is a “ fait accompali ”, or the Insurance Company can relax the period for payment of premium instalment by about one year, given the facts and circumstances of the case.

3. The brief facts of the case are that Naresh Kumar Chhibber, father of the complainant had purchased an insurance policy from the respondent-LIC, commencing from 28.03.2000. At the time of filing the complaint, the petitioner Sahil Chhibber was a minor and the complaint was filed through his mother and natural guardian. It has been stated that the said Naresh Kumar has been missing since 20.09.2003 and a Daily

Diary Report (DDR) No. 21 dated 24.09.2003 was got recorded in Police Station,

Ferozepur Cantt. He has not been heard till now and since he was missing, he could not deposit the instalments of the premium in time. On behalf of Naresh Kumar, his brother Suresh Kumar tried to deposit the instalment of the premium due, to the tune of

Rs. 21,222/- vide cheque No. 30.03.2006, but it was returned by the opposite party on

17.04.2006, stating that some medical tests on the insured were required to be done, before the revival of the policy. A consumer complaint was therefore filed against the

respondent, claiming relief that the said policy may be revived and a sum of Rs.

50,000/- may be given as compensation on account of mental torture and Rs. 6,000/- as litigation expenses. The District Forum after taking into account the evidence of the parties, accepted the complaint with Rs. 1,000/- as costs and directed the respondent/opposite party to accept the due premium from the petitioner and to revive the policy of the insured. However, an appeal against the order of the District Forum was accepted by the State Commission, the order of the District Forum was set aside and complaint was dismissed. It is against this order that the present petition has been made.

4. At the time of arguments before us, Suresh Kumar Chhibber, brother of the deceased argued in person and stated that in the absence of his brother, he sent a cheque of Rs. 21,222/- to the Branch Office of the LIC on 20.03.2006, but the same was returned through registered letter by the LIC on 17.04.2006, saying that the policy stood lapsed since March, 2005 and for revival of the policy, Form No. 680 along with ECG report etc., and fresh cheque of Rs. 22,363/- was required to be submitted. Suresh

Kumar sent cheque of Rs. 21,363/- on 26.04.2006 along with a copy of the police report, intimating the LIC that since Naresh Kumar was missing since September, 2003, the requisite documents could not be submitted. However, the LIC returned the said cheque on 06.05.2006, saying that the revival of policy was not possible till the documents are submitted. It was submitted on behalf of the petitioner that according to

Rule 14 of the Insurance Manual, it is to be advised to the claimant that the insured will be presumed to be dead after seven years or production of decree from a Court of law and in the meantime, the policy is to be kept in force by making payment of premium regularly. In the present case, no such advice was given by the LIC to the kith and kin of Naresh Kumar. Shri Suresh Kumar further invited our attention to a letter sent by the

LIC addr essed to Naresh Kumar about some ‘Instalment Revival Scheme’, saying that there was a special provision to spread arrears to next two policy years. The LIC vide their letter dated 28.12.2009 had invited the attention of the people towards this

Scheme.

5. The learned counsel for the respondent has drawn our attention to the reply of the respondent filed in response to the complaint and stated that as per the terms and conditions, the policy could not be revived in the present case, because the necessary

formalities including ECG and FBS tests could not be completed, due to the life assured being missing. He further stated that the lapsed policy can be revived during the life time of the person concerned within a period of five years form the date of the first unpaid premium on submission of proof of continuation to the satisfaction of the

Corporation. The learned counsel also invited our attention to the order passed by the

National Consumer Disputes Redressal Commission in Chairman, LIC of India Vs. A.

Narasamma as reported in I (1992) CPJ 128 (NC) in support of his arguments.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The fact that the policy holder

Naresh Kumar Chhibber has been missing since 20.09.2003 and has not been heard till today has not been denied by the respondent. On a query from the Court, it was revealed by the petitioner that a case has been filed in Civil Court for obtaining a decree, declaring him to be dead. Further, the main contention made by the petitioner is that the premium could not be paid in time, because Naresh Kumar went missing and when they tried to deposit the premium after lapse of about one year, the respondent refused to revive the policy, taking the plea that certain documents including medical tests etc., were required before reviving the policy. It is clear from the record that in so far as the case of a missing person is concerned, the terms and conditions of the policy do not make any specific provision, governing the case in question.

7. Further, Rule 14 of the Insurance Manual states as follows:

“Where a person is reported missing, it is to be advised to the claimant that the insured will be presumed to be dead after seven years or production of decree from the court of law and in the meantime policy is to be kept in force by making payment of premium regularly.”

8. In this case, it is clear that no advice as contemplated under the said Rule has been furnished to the petitioners. Moreover, the respondent says that the policy lapsed in March, 2005. The case of the petitioner is that the premium could not be deposited in time, because Naresh Kumar was missing. However, they tried to deposit the premium in March, 2006, i.e. after a period of about one year, but the respondent refused to accept the same. In our opinion, in such a case, the respondent cannot take shelter under the strict ‘letter of word’ that till the medical reports are made available, the policy cannot be revived. It is a matter of common sense that since the person is missing,

there is no question of medical reports being made available. Moreover, there is a provision that the policy can be revived within a period of five years from the due date of the first unpaid premium and before the date of maturity and before the death of the concerned person. In the present case, the LIC cannot presume that the person has already died, till there is a proper order from the Court. In the light of these facts, refusal to revive the policy because premium was paid late just by one year shall amount to a grave injustice to the petitioners. It has also been brought on record that the LIC had issued an Instalment Revival Scheme giving certain concessions to the policy holders where the policy had lapsed due to non-payment of premium.

9. In the light of the facts stated above, we deem it appropriate to direct the LIC to find out if there is any provision available to them under which the period of late payment of premium by the brother of the missing person could be regularised by making relaxation in the relevant rules etc. In case such a clause is available LIC may consider the case and take appropriate decision. In case it is not possible to give suitable relaxation, the policy shall stand lapsed as a “fait accompali” . With these observations, this revision petition is allowed. The orders passed by State Commission and District Forum are set aside and respondent LIC is directed to proceed as observed above within a reasonable time, preferably within a period of three months. No order is being passed as to costs.

..……………………………



..……………………………


MEMBER

SB/4



(From the order dated 08.03.2011 in First Appeal No. 418/2010 of Delhi State Consumer Disputes Redressal Commission)

Rajendra Kumar S/o Sh. Dilip Singh R/o H-114, Gali No. 8, New Ganga Vihar,

Gokulpuri, Delhi – 110094

... Petitioner

Versus

B.S.E.S., Y.P.L. Office, Gokul Puri, Wazirabad Road, Delhi

– 110094

Respondent(s)

BEFORE




APPEARED AT THE TIME OF ARGUMENTS


For the Respondent(s)

Mr. Rajendra Kumar, In person

Mr. Ashish Verma, Advocate

PRONOUNCED ON : 7 th MAY 2013

O R D E R


This revision petition has been filed by the petitioner against the impugned order dated 08.03.2011 passed by the Delhi State Consumer Disputes Redressal

Commission (for short ‘the State Commission’) in FA No. 418/2010, dismissing the appeal against the order dated 27.04.2010 passed by the District Forum in consumer complaint case no. 245 / 2009.

2. Brief facts of the case are that the complainant / petitioner Rajendra Kumar, in his complaint dated 10.09.2009, filed before the District Forum stated that he was

consumer of electricity connection no. 1251V1170709. He registered complaint no. 343 in electricity office, BSES Gokulpuri on 1.07.2009, in response to which an employee of the Opposite Party / respondent came to him and stated that there was fault in the cable. The said employee advised the complainant to give an application for the change of the cable. The complainant is stated to have submitted two different applications to the office of the OP on 10.07.2009 and 18.07.09, but the cable was not changed. Later on, the complainant registered a complaint vide diary no. 212 dated

7.08.2009 and he visited the office of the OP many times, but they did not respond to his complaint. They, however, told him that another complaint no. 20276 had already been lodged with them and they had already placed a new cable and supplied electricity through that cable on 13.08.2009. On 13.08.2009 itself, two line-men came to that area and repaired the street electricity, but they did not repair the cable of the complainant.

The complainant made several attempts to contact the office of the OP thereafter, but did not meet with any success. Through his complaint, he demanded compensation of

Rs.95,000/- for his mental harassment and physical suffering. The District Forum vide their order passed on 27.04.2010, observed that the cable line had already been installed regarding electricity connection of the complainant and his connection had been restored just after 15 days of filing of the complaint. However, the District Forum allowed him a compensation of Rs.2,000/- for his physical and mental harassment along with Rs.1,000/- as cost of litigation. The complainant made an appeal against this order before the State Commission, but the same was dismissed, upholding the order of the

District Forum. It is against this order that the present revision petition has been filed.

3. At the time of hearing before us, the petitioner / complainant argued his case in person and stated that he has lodged his complaint first on 1.07.2009 and thereafter, on many occasions and finally, the complaint was registered on 07.08.2009. However, the

OP had not responded to his complaints, although he had contacted their office many times. He further stated that the enforcement team from the OP raided his house and filed a case of theft against him. Learned counsel for the respondent, however, stated that following the complaint filed by the complainant, a lineman from the respondent company had visited the complainant and asked him to file an application, which was filed on 10.07.2009. After that, the said cable was repaired and electricity connection was also restored. The OP had not filed any case against the petitioner for theft etc.

There was no deficiency on the part of the OP on any ground. Learned counsel also

invited our attention to an order passed by the Lok Adalat under the aegis of the Delhi

High Court Legal Services Committee on 12.09.2009, according to which, the dispute regarding payment of certain amount by the complainant to the respondent was settled and it was ordered that a total sum of Rs.22,000/- shall be paid by the complainant to the respondent. Besides that, there was no other litigation pending between the parties.

4. We have examined the material on record and given a thoughtful consideration to the arguments before us. The facts of the case make it clear that when complaint was filed by the petitioner, there was immediate response from the respondent / OP and one lineman from the office of the OP visited the complainant and advised him to file an application for change in cable. The said cable was also changed within a few days and the electric connection of the complainant was restored. However, the District Forum after analysing the facts of the case, decided to award compensation of Rs.2,000/- for harassment to the complainant along with Rs.1,000/- as litigation expenses. The said order was confirmed by the State Commission in appeal. We do not find any legal infirmity or irregularity or jurisdictional error in the orders passed by the State

Commission and District Forum and hence the present revision petition is ordered to be dismissed with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/


NEW DELHI


(From the order dated 18.02.2011 of the Kerala State Consumer

Disputes Redressal Commission, Thiruvananthapuram in Appeal no. 230 of 2010)

C K Mohanasundaran Village Officer A R Nagar Village Office P O A R Nagar

Tirurangadi Taluk Kerala State

Petitioner

Versus

K U Gopalakrishnan Nair S/o Ramunni Nambiar

‘Smithas’, P O Pantharangadi

Via Tirurangadi Malapuram

– 676306 Kerala State

Respondent

BEFORE:



For the Petitioner Mr Shyam Padman, Advocate

For the Respondent Ex parte

Pronounced on 7 th May 2013

ORDER

REKHA GUPTA

Revision petition no. 2698 of 2011 has been filed against the order dated

18.02.2011in Appeal no. 230 of 2010 filed before the Kerala State Consumer

Disputes RedressalCommission, Vazhuthacaud, Thiruvananathapuram (‘the State

Commission’).

The respondent/complainant had approached the District Forum against the refusal of the petitioner/ opposite party to issue possession certificate of plot nos. 127/2 and 140/2 Tirurangadi Village and Thrikkulam Desam,for availing the benefits from the

Agriculture Department. Even though, the same have been issued in 2003 and 2006 regarding RS no. 127/2. The only reason for the same according to the respondent was non-payment of Rs.200/- demanded by the petitioner/opposite party. As a result, the complainant did not get the benefits from the Agriculture Department on account of nonreceipt of possession certificate.

The petitioner in his defence has stated that “ the possession certificate was issued in 2003-2006 it would have been issued only after due verification of the property

by the concerned official. The allegation that the application dated 13.03.2008 is rejected and is incorrect. Except for the property for which there was difference in the survey number, the possession certificate is issued. For the property regarding which doubts arose, inspection is necessary and the complainant was requested to show the property in the afternoon of 13.03.2008. The complainant objected to the same and stated that the property regarding which doubts where there could be excluded and possession certificate regarding the other property need alone be furnished. The allegation that Rs.200/- was demanded as bribe is false. The same is stated for the purpose of the above complai nt”.

District Consumer Disputes Redressal Forum, Mallapuram

(‘the District Forum’) were of the view that “ the redressal of one consumer complaint like the present one will not only be a remedy to the complainant, but will serve as a message to the public servants to improve their quality of service and be more consumer sensitive.

Consumers seldom come forward to voice for their rights fearing, the time and money taken for the cumbersome process of litigation. Public servants rendering public service are expected to be service oriented and behave in a civilised manner with fellow citizens particularly senior citizens. The nation honors the senior citizens by allowing them various benefits and privileges. It is rather shameful that a senior citizen like the complainant had to suffer such ordeal at the hands of a public servant. We consider that an amount of Rs.8,000/- together with costs of Rs.1,500/- would meet the ends of justice.

In the result, we allow the complaint and order that opposite party shall pay to the complainants an amount of Rs.8,000/- as compensation along with costs of Rs.1,500/- within one month from the date of receipt of copy of this order ”.

Aggrieved by the order, the petitioner had filed an appeal before the State

Commission. The State Commission had dismissed his appeal. Hence, the present revision petition.

We have heard the learned counsel for the petitioner. The respondent is already ex parte.

The revision petition has been filed with a delay of 54 days. The State

Commission passed its order on 18.02.2011 and the revision petition was filed on

10.08.2011. The application for condonation of delay only states as follows:

“

For the reasons stated in the accompanying affidavit it is prayed that the

Hon’ble National Commission be pleased to condone the delay of 50 days in filing the above revision petition ”.

In the affidavit dated 24.02.2012 submitted by the petitioner he has given the following reasons:

“In the revision petition filed I had stated that the certified copy of the impugned judgment was received by me on 12.06.2011, and that the above revision petition is being filed within the period of limitation. The certified copy of the order was forwarded to me by the Advocate clerk attached to the office of my counsel, Trivandrum. As the registry has raised a query regarding limitation, I had made enquiries with my counsel and it is now learnt that the certified copy of the impugned order was served on the counsel on 23.03.2011, and the same entrusted to the advocate clerk to be sent to me.

The advocate clerk on account of an inadvertent oversight omitted to forward the said order in time and the same was sent to me later and I had received it on 12.06.2011. On being contacted he said he was under the impression that a copy of the impugned order

would be forwarded to me directly from the State Commission as was the normal procedure. Thereafter, I had applied for and obtained a certificate from the Hon’ble State Commission regarding the service of the certified copy of the impugned judgment and a certificate dated 14.02.2012 issued to me.

The above revision petition ought to have filed on or before 21.06.2011 as the copy of the impugned order was served on the counsel on 23.03.2011. As per the normal procedure it is known that the copy of the order ought to have been served to the parties directly. The above revision petition was filed only on 10.08.2011 under the bonafide belief that the same need only be filed within 90 days of 12.06.2011. Thus there occurred a delay of 50 days in filing the above revision petition. The said delay is not wilful or deliberate, but was caused and occasioned on account of the circumstances aforementioned. I have very serious contentions in the above matter. If the said delay of 50 days in filing the above revision petition is not condoned and an opportunity afforded to me to submit my case and contentions in the above matter. I will be put to irreparable loss, injury and hardship, besides the ends of justice would also be defeated.

It is apparent from the affidavit as also the certificate given by the Secretary and

Registrar of the State Commission that the judgment copy dated 08.12.2011 had been served to Ms Renu, counsel for the appellant on 23.03.2011. In his affidavit, the petitioner has admitted that “ as the registry has raised a query regarding limitation, I had made enquiries with my counsel and it is now learnt that the certified copy of the impugned order was served on the counsel on 23.03.2011, and the same entrusted to the advocate clerk to be sent to me. The advocate clerk on account of an inadvertent oversight omitted to forward the said order in time and the same was sent to me later and I had received it on 12.06.2011

”.

As per the office report, there is a delay of 54 days. The petitioner has failed to give detailed justification to constitute “sufficient cause” for the delay. He has not explained his failure to follow-up the matter after the order was passed on 18.02.2011.

Even after receiving the said order on 12.06.2011, the revision petition was filed on

10 th August 2011 after almost two months.

It is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC), 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

”.

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;

Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes.

Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the

State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the

Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest.

Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

The Court further observed;

“It 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.

“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 view of the foregoing, the application for condonation of delay is rejected and the revision petition is dismissed as barred by limitation with no order as to cost.

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[Rekha Gupta]

Satish



(From the order dated 30.01.2013 of the Odisha State Consumer

Disputes Redressal Commission, Cuttack in Appeal no. 722 of 2011)

With IA No. 2613 of 2013 for (Stay)

Sahara India Represented by its Branch Manager Deogarh Branch, Shri Bipin Chandra

Patnaik Resident of PO/PS/ District – Rayagada At present working as

Branch Manager Sahara India Commercial Corporation Ltd. Branch Office, Deogarh

Branch At PO/PS/ District

– Deogarh Odisha

Sector Manager Sahara India Sambalpur Sector, Odisha

Petitioners

Versus

Jatakishore Das Son of Late Budhadeb Das Resident of Village, P O Bijayanagar P S

Barkota District – Deogarh At present residing at Ausuda P O Podagarh, P S Rengali

District Angul

Respondent

BEFORE:



For the Petitioner Mr Ashok Panigrahi, Advocate


ORDER

REKHA GUPTA

Revision petition no. 1410 of 2013 has been filed under section 21 (b) of the

Consumer Protection Act, 1986, against the order dated 30.01.2013 passed by the

State Consumer Disputes Redressal Commission,

Odisha, Cuttack (‘the State

Commission’) in First Appeal no. 722 of 2011.

The brief facts of the case as per the respondent/complainant in complaint no. 52 of 2010 are as follows:

- the petitioner/opposite parties introduced a scheme named

Sahara Swarna Yojana Scheme Certificate for the benefit of the customers subject to payment of dues as per a given schedule. After due date the customer would get

privileges as per terms and conditions provided for under the scheme. Being attracted by the scheme, the respondent is one of the registered holder of the certificate bearing no. 25409200045 (as 10 years scheme) on dated 31.03.2003 and he has deposited a sum of Rs.1,00,000/- on the same date in the office of OP no. 1. Due to medical treatment of the complainant he had taken a loan of Rs.80,000/- only from his certificate. In the meantime the respondent had already paid up (refunded) the loan amount of Rs.80,000/- along with interest calculated by the opposite parties i.e.,

Rs.1289/- on 28.12.2006 which has been noted on the first page of the passbook-cumcertificate of respondent granted by the petitioners/opposite parties.

Being worried by such endorsement the respondent enquired in the Bank of the opposite parties and came to know that the opposite party no. 1 has not entered the paid up (refund) loan amount of Rs.80,000/- + interest amount of Rs.1287/- in the account of the respondent. Due to the illegal acts of the petitioner/opposite parties the loan amount of Rs. 80,000/- is still in the name of the respondent. Till today the petitioners/opposite parties had not entered the amount of Rs.80,000/- in the account of the respondent. The respondent had been to the office of the petitioner/opposite parties more than 20 times to enquire about the aforesaid matter. The respondent always returned only after hearing of assurance from the petitioners/opposite parties and till today the petitioners/opposite parties are silent.

The petitioners/ opposite parties submitted their objections against the claim petition filed by the respondent and has stated as follows:

“The averments made in paragraphs two and three of the petition, that the petitioner/opposite parties has admitted that Sahara India Parivar is a financial institution to the creditors/borrowers to the customers undertaken by the Reserve Bank of India. Further, it is admitted that the petitioner/opposite party has introduced a scheme ‘Sahara SwarnaYojana’ for the benefit of the customer subject to payment of dues as per the terms and conditions provided under the scheme. It is admitted that the petitioner has admitted on records that the respondent has borrowed a loan of

Rs.80,000/- and the same is still outstanding against the petitioner. The plea taken by the respondent regarding return of the loan amount along with interest accrued is denied by the opposite party. The endorsement made by the then Branch Manager of

Sahara India, Deogarh Branch regarding clearance of loan amount is unknown to the present opposite party. No such documents shows in the official records that the respondent has cleared up the loan amount. The endorsement made in the passbook of the respondent is not clear nor bears any meaning. There is no such provision provided under that scheme to clear up the loan amount by way of putting such type of endorsement made in the pass book. The claim of the respondent is fictitious and frivolous. Therefore, the opposite party are in any way liable for the same.

Whereas, in the instance case the respondent has neither approached at any point of time to the opposite party regarding refund of the loan amount”.

The District Consumer Disputes Redressal Forum, Deogarh (‘the District Forum’) vide their order dated 14.09.2011 that “perused the pass book-cum-certificate. It bears endorsement to the effect that a sum of Rs.81,287/- has been taken to the account on

28.12.2006. Rs.1287 on 80,000/- has been written separately which the respondent claims to have paid interest of Rs.1287/- which seems probable. Further in the 3 rd time

Rs.80,000/- and nil is written which indicate the amount of loan. The endorsement bears the official seal of the opposite party along with the signature of the Branch Manager nor they have averred that the endorsement is forged one. In the aforesaid circumstances it can safely be concluded that the endorsement of the pass book has

been made by the then Branch Manager of the OPs after receipt of the loan amount along with the interest. The OPs have claimed that is was not according to the proper procedure. It is not expected that all should be aware of the procedure practice by all the financial institution. An investor is expected to believe the Branch head of the

Institution and thus the complainant has made no mistake in believing the Branch

Manager of the OPs.

As suggested by the OPs the money received from the respondent has not been reflected in the loan account by the Branch Manager. Admittedly, he is the servant of the OPs and the OPs are bound by his action at the same time the OPs are no liberty to realise the amount if found to have misappropriated by the concerned Branch Manager.

From our above observation we are of the opinion that the complainant has paid the loan amount to the OPs.

The respondent has averred that he ran several times to the OP no. 1 to get his account corrected. It was/ is the duty of the OPs to render proper service to its investors who have invested their hard earned money which they have not (illegible). The investors should not be allowed to suffer due to the fault of the servants of the OPs. Due to the intention of the OPs the respondent had suffered mentally as well as physically which amounts to deficiency of service and the respondent is entitled to cost and compe nsation”.

In view of this, the District Forum directed “ the OPs to reflect the payment made by the respondent in the loan account and to pay Rs.10,000/- towards the compensation and Rs.1000/- towards the litigation expenses within one month from the date of receipt of copy of this order failing which the complainant is at a liberty to take appropriate action in the competent court of law ”.

Aggrieved by the decision of the District Forum, the petitioner filed appeal no. 722 of 2011 before the State Commission. Before the State Commission the petitioner had also filed an application for filing additional evidence. Vide order dated 15.01.2013, the

State Commission while dismissing the miscellaneous application recorded that “ on the contrary learned counsel for the opposite party-loanee contents that in their written version the petitioner who was the opposite party before the District Forum admitted that the present opposite party – loanee (complainant before the District Forum) took

Rs.80,000/- as loan. So once, it has been so admitted, the document in question should not be taken as additional evidence. Moreover, the signature found in the said documents does not tally with the admitted signature of the opposite party – loanee.

Considering the rival submissions of the parties, we are of the view that since the petitioner admitted in the written version before the District Forum that the opposite party

– loanee took Rs.80,000/- as loan and in fact the signature said to be that of the opposite party – loanee as found in the documents sought to be admitted as additional evidence does not tally with his admitted signature and further since it appears improbable that while putting his signature a person would omit some alphabets of his first name which has been found in the so called signature of the opposite party

–

loanee and those alphabets have been written below his signature, the document should not be admitted as additional evidence.

The miscellaneous case stands dismiss ed” .

Thereafter vide order dated 30.01.2013, the State Commission, after hearing the respective counsel and going through the records, came to the conclusion that “ there is no dispute that it has been endorsed in the pass book/ certificate of the respondent with official seal and signature of the then Branch Manager, Deogarh Branch that there is nil

due against him (respondent). The respondent repaid the loan amount with interest on

28.12.2006. He filed the consumer complaint on 04.12.2010, i.e., about four years after the repayment. He was not expected to keep the document in proof of such repayment for long four years. The innocent customer should not suffer for the illegality/ irregularity committed by the agent that too not less than a Branch Manager of the appellant company. So there is deficiency of service on the part of the appellants in not reflecting the repayment of the loan amount in the loan account/ledger of the respondent. The amount awarded towards compensation and litigation expenses is also not exorbitant.

Under such circumstances, the appeal stands dismissed and the order of the

District Forum is confirmed”.


The main grounds for the revision petition are as follows:

-

“it is pertinent to mention here that in the meanwhile the respondent herein filed an execution petition before the District Forum being C D EXN case no. 52 of 2010 for the enforcement of the order dated 14.09.2011 passed by the District Forum in CDC

No. 52 of 2010 dated 09.11.2012. It is worthwhile mentioning that the District Forum on the last date of hearing i.e. 10.04.2013 has posted the said matter for further hearing on

23.04.2012.

- in the meanwhile the petitioners found out a vital/significant/important document from its record, i.e., payment advice no. BLLE11020459 dated 09.05.2006 which goes on to show that the respondent herein had taken a loan of Rs.1,00,000/- and Rs.

80,000/-. Without any delay the petitioners herein had preferred an application for bringing additional evidence on record being Misc. Case no. 168 of 2013 before the

State Commission categorically stating that the petitioners herein has found the payment advice of loan bearing no. BLLE11020459 dated 09.05.2006 from the office where it has been found that on 11.05.2006 the respondent herein has taken a loan of

Rs.1,00,000/- vide cheque no. 882974 dated 11.05.2006 and not Rs.80,000/-.

The State Commission vide its order dated 15.01.2013 while recording the submission of the counsel appearing for the appellant (petitioners herein) that the respondents herein has taken a loan of Rs.1,00,000/- and not Rs.80,000/- but erred to take on record the additional documents on the ground that:

Considering the rival submissions of the parties, we are of the view that since the petitioner admitted in the written version before the District

Forum that the opposite party – loanee took Rs.80,000/- as loan and in fact the signature said to be that of the opposite party – loane as found in the documents sought to be admitted as additional evidence does not tally with his admitted signature and further since it appears improbable that while putting his signature a person would omit some alphabets of his first name which has been found in the so called signature of the opposite party – loanee and those alphabets have been written below his signature, the document should not be admitted as additional evidence .

The State Commission was further pleased to conclude the hearing of the arguments and had reserved its order/judgment.

The State Commission failed to appreciate the fact that the endorsement even if it is made by the then Branch Manager is contrary to the procedure of the petitioner and

that there is no provision to clear up the loan by putting an endorsement on the pass book without the issuance of payment receipt.

The State Commission failed to appreciate the fact that the claim of the respondent is contrary to the evidence on record, i.e., payment advice and that there is no material facts on record to show that the respondent had paid the loan amount together with interest except for the alleged endorsement made by the then Branch

Manager. It is pertinent to mention that under conventional banking practice whenever there is any deposit of money the same is entered into the ledger but in the present case such entry is not available with the petitioners.

The State Commission fell into the error of not appreciating the fact that the petitioners have all along stated that the endorsement relied upon by the respondent cannot be of any material value, it is worthwhile mentioning that if the respondent had deposited the loan amount he would have received a payment receipt. In the absence of any ‘payment receipt’ both the District Forum and the State Commission committed an error of relying solely on an alleged endorsement made by the then Branch

Manager.

The State Commission has erred in not appreciating the fact that the first appellate court under Order 41 Rule 27 (aa) of the Code of Civil Procedure, 1908 should allow an application filed by the petitioners herein for producing additional evidence if the appliance established that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. It is humbly stated that petitioners in its application for bringing additional evidence on record, i.e., in Misc Case no. 168 of 2013 had categorically stated that:

“

That it is respectfully stated that subsequently (after the order passed by the

District Forum) the petitioner invented the payment advice of loan bearing no. BLLE

11020459 dated 09.05.2006 from the office where it has been found that on 11.05.2006 the claimant (respondent herein) has taken a loan of Rs.1,00,000/- vide cheque no.

882974 dated 11.05.2006

”.

The State Commission should have taken the additional evidence on record and remitted the matter back to the District Forum for fresh consideration.

The first appellate court fell into an error in not allowing the petitioner’s application for additional evidence even when the document so produced is so germane, which will materially affect the decree. It was only after due diligence the petitioner came to know that such a document existed.

If the first appellate court had any doubt about the genuineness/ authenticity/ legitimacy of the document then could have called for an handwriting expert to see whether the signature in the document produced by the petitioners as additional evidence is the signature of the respondent or not. The first appellate court fell into an error of adjudging the genuineness of the document itself when it could have avoided the same by referring the document in question to a handwriting expert.

The first appellate court went on to proceed on a different footing, it is most respectfully submitted that the State Forum while deciding the application for admitting additional evidence went on to see the veracity/ genuineness of the said document. It is humbly stated that the first appellate court is not vested with the power to look into the veracity/authenticity/ genuineness of the documents. If any doubt arises as to the

genuineness of the documents the correct recourse was to refer the said document for the opinion of a handwriting expert.

The State Commission failed to appreciate the fact that the respondent has not repaid the loan amount and thus the same was not reflected in his account statement. It is humbly pointed out that in all financial sectors whenever any kind of payment is made such a payment corresponds to a payment receipt. In the present case the absence of such payment receipts shows to proof that such payment was never made by the respondent herein.

The State Commission failed to appreciate that pass book of an account holder is not a conclusive evidence for determination of balance in the account of the account holder. The correct balance is to be determined from the ledger and not from the pass book. Furthermore, it is well settled principle in banking law that the pass book cannot be called conclusive proof of any payment as the same is always in the custody of the account holder and entries made therein are capable of being tampered with, thus entries made in the pass book cannot be called as conclusive proof of any payment.

The State Commission failed to appreciate the fact that under clause 19 of the agreement which both the petitioners and respondent entered, categorically states that if there arises any dispute between the parties then the same should be referred to arbitration. It is humbly stated that in view oif clause 19 both the State Commission and

District Forum should have referred the dispute to arbitration.

The order dated 30.01.2013 passed by the State Commission in First Appeal no.

722 of 2011 being a non-speaking order, devoid of any reason is liable to be set aside.

It is further pointed out that the order passed by the State Commission is a narrative of the submission made by both the parties and upholding the order of the State

Commission. It is worthwhile mentioning that even while affirming an order of the District

Forum the State Commission was duty bound to state reasons. It is on this count alone the impugned order is liable to be set aside”.

We have heard the learned counsel for the petitioner and have carefully gone through the records of the case. Counsel for the petitioner drew our attention to the copy of the pass book wherein the receipt of Rs.80,000/- had supposedly been acknowledged by the Branch Manager, Deogarh Branch. The learned counsel stated that as per the policy of the company, the pass book cannot be used for the purpose of acknowledging the repayment of loans. A close scrutiny of the document concerned would, however, show that the said document is not only a pass book but pass bookcum- certificate. Some of the important instructions to the applicant as printed in the pass book read as under:

“

After paying the monthly instalment please tender the pass book- cum-certificate to the Branch office for the purpose of updation.

Please verify the entries in the pass-book-cum-certificate with receipt issued by the company and in case of any discrepancy please report the same to the branch office immediately.

The applicants are advised to keep their pass book-cum-certificate in place of safety.

Entries made in the pass book-cum-certificate are for information purpose only.

If any discrepancy or difference in the amount is found between the entries made in the pass book

–cum-certificate and receipts duly countersigned by the

company’s authorised signatories bearing seal of the company’s office, payment shall be made on the basis of receipts only .

It is also seen that all the entries regarding details of the account are entered in the pass book-cum-certificate. The instalments paid under option (B) towards the scheme named ‘Sahara Swarna Yojna Scheme’ have also been entered with the signature of the concerned officials. The details are as under:

Date Receipt Credit Total Initials

31.03.2003 30600863045 10,000/- 10,000/- Sd/-

14.05.2003 30600507402 10,000/- 20,000/- Sd/-

14.05.2003 30600507403 10,000/- 30,000/- Sd/-

30.06.203 30600507409 20,000/- 50,000/- Sd/-

05.09.2003 30600507417 50,000/- 1,00,000/- Sd/-

Similarly receipts towards repayment of loan of Rs.80,000/- and interest of

Rs.1289/- has also been recorded in the pass book-cum-certificate and signed by the scheme officer with his code no. 06641-226081.

The plea taken by the petitioner regarding return of the loan amount along with interest accrued with the endorsement made by then Branch Manager of Sahara

India,Deogarh Branch regarding the clearance of loan amount is that the fact is unknown to the present opposite party. No such documents show in the official records that the petitioner has cleared up the loan amount. The endorsement made in the pass book of the petitioner is not clear nor bears any meaning. No such provision provided under the scheme to clear up the loan amount by way of putting such type of endorsement made in the pass book.

The petitioner has further stated in the revision petition that the pass book of the account holder is not conclusive evidence for determination of balance in the account of the account holder. The correct balance is to be determined from the ledger and not from the pass book. Here it should be appreciated that the individual depositing any amount in a bank or a financial institution or any with other body can only ensure that entry is made in the pass book given to him or take formal receipt if given. He cannot ensure that the thereafter necessary entries are made in the ledger and other related accounts.

It is an undisputed fact that the petitioner had introduced the

Sahara Swarna Yojna Scheme and the respondent is the holder of certificate bearing no. 25409200045 dated 31.03.2003 and he has deposited Rs.1,00,000/- towards the same. Subsequently, the respondent took a loan of Rs.80,000/- against the said certificate and repaid the loan with interest amount of Rs.81,287/- on 28.12.2006 which was endorsed in his pass book-cum-certificate by then Branch

Manager, Deogarh Branch/ scheme officer. The respondent found later that it had not been entered in his account. Even though he went to the office of the opposite party on several occasions and requested them to reflect the same in his account but the same was not done and he was compelled to file the aforesaid complaint with prayer to direct the petitioner to reflect the repayment of Rs.80,000/- with interest in his account.

The petitioner has mentioned that earlier he filed an MA no. 168 of 2013 before the State Commission. In the miscellaneous application the petitioner admitted that they had filed the written statement before the District Forum to avoid delay and wherein it has been stated that the claimant has obtained loan of Rs.80,000/- and that subseque ntly “the petitioner invented the payment advice of loan bearing no.

BLLE11020459 dated 09.05.206 from the office where it has been found that on

11.05.2006 the claimant has taken a loan of Rs.1.00 lakh vide cheque no. 882974 dated

11.03.2006”.

The State Commission vide their order dated 15.01.2003 recorded as follows:

“Considering the rival submissions of the parties, we are of the view that since the petitioner admitted in the written version before the District Forum that the opposite party

– loanee took Rs.80,000/- as loan and in fact the signature said to be that of the opposite party

– loanee as found in the documents sought to be admitted as additional evidence does not tally with his admitted signature and further since it appears improbable that while putting his signature a person would omit some alphabets of his first name which has been found in the so called signature of the opposite party – loanee and those alphabets have been written below his signature, the document should not be admitted as additional evidence” .

It would be quite apparent that the petitioner company has not been zealously and scrupulously following any prescribed system for accounting or maintenance of accounts. They have chosen to distance themselves and disown the entries made in the said pass book-cum-certificate and signed by the Branch Manager/scheme officer. They have sought to cover up their lapses with regard to amount of loan given, repayment thereof by the respondent and accounting thereof behaving in a most irresponsible manner and trying to pass on the blame to the respondent for not having produced a receipt to validate the entry in the passbook-cum-certificate. If they had indeed been keeping their accounts accurate they would not need to plead ignorance of the entries regarding respondent’s loan in the pass book-cum-certificate due to lack of corresponding entry in the ledger book of the petitioner. Instead of instituting an enquiry against the then Branch Manager of Deogarh Branch to ascertain the exact circumstances of the case and enquire from the then Manager as to why he appended his signature on the pass book-cum-certificate in receipt of Rs. 81,287/- they have sought to penalise the respondent. There is no affidavit on record from the then Branch

Manager with regard to the facts of the case. Even the written statement contains the verification of Shri Bipin Chandra Patnaik, presently working as the Branch Manager,

Sahara India Pariwar, Deogarh. The affidavit attached to the revision petition has also been signed by Shri Bipin Chandra Patnaik, Junior Executive. It is indeed a sad state of affairs where the petitioner was taking money for the scheme launched by them for the benefit of the customers and they failed to put in place a proper accounting system to support this scheme. They have thereafter failed to order an enquiry into the actions of their official for failing to record the exact amount of loan, repayment of the same, updating of records and following a system for ensuring accountability and transparency with regard to amounts collected from the public and held in trust.

In the above-mentioned 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.50,000/-

(Rupees fifty thousand only).

Petitioner is directed to pay Rs.25,000/- to the respondent directly by way of demand draft and the balance amount of Rs. 25,000/- be deposited 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 amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 5 th July 2013 for compliance.

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[Rekha Gupta]

Satish



(From the order dated 12.07.2012 of the Karnataka State Consumer

Disputes Redressal Commission, Bengaluru in Appeal no. 918 of 2011)

The Oriental Insurance Co. Ltd. City Branch Office

– 11, No. 16/1 S P Complex, Apple

Villa 1 st Floor, Lalbagh Road Bangalore 560027 Through its Regional Manager

Regional Office No. 44/45, Leo Shopping Complex Residency Road Bangalore 560025

Petitioner

Versus

Shri M Suresh Son of Shri Muniswamaiah Resident of 1425, 6 th Cross 14 th Main Road

HAL, 3 rd Stage, Kodihalli Bangalore 560008

Respondent

BEFORE:



For the Petitioner Mr Rajesh K Gupta, Advocate


ORDER

REKHA GUPTA


Consumer Protection Act, 1986 challenging, inter-alia , the impugned final judgment and order dated 12.07.2012 passed in First Appeal no. 918 of 2012 by the Karnataka State

Consumer Disputes Redressal

Commission, Bangalore (‘the State Commission’).

The brief facts of the case as stated by the respondent/complainant are that on

09.11.2008, his Skoda Car bearing Registration no. KA 03 MG 3025 met with an accident on 07.00 p m on N H 4 Road, near Thathikallu Village, Mulbagal Taluk, Kolar

District. Due to the accident the above said vehicle was fully damaged.

The Nangali police station has registered a case in Crime no. 191 of 2008 against the said vehicle. The FIR is herewith produced for kind perusal of this Hon’ble Court.

As the Skoda Car bearing Registration no. KA 03 MG 3025 was fully damaged in the accident and was got repaired by Vinayaka Cars Pvt. Ltd., authorised dealer of

Skoda Auto India Pvt. Ltd., Revack Building, no. 50/ 2 TC Palya Cross, Old Madras

Road, Bangalore – 560 049. The respondent/complainant spent Rs.10,46,961/- including tax towards repair.

The said fact was conveyed to opposite party and all necessary document i.e.,

Driving Licence, R C Book, Cost of repair bills etc., for settlement towards repairing the vehicle were produced to them. To his utter surprise respondent/ complainant received a letter dated 27.08.2009 sent by the opposite party stating that person who was driving at the time of accident was under the influence of alcohol including all the occupants of the vehicle. The respondent/complainant replied on 29.08.2009 denying the said allegation. The respondent himself was the driver-cum-owner of the Skoda and he had possessed a valid and effective driving licence at the time of accident.

In their statement of objections before the District Forum the petitioner/ opposite party – Oriental Insurance Company Ltd., have stated that that the claim is not maintainable. They have admitted that the insured vehicle Skoda Laura Car bearing no.

KA 03 MG 3025 was insured with the petitioner under the private car package policy and that the Insured Declared Value of the said car was Rs.7,55,556/-. As such, the liability of the opposite party/insurer cannot be beyond the Insured Declared Value so declared by the complainant and that the liability of the respondents is limited to the amount as per the assessment so made by the IRDA approved surveyor. Further, the respondent/complainant having submitted his Job Card, Estimate Detail/ pre-order dated 17.11.1998, was only an estimate towards the spares and labour and was not the actual amount spent towards the repair of the insured vehicle. The respondent/ complainant had failed to submit the bills towards repairs carried out and the amount so remitted to the repairer in respect of repair and labour charges.

In order to ascertain the material facts about the occurrence of the accident an investigator was appointed who had submitted his report dated 19.02.2009 and that on confirmation that the driver/complainant and occupants being under the influence of alcohol, had further entrusted the matter for further investigation to Shyamravi Associates, being Surveyor and Loss Assessors, as well investigator, who had submitted his report dated 12.07.2009. On obtaining the Accident Register of the concerned Hospital, i.e., R LJalappa Hospital, wherein Mr Suresh, Mr Sudhakar and

Mr Mahadeva who were since brought and treated at around 08.30 p m for the injuries sustained in the accident that occurred on 09.11.2008 at around 07.00 p m in the relevant portion it was stated that:

(i) Mr Suresh son of Munishamaiah, aged 29 years

(complainant/insured/driver) “O/E - Pt Conscious, disoriented to time and

Breath smells of alcohol, conjunctival congestion +.”

(ii) Mr Sudhakar, c/o Suresh aged about 27 years, occupant of insured car,

“O/E - Patient conscious, disoriented not responds to oral commands.

Eyes- congested, breath smells of alcohol, slurred speech”.

(iii) Mr Mahadev c/o Suresh aged about 32 years, Occupant/ informant. “O/E

- Pt is conscious, disoriented, not respondents to oral commands, breath smells of alcohol, slurred speech + conjunctival congestion.

Hence, the claim of the complainant was rightly repudiated vide letter dated

27.08.2009 as per the terms and conditions, i.e., Section I clause ( c) of the policy as under:

“

We refer to the above claim would like to inform you that it is confirmed through

Medical Reports that person who was driving at the time of accident Mr M

Suresh, was charged sheeted. Further note that vehicle was driven by the driver under the influence of alcohol including all occupants of vehicle, it is confirmed through Medical Reports furnished by the Medical Superintendent, R L J Hospital and Research Centre, Tamaka, Kolara – 563 101.

The company shall not be liable to make any payment in respect of ( c) any accidental loss or damage suffered whilst the insured or any person Driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.

In view of the above, we regret to inform you that we are not liable to make any payments. Hence, we herein repudiating your claim. This is for your kind information and records. (Kindly ready once again page 1 and 2 of policy conditions, we enclose herein one more copy of policy terms and conditions)” .

Bangalore IV Additional District Consumer Disputes Redressal Forum, Bangalore

(‘the District Forum) vide order dated 22.12.2010 have concluded that “ coming to section 185 and 202 MV Act, though section 185 of MC Act is relevant to the fact which says if a person driving the vehicle under the influence of drugs must have been trusted that he must be having more than 30 mg of alcohol in his blood per 100 ml which have been detected in a test by breath analyser or must be a person who was incapable of exercising proper control over the vehicle. Under this case except the doctor who examined the complainant by breathing stated to have recorded in the case sheet that complainant was breathing alcoholic smell there had not been any test done to determine that there was more than 30 mg alcohol in 100 ml of blood of the complainant

or he was under the influence of alcohol and was incapable of taking care of himself.

Mere smelling alcohol itself is not sufficient to hold that the complainant was incapable of taking care of himself. It is only on the basis of this imaginary or unscientific method, the OP has repudiated the claim which cannot be sustained. Except on this point we do not find any controversy between the parties regarding the claim of the complainant.

Admittedly, the complainant’s vehicle was insured with the insured value of

Rs.7,55,556/-. The complainant has claimed damages of Rs.10,46,961/- based on estimation of damage to the car by a garage party. When the insured value is less than the estimation of the damage the insured is not entitle for claiming compensation more than the insured value of the vehicle. As per the valuation report of the surveyor appointed by the OP, the surveyor in his report referring to several damage of the vehicle and insured value has assessed the loss at Rs.7,41,556/- and valued the salvage at Rs.2.00 lakh and determined the liability of the OP as Rs.5,52,056/- after deducting policy excess Rs.1,000/-. As found from the photographs of the damaged card, the car found to have mangled fully resulting in scrap. The OP has not claimed for possession of salvage. Therefore, considering the insured value of the vehicle assessment of salvage at Rs.2.00 lakh by the surveyor found to be imaginary and baseless. The surveyor in his entire report has not given any details as to the basis on which he had arrived at the value of salvage at Rs.2.00 lakh. Therefore, such valuation in our view is unscientific. Hence, considering this aspect of the matter and insured value on the date of the accident, we find it just and equitable to direct the OP to reimburse Rs.6.00 lakh by valuing the salvage at Rs.1.5 lakh and by rounding of the compensation payable to Rs.6.00 lakh which in our view would meet the ends of justice.

With this we direct that the complainant shall himself keep the salvage and we pass the following order.

Complaint is allowed. OP is directed to pay Rs.6.00 lakh to the complainant within 45 days from the date of this order with interest @ 9% per annum from the date of claim made by the complainant until it is paid.

OP shall also pay cost of Rs.3000/- to the complainant”

.

Aggrieved by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 12.07.2012 held that:

“ the learned counsel for the respondent/complainant contended that since no scientific method was adopted by the doctors at Jalappa Hospital, Kolar to show that the respondent was fully drunk and the doctor has not been examined to prove the same and o scientific method has been adopted that the respondent

consumed more than 30 mg of alcohol in his blood per 100 ml which have been detected in a test by breath analyser.

Therefore, in our considered opinion that the appellant/OP who has taken the contention that the violation of terms and conditions of the policy enumerated under Section 185 of the Motor Vehicles Act that the driver who drives the vehicle should not drive by consuming alcohol. There is no hard and fast rule.

Burden of proof always lies on the persons who repudiated such contention. The appellant neither examined the doctor nor the hospital authority notice the presence of 30 mg of alcohol in 100 ml of blood taken from the body of the respondent. Therefore, we are of the opinion that repudiating made by the appellant for payment of compensation is deficiency of service. Therefore, in our view the impugned order passed by the District Forum does not call for any interference.

With regard to the quantum of compensation awarded is concerned the ID value of the vehicle was Rs.7,55,556/-. Of course, the respondent has claimed

Rs.10,46,961/- issued by Vinay Garage. But the insurer appointed a surveyor who assessed the damage to the tune of Rs.7,41,556/- out of which

Rs.2,00,000/- has been deducted towards the value of the salvage and rightly comes to the conclusion in awarding Rs.6.00 lakh with interest at 9% per annum from the date of claim made by the complainant that is the respondent.

Therefore, we do not see any good reasons to interfere with the order under challenge. Accordingly, we pass the following:

Appeal is dismissed. The order passed by the District Forum in complaint no.

1845 of 2010 is confirmed”.

Aggrieved by the order of the State Commission, the petitioner had filed the present revision petition before us.

We have heard the learned counsel for the petitioner and have also carefully gone through the records of the case.

The main ground for the revision petition is that the State Commission and the

District Forum below exercised its jurisdiction illegally and material irregularity by failing to appreciate that the present case clearly fall under section 185 (b) of the Motor

Vehicles Act, 1988.

Along with the revision petition, the petitioner has filed an application for condonation of delay of 76 days. The reason given for the delay is that “ the revision petitioner’s company has all India operation and in order to ensure that only appropriate cases are filed for revision petition it had sent the case file for opinion of a lawyers after which the file was sent to head office for approval. In this process, because of inadvertent lapse, some relevant pages (First Appeal before the State

Commission and certified copy of the impugned judgment) went missing and copy of the same were received by the Delhi Office of the Revision Petition on February 28, 2013 only and the revision petition is being filed on 06.03.2013

”.

It will be seen that the petitioner has not mentioned any dates in the application for condonation of delay nor he has indicated as to how they have calculated the delay of 76 days. It is pertinent to mention that even before the State Commission, the

Insurance Company has filed the first appeal along with an application under section 5 of the Limitation Act to condone the delay of 37 days in filing the appeal. This shows the casual attitude and way of working of the petitioner. The only defence given for the delay is that some relevant pages of the First Appeal before the State Commission and the certified copy of the impugned judgment went missing and were received by the

Delhi Office only on 28.02.2013 after over six months of the impugned order.

As per the office report of this Commission, there is a delay of 131 days. The date of impugned order is on 12.07.2012 and the impugned order was received by the petitioner on 22.07.2012 and the revision petition was filed on 06.03.2013.

It is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC), 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

”.



it was held:


In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court

361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces

the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994

Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

Recently, Hon’ble Supreme Court in Post Master General and others vs.

Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;

“After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government

Undertaking, this Court observed as under;

“It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes.

Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the

State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the

Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest.

Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

The Court further observed;

“It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the

Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and

commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the

Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs ”.

Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act.

It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning.

It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the

Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.

Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector

Undertakings are possibly an apt example of being penny wise, poundfoolish. Rise in frivolous litigation is also due to the fact that Public Sector

Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

In the above circumstances, the application for condonation of delay is dismissed being time barred by limitation 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 5 th June 2013 for compliance.

Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the order dated 27.03.2012 in S.C. Case No. FA/220/2011 of West Bengal State

Consumer Disputes Redressal Commission, Kolkata)

1. Reliance Polypropylene Ltd. (since merged with Reliance Industries Ltd) 3 rd Floor,

Maker Chamber IV, 222, Nariman Point, Mumbai – 400021

2. Reliance Industries Ltd. Registered Office: 3 rd Floor, Maker Chambers IV, 222,

Nariman Point, Mumbai – 400021

3. Reliance Consultancy Ltd. Unit II, Swastik Mill Compound V.N. Purav Marg,

Chambur

– 400071

4. M/s. Karvy Consultants Pvt. Ltd. (Now known as M/s. Karvy Computer Share Pvt.

Ltd.) 49, Jatin Das Road, Kolkata – 700029


Versus

Deep Narain Gupta 10/1, Princep Street Kolkata – 72


BEFORE


For the Petitioners : Ms. Jahanvi Worah, Advocate

For the Respondent : Ms. Sumita Roy Chowdhury, Advocate


O R D E R


This revision petition has been filed by the Petitioners/Opposite parties against the impugned order dated 27.3.2012 passed by the West Bengal State Consumer

Disputes Redressal Commission, Kolkata (in short, ‘the State Commission’) in S.C.

Case No. FA/220/2011 – Reliance Polypropylene Ltd Vs. Deep Narain Gupta by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2.

Brief facts of the case are that complainant/respondent’s 500 shares of RPPL were converted into 150 shares of Reliance Industries Ltd. (RIL), which were not received by the complainant. As per request of OP No. 3, complainant also executed indemnity bond in respect of 200 shares, which according to OP 3 were misplaced/lost. It was further alleged that without any specific instructions from the complainant, OP transferred rest of the shares to a third party; namely, M/s. Credit

Capital Investment Trust Co. Ltd., Mumbai and thus, by not delivering 150 shares of

RIL, committed deficiency in service and filed complaint before the District Forum. OPs contested and submitted that District Forum has no jurisdiction to deal with this complaint and denied all the allegations and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OPs 1, 2 & 3 to convert shares of RPPL into 150 shares of RIL and deliver shares with bonus shares and dividend to the complainants since 1994 along with compensation of Rs.50,000/- and litigation cost of Rs.500/-. Appeal filed by the petitioners was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioners does not challenge impugned order and order of District Forum on merits, but challenge only to the extent of awarding compensation of Rs.50,000/- to the complainant. Learned Counsel for the petitioners submitted that awarding compensation to the tune of Rs.50,000/- is totally unwarranted; hence, revision petition be allowed to this extent. On the other hand, learned Counsel for the respondent submitted that, as shares are in possession of the petitioners since 1994 and respondent has been deprived of transacting aforesaid shares, awarded compensation is not on higher side; hence, revision petition be dismissed.

5. Learned District Forum observed that OPs committed deficiency in not delivering

150 shares of RIL to the complainant, which were lodged for conversion in 1995. In such circumstances, learned District Forum directed petitioners/OP to deliver 150

shares of RIL to the complainant within 45 days along with bonus shares and dividend. Learned Counsel for the respondent does not challenge this finding and press this revision petition only to the extent of awarding compensation of Rs.50,000/-.

6. Admittedly, 150 RIL shares are not in possession of complainants since 1995 meaning thereby, almost 18 years have elapsed and complainant has been deprived from dealing with his aforesaid 150 shares along with bonus shares declared, if any. Looking to the variation in price of RIL shares in last 18 years, award of compensation of Rs.50,000/- by District Forum cannot be said to be on higher side, which has already been affirmed by learned State Commission.

7. I do not find any illegality, irregularity or jurisdictional error in upholding award of compensation of Rs.50,000/- to the complainant and in such circumstances, the revision petition is liable to be dismissed.

8. Consequently, revision petition filed by the petitioners is dismissed at admission stage with no order as to costs.

..………………Sd/-……………



K



(From the order dated 8.6.2009 in Appeal No. 605/2007 of Haryana State Consumer

Disputes Redressal Commission, Panchkula)

1. Haryana Urban Development Authority Through its Chief Administrator Sector

– 6,

Panchkula

2. Haryana Urban Development Authority Through its Estate Officer, Kurukshetra

` … Petitioners/Opp. Parties (OP)

Versus

Sheela Devi W/o Sh. Dhoom Singh, C/o Dua Dental Clinic, Near Old Bus Stand,

Brahman Dharamshala, Kurukshetra


BEFORE



For the Petitioners : Ms. Anubha Agrawal, Advocate


O R D E R


This revision petition has been filed by the Petitioners/Opposite parties against the impugned order dated 8.6.2009 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in

Appeal No. 605 of 2007 – HUDA & Anr. Vs. Sheela Devi by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent applied for allotment of residential plot of 10 Marlas in Sector 8, Urban

Estate, Kurukshetra under ousteesscheme and deposited 10% earnest money on

28.3.2003 along with application form with petitioner-OP. OP accepted application and complainant was held entitled for residential plot under oustees quota, but later on,

application of the complainant for allotment of plot was rejected by OP on the ground that she had not submitted no objection certificate from other co-sharers. Alleging deficiency on the part of the OP, complainant filed complaint before District Forum. OP contested complaint and submitted that, as complainant failed to furnish no objection certificate from other co-sharers, application was rightly rejected and prayed for dismissal of the complaint. Learned District forum after hearing both the parties, allowed complaint and directed OP to issue allotment letter without raising any demand of affidavits regarding no objection. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. Petitioner also filed application for condonation of delay along with revision petition.

3. Heard learned Counsel for the petitioner on application for condonation of delay and perused record.

4. Petitioner along with revision petition filed application for condonation of delay in which, it was submitted that time was consumed in seeking necessary approvals for filing revision petition and collecting relevant documents. It was not mentioned that how many days delay was to be condoned. Later on, filed affidavit of Mr. SatbirSingh after almost 7 months in which, it was submitted that in the light of impugned judgment by letter dated 27.7.2009, indemnity bond was demanded from the complainant.

Complainant instead of submitting indemnity bond, filed execution application and show cause notice was received from District Forum on 3.11.2011. Then, case was again examined and headquarter vide letter dated 9.12.2011 directed to file revision petition. It was further submitted that Counsel prepared revision petition which was sent for approval of the competent authority on 28.12.2011 and office of the petitioner sent revision petition on 30.12.2011 for approval of Administrator, HUDA. Administrator

HUDA approved revision petition on 11.1.2012 and revision petition was filed on

23.1.2012. Learned Counsel for the petitioner has also drawn our attention towards noting of the office of petitioner, which reveals that on 17.7.2009, it was recommended

that revision petition may not be filed and plot may be allotted after obtaining indemnity bond.

5. Learned Counsel for the petitioner submitted that, as petitioner decided not to file revision petition and allot plot after obtaining indemnity bond, revision petition was not filed in time, but as the respondent filed execution petition and notice was received by the petitioner on 3.11.2011, this revision petition was prepared and filed; hence, delay of

854 days in filing revision petition may be condoned.

6. To our utter surprise, when petitioner decided not to file revision petition, why this revision petition has been filed, is not clear. Petitioner instead of demanding indemnity bond from the complainant should have complied with the order of District Forum regarding allotment of plot without raising any demand of affidavits regarding no objection. Merely because execution petition was filed by the complainant, there was no occasion for the petitioner to file revision petition; though, earlier decided not to file revision petition and allot the plot. Apparently, there is no reasonable explanation for condonation of inordinate delay of 854 days.

7. Perusal of affidavit of Satbir Singh also reveals that revision petition was prepared by Counsel and was received by competent authority for approval on 28.12.2011. Even then, revision petition was filed on 23.1.2012 meaning thereby filed after 25 days after receiving draft of revision petition for approval. As there had already been delay of about 830 days, petitioner should have filed revision petition immediately after petitioner received draft revision petition for approval.

8. As there is inordinate delay of 854 days, this delay cannot be condoned in the light of the judgment passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat

Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The

Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) –

Anshul AggarwalVs. New Okhla Industrial Development Authority.

9. As revision petition has been filed along with inordinate delay of 854 days, we do not deem it proper to condone inordinate delay of 854 days and in such circumstances, application for condonation of delay is liable to be dismissed resulting in dismissal of revision as time barred.

10. Consequently, revision petition is dismissed as time barred with no order as to costs.

..………………Sd/-……………



..…………Sd/-…………………


MEMBER k



(From the order dated 19.4.2012 in Appeal No. 2011/480 of State Consumer

Disputes Redressal Commission, Delhi)

Jagdish Singh Chauhan A-402, Sector 10/33, Dwarka, New Delhi

– 110075


Versus

Addl. Director (North Zone), CGHS, New Rajinder Nagar, New Delhi


BEFORE



For the Petitioner : Mr. Jagdish Chauhan, In person

For the Respondent : Mr. Rajat Gaur, Advocate

Dr. N.S. Rawat, CMO (SAG)


O R D E R


This revision petition has been filed by the Petitioner/complainant against the impugned order dated 19.4.2012 passed by the State Consumer

DisputesRedressal Commission, Delhi (in short, ‘the State Commission’) in Appeal No.

2011/480 – Jagdish Singh Chauhan Vs. Addl. Director (North Zone), CGHS by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that petitioner/complainant is a retired whole life pensioner CGHS Card holder bearing No. P-80205. Petitioner contributed Rs.18,000/- towards the scheme, which is a welfare scheme to retired government employees.

Petitioner in emergent circumstances was treated in Ganga Ram Hospital and paid a sum of Rs.3,03,209. Again he was treated in Ayushman Hospital, Dwarka and paid

Rs.21,933/-. Petitioner submitted documents for reimbursement, but OP/respondent reimbursed Rs. 2,85,385/- and Rs.11,503/-, respectively against aforesaid claims. Petitioner filed complaint before learned District Forum for reimbursement of balance amount. OP contested complaint. Learned District forum after hearing both the parties held that complaint is not maintainable, as complainant is not a consumer and also dismissed complaint on merits. Appeal filed by the petitioner was dismissed in limine vide impugned order 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 petitioner falls within the purview of consumer and learned State Commission has committed error in dismissing appeal on the ground that petitioner does not fall within the purview of consumer; hence, revision petition be allowed and impugned order be set aside and matter be remanded to 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. The sole question to be decided in this revision petition is whether; petitioner falls within the purview of consumer or not. Learned District Forum held that complainant/petitioner is not a consumer; hence, complaint is not maintainable. Though, District Forum dismissed complaint on merits also, but learned

State Commission vide impugned order dismissed appeal in limine only on the ground that complainant is not a consumer. District Forum placed reliance on (2008) 5 SCC

328 State of Karnataka Vs. R. Vevekananda Swami and learned State Commission also cited this citation in impugned order, but this citation is not on this legal issue whether; complainant falls within the purview of consumer or not. On the other hand, petitioner placed reliance on IV (2005) CPJ 197 (NC) –

Jagdish Kumar Bajpai Vs. Union of India in which it was held that retired employee joining CGHS, a welfare scheme, falls within the purview of consumer and on this ground matter was remanded for adjudication on merits. This judgment was delivered by Six Member Bench of this Commission. Thus, it becomes clear that petitioner being a retired Government employee, who has contributed towards CGHS Scheme, falls within purview of consumer under the Consumer Protection Act and learned District

Forum has committed error in holding that complainant does not fall within the purview of consumer and learned State Commission committed error in dismissing appeal in limine.

6. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 19.4.2012 passed by learned State Commission in Appeal No. 2011/480 -

Jagdish Singh Chauhan Vs. Addl. Director (North Zone) CGHS is set aside and matter is remanded to learned State Commission to decide appeal on merits treating petitioner as consumer under C.P. Act.

7. Parties are directed to appear before the State Commission on 30 th May, 2013.

..……………Sd/-………………



..…………Sd/-…………………


MEMBER k



(From the order dated 14.09.2012 in Appeal No. 158/2012 of Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

I.D.B.I. Bank D-24, Durlabh Niwas, Prithviraj Road, C-Scheme, Jaipur, Rajasthan through Branch Manager


Versus

1. Subhash Shah S/o Om Prakash Shah R/o B-5, Hari Nagar, Shastri Nagar, Jaipur,

Rajasthan

2. Sarika Shah W/o Subhash Shah R/o B-5, Hari Nagar, Shastri Nagar, Jaipur,

Rajasthan


BEFORE



For the Petitioner : Mr. Anuj Bhandari, Advocate

For the Respondents : Mr. V.V. Harit, Advocate


O R D E R


This revision petition has been filed by the Petitioner/OP against the impugned order dated 14.9.2012 passed by the Rajasthan State Consumer

Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal

No. 158 of 2012 – IDBI Vs. Subhash Shah & Anr. by which, while dismissing appeal, order of District Forum allowing compliant was upheld.

2. Brief facts of the case are that Complainant/respondent submitted application for sanction of loan to OP/petitioner and deposited Rs.39,326/- as process fee. Loan was not disbursed to the complainant; hence, complainant served notice on the OP for refund of process fee, but OP did not refund process fee. Complainant alleging deficiency on the part of OP filed complaint before District Forum. Respondent/OP did not appear before District Forum. During pendency of complaint, OP refunded

Rs.39,326/- to the complainant. Learned District Forum after hearing complainant allowed complaint and directed OP to pay interest @ 9% p.a. on Rs.39,326/- from

5.10.2007 till date of payment and further awarded Rs.11,000/- for mental agony and

Rs.3,000/- as cost of litigation. Appeal filed by the petitioner was dismissed by learned

State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that loan was sanctioned, but respondent did not avail loan. It was further submitted that though process fee was not refundable; even then, process fee was refunded to avoid any litigation and respondent assured to withdraw legal proceedings; even then, legal proceedings were not withdrawn and learned District Forum committed error in allowing complaint and learned

State Commission also committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission and District

Forum is in accordance with law, which does not call for interference; hence revision petition be dismissed.

5. Perusal of record reveals that as per Annexure P-5, loan was sanctioned by the petitioner, but disbursement of loan was subject to certain conditions, as mentioned in sanction letter. It appears that respondent did not avail loan facility due to technical difficulty as mentioned by respondent in letter dated 16.5.2010. Thus, it becomes clear that there was no deficiency on the part of petitioner. After filing of the complaint,

process fee though non-refundable was refunded by the petitioner to the respondent and respondent vide Annexure P-7 dated 16.5.2010 apprised petitioner that now respondent has no grievance and he assured to withdraw all legal proceedings, which he has filed, meaning thereby, it was obligatory on the part of respondent to withdraw complaint filed before District Forum after receiving process fee. It appears that respondent has not acted with clean hands before District Forum. He has also mentioned wrong fact that loan was not sanctioned.

6. Once the respondent received process fee in full and final satisfaction, he should have withdrawn complaint as assured and he was not entitled to receive any interest on that amount as well compensation and cost as apparently there was no deficiency on the part of petitioner. Learned District Forum committed error in allowing complaint and granting interest, compensation and cost and learned State Commission also committed error in dismissing appeal in limine, which is liable to be set aside.

7. Consequently, revision petition filed by the petitioner against the respondent is allowed and impugned order dated 14.9.2012 passed by learned State Commission in

Appeal No. 158 of 2012 – IDBI Vs. Subhash Shah & Anr. is set aside and complaint filed by the respondent before District Forum is dismissed. There shall be no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 4.12.2007 in Appeal No. 2956 of 2002 & Appeal No. 3008 of

2002 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

Shri M.L. Kathuria S/o Shri Sawan Ram Kathuria R/o House No. 94, DC Colony, Hissar,

Haryana … Petitioner/complainant

Versus

1. The Oriental Insurance Co. Ltd. Divisional Office Hissar Through Divisional Manager

2. The Branch Manager Oriental Insurance Company Ltd. Branch Office Sirsa,

Opposite Janta Bhawan, Sirsa Tehsil and District Sirsa Haryana

… Respondent/Opp.Parties (OP)

BEFORE



For the Petitioner : Mr. Rama Shanker, Advocate with

Mr. Shivom Garg, Advocate

For the Respondent : Mr. R.S. Rana, Advocate


O R D E R


This revision petition has been filed by the Petitioner/complainant against the impugned order dated 4.12.2007 passed by the Haryana State Consumer

DisputesRedressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal

No. 2956 of 2002 & Appeal No. 3008 of 2002 Shri M.L. Kathuria Vs. Oriental Ins. Co.

Ltd. & Anr. by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner purchased a Maruti Zen

(VX) No. HR 24-E-9091 for a sum of Rs. 3,84,293/- with the help of loan taken from

State Bank of Patiala. Vehicle was insured for the period 7.9.2000 to 6.9.2001. On

13.7.2001, car was stolen and FIR was lodged on 14.7.2001. Police submitted untraced report on 9.8.2001. Complainant submitted all the required documents to OP and OP paid Rs. 3,10,000/- taking the IEV value of the vehicle than the market value of the car on the date of theft. Complainant alleging deficiency on the part of OP filed complaint before the District Forum. OP/respondent contested complaint and submitted that, as complainant had accepted Rs.3,10,000/- as full and final settlement of his claim on 31.1.2002 and executed receipt, claim disbursement, journal voucher and discharge receipt in favour of OP, complaint is not maintainable. It was further submitted that valu e of the stolen car was assessed by surveyor and as per surveyor’s report, payment was made; hence, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP/respondent to pay a sum of

Rs.55,000/- after deducting 5% on account of depreciation along with 9% p.a. interest. Appeal filed by OP/respondent was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that learned District Forum rightly allowed deduction of 5% depreciation, but learned State Commission has committed error in allowing appeal and dismissing complaint, as payment was accepted under compulsion; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that, as payment was accepted by complainant in full and final satisfaction, learned State Commission has not committed any error in allowing appeal; hence, revision petition be dismissed

5. Perusal of record reveals that surveyor assessed loss of Rs.3,10,000/-

. Respondent made payment of Rs.3,10,000/-, which was accepted by the petitioner without any protest. There is no iota of evidence on record to substantiate the

contention of learned Counsel for petitioner that payment was accepted under compulsion/protest. Once, the party accepts payment as full and final satisfaction without any protest, that party cannot put forward again claim before the District Forum and learned State Commission has rightly allowed appeal and dismissed complaint by observing as under:

“As regards the settlement made, the position of law in this regard is well settled in case United India Insurance Co. Ltd. versus Srinivas Trading Co., 2003 (1) CLT 125 (NC), wherein the facts were that the complainant had given discharge voucher in full and final settlement and the payment was received on 1.9.1991 without protest or demur. On 14.9.1991, the complainant had written letter to the insurance company intimating that it was forced to give voucher in full and final settlement of the claim. Rejecting the stand of the complainant it was observed that the protest lodged by the complainant was not simultaneous because after the execution of the full and final settlement, neither it followed such execution immediately nor was any reason like undue influence, coercion of fraud being exercised by the petitioner was pleaded. It was held that no case was made out under the Act to go behind such full and final settlement and the order of the State Commission was modified.

In case Bhagwati Prasad Pawan Kumar versus Union of India

(2006-3) PLR 76(SC). The offer was made by the Railways to the appellant that if was not acceptable, cheque should be returned forthwith failing which it would be deemed that the appellant accepted the offer in full and final settlement of the claim. The appellant accepted the two cheques sent by the Railways and encashed. It was concluded that it amounted the acceptance of the amount in full and final settlement of the claim. It was also laid down that the protest and non-acceptance must be conveyed before the cheques wereencashed and if the cheques were encashed without protest, then it must be held that the offer stood unequivocally accepted and offeree cannot be permitted to change his mind after unequivocable acceptance of the offer. In

National Insurance Co. Ltd. versus Nipha Exports Pvt. Ltd., 2007

(1) CPR 80 (SC), the facts were that five transit insurance were obtained for consignment to Sudan in 1990. On arrival, the consignments were found damaged on account of rust. The investigations were taken up as to at which stage the damage to the consignment could have occurred. A dispute was also raised between the parties as to who would be entitled to receive the claim amount as the shipment was on CIF basis. The matter was resolved and legalized documents were furnished to the appellant on 21.5.1993. The claim was finally settled on 8.4.1994 and the amount of Rs.70,38,038/- was paid to the respondent on 8.6.1994 who received the amount and gave the clean discharge. Thereafter, he raised the consumer dispute. It was held that claim was finally settled and payment was made and there was no delay in making the payment which would warrant an award of interest on delayed payment and for that reason order dated 8.9.2004 of the Hon’ble Commission was set aside. In case Regional Manager,

National Insurance Co. Ltd. and another versus Bashir

Ahmed Rangrej and bothers, 2000 CCJ 773 (J&K), it was observed that as the complaint filed after receiving the payment in respect of

the loss of the property and executing the discharge voucher as per settlement, the complaint was not maintainable.

In the light of above, stated principle laid down in the above mentioned case and the evidence adduced on record it has to be held that the complainant had accepted the amount of

Rs.3,10,000/- while accepting the claim voluntarily and without any coercion exercised upon him. All these aspects have not been given due consideration by the District Forum while accepting the complaint to the extent noticed above and for that reason the order of District

Forum, as such, cannot be sustained”.

6. We do not find any illegality, irregularity or jurisdictional error in the impugned order, which calls for any interference and revision petition is liable to be dismissed.

7. Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 11.06.2012 in Appeal No. 1213/2011 of Haryana State Consumer


SDO (OP) Sub Division, UHBVNL, Radaur, Tehsil Jagadhari, Distt. Yamuna Nagar,

Haryana … Petitioner/Opp. Party (OP)

Versus

1. Durga Devi @ Durgawavi Wd./o Shiv Dayal Singh R/o Village Unheri, Sub Tehsil

Radaur Tehsil Jagadhari District Yamuna Nagar Haryana


BEFORE



For the Petitioner : Mr. Sudhir Bisla, Advocate


O R D E R


This revision petition has been filed by the Petitioner/OP against the impugned order dated 11.6.2012 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1213 of 2011 –

SDO, UHBVNL Vs. Durga Devi by which, while allowing appeal partly, modified order of compensation allowed by District Forum.

2. Brief facts of the case are that complainant/respondent had sugarcane crop and

500 poplar trees in his field. Electricity line was passing over the land of the complainant.

Due to short circuit, on 2.6.2007, complainant’s sugarcane crop and 500 poplar trees were burnt. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP/petitioner contested complaint and submitted that

on 2.6.2007 from 7 AM to 5 PM, there was no supply of electricity and fire might have been caused due to some other reason and prayed for dismissal of complaint. Learned

District Forum after hearing both the parties allowed complaint and directed OP to pay

Rs.1,10,900/- with 6% p.a. interest. Appeal filed by the petitioner was partly allowed and amount of compensation was reduced to Rs.70,000/- by the impugned order against which, this revision petition along with application for condonation of delay has been filed.

3. Heard learned Counsel for the petitioner at admission stage on application for condonation of delay.

4. Petitioner moved application for condonation of delay and alleged that impugned order was received by the petitioner in July, 2012 and petitioner received permission for filing revision petition in the end of July, 2012. Paragraph 3 of the application reads as under:

“That after receiving the permission to file revision petition the petitioner met the present counsel in 2 nd week of February, 2013 and delivered the case file for the purpose of filing the present revision petition before this Hon’ble National Consumer

Commission”.

5. Perusal of application reveals that petitioner has not given any reason for condonation of delay from end of July, 2012 to 2 nd week of February, 2013. Learned

Counsel for the petitioner could not give any reason for not preparing and filing revision petition from the end of July, 2012 to 2 nd week of February, 2013. Petitioner has not mentioned that how many days delay is to be condoned in the application, but from the office report, there is delay of 158 days in filing revision petition and no reason has been given for condonation of delay what to talk of satisfactory explanation of condonation of delay.

6. As there is inordinate delay of 158 days, this delay cannot be condoned in the light of the judgment passed by the Hon’ble Apex Court and the National Commission in

(1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat


Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission)

– Anshul Aggarwal Vs. New Okhla

Industrial Development Authority.

7. In such circumstances, application for condonation of delay is rejected and consequently, as revision petition is time barred, the same is dismissed as time barred at admission stage. There shall be no order as to costs.

..………………Sd/-……………



..

……………Sd/-………………


MEMBER

K


NEW DELHI


(Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the

West Bengal State Consumer Disputes Redressal Commission, Kolkata)

1. ILS Hospital

Previously known as Institute of Laparoscopic Surgery

Jeewansatya, DD-6

Salt Lake City, Sector-1

Kolkata-700064

2. Dr. Om Tantia

Director

ILS Hospital

Previously known as Institute of Laparoscopic Surgery

Jeewansatya, DD-6

Salt Lake City, Sector-1

Kolkata-700064 … Appellants

Versus

Bimal Kumar Ghosh

Residing at No. 107/4

Ultadanga Main Road

Block-7, Flat No.22

Kolkata-700067

… Respondent

BEFORE:



For Appellants : Mr. Partha Sil, Advocate

For Respondent : NEMO


ORDER


1. ILS Hospital and its doctor namely Dr. Om Tantia, Appellants herein and

Opposite Parties before the West Bengal State Consumer Disputes Redressal

Commission, Kolkata (hereinafter referred to as the State Commission) have filed the present First Appeal being aggrieved by the order of that Commission which had allowed the complaint of medical negligence against them filed by Bimal Kumar Ghosh,

Respondent herein and Original Complainant before the State Commission.

2. FACTS:

Respondent had contacted one Dr. Om Tantia/Appellant No.2 following intermittent pain in his upper abdomen. Dr. Tantia after conducting necessary tests informed the Respondent that there was a stone in his gall bladder and advised to him

to take admission in Appellant No.1/Institute. He was admitted there on 20.04.2001 and was advised to undergo laparoscopic operation which was fixed for 25.05.2001. On that date inside the operation theater Respondent noted that an Anesthetist under the guidance of the surgeon roughly tried to force an apparatus resembling a cylindrical pipe down his throat unsuccessfully several times. Respondent experienced excruciating pain and in fact after a couple of attempts blood spurted out. But despite this, attempts to force the pipe down his throat continued. Sometime later the

Respondent was wheeled out of the operation theater without being operated. The area of his throat which had been ravaged and badly injured was merely patched up.

Respondent’s family was subsequently told that a difficulty was faced in the area of the throat because of a tumor and, therefore, the operation could not be conducted. On the next day on the advice of an ENT specialist a CT was conducted which confirmed serious damage inside the throat with formation of several air pockets. After seeing the

CT scan, Dr. Tantia/Appellant No.2 discharged the Respondent from Appellant

No.1/Institute stating that no further treatment was possible. When Respondent contacted another doctor i.e. Dr. Ajoy Arya, he expressed surprise about the diagnosis of tumor since there was no tumor in the Respondent’s throat. Since the Respondent continued to undergo great physical and mental distress because of the injuries inside the throat, he took admission at Calcutta Medical Research Institute (CMRI) where following diagnostic tests, including a CT scan, another operation was conducted, which took nearly 5 hours, during which tracheostomy alongwith drainage of parapharyngeal abscess was done and after intensive medication and treatment,

Respondent was discharged on 07.07.2001. Even thereafter Respondent could not recover fully and continued to face difficulty in breathing and, therefore, he had to continue medication for the same. Respondent contended that he had spent well over

Rs.1 Lakh on his treatment from 20.04.2001 till the filing of his complaint and these expenses are continuing, as a result of which there has been severe trauma to him and mental distress to his family and he has not been able to resume his professional life thereby suffering financial losses. Being aggrieved by the improper conduct of

Appellants in injuring his throat by not taking due precautions while preparing him for

the anesthesia and thereafter abandoning him, Respondent filed a complaint before the

State Commission on grounds of medical negligence and deficiency in service and requested that the Appellants be directed to pay him (i) Rs.1,06,612/- being reimbursement of medical expenses alongwith interest; (ii) Rs.10,00,000/- as damages for severe trauma and mental agony; and (iii) any other relief as deemed necessary.

3. Appellants on being served entered appearance and filed a written rejoinder denying the averments made in the complaint. It was admitted that the Respondent had been admitted to Appellant No.1/Institute, during which pre-operative investigations were carried out and he was advised gallstone surgery. A pre-operative anesthetic check-up was also done and he was given certain injections in the operation theater and when he became unconscious intubation was tried but it was difficult due to the fact that Respondent’s laryngeal opening was found to be high up and anterior, because of which the endotracial tube could not pass and, therefore, the surgery had to be abandoned. It was stated that the Respondent, who was suffering from the above structural problem in the throat, had not disclosed this fact to Appellants. Since it is not the standard medical norm to enquire about the throat condition of a patient who is to undergo surgery under general anesthesia Appellants cannot be blamed for any negligence. It was further denied that the Respondent was abandoned by the

Appellants when the surgery could not be done. In fact it was at the instance of the

Appellants that Respondent was examined by an ENT specialist where the problem was diagnosed. It was further stated that in view of the fact that the problem occurred not because of any medical negligence but because of an anatomical/structural defect inside the throat of the Respondent, which was not disclosed by him and which resulted in an unsuccessful intubation, which is also not uncommon, the Appellants cannot be held guilty of either medical negligence or deficiency in service.

4. The State Commission after hearing the parties and on the basis of evidence produced before it, allowed the complaint by observing as follows :

“… we are of opinion that when it is the case of the Ops that unsuccessful intubation is not uncommon to the Medical World, the Ops ought not have left the matter for disclosure by the patient. We do not think medical ethics is founded on the principle of Patient’s Disclosure Theory as claimed by the Ops. It would not be off the track to hold that when a patient approaches a doctor upon payment of requisite fees for medical help, it is

incumbent upon the doctor to see so that the patient does not suffer unnecessarily. In this connection, we further hold that onus of the doctor is not discharged and shifted upon the patient unless some contrary action is proved on the part of the patient. Plea of non-disclosure is thus not accepted by us.

The present world is being governed by the principles of consumerism. The pleas of the Ops that in all cases of surgeries some risks are there and any unforeseen event that may crop up during surgery should be accepted with a smile do not hold much water in the present age. When there is no denial of the fact that intubation failed after several unsuccessful attempts which in its turn rendered the gall stone operation for which the complainant got himself admitted under the Ops abandoned, it was not proper on the part of the Ops to avoid the responsibility by putting up some pleas which are not at all acceptable.

We do support the contention of the Ld. Advocate for the Ops that complainant must prove his allegations by producing cogent and reliable evidence and that the complainant’s case must stand independently. At the same time, we are not unmindful to the proposition that in order to succeed in a case under Consumer Protection Act, degree of proof is not similar to that of a court proceeding of civil nature. Keeping in mind this proposition we are of opinion that the materials that have come before this

Commission is sufficient for the purpose of the Act and that the present case may be adjudicated upon those materials.

From the foregoing discussions we are constrained to hold that the manner in which the operation of the complainant was abandoned and subsequently the complainant was released by the Ops tantamount to both deficiency in service and medical negligence as claimed by the complainant. In this regard the plea taken by the OP No. 2 to the effect that it was theanaesthetist, who inserted the pipe inside the throat of the complainant, should be taken into task does not hold much water as admittedly under the leadership of the OP No. 2 the operation was being conducted.”

The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order.


6. Learned Counsel for the Appellants was present. Neither Respondent nor his counsel was present. However, since the service is complete, the case was heard exparte.

7. Counsel for the Appellants made oral submissions, wherein he reiterated that there was no medical negligence or deficiency in service on the part of

Appellants.

Respondent’s problem of having a stone in the gallbladder was correctly diagnosed and prior to the surgery he was subjected to the required diagnostic and

other tests, including pre-anesthesia tests. However, it is not standard medical procedure in the case of pre-anesthesia test to check for any structural abnormality in the throat. In the instant case, the Respondent had a pre-existing anatomical problem in the structure of his throat, because of which it was not possible to conduct successful intubation for anesthesia. This is known to occur in some cases and it was for the

Respondent to have informed the Appellants about this pathological problem. The unfortunate injury to his throat because of the unsuccessful intubation was, therefore, not as a result of any medical negligence or deficiency in service since the Appellants had taken all possible steps as per standard medical procedures. The operation was rightly abandoned in the interest of Respondent’s health and thereafter the Respondent was treated by an ENT specialist following detailed tests, including a CT scan confirming that there was a structural problem inside the throat. Further, the

Respondent has not discharged his burden of proving medical negligence against the

Appellants through any expert evidence in his support. The State Commission, therefore, erred in concluding that there was medical negligence on the part of

Appellants without appreciating the above facts.

8. We have considered the submissions made by learned Counsel for the

Appellants and have gone through the evidence on record. It is an admitted fact that the

Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the

Respondent’s throat. Appellants’ contention that it was for the Respondent to have disclosed this problem to them does not convince us because there is no evidence whatsoever that Respondent was ever aware about this structural defect in his throat. On the other hand, it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. From the evidence on record, we note that though the

Appellants did get the Respondent examined by an ENT specialist, thereafter once the problem was diagnosed he was not treated for the same but discharged. It was under these circumstances that Respondent had to seek treatment for his problem at the

Calcutta Medical Research Institute fromDr.Milon Kumar Chakraborty. We also note from the affidavit filed in evidence by the above Doctor that the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute and that even after his treatment at Calcutta Medical Research Institute, some problems continued. Keeping in view the above facts, we agree with the finding of the State Commission that the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent’s throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent’s throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact.

9. In view of the above facts, we agree with the order of the State Commission that

Appellants did not exercise the reasonable degree of care and caution in the treatment of the Respondent which amounts to medical negligence and deficiency in service as is well settled by a number of judgments of this Commission as also ofHon’ble Supreme

Court of India, including in Indian Medical Association Vs. V.P. Shantha [(1995) 6

SCC 651]. We, therefore, uphold the order of the State Commission directing the

Appellants to jointly and severally pay the Respondent a total amount of Rs.1,57,023/-.

10. Counsel for the Appellants state that Appellants had deposited a total sum of

Rs.85,000/- i.e. Rs.35,000/- with this Commission at the time of filing of present appeal and Rs.50,000/- with the State Commission in compliance of this Commission order

dated 08.07.2009. If that be so, this Commission and the State Commission are directed to release the aforesaid amounts with accrued interest to the Respondent. The

Appellants are directed to jointly and severally pay the Respondent the balance amount within a period of six weeks from the date of this order.

Mukesh

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER



(Against the order dated 4.01.2011 in Misc. Appl. No. 688/2010 in Complaint No. 37 /

2010 of State Consumer Disputes Redressal Commission, Haryana)

DLF Limited, DLF Centre, Sansad Marg, New Delhi – 110001. Through Ms. Poonam

Madan Vice – President (Legal), M/s. DLF Limited

... Petitioner

Versus

Mridul Estate (Pvt.) Ltd., H-108, Connaught Place, New Delhi – 110001 Through its

Director, Shri Kamal Kumar Singh

… Respondent


(Against the order dated 17.03.2011 in No. MA-259/2010 in CC/48/10 of State

Consumer Disputes Redressal Commission, West Bengal)

South City Projects (Kolkata) Ltd. Registered office at 375, Prince Anwar Shah Road,

Kolkata – 700068

... Petitioner

Versus

Nawal Kishore Banka, 24-A, Shakespeare Sarani, 2

Kolkata – 700017 nd Floor, Room No. 6,

… Respondent


(Against the order dated 2.11.2012 in Misc. Appl. No. 262/2012 in Complaint No. 8 /

2012 of State Consumer Disputes Redressal Commission, West Bengal)

DLF Limited, DLF IT Park DLF Building, Ground Floor, Tower 2, Major Arterial Road,

Block AF, New Town Rajarhat, Kolkata Through its Auth. Signatory

... Petitioner

Versus

Paradip Cargo Carriers Pvt. Ltd. Through its Managing Director, Mr. Bijay Kumar

Kandoi, S/o Late Sh. Manmal Kandoi, At: Professorpara, Cuttack -753 003 (Odisha)

… Respondent

MISCELLANEOUS APPLICATION NO. 210 OF 2011

(For reference of the matter to arbitration)

IN

CONSUMER COMPLAINT NO. 183 OF 2010

Atlanta Systems Pvt. Ltd. Through Mr. Sandeep Narula Regd. Office M-135, Second

Floor, Opp. Super Bazaar Connaught Place, New Delhi

– 110001.

… Complainant

Versus

1. Negolice India Ltd. Through Mr. Mahesh Bhagchandha E-13/29, Harsha Bhawan

Connaught Circus New Delhi – 110001

2. Delhi Development Authority, Through Vice-Chairman, Vikas Sadan, ,

New Delhi.

…. Opposite Parties


(For reference of the matter to arbitration)

IN


1. Mr. Rohit Shroff, S/o Mr. Rajan Shroff

2. Mrs. Sushmita Shroff W/o Mr. Rohit Shroff Both R/o 6B, Keyatalla Road, Kolkata –

700029.

3. Mrs. Enakshi Tagore W/o Late S.N. Tagore

4. Mr. Rudrendra Nath Tagore, S/o Late S.N.

Both R/o “Sunflower Garden” Flat no.

1D, 74, Topsia Road, Kolkata – 700046.

Complainant No. 2 to 4 are represented by complainant no.1, Mr. Rohit Shroff, who is the Special Power of Attorney holder of all the other three complainants.

….. Complainants

Versus

Renault Developers Private Limited Office at 43 / 3, Hazra Road, P.S. Ballygunge,

Kolkata – 700019

…. Opposite Party

Interim Application NO.1579/2013

(For withdrawal filed by Complainant No.51)

And Interim Application No. 465 OF 2013 (For Deletion of name)

IN


Aghore Bhattacharya & Ors. All the complainants are represented by their constituted

Attorney, Shri Ranjeet Shankar Guha, S/o Late Major Subodh

Chandra Guha of 7K, Cornfield Road, Kolkata

– 700019

….. Complainants

Versus

Rosedale Developers Pvt. Ltd. Rep. by its Managing Director, SHARCHI

TOWER, 3 rd Floor (West Block), 686, Anandapur, Kolkata

– 700107.

…. Opposite Party


(For referral of matter to Arbitration)

IN


1. Mr. Vivek Jain

2. Mrs. Khyati Goenka

Both R/o

40, Paras Nath Street,

Muzaffar Nagar, U.P. 251002.

3. Mr. Shrinivas Mishra

4. Mrs. Nupur Trivedi

Both R/o

D-313, Sungrace, Raheja Vihar,

Chandivali,

Mumbai

5. Mr. Aarkesh Anand

6. Mr. Prashant Anand

Both R/o

B-1/197, First Floor,

Janakpuri, Delhi – 110058.

7. Mr. Dinesh Kumar Agrawalla

8. Mrs. Rupam Tiwary

R/o Flat No. 501,

HUDDA COGHS PLOT No. 1,

Sector – 56,

Gurgaon Haryana

….. Complainants

Versus

1. M/s. Unitech Ltd.

Registered Office at

6, Community Centre,

Saket, New Delhi

– 110017.

2. ICICI HFC Ltd.

Home Loans Division,

SCO

– 18 & 19, 2 nd Floor,

HUDA Shopping Complex,

Sector – 14,

Gurgaon

…. Opposite Parties

INTERIM APPLICATION NO. 2 OF 2011

(For referral of matter to Arbitration)

IN


1. Mr. Vinod Kumar

2. Mrs. Anjali Kumar

3. Ms. Madhuban Kumar

Through her Attorney,

Mr. Vinod Kumar.

All R/o House No. 778,

Sector – 17, Faridabad

Haryana ….. Complainants

Versus

Uppal Housing Limited,

(formerly known as Uppal Housing Private Limited)

Having its Registered Office at

S-39 A, Panchsheel Park

New Delhi

– 110017

Through its Chairman

Mr. B.K. Uppal …. Opposite Party

INTERIM APPLICATION NO. 305 / 2013

(For referral of the matter to arbitration)

IN


1. Sheikh Mohammed Naqi and another

Versus

DLF Commercial Developers Ltd.

Complainants

…. Opposite Party


(FOR DISMISSAL OF COMPLAINT)

IN


1. Mrs. Anjana Arora and another

Versus

1. M/s. Unitech Ltd. And ICICI HFC Ltd.

… Complainant

…. Opposite Parties


(FOR DISMISSAL OF COMPLAINT) IN CONSUMER COMPLAINT NO. 273 OF 2011

… Complainant 1. Mr. Hitendra Mahajan and another

Versus

1. M/s. Unitech Ltd. And ICICI HFC Ltd.

AND

Opposite Parties


1. Ajay Vaishnavi & another

Versus

… Complainants

1. M/s. Unitech Ltd.

…. Opposite Parties

BEFORE: -

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER


IN RP/412/2011

For the Petitioner : Mr.Sudhir Nandrajog, Sr.Advocate with

Mr. Pritpal Nijjar, Mr.Pranavakshar Kapur and

Mr.Dhiraj Philip, Advocates

For the Respondent : Mr.Neeraj Kumar Jain, Sr. Advocate with

Mr. Anil Kumar, Mr. Rajiv Kapoor,

Mr.Avinash Mishra, Advocates with Mr.Santosh Paul,

Advocate as amicus curiae

IN RP/1301/2011

For the Petitioner : Mr. Aman Ahluwalia and Mr. Sumit Atri,

Advocates

For the Respondent : Mr. Rakesh Sinha and

Mr. Pawan Kumar Bansal, Advocates

IN RP/1238/2013

For the Petitioner : Mr. H.L. Tiku, Senior Advocate and

Mr.Abhijeet Swarup, Advocate with him.

For the Respondent : NEMO

IN CC/183/2010

For the Complainant : Mr. Kirtiman Singh, Advocate

Mr. T. Singhdev, Advocate

For Opp. Party No.1 : Mr. Parveen Kr. Aggarwal, Advocate

For Opp. Party No.2 : NEMO

IN CC/188/2010

For the Complainants : NEMO

For the Opposite Party : Mr. Gaurav Malik and

Mr.Tarun Banga, Advocates

IN CC/240/2010

For the Complainants : Mr.Prabir Basu Mr. S. Banerjee

Mr. Sanjoy Kumar Ghosh, Advocates

For the Opposite Party : Mr. Sonjoy Ghose , Advocate

IN CC/254/2010


For Opp. Party No.1 : Mr. Sushil Bhashiya, Advocate

For Mr.Sunil Goel, Advocate

For Opp. Party No.2 : Mr.Abhinav Hansaria, Advocate

IN CC/58/2011


For the Opposite Party : Mr. Vijay Nair, Advocate

IN CC/110/2011

For the Complainants : Mr. M Salim, Advocate

For the Opposite Party : Mr. Archit Virmani, Advocate

IN CC/241/2011


For Opposite Party No.1: Mr. Sushil Bhashiya, Advocate


IN CC/273/2011


For Opposite Party No.1 : Mr. Sushil Bhashiya, Advocate


IN CC/226/2012


For the Opposite Party : Mr. Sushil Bhashiya, Advocate


PRONOUNCED ON: 13.05.2013

O R D E R

ASHOK BHAN, J., PRESIDENT

In this batch of cases (Revision Petitions and the Original Petitions) a two

Members Bench has referred the following question of law to a larger Bench for consideration and opinion:-

“ Whether the consumer fora constituted under the

Consumer Protection Act, 1986 are bound to refer the dispute raised in the complaint, once an application under section 8 of the Arbitration and Conciliation Act, 1996, is filed by the opposite party(ies) seeking reference of the dispute to an

Arbitral Tribunal in terms of valid arbitration agreement, despite the provisions of Section 3 of the Consumer

Protection Act, 1986. “

2. For the sake of brevity, we do not wish to recapitulate the facts of each case. The facts are taken from Revision Petition No. 412 of 2013.

3. The parties are being referred as per their original status as the Complainant and the Opposite Party.

FACTS:-

4. Complainant booked a flat No.810 with two parking spaces with the Opposite

Party DLF Ltd. in its building project at The Aralias, Gurgaon and an Apartment

Buyer’s Agreement was executed between the parties on 5.11.04. The apartment was sold by the opposite party to the Complainant on bare shell concept. The interior works were to be done by the Complainant with various facilities to be provided by the

Opposite Party on chargeable basis to complete the apartment. By letter dated

24.10.09, Opposite Party cancelled the allotment of apartment as the Complainant neither made the payment demanded by it nor did it undertake the interior work of the apartment. Complainant vide letter dated 05.12.09 requested the Opposite Party for withdrawal of the cancellation letter. Opposite Party offered to restore the allotment of apartment to the complainant subject to payment of Rs.1,09,63,010/- inclusive of holding charges, penalties and restoration charges. Complainant agreed to pay all amounts except restoration charges of Rs.59,00,000/- and accordingly sent a cheque of Rs.50,63,010/- to the Opposite Party which was sent back by it to the Complainant.

Complainant, being aggrieved, filed the complaint before the State Commission.

5. During the pendency of the complaint before the State Commission, Opposite

Party filed Misc. Application No.688 of 2010 under Section 8 of the Arbitration and

Conciliation Act, 1996 for referring the dispute for arbitration under clause 51 of the

Apartment Buyer’s Agreement dated 5.11.04.

6. State Commission by its interim order dated 04.01.11 dismissed the

M.A.No.688/2010 by observing as under:-

“ In the above cited P.Anand Gajapathi Raju’s case

(Supra), the applicant fulfilled the pre-requisite conditions of

Section 8. Another authoritative pronouncement of the

Hon’ble Apex Court in Branch Manager, Magna Leasing and

Finance Ltd. and Anr. Vs. Potluri Madhavilata and Anr.

(Supra) is also on the same footing wherein the pre-requisite conditions were fulfilled by the applicant for referring the matter to the arbitrator. But in the instant case the applicant/opposite party submitted itself to the jurisdiction of the State Consumer Commission to entertain and decide this complaint when it first applied for setting aside of exparte proceedings challenging the orders dated 30.07.10 and

17.8.2010 which were stayed by the Hon’ble National

Commission vide order dated 24.09.2010 with respect to

carrying out the repair work in the flat by opening the lock of the flat. Thus, keeping in view that the applicant/opposite party sought adjournment on one pretext or the other, sometime for compromise and sometime for setting aside ex-parte order and also filed revision petition before the

Hon’ble National Commission against the ex-parte order wherein stay was granted, it should show that the applicant/opposite party is bent upon delaying this case by moving one application and the other. In this view of the matter, there is no force in this application which is totally against the provisions of Section 8 of the Arbitration Act as well as law discussed above. “

7. Opposite Party, being aggrieved, filed the Revision Petition before this

Commission.

8. Ld. respective counsels appearing for the parties and the amicus curiae have been heard at length.

9. The main thrust of the submissions of the Ld. Counsel for the Opposite Parties is that the Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as the Arbitration Act of 1996) is peremptory in nature and it is obligatory on the part of the “judicial authority” to refer the parties for arbitration in terms of the arbitration clause in the agreement as the purpose of Section 8 of the Arbitration Act of 1996 is to make the arbitration agreement to be effective. That the mandate of

Section 8 of the Arbitration Act of 1996 comes into operation only after an application under subsection (1) is made by a party before the “judicial authority” before which an action is brought. There may be cases where despite existence of an arbitration agreement, the parties may get their dispute adjudicated from Consumer Fora or other judicial authorities. The reference of the matter to the arbitration is not automatic in case of existence of an arbitration agreement. But once an application under section 8 (1) of the Arbitration Act of 1996 is made by any party, the “judicial authority” has no discretion but to refer the parties to arbitration in view of the use of the word “shall” in the provision. That the bar of Section 8 of the Arbitration Act of

1996 if not strictly enforced it would create an anomalous situation wherein if the matter is not referred for arbitration, as there are counter-claims of the Opposite

Parties which the Consumer Fora cannot adjudicate and it would lead to two parallel dispute resolutions over the same/similar issue. That Section 5 of the Arbitration Act of 1996 further confirms the intention of the legislature that the provisions of the Act are intended to have over-riding effect excluding the judicial authorities to intervene in the matters governed by the provisions of the Arbitration Act. That the effect of

Section 8 of the Arbitration Act of 1996 is not to non-suit the consumer but to relegate him to a remedy which is already agreed upon. That if the Consumer Fora do not

refer the matter to the arbitrator in terms of Section 8, it would result in a peculiar situation where there may be contradictory orders from the Consumer Fora and the

Arbitrator. The Arbitrator is not denuded of his jurisdiction simply by virtue of a complaint having been filed before the Consumer Fora. If both proceedings are allowed to proceed simultaneously, the arbitral award would be enforceable as a decree of the court in terms of Section 36 of the Arbitration Act of 1996.

10. It is further contended by the Ld. Counsel for the Opposite Parties that the

Section 3 of the Consumer Protection Act, 1986 (hereinafter to be referred as the

“C.P Act”) provides an alternative remedy not in derogation of any provisions of any other law for the time being in force. That Section 3 of the C.P Act does not partially repeal or abrogate any law and, therefore, it can be safely presumed that the Section

3 of the C P Act does not abrogate Section 5 and Section 8 of the Arbitration Act of

1996. But inversely, the aforesaid proposition is not correct because the Section 5 as well as Section 8 of the Arbitration Act of 1996 clearly bars/ouster the jurisdiction of

“any judicial authority” which includes the Consumer Fora. In support of the proposition, Ld. Counsels for the Opposite Parties have placed reliance on the Seven

Judges Bench’s judgment of the Supreme Court in the case of S.B.P & Co. Vs. Patel

Engineering Ltd. & Anr. - (2005) 8 SCC 617 and the following other judgments:-

(i) Agri Cold Exims Ltd. Vs. Laxmi Knits & Woven & Ors.

– (2007) 3

SCC 686

(ii) Hindustan Petroleum Corporation Ltd. Vs. Pink City Midways

Petroleum

– (2003) 6 SCC 503

(iii) P. Anand Gajapathi Raju & Ors. Vs. P.V.G. Raju (Dead) & Ors. –

(2000) 4 SCC 539

(iv) Rashtriya Ispat Nigam Ltd. & Anr. Vs. Verma Transport Co. – (2006)

7 SCC 275.

(v) Kalpana Kothari Vs. Sudha Yadav ( 2000) 4 SCC 539.

(vi) Branch Manager, Magma Leasing and Finance Ltd. & Anr. Vs.

Potluri Madhavilata & Anr. ( 2009) 10 SCC 103

11. It is also contended by them that the decision of the Supreme Court in the case of National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy and Anr.

–

(2012) 2 SCC 506 does not consider and appreciate the distinction between Section

34 of the Arbitration Act, 1940 and Section 8 of the Arbitration Act of 1996. That it has failed to consider the earlier decisions of the Supreme Court which laid down that

Section 8 is mandatory in character and the judicial authorities are bound to refer the matter to arbitration if any application is filed in a timely manner. That the decision is per incuriam and not binding.

12. Ld. Counsels appearing for the Complainants on the other hand contend that the

Consumer Fora have jurisdiction to entertain and decide the complaints filed before it despite the existence of an arbitration clause in the agreement executed between the parties to the complaint and it is not open to the opposite party to seek reference of the dispute to the Arbitral Tribunal as the Section 3 of the C P Act provides a remedy in addition to the consentient arbitration which can be enforced under the Arbitration Act or in a civil suit. That the Hon’ble Supreme Court has repeatedly held that the judicial authorities under the C P Act are at liberty to proceed with the matter in accordance with the provisions of the Act and it is not obligatory on their part to refer the parties to arbitration proceedings pursuant to a contract entered into between the parties. That the Parliament was fully and duly aware of the provisions contained in the C.P Act and in particular Section 3 of the Act which provides that provisions of the CP Act are in addition to and not in derogation of the provisions of any other law for the time being in force.

13. It is further contended by them that the Legislature by enacting the C.P Act wanted to create an additional avenue for having speedy redressal of the grievances of the consumer in respect of a consumer dispute either arising from a defect in the goods purchased as per Section 2(1)(f) of the said Act or for deficiency in the service as per

Section 2(1)(g) of the said Act and even if it is found that the dispute between the parties is covered by the arbitration agreement and such dispute can be resolved by arbitration as per the said agreement, still a party to such contract cannot be precluded from seeking remedy under the C.P. Act in addition to the Forum available to the parties for resolution of their dispute by way of arbitration.

14. In support of their contentions, Ld. Counsels appearing for the Complainants placed reliance on the following judgments of the Supreme Court:-

(i) Lucknow Development Authority v. M.K. Gupta - (1994) 1 SCC 243,

(ii) Fair Air Engineers (P) Ltd. vs. N. K. Modi

– (1996) 6 SCC 385

(iii) Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC 294

(iv) State of Karnataka vs. Vishwabharathi House Building Cooperative

Society

– (2003) 2 SCC 412

(v) CCI Chambers Cooperative Housing Society Limited Vs. Development

Credit Bank Limited – (2003) 7 SCC 233

(vi) Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs.

M. Lalitha (2004) 1 SCC 305,

(v) H.N. Shankara Shastry Vs. Assistant Director of Agriculture,

Karnataka- (2004) 6 SCC 230

(vi) Trans Mediterranean Airways Vs. Universal Exports and another-

(2011) 10 SCC 316 and in particular the recent judgment of the Supreme Court in National Seeds

Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr. – (2012 ) 2 SCC 506 wherein the Hon’ble Supreme Court after taking into consideration the provisions of the Section

8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act has held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that

Act is in addition to and not in derogation of the provisions of any other law for the time being in force. Supreme Court has also held that the complaint filed by a consumer before the Consumer Fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator.

15. Mr. Santosh Paul, Advocate, amicus curiae, based on certain foreign and Indian decisions made submissions to advance the proposition that the provisions of

Consumer Protection Act, 1986 are in addition and not in derogation of the provisions of

Arbitration and Conciliation Act, 1996. His first submission is that the Consumer

Protection Act, 1986 has itself carved out a jurisdiction for Redressal Forums to redress the grievance of consumers in regard to specific disputes, i.e., defect in goods, deficiency in certain service(s) rendered by the service provider and adoption of restrictive and or unfair trade practice by certain service provider and, therefore, those matters cannot be referred to Arbitration. In other words, his submission is that no arbitration agreement can be entered by the parties for the settlement of the disputes of the above referred nature. In this regard he has relied upon the following passages from the book titled “Mustil & Boyd Commercial Arbitration, Second Edition” Page No.

149 & 151 & 152 reads as under:-

“In practice therefore, the question has not been whether a particular dispute is capable of settlement by arbitration, but whether it ought to be referred to arbitration or whether it has given rise to an enforceable award. No doubt for this reason,

English law has never arrived at a general theory for distinguishing those disputes which may be settled by

arbitration from those which may not. The general principle is, we submit, that any dispute or claim concerning legal rights which can be the subject of an enforceable award, is capable of being settled by arbitration. The principle must be understood, however, subject to certain reservations.

”

“In Soleimany V Soleimany (1999) QB 785, the Court of Appeal suggested that there may be cases where on grounds of public policy disputes under certain types of contract cannot be referred to arbitration, e.g., trading with the enemy or a partnership in crime.”

16. Mr. Paul then carved out the salient features of Consumer Protection Act, 1986 as under:-

“1. The consumer Protection Act, 1986 in its preamble states as follows:-

An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer’s disputes and for matters connected therewith.

2.

The Consumer Protection Act, 1986 comes out “wrongs” for which an elaborate redressal mechanism has been set up. The wrongs are as follows:a. Deficiency of Notice (Section 2(f)) b. Defect (Section 2(g)) c. Restrictive Trade Practice 2 (nnn) d. Unfair Trade Practice 2 (r)

17. It is the submission of the amicus curiae that for the redressal of the wrongs, an elaborate redressal mechanism has been set up at the District, State and National level to deal with the matters relating to defect in goods within the meaning of section 2 (f), deficiency in service under section 2(g), restrictive trade practice section 2(nnn) and unfair trade practice section 2(r) of the Act. That by establishing the consumer disputes redressal fora, the legislature has provided a special remedy for the redressal of the said wrongs which is in addition to the remedy already provided under the Code of Civil

Procedure and the MRTP Act. According to him, the remedy provided under the

Consumer Protection Act, 1986 is a special remedy with the object of redressal of the grievance of the affected consumers in an expeditious and non-expensive manner. That by the enacting the Arbitration and Conciliation Act, 1996, the legislature has not taken away the said remedy.

18. Preamble to the C.P. Act shows that this legislation is meant to provide for better protection of the interests of consumers and for that purpose to make provision for

establishment of consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith. The salient features of the

Consumer Protection Bill were to promote and protect the rights of consumers such as

:-

(a) the right to be protected against marketing of goods which are hazardous to life and property;

(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;

(c) the right to be assured, wherever possible, access to an authority of goods at competitive prices.

(d) the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;

(e) the right to seek Redressal against unfair trade practices or unscrupulous exploitation of consumers, and

(f) right to consumer education

18. Section 2 of the C.P. Act contains the definition of various terms. Clause (d) and

(f) read as under:-

“2 (d) ‘consumer’ means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person but does not include a

person who avails of such services for any commercial purpose;

Explanation.

—For the purposes of sub-clause (i), ‘commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment; (The explanation was substituted w.e.f.

15.3.2003 by Consumer Protection (Amendment) Act 62, 2003)

(f)

‘defect’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods

19. Section 3 declares that the provisions of the C P Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Section 9 provides for establishment of the Consumer Forums at the District, State and National level. Section 11 relates to jurisdiction of the District Forum. Section 12 prescribed the manner in which the complaint can be filed before the District Forum and the procedure required to be followed for entertaining the same.

20. The scope and reach of the C.P. Act has been considered by the Hon’ble

Supreme Court in following judgments:-

(i) Lucknow Development Authority v. M.K. Gupta - (1994) 1 SCC 243,

(ii) Fair Air Engineers (P) Ltd. vs. N. K. Modi

– (1996) 6 SCC 385

(iii) Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC 294

(iv) State of Karnataka vs. Vishwabharathi House Building Cooperative

Society

– (2003) 2 SCC 412

(v) CCI Chambers Cooperative Housing Society Limited Vs. Development

Credit Bank Limited – (2003) 7 SCC 233

(vi) Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs.

M. Lalitha (2004) 1 SCC 305,

(v) H.N. Shankara Shastry Vs. Assistant Director of Agriculture,

Karnataka- (2004) 6 SCC 230

21. In M Lalitha’s case (supra) two judges Bench of the Supreme Court noticed the background, the object and reasons and the purpose for which the C.P. Act was enacted. After referring to its earlier judgments in M.K. Gupta’s case (supra) and N.K.

Modi’s case (supra) , the Hon’ble Supreme Court observed as under:-

“The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer

Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the

Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for noncompliance with their orders.”

22. In Kishore Lal Vs. Chairman, Employees’ State Insurance Corporation (2007)

4 SCC 579, the Supreme Court held that the jurisdiction of the Consumer Fora should not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of the civil court or any other forum as established under some enactment. The Court went to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer

Forum to adjudicate upon the dispute could not be negated. The relevant observations read as under:-

“The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer

Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in

regard to the same subject, the jurisdiction of the Consumer

Forum would not be barred and the power of the Consumer

Forum to adjudicate upon the dispute could not be negated.”

23. The definition of ‘consumer’ contained in Section 2 (d) of the C.P. Act which is reproduced in the earlier part of this order is very wide. Sub Clause (i) of the definition takes within its fold any person who buys any goods for a consideration paid or promoted or partly paid and partly promised, or under any system of deferred payment.

It also includes any person who uses the goods though he may not be buyer thereof provided that such use is with the approval of the buyer. The last part of the definition contained in Section 2 (d) (i) excludes a p erson from the definition of ‘consumer’ who obtains the goods for resale or for any commercial purpose. By virtue of the explanation which was added by Amendment Act 62 of 2002, it was clarified that the expression

‘commercial purpose’ used in sub clause (i) does not include use by a consumer of goods bought and used by him for the purpose of earning his livelihood by means of self-employment.

24. We will now notice some of the provisions of the Arbitration and Conciliation Act,

1996. Section 7 of the Arbitration Act of 1996 which defines Arbitration Agreement reads as under:-

“7. Arbitration agreement.-

(1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in:-

(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.”

25. Section 8 of the said Act reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.-

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

26. Section 5 of the said Act reads as under:-

5. Extent of judicial intervention

Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

27. Section 8 of the Arbitration Act of 1996 is analogous to Section 34 of 1940 Act which reads as under:-

“34. Power of Court, where arbitration agreement is ordered not to apply to a particular difference, to order that a provision making an award a condition precedent to an action shall not apply to such difference: Where it is provided (whether in the arbitration agreement or otherwise) that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the Court, if it orders (whether under this Act or any other law) that the agreement shall cease to have effect as regards any particular difference, may further order that the said provision shall also cease to have effect as regards that difference.

”

28. A comparative study of the two sections will bring out as under:-

Section – 8 Arbitration and Section 34 Arbitration Act, 1940

Conciliation Act, 1996

(2) A party to the agreement brings an action in the court against the other party.

(1) There is an arbitration agreement.

(1) There is an arbitration agreement.

(2) Any Party commences any legal proceedings against any other party to the agreement.

(3) Subject matter of the action is the same as the subject matter of the arbitration agreement;

(3) Claiming in respect of any matter against any other party to the agreement.

(4) The other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute.

(4) The other party applies to stay the proceedings at any time before the filing of the Written statement or taking any other steps in the proceedings.

29. In N.K. Modi’s case (supra) , the 2-Judge Bench of the Supreme

Court after taking into consideration the provisions of the C.P Act, the Arbitration Act of

1996 and Arbitration Act, 1940 held as under:

“The provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that

Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force.

It is true, as rightly contended by Shri Suri, that the words “in derogation of the provisions of any other law for the time being in force” would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the

Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil

Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the

Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State

Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings

pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”

(emphasis supplied)

30. In Skypay Couriers Ltd.’s case (supra) the Supreme Court again in the context of Arbitration Act of 1940 observed as under :-

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer

Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.

”

31.

In Trans Mediterranean’s case (supra) , the Hon’ble Supreme Court observed as under :-

“In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy.”

32. In

N.K. Modi’s case (supra)

and

Skypay Courier’s Case (supra) , the Hon’ble

Supreme Court in the context of the provisions of the C.P. Act and in particular Section

3 of the Act and Arbitration Act of 1940 has held that the Consumer Fora created under the C.P. Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to the Arbitration proceedings pursuant to an

Agreement entered into between the parties. Ld. Counsel appearing for the Opposite

Parties submitted before us that these judgments would not be applicable as they are in the context of the Arbitration Act of 1940. That the Arbitration Act of 1996 has brought out fundamental changes and in view of the Arbitration Act of 1996, it is mandatory on

the part of the Judicial Authorities to refer the parties to the arbitration. That the mandate of Section 8 of Arbitration Act of 1996 would be defeated if the matter is not referred to arbitration in the cases where the parties have agreed to refer the dispute to the Arbitration. We do not find any substance in this submission as well. Hon’ble

Supreme Court in Madhusudhan Reddy’s case (supra) after posing the following questions for its consideration in para 31 of the judgment:-

“The Ld. Counsel relied upon Section 8 of the Arbitration and

Conciliation Act, 1996 and argued that in view of the arbitration clause contained in the agreements entered between the appellant and the growers, the latter could have applied for arbitration and Consumer Forums should have non-suited them in view of Section 8 of the Arbitration and

Conciliation Act, 1996.” held that the complaint filed under the C.P. Act would be maintainable and the consumer cannot be denied the relief by invoking the jurisdiction of Section 8 of the

Arbitration Act of 1986. That Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition and not in derogation of the provisions of any other law for the time being in force. The relevant observations of the Supreme Court contained in para 66 of this judgment read as under:-

“The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the

Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act,

1996 Act. Moreover, the plain language of Section 3 of the

Consumer Act makes it clear that the remedy available in that

Act is in addition to and not in derogation of the provisions of any other law for the time being in force

.”

33. Faced with this, Ld. Counsel appearing for the Opposite Parties contended that in this case, the Hon’ble Supreme Court did not take into consideration the decision of the

Seven Judges Bench in the

S.B.P & Co.’s case. We do not find substance in this submission as well. In

Madhusudhan Reddy’s case (Supra)

, Supreme Court after taking into consideration the background, objectives and reasons behind the enactment of C.P. Act, juxtapositioning the provisions of the C.P. Act and the Arbitration Act of

1996 (Section 3 of the C.P. Act and Section 8 of the Arbitration Act of 1996) held that the complaint filed by a consumer under the C.P. Act would be maintainable and the relief cannot be denied by invoking the jurisdiction of section 8 of the Arbitration Act of

1996. We are bound to follow the law laid down by the Supreme Court. The judgment is binding precedent.

By establishing the Consumer Disputes Redressal Forums, the Legislature has p rovided special remedy for the redressal of the grievances of “small consumers” who buy the goods or avail of services for their personal purpose. Persons who have bought the goods or availed of services for commercial purposes have been specifically exclu ded from the definition of ‘consumer’ except where the goods have been bought or services availed of by a small consumer for earning his livelihood by way of self- employment. Remedy provided under the C.P. Act is a special remedy with the objective of redressal of the grievances of the affected consumers in an expeditious and non-expensive manner. If the small consumers are relegated to the Alternative Dispute

Resolution (ADR) mechanism of arbitration, the remedy provided under the C.P. Act would become illusionary. It would be neither expeditious nor in-expensive. It would defeat the very purpose of enactment of the C.P. Act.

34. Another aspect in relation to the consumer disputes which has to be taken note of is that most of the complainants /consumers sign the agreement containing an arbitration clause under duress(instance is taken from Builder’s agreement) because the other party which is in a dominating position insists for it, else they would not enter into builders’ agreement. In most of the cases, the builder who is in a dominating position reserves the right to appoint Sole Arbitrator to himself and the Arbitrator so appointed in most of the cases is the officer of the builder from whom it is almost impossible to expect an impartial and fair award. If the builder is allowed to have resort to the arbitration agreement contained in the Builder’s agreement, going by the prevalent practice and little experience we have in the matters, the consumer would never be able to redress his genuine grievance. Legislature by providing the additional remedy under Section 3 of the C.P. Act has tried to take care of such a situation to redress the grievances of the small consumers.

34. Respectfully following the view taken by the Hon’ble Supreme Court in catena of judgments and in particular in Madhusudhan Reddy’s case (supra) , the question referred is answered in negative, i.e. in favour of the Complainants and against the

Opposite Parties. It is held that the Consumer Fora constituted under the C.P Act are not bound to refer the dispute raised in the complaint on an application filed u/s 8 of the

Arbitration Act of 1996 seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties.

35. Revision Petition are remitted back to the State Commission to decide the same on merits in accordance with law. Original Petitions be listed before the respective

Benches of this Commission as per current roaster for disposal in due course.

36. Before parting with the matter, we would like to place on record our deep sense of appreciation for the assistance rendered by the amicus, Mr. Santosh Paul,

Advocate. We direct the Registry to disburse a sum of Rs.25,000/- to Mr. Paul as out of pocket expenses from the NCDRC Legal Aid Account.

….. . . . . . . . . . . . . . .

(ASHOK BHAN J.)

PRESIDENT

. . . . . . . . . . . . . . . .

(VINEETA RAI)

MEMBER

. . . . . . . . . . . . . . . .

(S.M. KANTIKAR)

MEMBER

YD/*



(From the order dated 25.01.2011 in First Appeal No. 988/2009 of Punjab State

Consumer Disputes Redressal Commission)

Amarjeet Kaur w/o Mahinder Singh, r/o 147, Heera Bagh, Rajpura Road, Patiala

(Punjab) ... Petitioner

Versus

1. Atul Auto Limited 8-B, National Highway, near Microwave Tower, Shapar Verval,

District Rajkot (Gujarat) through its Manager

2. Manglam Autos, Adj. Kartar Singh Oil Co. Rajpura Road, Patiala through its partner

3. HDFC Bank Ltd., Leela Bhawan, Patiala through its Branch Manager

4. Khushbu Auto Finance Ltd., Jimmy Tower, opposite Swami Narayan

Gurukul Gondal Road, Rajkot (Gujarat)

…. Respondent(s)


(From the order dated 25.01.2011 in First Appeal No. 919/2009 of Punjab State Consumer Disputes Redressal Commission)

Rajinder Pal s/o Krishan Chand, R/o village Manjoli Kalan, P.O. Panjola, Tehsil & Distt.

Patiala (Punjab)

... Petitioner

Versus







…. Respondent(s)


(From the order dated 25.01.2011 in First Appeal No. 949/2009 of Punjab State Consumer Disputes Redressal Commission)

Darshan Pal s/o Roop Chand, r/o village Manjoli Kalan, P.O. Panjola, Patiala

(Punjab) ... Petitioner

Versus







…. Respondent(s)

BEFORE





For the Petitioner(s) Mr. Siddharth Sengar, Advocate as Amicus Curiae


O R D E R


The three revision petitions as detailed in the headnote have been filed against three separate orders, all dated 25.01.2011 passed by the Punjab State Consumer

Disputes Redressal Commission (for short the ‘State Commission’) in FA No. 988/2009,

“Amarjeet Kaur versusAtul Auto Limited & Ors.”, FA No. 919/2009, “Rajinder Pal versus Atul Auto Limited & Ors .”, FA No. 949/2009, “Darshan Pal versus AtulAuto

Limited & Ors .”, vide which, while allowing appeals, the three orders passed by the

District Forum Patiala, all dated 25.11.2008 were set aside and complaint no. 133 of

5.04.2007 filed by Amarjeet Kaur, complaint no. 191 of 15.05.2007 filed by Rajinder Pal and complaint no. 199 of 17.05.2007 filed by Darshan Pal, were allowed. Since the facts and circumstances involved in the three cases are almost similar, this single order shall dispose of these three revision petitions and a copy of the same be placed on each file.

2. The brief facts of these cases are that in each of these three cases, the complainant purchased a three-wheeler auto-rikshaw from respondent no.

2, Manglam Auto in the months of July / August 2006. The respondent no. 1, Atul Auto is stated to be the manufacturer of these vehicles. The vehicles were financed by respondent no. 4, Khushbu Auto Finance Ltd. and there is a hire-purchase agreement with respondent no. 3, HDFC Bank Ltd. It has been stated in each of three complaints that just two to three months after the purchase of the vehicle, it developed some fault in the engine. The complainants took the vehicles to respondent no. 2, who told them that the engine of the vehicles had ceased. The respondent no. 2 asked them to leave the vehicle with them and promised that he shall replace the engine after getting the same from Gujarat and he charged a sum of Rs.1,522/- from them as fare. The vehicle was returned after 12 days with changed engine. However, after one or two months, the engine of the vehicle again developed problem and it was again taken to respondent no.

2, who promised that he shall replace the engine again. The vehicle was again returned after putting some old engine, but the vehicle again developed problem after some time. This time, when the vehicle was taken to respondent no. 2 and it was requested that the engine should be replaced and defects should be removed, the respondent no.

2 replied that nothing could be done, since there was a major defect in the engine. In the case of Rajinder Pal and Darshan Pal, it has been stated that a sum of Rs.1522/- as fare was charged from them by respondent no. 2 second time as well, but no receipt was issued for having received the amount of Rs.1522/- on both the occasions. The three complainants then filed complaints before the District Forum and the said Forum after taking into account the evidence of the parties, came to the conclusion that the complainant had not been able to prove any manufacturing defect in the vehicle or any deficiency in service on the part of the respondents and hence the complaints were ordered to be dismissed. It was also observed that the warranty period of nine months had already expired. Hence the OPs were not responsible for removing the defects of the vehicle. Appeals were filed against the orders of the District Forum which were accepted by the State Commission and as per orders passed on 25.1.2011 in all three cases, the orders passed by the District Forum were set aside and respondent no. 1 & 2 were directed to pay Rs.50,000/- as compensation to the petitioner/appellant and

Rs.5,000/- as cost of litigation. It was also stated that since the vehicle in question, were on hire-purchase agreement with respondent no. 3, HDFC Bank and were

financed by respondent no. 4, Khushbu Auto Finance Limited, the said amount of compensation should be given to respondent no. 3 & 4 for adjusting towards the payment of instalment of the vehicles, in question. The petitioners/complainants have filed the present petitions saying that the order of the State Commission should be set aside and they should be allowed a total compensation of Rs.5,00,000/- from respondent no. 1 & 2 for the cost of the vehicle, mental pain / agony, advocate fees, parking fee, loss of rent etc.

3. At the time of admission hearing before us, the learned counsel for the petitioners stated that the facts and circumstances of the case made it clear that the petitioners had suffered a lot on account of the fault of respondent no. 1 & 2. It was a clear cut case of deficiency in service as well, because the manufacturing defects in the vehicles had been there since the beginning and had caused lot of mental pain/agony to the petitioners. The revision petitions should, therefore, be accepted and the relief claimed be awarded to the petitioners.

4. We have examined the entire material on record and carefully gone through the orders passed by the State Commission and District Forum. It has been clearly brought out in the orders passed by the State Commission that the vehicles developed engine problem during the warranty period itself. The respondent no. 2 did try to rectify the defects in the engine and even the engines were changed two times, but it did not give satisfactory result. It is also stated that the petitioners have been initially paying instalments for repayment of loan to the finance company, but they could not pay the remaining instalments, as the said vehicle proved defective and stopped running. The

State Commission has observed that the replacement of engine or defective parts at this stage shall not serve any purpose because a lot of time had passed since the purchase of the vehicles. The State Commission ordered that a sum of Rs.50,000/- as compensation and Rs.5,000/- as cost of litigation should be given jointly and severally by respondent no. 1 & 2 and this amount should be given to the respondent no. 3 & 4 for adjustment towards the payment of instalments of the vehicles, in question. Looking to the price paid for auto (Rs.1,10,000/-) grant of Rs.50,000/- as compensation cannot be said to be on lower side, particularly when engine has been replaced twice by respondent. We do not find any illegality, irregularity or jurisdictional error in the said orders passed by the State Commission and the same have been passed after making

a detailed analysis of the facts and circumstances of the case. We, therefore, find no ground for interference in the said orders and the same are confirmed. The present revision petitions are ordered to be dismissed at admission stage, with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/


REVISION PETITION NO. 225 OF 2011 with

I.A. NO.1 OF 2011 (For Stay)


of the State Commission, Himachal Pradesh, Shimla )

The New India Assurance Company Ltd Main Bazar, Palampur, District Kangra, H.P.,

Through the Manager The New India Assurance Company Ltd. Regional Office No.1,

Level-V Tower,-II, 124, Jeewan Bharati Building, Connaught Circus, New Delhi

–

110001. ..Petitioner

Versus.

1. M/s. R.B. Traders, Maranda P.O. Marnada, Tehsil, Palampur District Kangra, H.P.

Through its Proprietor, Shanti Sharma son of Sh. Shesh Ram, V.P.O. Maranda,

Tehsil Palampur, Distt. Kangra, H.P.

2. State Bank of India, (ADB) Branch Palampur, H.P.,

…..Respondents

BEFORE:



For the Petitioner : Mr. A.K. Raina, Advocate

For the Respondent no.1 : Mr. Ram Kawar, Advocate

For the Respondent no.2 : Mr. Vinay Sharma, Advocate


ORDER


In this revision petition there is challenge to order dated 1.10.2010 pased by H.P.

State Consumer Disputes Redressal Commission, Shimla (for short, ‘State

Commission’) vide which appeal filed by Respondent no.1/complainant was allowed.

2. Brief case of the respondent no.1 is that he is sole Proprietor of M/s. R.B.

Traders Maranda P.O. Maranda, stock of which was insured with petitioner /opposite party no.1 for a sum of Rs.13 lakh.. It is stated that respondent no.1 has CC Limit of

Rs.10,00,000/- with respondent no.2. It is stated that during subsistence of the

Insurance Policy, on 5.3.2006 during night, all of a sudden a fire broke out in the business premises of the respondent no.1 and whole of the stock of the shop got burnt.

Due information was given to the petitioner and respondent no.2. It is stated that after completing necessary formalities, respondent no.1 submitted his claim before petitioner, who on 29.5.2006 handed over a consent letter to respondent no.1 and asked him to

accept a sum of Rs.7,72,627/- net loss, as assessed by the Surveyor, towards full and final settlement of his claim. Upon this, petitioner gave three different consent letters.

Thereafter, respondent no.1 gave consent letter dated 30.5.2006 and stated that he is ready to accept the claim of Rs.7,72,623/- under protest only and will press for rest of the claim of Rs.5,27,377/- plus interest. The grievance of respondent no.1 is that petitioner has not paid the insured amount despite the fact that all the stock lying the shop were insured with petitioner for a sum of Rs.13,00,000/-.

Thus, petitioner has committed deficiency in service.

3. Petitioner in its written version stated that claim made by respondent no.1 was duly processed, investigated, verified, assessed, approved and paid to him, vide chequeNo.242738 dated 27.7.2006 for a sum of Rs.7,67,623/-as per consent given in affidavit dated 31.5.2006 after deduction of Rs.5,000/- which has been received earlier by respondent no.1 as ex-gratia payment from H.P. Govt. Since, respondent no.1 accepted the said amount without any protest, there is no deficiency in service on the part of the petitioner.

4. Respondent no.2/O.P. No.2 in its reply admitted that respondent no.1 had Cash

Credit limit with it. Other averments have been denied.

5. District Consumer Disputes Redressal Forum, Kangra (for short, ‘District Forum’) vide order dated 24.3.2009, dismissed the complaint of respondent no.1.

6. Being aggrieved, respondent no.1 filed appeal before the State

Commission, which allowed the same vide impugned order. State Commission in its order directed;

“ That respondent no.1 is entitled Rs.5,27,377/- + interest @ 9% per annum from the date of filing of the complaint, i.e. 20.9.2006 till its payment/deposit, whichever is earlier, besides Rs.10,000/- as cost of litigation in both the Courts, as well as compensation in this case quantified at Rs.50,000/-. Likewise respondent no.2 is directed to recast its account statement without charging interest or the amount due on 6/3/2005 till date as it has been held to be deficient in service as also negligent. Appeal is allowed in these terms.”


8. We have heard the arguments as advanced by learned counsel for petitioner as well as learned counsel for the respondents.

9. It is contended by learned counsel for the petitioner that claim was settled on the basis of assessment of loss made by the surveyor who after taken into account all the documents and record furnished by the insured has assessed the loss. Moreover, respondent no.1 had been associated with the assessment process. It is also

contended that respondent no.1 on his own free-will and consent, submitted an affidavit that he is accepting the amount of compensation as offered to him towards the full and final settlement of his claim and in pursuance thereof, he executed the discharge voucher which was signed by him with his free-will and consent, without any undue influence or coercion on the part of the petitioner. Under these circumstances, impugned order is liable to be set aside.

10. On the other hand, learned counsel for respondent no.1 contended that respondent no.1 informed the petitioner that he was ready to accept the claim of

Rs.7,72,623/- under protest and will press for rest of his claim. Therefore, signing of discharge voucher by respondent no.1, cannot be said to be without any undue pressure or coercion. In support, learned counsel relied upon the following judgments;

(i) Abhay Neelawarne Vs. New India Assurance Company Ltd.

II (2008) CPJ 261 (NC);

(ii) Branch Manager, New India Assurance Company Ltd. Vs.

M/s. Vimal Through its Proprietor

(Revision Petition No.1318 of 1998 decided on 27.05.1999 by this

Commission);

(iii) New India Assurance Company Ltd. Vs. Sushil Sharma and Another

(First Appeal No.216 of 2005 decided on 2 nd February, 2010 by this

Commission);

(iv) Ambica Construction Vs. Union of India,

(2006) 13 SCC 475 and

(v) Chairman & MD, NTPC Ltd. Vs. R.C.B. Contractors,

(2004) 2 SCC 663.

11. State Commission, while allowing the appeal held;

“ 9. On the basis of the material on record, we are of the view that the consent to receive Rs.7,72,623/-, cannot in the facts and circumstances of this case be said to be the result of free will as well as volition on the part of the appellant. At that point of time his position can be better imagined than explained, looking to the situation in which he was placed.

Reason being that he was in no win situation. After the fire, his stock-intrade was completely destroyed. Correspondence on the file suggests that as late as on 25.5.2006, appellant was in the dark. This is clearly made out from Annexure C.39, letter addressed by the appellant to the respondent No.1. This letter could not be contested on behalf of said respondent. On 30 th he was called upon to give consent for the receipt of

the said amount. He had specifically written vide Annexure C.44, as well as vide Annexure C.48 informing the respondent No.1, that he will press for the balance amount as detailed in these communications. We fail to understand that on what basis Insurance Company is trying to project, that with the payment of above referred amount to the bank, chapter stood closed.

10. Basing its defence solely on Annexures C.46, C.47, OP.1, OP.2 and

OP.3, does not justify the stand of the respondent No.1. No doubt, amount has been paid in terms of the assessment made by Shri Surinder Kumar Soni, Surveyor as assessed by him in his report,

Annexure C.28. In our opinion affidavits, Annexures C.47 and OP.1 cannot be said to be the result of free will and volition on the part of the appellant. Reason being that the situation in which the appellant was placed, compelled him per force of circumstances, as well as due to persistence of respondent No.1 to accept what was offered. It is a different matter that despite having given the affidavit, Annexure OP.1, appellant had on 30.5.2006 itself intimated the respondent No.1 by lodging his protest and also his right to claim the said amount when he sent the letter by registered post to respondent No.1. In this behalf, we are of the view that if the appellant had not signed the affidavit, God only knows whether he would have been given the amount that was offered and paid after expiry of about few days less than two months. Why this delay, Mr.

Sharma submitted that after receipt of the affidavit, Annexure OP.1, his client had to follow the procedure before releasing the amount. In the circumstances of this case, submission of Mr. Sharma that complaint was not maintainable is being noted to be rejected. Respondent No.1 is a high contracting party and appellant had no bargaining power when he was asked to give consent affidavit OP.1, for the receipt of the amount paid.

His position was to either accept this amount on the terms insisted or leave it,there was no other way out. It is a different matter the appellant lodged protest and sent communications. This is one aspect of the case.

Bank liability was mounting due to interest burden.

11. We are of the view, that even if it is held that the appellant had accepted the amount as was urged by Mr. Ratish Sharma, fact remains that before accepting the amount and even thereafter by numerous communications including Annexures C.50, C.51, legal notice Annexure

C.52, appellant was making a grievance against the offer made by respondent No.1.

12. Another very intriguing aspect of this case is, that on one hand there is affidavit of the appellant Annexure OP.1, on which the whole case of the respondent No.1 hinges upon, again vide Annexure C.57, respondent

No.1 called upon the appellant to submit the consent letter in prescribed wording which was handed over to him on 3.7.2006, i.e. Annexure C.42 when he visited the office of respondent No.1 on the said date. Where was the need if the affidavit had been submitted by the appellant, Annexure

OP.1 to have insisted upon the appellant to execute Annexure C.42. This in our opinion indicates that the respondent No.1 was aware that the appellant had not consented to receive the offered amount of his free will and volition.

13. Totality of the circumstances of this case indicates that every now and then respondent No.1 kept on pressurizing the appellant to agree and give consent for the receipt of the amount offered. Therefore, it cannot be said to be free from pressure as well as coercion upon the appellant by respondent No.1. We are further satisfied in this context that the matter was between two unequals and the status of the appellant was of a weak contracting party who had practically lost his stock-in-trade and was left high and dry. As such he had no option but for executing the affidavit in question. It is a different matter that we have not accepted the affidavit on its face value.

14. In our opinion, despite Annexure OP.1 affidavit of the appellant, the respondent No.1 cannot debar the appellant from instituting the complaint more especially when we have held that he was coerced as well as pressurized due to the situation in which he was placed due to loss of his stock-in-trade which was of much higher value than the insurance cover.

15. Now coming to the affidavits on which whole case of the Insurance

Company rests. From a perusal of affidavit, Annexure C-46, it is open to the naked eye that there is tampering in it, because something has been written in hand in it, there is white fluid put over some portion of it. This is

duly notarized on 31.5.2006. Annexure C.47 is the Photostat copy of affidavit in which there is no interpolation. This appears to be a carbon copy of Annexure OP.1. Where was the need for something being added/interpolated in hand and on some part of Annexure C.46 white fluid being put, learned Counsel for respondent No.1 could not satisfy us. In these circumstances, we have no hesitation in coming to the conclusion that no advantage can be taken by the respondent No.1 from the affidavit,

Annexure C.46, dated 31.5.2006. This is one aspect of the case.

16. So far Annexure OP.1 is concerned, in the circumstances we have already noted in detail in this order, we feel that no advantage can be taken for the view that we have taken of the circumstances whereunder it was executed.

State Commission further held;

19. As a financier bank, conduct of respondent No.2 in this case was most reprehensible. As a service provider it was rendering service to the appellant. And in lieu of such service, the bank was charging interest as a consideration from the appellant on one hand. On the other it is the admitted case of this respondent No.2, inpara 22 of its reply to the complaint that it acts as an agent of respondent No.1 and charges commission for insurance it gets done from respondent No.1.

20. In the face of this admitted position by respondent No.2, we are of the view that this respondent was duty bound in law to have taken up the matter with the insurer for early settlement and payment of the claim.

There is nothing on record to suggest if any such steps were initiated by the bank. This in our opinion was otherwise necessary to protect its own interest as prudent bank. Thus in our opinion, in no situation the bank can be absolved for inaction/negligence in this case. Thus the bank also needs to compensate the appellant, and we order accordingly. “

12. We may point out that petitioner in this revision has not placed all the relevant documents on record for the reasons best known to it which have been referred by the

State Commission, in the impugned order. Petitioner has deliberately and selectively

chosen to place only those documents which goes in its favour, namely, copy of affidavit dated 31.4.2006 of respondent no.1 (Page no.80 of paper book). Copy of discharge voucher dated 2.8.2006 purported to have been signed by respondent no.1

(Page no.81 of the paper book). This act on the part of petitioner in selectively placing only those documents which are in its favour, clearly amounts to the concealment of the material facts and to mislead this Commission.

13. The law on this subject has clearly been laid down by Hon'ble Supreme Court of

India in “ United India Insurance Company Vs. Ajmer Singh Cotton & General Mills,

(1999) 6 S890CC 400”

. It was held that discharge vou cher though signed as ‘full and final’ may not be treated as final if the consumer can satisfy the Court that it was obtained through undue influence fraud or misrepresentation. Hon'ble Court has observed;

“The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.”

14. Looking from any angle we do not find any infirmity or ambiguity in the impugned order, when respondent no.1 from very beginning has been clamoring that he is accepting the sum of Rs.7,72,623/- under protest and without prejudice to his rights.

Moreover, he reserved his rights to recover the sum of Rs.5,27,377/-. Under these circumstances, it cannot be said that the discharge voucher in the present case was signed by respondent no.1 on his free-will and consent.

15. In our view, the findings recorded by the State Commission that there was deficiency in service on the petitioner’s part is based on correct analysis of the facts and appreciation of the evidence which cannot be termed as erroneous. Accordingly, we dismiss the revision petition with cost of Rs.10,000/- (Rupees Ten Thousand only). We are imposing these cost only due to anguish, since petitioner has mislead this

Commission and also caused undue harassment to respondent no.1, by dragging him to the highest foraunder the Act, when it has no case at all.

16. Petitioner is directed to pay/deposit the cost by way of demand draft in the name of respondent no.1, within eight weeks from today. In case, petitioner fails to pay/`deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization.


…..…………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg/


ORIGINAL PETITION No. 63 OF 2003

Assambrook Limited, Having registered office at 1, Shakespeare Sarani

Calcultta-700071 Through its whole time director, Mr Sidhartha Rampuria

…Complainant

Versus

1. United India Insurance Company Ltd. D.O. No.VI, B-1, Gillander House, 8, Netaji

Subhash Road, Cacutta-700001

2. The Divisional Manager, United India Insurance Company Limited, D.O. No.VI, B-

1, Gillander House, 8, Netaji Subhash Road, Cacutta-700001

… Opposite Parties

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE MR.VINAY KUMAR, MEMBER

For the Complainant (s) : Mr. Raj Shekhar Rao,

Mr. Abhijeet Sinha &

Ms. Aditi Patanjali,Advocates

For the Opposite Party(ies) : Mr. Vishnu Mehra, Advocate

Pronounced on :_14 th May 2014

ORDER


1. The key questions which fall the consideration in this case, pertaining to the year

2003, are, what value should be appended with the report of a surveyor? And how much compensation should be awarded to the complainant due to negligent, inactive, passive and lackadaisical manner in keeping the matter pending for the last ten years till date?

2. Assambrook Limited, the complainant in this case, purchased Tatamala Factory

Tea Estate and the Factory alongwith Machinary situated therein in Calcutta. The said factory was not in operation at that time and continued to be so ever after its purchase by the complainant company. The said factory alongwith its machinery was covered by

comprehensive fire insurance policies taken from time to time from OP- United India

Insurance Company, last being from 1 st May 2000 to 30 th April 2001.

3. On 15.04.2001 at about 3.00 P.M. fire broke out at Tatamala

Factory. Immediately, the fire station Kalpetta was informed and they extinguished the fire. In this fire the factory was completely gutted and its machinery got damaged. The

OP-1 was informed about the same on 16.04.2001. Local Police was also informed vide FIR lodged with the Police Station Vellamunda on 16.04.2001. Other authorities were also apprised of the incident. The OP-1 through its Regional Office at Ernakulam appointed one Captain Krishnan & Co. as surveyor for inspection of the site. The surveyor conducted the survey at the said factory premises on or about 3 rd week of April

2001. The Station Officer, Fire Station, Kalpetta and Electrical Inspector gave separate reports on 02.05.2001. The complainant also received the copy of the said report of the

Electrical Inspector from the Vellamunda Police Station on or about 16.05.2001.

4. Captain Krishnan & Co. Surveyor, vide its letter dated 21.06.2001 requested the

Complainant to furnish certain documents pertaining to the aforesaid fire incident. The said letter was replied. The complainant lodged the formal complainant with the

Insurance Company for a sum of Rs. 56,85,000/- (i.e. a claim of Rs. 40,00,000/- towards the losses and damages suffered due to destruction of factory building by fire and a further claim of Rs. 16,85,000/- being the loss and damages suffered due to the destruction of machines due to fire). The complainant also sent copy of balance sheet for the year 1999-2000 to the Surveyor. The Kerala Police further confirmed the incident of fire vide its letter dated 06 th August 2001. The complaint Company fully cooperated with the OP-1. It is alleged that the Insurance Company is procrastinating the settlement on one pretext or the other. The acts and omissions on the part of the OPs are arbitrary, illegal and contrary to the express terms of contract of

Insurance. Ultimately, the present complaint was filed on 14.02.2003 with the following prayers:-

“i) This Hon’ble Commission be pleased to hold and declare that there has been deficiency in service rendered by the Respondents, ii) This Hon’ble Commission be pleased to direct the Respondents to make payment of Rs. 56.85 lacs (Rupees Fifty Six Lacs Eighty Five

Thousand only) to the Complainant Company herein.

iii) This Hon’ble Commission be pleased to order and direct the

Respondent No. 1 to furnish to this Hon’ble Commission, Bank Gurantee forthwith in respect of the prayer (ii) above, iv)

This Hon’ble Commission be pleased to order and direct the

Respondents to pay interest at the rate of 18% on the said claim of Rs.

56.85 lacs from the date of incident of fire i.e. 15.4.01 till the date of actual payment of the said amount, v)

This Hon’ble Commission be pleased to order and direct the

Respondents to pay a reasonable amount for not settling the claim promptly and consequently loss of money by the complainant on the said amount, vi)

Pending the hearing and disposal of this Complaint, this Hon’ble

Commission be pleased to pass interim and ad-interim order in respect of prayer (iii) above.

vii) Such other or further order(s) as this Hon’ble Commission deem fit, just and proper in the facts and circumstances of the case, viii) Cost of petition be awarded in favour of the Complainant Company and against the Respondents.”

5. The Opposite Party has enumerated the following defenses in its 29 pages written statement. The complainant is not a Consumer because he has availed the service for commercial purpose. The claim is barred by Clause 6(ii) of the Insurance Policy. The complainant has failed to establish its own claim under the Insurance Policy. The complainant did not cooperate with the O.P. within the terms of condition No. 6 (i) (b) of

the Insurance Policy. The complainant did not produce necessary particulars, plans, specification books, vouchers invoices duplicate or copies, investigation reports proofs and information in respect to the claim and the origin and cause of loss and the circumstances under which the loss or damage occurred etc. The surveyor could not ascertain the origin and cause of the fire. The investigator was appointed and his report was being awaited. This Commission has no jurisdiction. The complaint be relegated to Civil Court. The Complainant is not entitled to any amount. The surveyor assessed the loss at Rs. 3,42,500/-. There was no maintenance in the factory since 1981. The other allegations have been denied.

6. We have heard the counsel for the parties. Counsel for the complainant made the following submissions. The complainant had purchased this property on 01.02.1991. It was specifically mentioned in the insurance that it was a silent factory. The complainant had furnished copies of the Electric Inspector’s report dated 02.05.2001 as desired by the surveyor on 21.06.2001. It was submitted that the complainant duly complied with and furnished all the necessary documents vide its letter dated 28.06.2001 and

05.07.2001 which were marked as Exhibit A-6 and Exhibit A-7. On 06.08.2001, the

Kerala police stated that the cause of the fire was an electric short-circuit vide Exhibit A-

11. That report was forwarded to the surveyor vide letter dated 13.08.2001. The complainant provided all the information relating to the date of commissioning of the factory, latest valuation report, value of the factory and machinery on 28.08.2001 vide

Exhibit A-9. The grouse of the complainant is that their claim was never rejected. They did not receive the repudiation letter. The complainant is procrastinating the matter on one pretext or the other. An application was moved before the RTI and the Appellate

Court provided a copy of the surveyor’s report.

7. The second submission made by the counsel for the complainant was that the

OP-1 has delayed the processing the claim of the complaint. The insurance claim was submitted to OP-1 on 05.07.2001 but still the matter stands unsettled. The OP-1 doubted the veracity of the police report concerning the cause of fire vide its letter dated

24.01.2002.

It is alleged that the Surveyor’s report was never furnished to the complainant within a period of 10 years. The OP-1 could not investigate the cause of the fire. In support of his case the counsel for the complainant has cited an authority reported in the case of Karam Industries v. Oriental Insurance Co. Ltd., IV (2007) CPJ

104 NC, he has also cited another authority reported in the case of Avon Rice Trading

Company v. United India Insurance Company, 2002 (3) CPJ 340. The delay on the part of the OP-1 clearly shows deficiency on the part of OP-1. Again no payment whatsoever was made to the complainant till date. Moreover, OP-1 has under-valued the compensation payable under the policy. The complainant is a consumer under the

Consumer Protection Act and the Learned counsel cited various authorities. The counsel for the opposite parties did not pick up a conflict with this question. So far as question of delay in processing the claim of the complaint, the learned counsel has placed reliance on the following authorities reported in Vania Silk Mills v. CIT,

Ahmedabad, 1991 (4) SCC 22, Jay Shankar Singh v. Insurance Regulatory

Development Authority, 163 (2009) DLT 785, the Hon’ble Delhi High Court, Nani Bai v.

Ishaque Khan, 1994 ILJ 296 (MP) & Oriental Insurance Company Ltd. v. Surinder Singh

& Ors. 2010 (3) JKJ 586.

8. It was also argued that OP-1 has made baseless assertions against the complainant without any evidence. There was no basis for doubting the report sent by the Kerala police. The surveyor’s report clearly goes to show that it did not consider the final report of the Kerala police. There is no evidence that the surveyor had reviewed his report after going through the report sent by the Kerala police. The surveyor report is ex-facie incorrect.

9. On the other hand, counsel for the OP-1 admitted at bar that there was delay in processing the claim of the complainant. He could not give any reason for the same. He also admitted that OP-1 has not made any payment to the complainant till date.

10. Lastly, the counsel for the complainant invited our attention towards the Insurance

Regulatory and Development Authority (Protection of Policyholders’ Interests)

Regulations, 2002. He contended that these provisions were violated by the OP-1.

11.

The central question is, “can we ignore the report of the surveyor?” The report of the surveyor stands proved on the record. The same was not questioned by the complainant. The complainant did not move any application for his cross examination. The complainant did not put interrogatories pertaining to the surveyor. Only six interrogatories were put to Sushovan Sen. Last interrogatory is relevant which is reproduced. It runs as follows:-

“Q.6 Has Mr. Sushovan Sen visited the Tatamala Tea Estate and the

Factory situated at P.O. Vellamunda, District Wayanad, Kerala (“plant and building”) during the periods 1980-1982, 1982-1984, 1984-1986, 1986-1991 to the plant and building?

Reply reads:- and 1991-2002? If the answer is in the affirmative, what were his exact dates of travel to the plant and building? What documents reflect his travel

“ I say I did not visit the Tatamala Tea Estate and the Factory situated at

P.O. Vellamunda, District Wayanad, Kerala during the period 1980-1982,

1982-1984, 1984-1986, 19861991 and 1991 to 2002.”

12. It is interesting to note that not a single interrogatory is related to the surveyor. It is clear that the complainant did not pick up a conflict with the report of the surveyor. The main interrogatories should have pertained to the surveyor. There should be some evidence in rebuttal, which may go to show that the report of surveyor is not reliable. It must be borne in mind that it is the complainant and no body else, who is to carry the ball in proving its case. The complainant is to give reasons why the report of the surveyor should be discarded. The surveyor assessed the loss as follows:-

LOSS ASSESSMENT

Based on the above and without prejudice to the admissibility of the claim we now give below our loss assessment:

Degradation in the salvage value

Of structural steel items Rs. 1,38,000.00

Estimated loss/degradation to

Scrapped Machinery, parts lost/

Damaged due to fire including

Loss of withering troughs Rs. 2,04,500.00

------------------------

Rs. 3,42,500.00”

13. Again OP-1 has filed affidavit of Sushovan Sen, Regional Manager. Paras No. 10 and11 are relevant and are reproduced here as under:-

“10. I say that the factory worked for few months in the year 1986 and was thereafter closed and remained the silent risk till the date of mishap. No maintenance was carried out in the factory since 1986.

11. I say that as per the survey report, the opposite party came to know that occasionally tea leaves were stored overnight in the withering troughs in the first and second lofts and then taken to the Talapoya factory for processing on the following morning. The third loft is not under use and was kept permanently locked.

14. We have also perused the affidavit of Mr. Panmal Sethia. In view of Surveyor’s report each other evidence pales into insignificance.

15. In United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. &

Ors. (2000) 10 Supreme Court Cases 19, in para No. 7, it was held:-

“7. The appellant had appointed joint surveyors in terms of Section 64-

UM (2) of the Insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that

the claim was not found entertainable. This is an important document, which was placed before the Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey report, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing.”

16.

In a recent order passed by a Bench head by Hon’ble Justice Ashok Bhan in the case of D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC), it was held that Surveyor’s report has significant evidentiary value unless it is proved otherwise

-petitioner has failed to do so in the instant case.

17. It must be borne in mind that the delay is a double edged sword which can cut both the sides. This is an undisputable fact that the OP-1 has inordinately delayed the above said settlement. Even after the elapse of 12 or 13 years the complainant has not got any amount. Normally we award 9% interest per annum but under the peculiar circumstances of this case we will award 12% interest and compensation in the sum of

Rs. 2,00,000/- to the complainant. Therefore, we hereby order that the OP-1 would pay

Rs. 3,42,500/- to the complainant alongwith interest @ 12% from the date of filing of the complaint till its realization. We also award compensation in the sum of Rs. 2,00,000/- in favour of the complainant and against the OP-1. The said amount be paid within a period of 45 days otherwise it will carry interest @ 12% till its realization.

.…..…………………………

(J. M. MALIK, J)


……………………………...

(VINAY KUMAR)

MEMBER

Jr/18



(From the order dated 25.11.2011 in Appeal No. 117/2007 of Uttrakhand State

Consumer Disputes Redressal Commission, Dehradun)

Shri Dinesh Kumar Bansal Proprietor M/s. Bansal Ice Cream Byepass Road,

Kharkhari,Haridwar R/o Balmiki Basti, Bhimgoda, Haridwar


Versus

Oriental Bank of Commerce Through its Branch Manager Kharkhari, Haridwar


BEFORE



For the Petitioner : Mr. Anil K. Sharma, Advocate


O R D E R


This revision petition has been filed by the Petitioner/complainant against the impugned order dated 25.11.2011 passed by the Uttrakhand State Consumer Disputes

Redressal Commission, Dehradun (in short, ‘the State Commission’) in Appeal No. 117 of 2007 – Oriental Bank of Commerce Vs. Shri Dinesh Kumar Bansal by which, while allowing appeal, order of District Forum allowing complaint was set aside.

2. Brief facts of the case are that complainant/petitioner had an O.D. Account No.156 with the OP/respondent. On 21.12.2005, when the petitioner went to the bank for withdrawing some money, he found that Rs.80,000/- had been transferred fraudulently from his account to the account of one Smt. Santosh Aswal by Asstt. Manager of the

Bank. As no action was taken by the respondent on his request, he filed complaint alleging deficiency on the part of OP before the District Forum. OP contested complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.80,000/- along with 12% p.a. interest to the complainant and further directed to pay cost of Rs.1,000/-. Appeal filed by the OP/respondent was

allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. Petitioner filed revision petition along with application for condonation of delay.

4. Heard learned Counsel for the petitioner at admission stage on application for condonation of delay.

5. Learned Counsel for the petitioner submitted that on account of bed rest due to illness, revision petition could not be filed in time; hence, delay may be condoned.

6. Perusal of application for condonation of delay reveals that it has not been mentioned in the application for condonation of delay that how many days delay is to be condoned. As per office report, there is delay of 127 days in filing revision petition. Paragraphs 2 & 3 of the application for condonation of delay runs as under:

“2. That due to some family problem and financial constraints, the petitioner could not come to the Hon’ble Commission within time.

3. That the delay caused is unintentional and bonafide and beyond the control of the petitioner”.

7. In support of this application, petitioner filed affidavit on 2.5.2013 and paragraphs

2, 3 & 4 of affidavit run as under:

“2 That the impugned order was passed on 25.11.2011 and the petitioner applied for the same on 7.12.2011 which was furnished to the lawyer of the petitioner on 7.12.2011 and same was sent by the lawyer of the petitioner to the petitioners. After getting the copy of the judgement, then a legal opinion was sought from the local lawyer then the lawyer suggested to file the revision petition.

3. Then the petitioner was suffering from the Tuberculosis and fever from the last 3 months therefore the Doctor who was treating the petitioner advised regular treatment and rest for about six months. The true copy of the medical certificate is annexed as Annexure A-1.

4. That the petitioner spent so much time and money on the treatment. After get over the problem the petitioner approached the present lawyer, who prepared and filed the present petition therefore the delay caused is unintentional and bonafide and beyond the control of the petitioner”.

8. In support of affidavit, he further filed medical certificate dated 21.12.2011 according to which, on account of fever, T.B., he was advised to take rest from

15.7.2011 to 21.12.2011.

9. In the application for condonation of delay, he has mentioned that revision petition could not be filed in time due to family problem and finance constraints, whereas in the affidavit he has mentioned that revision petition could not be filed due to suffering from

T.B. and fever, which are contrary to each other. Even if we believe medical certificate according to which petitioner was advised to take rest from 15.7.2011 to 21.12.2011, he has not given any reason explaining delay in filing revision petition on 11.7.2012.

10. As there is inordinate delay of 127 days, this delay cannot be condoned in the light of the judgment passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat


Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul Aggarwal Vs. New Okhla

Industrial Development Authority. As there is no explanation for condonation of delay, from 21.12.2011 to 11.7.2012, this application for condonation of delay is liable to be dismissed.

11. Consequently, revision petition filed by the petitioner stands dismissed at admission stage on the count of delay alone.

12. As the Petitioner has misled the Court in the application for condonation of delay as well as in the affidavit and has taken contradictory stand, we deem it proper to impose Rs.5,000/- as costs to be deposited by the petitioner with the Consumer Legal

Aid Account of this Commission by way of bank draft within four weeks. In case, the petitioner fails to deposit the cost within the prescribed period, then he shall be liable to pay interest @ 9% p.a. till realization.


..……………Sd/-………………



..…………Sd/-…………………


MEMBER k



(From the order dated 19.03.2008 in Appeal No. 942/2003 of Rajasthan State


The Oriental Insurance Co. Ltd. Fatehpuria Chowraha Beawar, Distt. Ajmer, (Rajasthan)

Through Chief Manager Head Office “Oriental House” A-25/27, Asaf Ali Road, New

Delhi


Versus

1. Sh. Prateek Rathi S/o Late Sh. Kamal Kishore Rathi

2. Ms. Priyanka Rathi D/o Late Sh. Kamal Kishore Rathi

3. Sh. Prabhull Rathi S/o Late Sh. Kamal Kishore Rathi All residents of: Maheshwari Chemicals Agrasain Bazar, Beawar, Distt. Ajmer (Rajasthan)


BEFORE



For the Petitioner : Mr. Kishore Rawat, Advocate

For the Respondents : Mr. Ashwani Garg, Advocate


O R D E R


This revision petition has been filed by the Petitioner/OP against the impugned order dated 19.3.2008 passed by the Rajasthan State Consumer

DisputesRedressal

Commission, Jaipur (in short, ‘the State Commission’) in Appeal No.

942 of 2003 – The Oriental Ins. Co. Ltd. Vs. Prateek Rathi & Ors. by which, while dismissing appeal, order of District Forum allowing compliant was upheld.

2. Brief facts of the case are that deceased Kamal Kishore Rathi father of the complainants/respondents took Janta Personal Accident Policy for a sum of

Rs.5,00,000/- for the period 2.12.1998 to 1.12.2008 from OP/petitioner and paid

Rs.1250/- towards premium. Insured Kamal Kishore died in road accident on 25.5.2002 and his nominee wife also died in road accident. Complainants lodged complaint with the OP. OP repudiated claim on the ground that policy had already been cancelled on

7.4.2002. Alleging deficiency on the part of OP, complainants filed complaint before the

District Forum. OP/petitioner contested complaint and submitted that, as policy had already been cancelled on 7.4.2002, and premium was refunded, there was no deficiency on the part of OP and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties allowed complaint and directed OP to pay

Rs.5,00,000/- along with 10% p.a. interest to the complainants and further awarded

Rs.1,000/- as litigation cost. Appeal filed by the petitioner was dismissed by learned

State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that, as policy in favour of deceased was cancelled as per Condition No. 5 of the policy on 7.4.2002 and insured died on

25.5.2002, no money was payable under the said policy and learned District Forum has committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. 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. Learned Counsel for the petitioner submitted that in pursuance to Condition No. 5 of the policy, insurance policy of the deceased was cancelled on 7.4.2002 i.e. prior to his death; hence, no money was payable under the policy. Perusal of policy reveals that policy does not contain any such condition either on the front or on the back page of policy. Learned Counsel for the petitioner has drawn our attention towards format of standard terms of Janta Personal Accident Policy containing Condition No. 5 according

to which, Insurance Company had right to cancel policy at any time after written notice. As policy issued by the petitioner to deceased does not contain this condition, learned District Forum has not committed any error in allowing complaint and learned

State Commission has not committed any error in dismissing appeal in the light of

Hon’ble Apex Court judgements reported in (1996) 6 SCC 428 –

United India

Insurance Co. Ltd . Vs. M.K.J. Corporation and (2000) 2 SCC 734 - Modern

Insulators Ltd . Vs. Oriental Insurance Co. Ltd . in which it was held that where exclusion clause of the standard policy was neither a part of the contract of insurance nor disclosed to the insured, the Insurance Company cannot claim the benefit of said exclusion clause. It was further observed in United India Insurance Co. Ltd .

Vs. M.K.J. Corporation (Supra) that it is the duty of the insured and their agent to disclose all material facts within their knowledge since obligation of good faith applies to them equally with the assured. Had petitioner or their agent disclosed Condition No. 5 of the standard format, deceased might have not opted for this policy. In the absence of any iota of evidence on record regarding Condition No. 5, forming part of insurance policy, learned District Forum rightly allowed complaint. Learned Counsel for the petitioner has drawn our attention towards page No. 31 of the paper book in which it has been mentioned that this document is attached with the policy. This document firstly neither contains such Condition No. 5 reserving right to cancel policy by written notice and secondly, does not contain signatures of deceased and in such circumstances; this document is of no use to the petitioner.

6. Learned Counsel for the petitioner further submitted that policy issued in favour of deceased was cancelled by letter dated 8.3.2002, which was delivered to the petitioner on 28.3.2002 and has drawn our attention towards the dispatch register, postal receipt and letter of postal authorities. Perusal of the documents reveals that letter dated

8.3.2002 addressed to deceased insured has reference of Policy No. 47/99/481, whereas as per policy it was issued on 2.12.1998; hence, policy No. was 1998/481 and this letter has no relevance with the disputed policy. Further, as per dispatch register it appears that dispatch number of this letter has been inserted later on and has been shown to have been dispatched on 27.3.2002, whereas letter was issued on 8.3.2002.

Further, as per Post Office report, this letter was delivered to the deceased on

28.3.2002 under Sr. No. 1278, whereas postal receipt bears number 2078. Letter dated

8.3.2002 contains enclosure voucher, but nowhere petitioner submitted in its written

statement that voucher pertaining to refund of premium was dispatched with this letter. On the contrary, letter dated 8.4.2002 issued by the petitioner appears to have been delivered to courier on 20.5.2002 (after 42 days) and delivered by courier to deceased on 31.5.2002, whereas deceased insured Kamal Kishore Rathi died on

25.5.2002. This letter also contains Policy No.96/97/98/99/47/0481, which is admittedly not the policy number issued by the petitioner to the deceased Kamal Kishore Rathi and in such circumstances, it cannot be inferred that by aforesaid letters policy issued by petitioner in favour of deceased insured Kamal Kishore Rathi was cancelled before his death.

7. Thus, it becomes clear that neither Condition No. 5 reserving right to cancel the policy was part of the policy issued by the petitioner in favour of deceased, nor such condition was brought to his notice, nor policy was cancelled before his death and in such circumstances, learned State Commission has not committed any error in dismissing appeal.


9. Consequently, revision petition filed by the petitioner against the respondent is dismissed with no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(Against the order dated 03.02.2012 in Appeal No. 690 of 2011 of theKarnataka State


Chief Executive Officer Yeshaswini Co-op. Farmers Health Care Scheme 6 th Floor,

M.S.Building, Co-op. Secretariat Ambedkar Veedhi, Banglore

.... Petitioner

Versus

1. Kuriakose, S/o Thomas R/o Madhava Sheril House Nelyadi Post, Puttur, Dakshina

Kannada

2. Manager, Family Health Plan Ltd No.45, Millers Road, Vasanthanagar, Bangalore

3. Manager, Nelyadi Service Co-op. Bank Puttur Taluk, Dakshina Kannada

4. Dr. K.Raviprakash, Proprietor/Director Dhanvanthari Hospital, Darbe Puttur,

Dakshina Kannada

... Respondents


(Against the order dated 3.2.2012 in Appeal No. 691 of 2011 of the Karnataka State




.... Petitioner

Versus

1. Chomanna Naik G S/o Late Devayya Naik R/o Garadi House, Pambethady Village

Puttur, Dakshina Kannada

2. Manager Pambethady Vyavasaya Seva Sahakari Bank Ltd Post Pambethady, Sullia

Taluk, Dakshina Kannada


Dakshina Kannada Dist. ... Respondents






.... Petitioner

Versus

1.C.Padmanabha Shetty, S/o Chandraraja Shetty Palthady Village, Puttur Taluk,

Dakshina Kannada

2. Manager, Puttur Primary Co-op. Agriculture & Rural Development Bank Ltd., Puttur

Taluk Dakshina Kannada


Dakshina Kannada ... Respondents






.... Petitioner

Versus

1. Chandranarh Rai, S/o Kunhanna Rai R/o Anaje House Nidpalli Village Darbethadka

Post, Puttur, Dakshina Kannada

2. Manager, Panaje Co-op. Agricultural Bank Ltd., Panaje, Puttur Taluk, Dakshina

Kannada








.... Petitioner

Versus

1. Ganesh Prasad, S/o Ramachandra Bhat R/o Guthu House, Kokkada Village & Post

Belthangady Taluk, Dakshina Kannada

2. Kaukrady Milk Producers Co-op. Society Kaukrady, Puttur Taluk, Dakshina Kannada

... Respondents


(Against the order dated 25.05.2012 in Appeal No. 4738/2010 of the Karnataka State




.... Petitioner

Versus

1. Sri Narasimha Bhat, S/o K.N.Shyam Bhat R/o Shanthinadu Post, Puttur Taluk

Dakshina Kannada

2. Manager, Family Health Plan Ltd Yashaswini Co-op. Farmers Health Care Scheme

No.45, Millers Road, Vasanthanagar, Bangalore

3. Manager, Narimogru Vyasaya Seva Sahakari Bank Narimogru, Puttur Taluk,



(Against the order dated 05.07.2012 in Appeal No. 1470 to 1475/2011 of the Karnataka

State Consumer Disputes Redressal Commission, Bangalore)



... Petitioner

Versus

1. Sathyanarayana Bhat S/o Late S.Krishna Bhat, Madnoor Village Puttur Taluk,

Dakshina Kannada District

2. Manager, Papemajalu Milk Producers Co-op. Society Ltd. Puttur Taluk, Dakshina

Kannada District




(Against the order dated 05.07.2012 in Appeal No. 1470 to 1475 of 2011 of the

Karnataka State Consumer Disputes Redressal Commission, Bangalore)



.... Petitioner

Versus

1.

Joseph Montero, S/o Late Marcel D’Souza Punacha, Bantwala Taluk, Dakshina

Kannada

2. Manager, Family Health Plan Ltd No.11, 2 nd Floor, ‘E’ Block Nitton Building, Palace

Road, Bangalore

3. The Manager, Punacha Service Co-op. Bank Ltd. Punacha, Bantwala Taluk,







.... Petitioner

Versus

1. Ravinarayana Bhat, S/o Subraya Bhat Balnadu, Puttur Taluk, Dakshina Kannada

District

2. Manager, Balnadu Service Co-op. Society Ltd. Balnadu, Puttur Taluk, Dakshina

Kannada District ... Respondents






.... Petitioner

Versus

1. K. Chandrasekhara Bhat, S/o Gopalakrishna Bhat Padnoor Village, Puttur Taluk,

Dakshina Kannada

2. The Manager Kedila Milk Producers Co-operative Society Ltd. Kedila, Bantiwala

Taluk, Dakshina Kannada ... Respondents






.... Petitioner

Versus

1. Uday Bhat, S/o Ganapathi Bhat Mogere Village, Belthangadi Taluk Dakshina

Kannada

2. The Manager, Padmunja Co-operative Agricultural Bank Ltd. Kaniyur, Belthangadi

Taluk, Dakshina Kannada Dist. .... Respondents

BEFORE:



For the Petitioner in all cases : Mr. Anand Sanjay M. Nuli, Advocate

For Respondent No.1 in all cases: Mr. C.B. Gururaj, Advocate for

For Other Respondents in all cases : NEMO

PRONOUNCED ON_14.05.2013

ORDER

JUSTICE J.M. MALIK

1. This order shall decide the above mentioned 11 revision petitions. The facts and law points involved in all these cases are same and consequently, they are being disposed of by this common order. We are taking the facts from RP No. 1786/2012. In this case, the complainants became Members of Yeshaswini Co-op. Farmers Health

Care Scheme. As per the medical Insurance Scheme, the petitioner/OP was to reimburse the medical expenses of its Members. This is an indisputable fact that

Manager, Health Family Plan Ltd., received the premium from each of the complainants and he also issued the policies. The petitioner/OP refused to pay the medical bills of the complainants on the ground that they did not undergo treatment in the network hospitals. There is no dispute that all the complainants took treatment in

Dhanvanthari Hospital, Puttur. The petitioner refused to reimburse the said bills.

2. The complainants filed the complaints before the District Forum which were partly allowed by it. C.E.O, Yeshaswini Co-op. Farmers Health Care Scheme, petitioner/OP 1 and Manager, Family Health Limited Plan, Respondent No.2/OP2 were directed to reimburse the medical expenses of the complainants and were further directed to pay

Rs.5,000/- each as compensation and Rs.1,000/- as costs of litigation expenses, within a period of 30 days. Aggrieved by that order, the petitioner/OP filed appeals before the

State Commission. The State Commission also dismissed the appeals.

3. We have heard the counsel for the parties. It is interesting to note that both the counsel have filed two divergent judgments of the same Bench. The first judgment is with reference to the authority in Yeshashwini Bima Yojna Vs. Shahinbanu &

Yeshashwini Bima Yojna Vs. Mumtaz Begum (RP Nos. 1172 & 1173 of 2007). In these cases, it was held that :

“A reading of the Appendix-1(d) of the Scheme makes it very clear that medical benefits shall mean inpatient hospitals including the related surgeries as notified by the Trust which can be availed by the members subject to the maximum eligibility at any of the network hospitals under the

Scheme. Further, the procedure for availing medical benefit is also clearly stated in the same Trust Deed that a beneficiary under the

Scheme who wants to avail of medical benefits has to first approach the Society for approval which after satisfying itself will authorize the beneficiary to approach any of the network hospitals approved by the Society and it is for the network hospital to forward a request for pre-authorisation as provided for under the Scheme. In the instant case, it is clear that the respondent did not adhere to the terms and conditions of the Scheme, i.e. she neither approached the

Society to get approval for availing the medical benefits nor did she approach any of the hospitals authorized under the Scheme for her medical treatment. Further, it is not disputed that the network of authorized hospitals under the Scheme included super specialty hospitals wherein the respondent could have easily got the best medical treatment, however, complicated her medical condition was, ignorance of the terms and conditions by which the respondent was bound, cannot be a justification for her not adhering to these and yet insisting on claiming, the benefits of medical treatment under the Scheme. The State Commission erred in not appreciating this important fact while reaching its conclusion. We, therefore, have no option but to set aside the order of the State Commission and restore the order of the

District Forum. The revision petitions are dismissed with no order as to costs”.

4. The second judgment is also by the same Bench in the cases, C.E.O,

Yeshaswini Co-operative Farmers Health Care Scheme Vs. Hemanth Kumar &

C.E.O, Yeshaswini Co-operative Farmers Health Care Scheme Vs. Smt. Susheela

Rai K.S. (RP Nos. 3873 & 3875 of 2012), wherein it was held that :

“Finding recorded by the fora below that the appellant had not notified the network of the hospitals from where the beneficiary of the scheme could take the treatment is a finding of fact based on evidence which cannot be interfered with, in exercise of revisional jurisdiction. Counsel for the appellant could not point out either from the written statement filed before the District Forum or from any other evidence that the appellant had notified the network of the hospitals from where the beneficiary under the scheme could take the treatment. Such a finding cannot be set aside under revisional jurisdiction”.

5. Learned counsel for the petitioner vehemently argued that the subsequent judgment should be followed. However, for the following reasons, we are not inclined to follow the subsequent judgment. We are of the considered view that the first judgment of the same Bench appears to be correct. Furthermore, as per condition No.14, the beneficiary of Yeshaswini Co-op. Farmers Health Care

Scheme could avail such facilities in the registered hospitals of the Rural Areas and

Nursing Homes or in the network hospitals and Nursing Homes of the State.

6. As per the Trust Deed, the complainants are bound to take treatment in the network hospitals and the treatment taken by the complainants at Dhanvanthari

Hospital is not in accordance with network hospitals. We clap no value to the argument advanced by the counsel for the complainants that since the complainants were issued the cards but the network hospitals were not mentioned in the card itself and, as such, they are entitled to reimbursement. This argument is of no consequence.

7. A Member who is registered with Yeshaswini Co-op. Farmers Health Care

Scheme must also confirm whether that hospital is covered within the approved hospitals or not. If he chooses a hospital of his own, he chooses it, at his own peril. It is well known that ‘ignorance of law, is no excuse’. Moreover, even an illiterate is supposed to know from which hospital he is entitled to get the treatment , for the reimbursement purposes. It is bounded duty of the patient to approach the hospital, only if it is an approved hospital.

8. We are unable to countenance the findings recorded by the fora below. All the claims must be strictly determined by the cannons of fair play and justice. The issue cannot be ducked in the way, the complainants want. This fact cannot abscure the fundamental fact that the patient is bound to select one of the approved hospitals. Consequently, we accept all the 11 revision petitions, set aside the order passed by the State Commission and dismiss the complaints.

......…………………..………

(J.M. MALIK, J.)

PRESIDING MEMBER

.……………….……………

(DR.S.M.KANTIKAR)

MEMBER

dd/2-12




State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad)

Dr. R.G.V. Reddy S/o Mr.V.R. Ganesan, O/o Bharati Hospital, Yerramukkapalli Circle,

R.S. Road, Kadapa District, A.P.

……Appellants

Versus

1. Shaik Anjaman W/o Late /Mohd. Rafi, R/o D.No.8/47-S, Sainagar, Rajampeta

Town, Kadapa District, A.P.

2. Dr. D.B. Sasidhar Reddy, Super Speciality Hospital, T-S 82, Sai Ram Street, Near

Bhavani Nagar, Tirupathy, Chittoor Dist., A.P.

3. Christian Medical College, Rep. By Its Managing Direrctor, Vellore City, Tamil

Nadu

……Respondents

BEFORE:



For the Petitioner : Mr. Chandan Mishra, Adv.


ORDER


1. The brief facts of the case are that in April 2009 the

Complainant/Respondent’s husband by name Shaik Mohammad Rafi aged

45 years who was having abdominal problem approached the

Respondent/Petitioner herein for treatment. The petitioner prescribed some medicines and advised him for Ultrasound Scan. He prescribed some medicines again after seeing the scan Report. But, there was no relief to the patient, therefore the petitioner suggested surgical treatment. On

05.05.2009 the Laparoscopic Cholecystectomy was done with the help of senior Chief Surgeon and the senior anesthetist from RIMS who attended at the time of surgery. On 06.05.2009, the patient complained of difficulty in breathing and therefore he suggested the patient to go for a higher

management center to Tirupati. Therefore, on 07.05.2009 as per the advice of petitioner for better treatment Complainant’s husband went to Tirupati in OP

No. 2 Hospital, but from there she was advised shift her husband (patient) immediately to CMC, Vellore and he was shifted to CMC (OP No. 3) on 08.05.2009 at 4.30 a.m. .After resuscitation the patient was shifted to

Surgical Intensive Care Unit, injection Dopamine was given to bring up the blood pressure and intravenous fluids. Three operations were conducted by at CMC Hospital on 08.05.2009, 09.05.2009 and 04.06.2009 and the abdomen was washed. In the CMC Hospital, the patient underwent relaperotomy on 09.05.2009 and perforation was reclosed with falcifarum ligament and once again abdominal cavity was washed with saline and multiple drains placed and the patient continued to be in a state of sepsis, developed seizures and continued to have sero-purulent discharge from his wound and all supports were given to maintain his B.P. Another laperotomy was conducted on 04/06/2009 which showed pus collection in the Pelvis and right Paro-colic Gutter, but despite of best treatment the patient died on

06.06.2009.

The Complainant/Respondent who is wife of the patient filed a complaint before the District Forum, Kadapa contending that initial damage was done by the petitioner as surgery performed by the petitioner caused damage to the gall bladder and the bile was oozing from the abdomen. If the petitioner performed the surgery carefully on the deceased, there would not be any need or necessity for her to approach the OP No. 2 and 3;thereafter, OP-2 &

3 could not rectify the defect caused by the petitioner and could not save her husband’s life.

All the respondents denied the allegations made by complainant and contended that the patient’s condition after treatment was known complications of surgery and denied there is any deficiency of service while treating the patient.

2. The complainant filed a complaint No.128/2009 before District Forum,

Kadapa for negligence of the Respondent / Doctors and severe mental agony and prayed for compensation of Rs.14, 63,167/- including medical expenses and mental agony.

3. The District forum considering the oral and documentary evidence and by referring several authorities held OP1 and OP3 for negligence and directed the OP No 1 to pay Rs.56,000/- towards operation and other expenses and Rs.4 lakhs towards compensation for loss of dependency and

Rs.5,000/- towards costs totaling to Rs.4,61,000/-. Further opposite party no.3 is directed to pay and amount of Rs.6,56,965/- towards operation, medicines and other expenditure. Case against opposite party no.2 is dismissed without costs.

4. Aggrieved by the said order of District Forum, Kadapa, Three appeals were filed before the A. P. State Consumer Disputes Redressal Commission,

Hyderabad (in short State Commission) namely F.A.No.1044/2011 is preferred by the complainant for enhancement of compensation.

F.A.No.1195/2010 is preferred by OP-1 and FA No 972/2010 by OP

No.3. The State Commission disposed of those three appeals by common order.

The State Commission relying upon the material on record made following observations;

“The OP-1 during his cross examination deposed before District forum that, The doctor deposed that there was no chance of perforation of duodenum and there were no injuries to the common bile duct and that there was no chance of septicemia before the surgery. He also denies the entire stones in the gall bladder were not removed during the surgery. Exfacie it is contradictory to the ‘DISCUSSION’ in Ex. A6, which is the Death Summary of opposite party no.3 in which they clearly stated there were ‘multiple stones spilled within the subhepatic’ , it is also stated in Ex. A6 Death Summary report that there was “Injury to CBD’. We also observe from the record that opposite party no.1 did not file the informed consent given by the patient.”

“Exfacie we find that the observation of the District Forum with respect to difference in writing of opposite party no.1 in his prescription which is almost illegible with that of his Case Sheet Ex.B3, does not warrant any interference.

Ex.A6 clearly evidences that there was common bile duct injury with perforation in the first part of the duodenum. Therefore, the contention of opposite party no.1 that there was no injury in CBD is unsustainable. The

Expert has also confirmed this opinion. The contention of opposite party no.1 that there was a delay in subsequent treatment which resulted in multi organ failure is also unsustainable as the patient was already in high risk condition by the end of the operation on 06.05.2009 and within a gap of one day joined opposite party no.3 hospital on 08.05.2009. the documentary evidence read together with expert opinion clearly evidences that the injury to CBD was done together with perforation in opposite party no.1 hospital which led to all the subsequent complications. There is also contradiction in the contention of appellant/opposite party no.1 When he states that the sugar levels were normal at the time of operation which is also evidenced in diagnostic test

performed prior to the operation (Ex. A1record) but the same opposite party no.1 in his deposition contends that it was only because of hyper tension and diabetes that the patient did not recover. We are unable to agree with this contention on account of the afore mentioned reasons and we find that first opposite party doctor is negligent in performing the operation and consequent injury to the common bile duct which led to post-operative complications like multi organ failure and septicemia.”

Therefore, the state commission after the going through the evidence in detail and referring several judgments of Hon’ble Apex Court and National commission held OP-1 alone liable for negligence and OP 2 & 3 were exempted from liability. The state Commission by common judgment; dismissed appeal FA 1195/2010 filed by OP-1; an appeal FA 972/2010 filed by CMC, Vellore (OP-3) was allowed and appeal FA 1044/2011 filed by complainant for enhancement was dismissed. State Commission modified the District Forum order as directing OP-1 alone to pay Rs.56,000/- towards operation and other expenses and Rs.4 lakhs towards compensation together with costs of Rs.5000/-

5. Being aggrieved by impugned order of State Commission petitioner herein filed this revision petition on 14/8/2012.

6. We have heard the learned counsel for both the sides and perused the evidence on record before district forum and state commission.

On careful observation of affidavit evidence of both the parties cleared the dust on many issues.

The opponent-1 has operated the patient for Laparoscopic

Cholecystectomy on 05.05.2009. During the post-operative period the patient hadsudden chest pain and difficulty in breathing on 06.05.2009 therefore; pulmonary embolism was suspected by OP-1 who advised the relative of patient to shift the patient to the higher center immediately. The

OP-1 contended that as the patient was diabetic who was prone for postoperative infections therefore he was given antibiotics and some higher drugs to control the infection. OP-1 reiterated three expected complications of diabetics; Peripheral neuropathy, Diabetic nephropathy (degeneration of kidney) and Diabetic retinopathy. The OP-1 also contended that the uncontrolled hypertension leads to over load of heart, which leads to difficulty

in breathing, and long term diabetes, which leads to hypertension and multiple organ problem s which deteriorates the patient’s health. The opposite party took the cardiologist’s opinion and complete blood examination was done with chest X-ray, ECG, Echo Ultra Sound of abdomen and also took help of senior Chief Surgeon and anesthetist RIMS hospital and took all possible care.

OP-1 reiterated that the patient had multiple organ problems and any stone in Gall bladder may lead to infection like septicemia to a diabetic patient. The patient was monitored closely and was referred to a higher center for better care and he died in CMC hospital for which OP-1 cannot be held liable. The Doctor reiterated in his counter that the patient had chronic diabetes, gallstone peptic ulcer, untreated peptic ulcer, which led to perforation of duodenum and therefore led to complications. There was no injury in CBD and no injury in the Gallbladder and therefore OP-1 cannot be made liable for negligence and therefore seek dismissal of the complaint with costs.

7. The OP-2 in evidence reiterated that no treatment was given to the patient who was in-turn referred to higher tertiary care center i.e CMC, Vellore on same day and patient went there on 8.5.2009 to OP-3 and thereafter further course of treatment carried out by doctors at OP-3.

8. The OP-3 also stated in written version that, “the patient was brought on

08.05.2009 at 01.30 a.m. in a state of shock with a tube in throat for artificial breathing. As per the Glasgow Coma Scale 2T and abdominal examination show evidence of bile leak through the drain. He was also having acute renal failure and serum creatinine levels being 4.9 mg% and he was also in coagulopathy. The patient had severe acidosis with respiratory complaints. The patient was shifted to Surgical Intensive Care Unit after resuscitation with injection Dopomine to bring up the BP and intravenous fluids on 08.05.2009 at 05.45 a.m. the patient also required ventilator support for his breathing. The OP-3 in their affidavit submitted that the patient underwent an emergency operation which showed large volume of bile contamination in the whole abdominal cavity. The operation was converted to laperotomy where there was a 1 c.m. perforation (hole) in the first part of the duodenum and multiple gallstones spilled within the subhepatic

space and 5 litres of bile. The abdominal cavity was washed with saline and omentum was used to close the perforation. Multiple drains were placed in the abdominal cavity for drainage. The operation was converted into a laparotomy. There was 1 cm perforation (hole) in the first part of the

Duodenum and multiple Gall stones. The perforation was closed and the abdominal cavity was washed and the multiple drains were placed in the abdominal cavity for drainage. He was then transferred back to surgical

intensive care unit. The patient continued to have bile in the drain and he underwent re laparotomy on 09.05.2009. This time perforation was closed again with falciform ligament. He continued to be monitored in surgical intensive care unit and continued to be in sepsis. He also suffered from ventilator associated pneumonia and developed seizures. The patient continued to be in a state of sepsis, developed seizures and continued to have Seropurulent discharge from his wound and all supports were given to maintain his B.P. He underwent CT Scan and was treated with high doses of antibiotics and underwent another Laparotomy on 4/6/2009 was conducted which showed pus collection in the Pelvis and Parocolic Gutter.”

It was the contention of OP-3 that in-spite of their best efforts the patient died on 06.06.2009.

9. We find herein that the respondent/Complainant’s husband (a patient) was diagnosed as Cholelithiasis (Multiple Galls stones) and operated on for laparoscopic cholecystectomy and subsequently on next day developed breathlessness and referred to higher centre at Rama Devi Super Specialty

Hospital, Tirupati (OP-2) who in turn further referred the same case to tertiary care centre i.e. CMC, Vellore (OP-3) where the patient undergone three operations and subsequently died. Hence, it is absolutely clear that the patient was at high risk and in a state of shock, was unable to breath; there was bile leak, renal failure, coagulopathy, and severe metabolic and respiratory acidosis.

In such serious condition patient was brought and admitted at OP-3 on 08.05.2209 and three emergency operations were performed on 08.05.2009, 09.05.2009 and 04.06.2009. The patient was continuously monitored which has been confirmed by the entries in the case sheets. Therefore complainant failed to establish deficiency in service and carelessness on the part of OP-3 in treatment and lack of standard skill and knowledge in the line of treatment followed by OP-3. We rely on the judgment of this Commission in Shantaben Muljibhai Patel Vs. Breach Candy Hospital reported in 1(2005) CPJ 10 NC held that if the patient is a high risk patient and the hospital has done its best and followed all standards of normal medical parlance and still the patient dies, it cannot be held liable for negligence merely because the patient dies.

As contended by the petitioner we have perused the evidence Dr. T.

Reddaiah who was MBBS only and retired from Government hospital. He was not a specialist or super specialist like a surgeon or a gastroenterologist to be considered as an expert.

10. It is pertinent to note that, the patient deteriorated after 1 st surgery performed by OP-1 who was in serious condition of shock referred to CMC,

Vellore. OP-3 is highly reputed institute in India and a known for best referral and tertiary care centre. On exploration of abdomen by the team of doctors at

Mss

OP-3 found that huge collection of bile in the abdomen (about 5 liters) and spillage of multiple gallstones and perforation of duodenum . Hence, it’s “Res Ipsa Loquitor” i.e. the things speak on its own. Such consequences are only due to negligence of OP-1 in performing laparoscopic cholecystectomy. The petitioner defends himself by correlating such happening to the complications of diabetes or hypertension. The petitioner was aware that the patient was diabetic and petitioner who anticipated the complications should have very careful during laparoscopy. The statements of OP-1 appear that OP was trying to shift his negligence and cause of death on OP-2 and OP-3.

11. Therefore, we find after considering entire evidence of both parties that OP-2 has not given any treatment to the patient but only referred to CMC Vellore

(OP-3); hence there was no negligence by OP-2. Also we do not find any negligence by OP-3 in treatment of the patient who they followed highest degree of skill and standards of medical practice. OP-3 has taken proper care as they had team of doctors and are experts in the respective fields. .

12. Therefore, to conclude, we uphold the order of State Commission that the Petitioner /OP-1 is guilty of medical negligence and ultimately the patient lost his life. Therefore we pass an ORDER -

The revision petition is dismissed. The petitioner (OP-1) alone is directed to pay Rs.56000/- towards operation and other expenses and Rs.4 lacs towards compensation together with cost of Rs.5000/- within 45 days failing which it will carry recovery. interest @ 9% till

..…………………..………

(J.M. MALIK J.)


……………….……………

(S.M. KANTIKAR)

MEMBER


REVISION PETITION NO.4714 OF 2012

(From the order dated 31.8.2012 in F.A. No.1254/2009 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Smt. Bimla Rani W/O Late Sh. Ashwini Kumar, R/O H.No. B-1, 1042, Chhawni

Mohalla, Ludhiana,

. ………Petitioner(s)

Vs

1. ESI Hospital, Bharat Nagar Chowk, Ludhiana, Punjab Through its Officiating

Medical Officer

2. Smt. Amarjit Kaur, Staff Nurse, ESI Hospital Bharat Nagar Chowk, Ludhiana,

Punjab

3. Smt. Sheela, Staff Nurse, ESI Hospital, Bharat Chowk, Ludhiana, Punjab

…….. Respondent(s)

BEFORE :



For the Petitioner : Mr. Himanshu Gupta, Adv.

Pronounced on 14 May, 2013


ORDER

1. The Petitioner/Original Complainant filing this Revision Petition against the order passed in FA/1254/2009 by State Consumer Disputes Redressal

Commission, Punjab, Chandigarh (in short State Commission) allowed the appeal by setting aside the order of District Forum.

2. The Petitioner is the wife of the deceased Ashwini Kumar who was doing tailoring business with an earning of Rs.5,000/- per month. On 22.04.2001 he was admitted in ESI Hospital, Ludhiana i.e. Respondent-1 and discharged on

10.05.2001. On the discharge the nurse handed over the discharge slip to the husband of the Petitioner. Accordingly, medicines were purchased from the pharmacy of the same hospital and some medicine from the other medical store. On consumption of said medicines for few days the patient was admitted again on 26.05.2001 to the ESI Hospital who died there on the same day. Due to the Complainant filed the Complaint 420/2005 before the District

Consumer Disputes Redressal Forum (in short District Forum) on 26.05.2005 for deficiency of service by R1. The Complainant’s further say was the discharge slip issued to her husband was wrong but it was in the name of Mr.

Raghuvir Singh having ESI Card No.-866110 who was suffering from

Tuberculosis/ Pneumonia whereas husband of the Petitioner was diagnosed and treated for Tuberculosis with Asthma. Hence he was put on asthmatic medicines also. Hence due to taking wrong medicines her husband died which led to a great shock and mental agony to the Petitioner. The Petitioner has filed a number of complaints to different authorities like SSP, Ludhiana,

DGP, Punjab, Punjab Human Rights Commission, Punjab Mahila

Commission, Chandigarh, but did not get satisfactory response for which the

Petitioner filed a Complaint before the District Forum claiming Rs.5,00,000/- on the account of negligence and deficiency in service by R-1. The

Respondents furnished the written statement denying the averments of the

Complainant. The District Forum allowed the said complaint and the

Respondents were directed to pay a compensation of Rs.1,00,000/- along with Rs.5,000/- as cost.

3. Aggrieved by the order of District Forum cross appeals were filed before state commission. The Opponents filed two separate Appeals

F.A.No.1254/2009 by OP-1and F.A. 1160/2009 by OP No-2&3 with the prayer of setting aside the order of District Forum. Also the Petitioner filed the

FA/1749/2009 for enhancement of the compensation. State Commission is going through the documents and materials placed on file and hearing the

Counsels of both the sides as follows:

“17.From the above statement of Respondent No. 1 herself, it is clear that the proper quantity of medicine was not given by Respondent No.1 to her husband, nor he was got examined from any doctor, nor he was admitted in any hospital, including Respondent No. 2 hospital, when her husband was feeling uneasiness or his health was deteriorating which shows that the story of the change of discharge slip has been concooted after the death of the husband of Respondent No. 1; whereas before that when he was feeling uneasiness or his condition was deteriorating, Respondent No. 1 never bothered to get him examined from a competent doctor, nor brought him to

Respondent No. 2-hospital from where he was taken the treatment. A prudent man will immediately rush to the same doctor or the hospital if the medicine is not showing proper results, or is causing uneasiness or some other side effect, but that was never done. The District forum also has not given any clear-cut finding about the wrong issuance of the discharge slip, but somehow or the other by twisting the facts, awarded the compensation but the order of the District Forum is not sustainable as it is against the evidence, material and various inquiries conducted and also the statement of respondent No. 1 herself.

18 .In view of above discussion, the appeal filed by appellants is accepted and then impugned order appeal under dated 31.7.2009 passed by the District Forum is set aside. Consequently , the complaint filed by respondent No.1/complaint is dismissed. No order as to cost.

4. Hence, aggrieved by the order of state commission this revision petition filed.

5. We have heard the Counsel for both the parties who vehemently argued the matter. We could find here that, the husband of Petitioner who was

Mss admitted in ESI Hospital on 22.04.2001 and on date 10.05.2001 was issued discharge slip by the staff nurse. It was admitted by the Opposite

Party that the patient Raghubir Singh and Ashwini Kumar were discharged on same day, both were suffering from T.B. and on the same treatment.

Complainant purchased some medicines from the market and produce the bill for the same, which are in the name of Ashwini Kumar therefore, it was difficult to say that the discharge slip is of any different person. It is pertinent to note that after discharge i.e. on 10.05.2001 Ashwini Kumar was in satisfactory condition and went home. Thereafter, when his condition started deteriorating he has not consulted to any doctor or any ESI hospital/ concerned ESI dispensary but he himself reduced the dose of medicine continued for 16 days i.e. up to 26.05.2001,thereafter when her husband was feeling uneasiness or in the deteriorating health he was brought to ESI hospital and died on same day.

Such attitude of Complainant itself was a negligence and clear that the story was built after the death of her husband stating that the nurse has been issued erroneous discharge slip. No doubt that if any person is so serious a common prudent man will immediately rush to the hospital or the doctor for the uneasiness caused by the medicines.

We also observed the inordinate delay in filing the complaint before

District Forum. The cause of action arose from the date 26/05/2001 on which death of her husband in ESI Hospital took place, whereas the Complainant filed the complaint No 420/2005 on 26.05.2005 before the District Forum ; which was after 4 years. The delay explained was on account of the complainant in pursuing her allegations before several other law enforcing agencies and by which complainant did not approach the Consumer forum.

The District Forum erred in condoning the delay on the grounds which were not sufficient cause and not proper. Hence, at initial stage only the complaint was barred by limitation. The State Commission also has not considered this point.

Therefore, we find this case is barred by limitation, as well do not find any merits herein.

Hence, the Revision Petition is dismissed. No Costs.

..…………………..………

(J.M. MALIK J.)


……………….……………

(S.M. KANTIKAR)

MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI


(From the order dated 28.11.2007 in First Appeal No. 287 & 568/2006 of Orissa State


M/s. British Airways PLC, Represented through its Sales Manager, L & T Chambers, 16,

CAMAC Street, Kolkata – 700071, West Bengal

... Petitioner

Versus

1. Sri Rabindra Nath Pati 204, Bhagwan Towers Cuttack Road, Jharpada,

Bhubaneswar

– 751006 District - Khurda

2. M/s. Swosti Travels, Represented through its General Manager 103, Janpath Unit –

III, Bhubaneswar – 700017 District Khurda

…. Respondent(s)


(From the order dated 28.11.2007 in First Appeal No. 287 & 568/2006 of Orissa State


Dr. Rabindra Nath Pati 204, Bhagwan Towers Cuttack Road, Jharpada, Bhubaneswar

– 751006 District – Khurda

... Petitioner

Versus

1. M/s. Swosti Travels, Represented through its General Manager 103, Janpath Unit –

III, Bhubaneswar – 700017 District Khurda

2. M/s. British Airways, Represented through its Sales Manager, L & T Chambers, 16,

CAMAC Street, Kolkata

– 700071, West Bengal

…. Respondent(s)

BEFORE





For the Petitioner(s) /

Complainant

Mr. Sukumar Pattjoshi, Advocate

For British Airways

For Swosti Travels

Mr. Chandranath Mukherjee, Advocate

Mr. S.K. Mohanty, Advocate


O R D E R


This single order shall dispose of two revision petitions as detailed in the head-note above and a copy of the same may be placed in each file.

2. These two revision petitions are concerning the consumer complaint filed by Dr. Rabindra Nath Pati who had planned to travel by British Airways from India to

Philadelphia, USA and back and purchased air ticket for the said travel from Swosti Travels. The petitions have been filed against the impugned order dated

26.12.2007, passed by the Orissa State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 287/2006, “British Airways versus Rabindra Nath Pati and Anr .” and FA No. 568/2006 “Rabindra Nath Pativersus

M/s. Swosti Travels & Anr .” These appeals were made against the order dated

07.02.2006 passed by the District Forum, Khurda, Bhubaneswar, Orissa in Consumer

Complaint No. 348/2004, filed against Swosti Travels and British Airways. by Dr. Rabindra Nath Pati complainant

3. The facts of the case are that the complainant Rabindra Nath Pati was invited by

Penn State University, Pennsylvania, United States of America to attend the Indigenous

Knowledge Conference – 2004 which was to take place from May 27 to 29, 2004 in

USA. He applied for getting a visa to the US Consulate at Kolkata, indicating that he wanted to stay in USA for two weeks. He purchased ticket for his travel from

M/s. Swosti Travels (OP No. 1) for flying in British Airways ‘to and fro’ flight on payment of Rs.62,992/-. He proceeded from New Delhi to USA on 24.05.2004 by British Airways flight. According to the complainant, his visa was valid upto six months as a short-term scholar. After completion of the programme in USA, he came to Philadelphia airport on

22.06.2004 to board the British Airways flight to come back to India. However, the

British Airways did not permit him to board the Aircraft on the ground that his Visa for stay in USA stood expired on 29.05.2004 and since he had no valid visa for stay in

USA, he was supposed to obtain a transit visa for flying through U.K. The complainant,

having been denied by the British Airways to board the flight, requested for refund of the balance cost of the ticket, so as to enable him to purchase another ticket in some other airlines, where such transit visa was not required. The British Airways, however, replied that the refund could be given only at the place of booking in India. The complainant had to stay in USA for more time and according to him, he had to borrow money from some friends as well as spend from his own sources. He purchased the return ticket by

Alitalia Flight and reached India on 17.07.2004. In the meantime, he even tried to get a transit visa from the British Consulate in USA, but the said visa was refused by the

British Consulate General vide their letter dated 14.07.2004. The complainant then filed the consumer complaint in question demanding a sum of Rs.14.49 lacs as compensation. The District Forum vide order dated 07.02.2005 allowed the complaint and directed the British Airways to refund the cost of return ticket, i.e., Rs.31,496/- and a sum of Rs.50,000/- for cost of living from 22.06.2004 to 16.07.2004 in USA and in addition, to pay another sum of Rs.50,000/- towards mental agony and Rs.2,000/- as litigation expenses. Against this order, two appeals, as detailed above, were filed before the State Commission – one by M/s. British Airways and the other by the complainant, Dr. Rabindra Nath Pati. Vide impugned order, the State Commission modified the order passed by the District Forum and directed the British Airways to pay a total sum of Rs.72,896/- to the complainant by 28.02.2008. The said sum included the balance price of the return ticket amounting to Rs.31,496/- and the price of the ticket for Alitalia Airways amounting to Rs.41,400/-. It is against this order that the present revision petitions have been filed.

4. At the time of hearing before us, the learned counsel for M/s. British Airways stated that the complainant had got invitation from the Penn State University to visit USA for a conference, but visa to visit USA was granted to him by the US Consulate at Kolkata for a period of three days only, i.e., from 27 th May 2004 to 29 th May 2004, based on Form

No. DS2019, sent by the University to the complainant. The complainant in his application for Visa had stated that he wanted to spend two weeks in USA. Learned counsel argued that when the complainant reached the Philadelphia airport on

22.06.2004 for taking the return flight of British Airways, it was pointed out to him that he did not have a valid permission to stay in USA. Consequently, since the flight of British

Airways was to pass through UK, he was required to have a Direct Access Transit Visa

(DATV) for travelling through U.K. He was, therefore, not allowed to board the British

Airways flight back home. The complainant tried to obtain visa from the Consulate

General of UK in USA, but the said Visa was not granted to him. The complainant purchased return ticket from another International Carrier Alitalia and returned to India on 17.07.2004. On his return, the permissible amount of Rs.2,486/- was refunded to him. There was no deficiency in service on the part of the British Airways.

5. The learned counsel for the complainant Rabindra Nath Pati argued on the other hand, that the period mentioned on the Visa implies that the complainant could enter

USA any time during that period. The length of his stay in USA is decided by the US immigration authorities at the Port of entry in USA. He went to USA on 24.05.2004 and was permitted to stay there for a period of six months and hence it was wrong to say that he did not have valid visa to stay in USA beyond 29.05.2004. Regarding Visa in

UK, learned counsel stated that the complainant did not want to visit UK and hence there was no question for getting any Visa for U.K.. He wanted to travel only from USA to India and if the British Airways Carrier flies through U.K., it does not mean that any

Visa for U.K. is required. Further, the ticket for travel to USA had been issued to the complainant after checking all the particulars by the British Airways. At that stage, they could have pointed out if there was any deficiency in his travel documents.

6. Learned counsel further invited our attention to the written statement filed by the

British Airways before the District Forum in which they have clearly stated in paragraph

5 that “it is worthwhile mentioning that the validity of the period of Visa is given on arrival in the US.”

7. Learned counsel stated that the complainant had to suffer huge mental harassment and inconvenience and had to spend money from his own resources for his overstay in USA, and he should be properly compensated for the treatment given to him by the British Airways. Learned counsel mentioned that the orders passed by the State

Commission and the District Forum should be modified and the complainant should be allowed compensation of Rs.14.49 lakh as requested through his complaint.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts as admitted by both the parties are that the complainant Rabindra Nath Pati got an invitation from Penn State

University for attending conference in USA and for that purpose, form DS2019 was issued by the University to him for obtaining exchange visitor J-1 Visa from the US authorities in India. It has been stated in the said Form that it covers the period from

27.05.2004 to 29.05.2004. The complainant applied for Visa at US Consulate in

Kolkata and obtained the same. He had mentioned in his application that he wanted to stay in US for two weeks. Thereafter, the British Airways after checking the travel documents, issued a ticket to him which indicated very clearly that his return flight is booked on 22.6.2004. Moreover, he is stated to have travelled to USA on 24.05.2004 which was before the period of 27.05.2004 to 29.05.2004 making it clear that he had valid permission to enter USA even before 27.05.2004. Had the British Airways felt that stay in USA beyond 29.05.2004 was not in order, they should have refused to issue him the return ticket for 22.06.2004

. When the complainant came to the

Philadelphia Airport on 22.06.2004 as scheduled, he was stopped by the British Airways from boarding the flight on the ground that his stay in USA beyond 29.05.2004 was unauthorised and hence he required a Direct Access Travel Visa (DATV) for U.K. because the aircraft was to pass through U.K. The case of the complainant is that the period of 3 days from 27.05.2004 to 29.05.2004 is for the purpose of entry only and the duration of stay in USA is determined by the immigration authorities on arrival in

USA. This fact has been admitted in the written statement filed by the British Airways as well that the validity of the period of Visa is given on arrival in the United

States. Moreover it is absolutely clear that if his stay in USA beyond 29.05.2004 was unauthorised, the concerned authorities in that country would have definitely taken action against him in accordance with their laws. The contention of the British Airways personnel at the Philadelphia Airport on 22.06.2004 is, therefore, without any basis that he did not have valid permission to stay in USA at that time.

9. In so far as the Direct Access Transfer Visa (DATV) for U.K. is concerned, the learned counsel for the British Airways stated that Dr.Rabindra Nath Pati was required to have the DATV, since the aircraft was to pass through U.K.. He required such visa because he did not have valid permission to stay in USA beyond 29.05.2004. This issue should have been examined by the British Airways at the time of issuance of ticket in India to the complainant or before his departure from India. If they felt that the complainant was required to leave USA back home on or before 29.05.2004, they should have refused to issue him ticket for return travel for 22.06.2004. Evidently, this

is a case of deficiency in service on the part of the British Airways for which the complainant had to suffer a lot of pain and harassment. The bonafidesof the complainant are quite clear that he came to Philadelphia Airport on 22.06.2004 for boarding the flight back home under the impression that he had the valid documents to travel but the British Airways refused to fly him back.

10. The facts of the case make it abundantly clear that the complainant had to undergo a lot of mental and physical harassment, because he had to stay in USA for a further period of 3 to 4 weeks and he could return to India only on 17.07.2004 and that also through the flight of another airline Alitalia. Had there been any problem with his travel documents, then Alitalia or any other airline would not have allowed him to travel on their ticket. It is clear, therefore, that British Airways have caused undue harassment and mental agony to the complainant without any reason and without any fault of the complainant.

11. The District Forum in their order dated 07.02.2005 directed the British Airways to refund the cost of return ticket of Rs.31,486/- and an amount of Rs.50,000/- towards the cost of living in USA from 22.06.2004 to 16.07.2004 and ordered to pay another sum of

Rs.50,000/- for mental agony etc. and Rs.2,000/- as cost of litigation. The complainant as well as Opposite Party filed appeals against that order and vide impugned order, the learned State Commission allowed him a total sum of Rs.72,896/- only which included the balance of the return ticket at Rs.31,496/- and the cost of Alitalia ticket at

Rs.41,400/-, in total, a sum of Rs.72,896/-.

12. We, however, do not agree with the line of argument taken by the learned State

Commission, in so far as the value of the ticket is concerned. The complainant cannot be given the benefit of getting refund for the unused British Airways ticket and also allowed the value of new ticket purchased from Alitalia. At best, he can be awarded one of these amounts, otherwise it will amount to a double benefit. We, therefore, feel that an amount of Rs.41,400/- which is higher of the two amounts should be awarded to the complainant for the money spent on tickets.

13. Further, in so far as, the mental agony, harassment and cost of stay is concerned, it is observed that the complainant had to stay in the US for a further period of 24 days without any fault of his own and he suffered a lot for which he must be suitably

compensated. The District Forum allowed him a sum of Rs.50,000/- as compensation for over-stay in USA and another sum of Rs.50,000/- as compensation for mental agony

/ harassment etc. in addition to Rs.2,000/- as cost of litigation. The complainant, however, has demanded a total sum of Rs.14.49 lakh as compensation from the

OP. Looking into the facts and circumstances of the case in entirety, we feel that a sum of Rs.1,50,000/- should be awarded to the complainant for ticket, the expenses incurred for stay in USA and also as compensation for mental agony, harassment, etc. and we order accordingly. Out of the said payment, payment of Rs.41,400/- is to be made to the complainant with interest @9% p.a. from the date of complaint till realisation. Both the revision petitions, therefore, stand disposed of and the orders passed by the State

Commission and the District Forum stand modified as stated above with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 13.03.2012 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula in First Appeal no. 285 of 2012)

Shri Jagdish Parshad Son of Shri Hardev Parshad Resident of H No. 714, Sector 30

Faridabad, Haryana

Petitioner

Versus

ICICI Lombard General Insurance Co. Ltd., Krishna Tower, Neelam Bata Road NIT

Faridabad

Respondent

BEFORE:



For the Petitioner Mr Rajesh Mahna, Advocate

For the Respondents Mr Amit Tyagi, Advocate


ORDER

REKHA GUPTA

Revision petition no. 1996 of 2012 has been filed under section 21 (b) Consumer

Protection Act, 1986 against the order dated 13.03.2012 of the Haryana State

Consumer Disputes Redressal Commission, Panchkula (‘the State Commission’) in appeal no. 285 of 2012.

The brief facts of the case as per the petitioner/complainant are that the petitioner is the absolute registered owner of vehicle bearing registration no. HR 39 L – 9211,

Engine no. 697TC 56JUZ129779 and chassis no. 373145JUZ131288, Model 2005. The above said vehicle was got insured with the respondent nos.1 and 2 vide cover note bearing no. GD 3351281 for a sum of Rs.8,00,000/- for the period from 04.10.2006 till

03.10.2007. The vehicle in question was also got insured earlier with the respondents no. 1 and 2 from October 2005 to October 2006. The complainant had got the above said vehicle financed with respondent no. 3 for an amount of Rs.6,64,000/- which was payable in equal instalments by the complainant to the respondent no. 3.

That on 14.04.2007 when the said vehicle reached village Gohapur, it was parked on the side to meet the call of nature. Meanwhile all of a sudden a Marshal Jeep came from Utawar side in which about 8-10 persons were sitting, out of them 4-5 persons came down from the said jeep and opened the window of the truck and took away the said truck forcibly. The driver as well as the cleaner of the truck made noise on seeing this and tried to take possession of the said truck, but all in vain because they were 8-10 numbers and there was apprehension of being done to death by the culprits.

After the above said incident, the driver of the truck informed about the above said fact to the complainant/owner of the truck and later on, the police of PS Hathin was informed about the same by the driver of the said truck. On the basis of said complaint, the police of PS Hathin, registered FIR bearing no. 79 dated 16.04.2007 under section

379 IPC. The complainant as well as driver and cleaner of the truck tried to search for the truck in question and later it was revealed that the culprits unloaded the stones lying in the truck at Jayanti Mour, near Curaksar Road, and ran away along with the empty truck.

Thereafter, the complainant intimated to the insurance agent namely Ashok Kumar on 15.04.2007 about the fact of snatching of the truck in question by the culprits and intimation in this regard was also sent to the bank authorities, i.e., respondent no. 6. On the basis of intimation, the respondent no. 1 and 2 registered the claim bearing no. 339569 dated 15.04.2007, being the insurer of the truck. The claim was not passed by the respondent no. 1 and 2 due to non-deposit of UNTRACED report with them.

Thereafter the complainant obtained UNTRACED report issued by the concerned court, i.e., from the court of Shri Harish Gupta, JMIC, Nuh dated 07.11.2007 and submitted the same with the respondent no. 1 and 2 through its agent/ surveyor, namely H D Pandey, since the said agent/ surveyor was deputed for the said purpose by respondent no. 1 and 2.

Later on the said surveyor contacted the petitioner and obtained some signatures of the petitioner on some blank documents/papers and assured the petitioner that the claim amount shall be passed shortly.

The petitioner after that visited the office of respondent no. 1 and 2 to get released the insured amount of the vehicle in question, but the respondentsno. 1 and 2 intentionally and deliberately, knowingly have been delaying the matter and putting off the complainant on one pretext or the other.

Due to non-availability of the above said vehicle the petitioner has been suffering from business loss to the tune of Rs.2,000/- per day with effect from 15.04.2007 till its realisation plus further loss towards the interest accruing on the finance amount raised

by the respondent no. 3 and further the respondents no. 1 and 2 has withheld the insured amount to the tune of Rs.8,00,000/- due to wrongful act and conduct by the respondents no. 1 and 2.

The respondents/OPs 1 and 2 in their reply have taken preliminary objections that the petitioner used the Dumper Bearing no.

HR 39 L 9211 (hereinafter referred to ‘as said vehicle’) for commercial purposes through others. Therefore, petitioner is not a consumer qua the answering opposite parties under the provisions of Consumer

Protection Act, 1986. Hence, instant complaint is liable to be dismissed.

As per the admissions of complainant the said vehicle was used by his family friend Mr Satya Narayan Kasana with effect from the date of its purchase. As per further admissions of petitioner during the night of 14-15 th April 2007, said vehicle was being driven by Driver (Hanif) and Cleaner/Conductor (Rafiq) was also with him. They were coming from Uttawar (Hathin) with stones loaded. At about 1.00 A M driver and cleaner left the said vehicle unattended on road with keys within said vehicle for urination. In the meantime some unknown persons came from behind and took away the said vehicle. Even in the FIR lodged with respect to theft of said vehicle similar version of incident has been mentioned.

They further stated that “ the petitioner and his representatives (i.e., driver and cleaner) left the said vehicle unattended with the keys. Had petitioner and his representatives properly locked the said vehicle, theft of said vehicle could have been avoided. Petitioner and his representatives have acted negligently and have failed to take proper care and caution for the protection/ safety of said vehicle. Sole reason for theft of said vehicle is negligence of petitioner and his representatives. Therefore, petitioner is not entitled to any claim.

The petitioner has violated the terms and conditions of insurance policy, therefore, the petitioner is not entitled to any claim.

Thereafter, they denied that the said vehicle was taken away by the culprits forcibly. Even as per admissions of petitioner, his friend and driver, no amount of force was used by culprits/ thieves. As the said vehicle was left unattended on road in night with keys in, thieves got the chance and they simply took (stole) it away. It is denied that driver and/ or cleaner made any effort to take the said vehicle back from culprits/ thieves. Driver and/or cleaner never encountered the culprits/ thieves. It is denied that there was any apprehension of death or even of any injury to driver or cleaner. It is denied that driver and/ or cleaner made any noise in order to protect the said vehicle.

It is submitted that the said FIR was lodged on 16.04.2008 at 04.55 PM i.e., after more than 40 hours after the alleged theft of said vehicle. It is denied that either the petitioner or the driver of cleaner made any effort to search the said vehicle.

It is submitted that the petitioner intimated the claim of answering opposite parties only 23.04.2007. It is denied that said vehicle was snatched from petitioner or from driver/cleaner. Upon being intimated about the claim, answering opposite parties processed the same but found that complainant is not entitled to the claim, therefore

answering opposite parties vide their letter dated 13.02.2008 repudiated complainant’s claim.

It is denied that the surveyor obtained signatures of complainants on any blank paper. It is denied that surveyor assured the petitioner that his claim will be passed” .

The District Consumer Disputes Redressal

Forum, Faridabad (‘the District Forum’) vide their order dated 06.02.2012 in consumer complaint no. 302, have cited the judgment dated 15 th August 2011 in “ RP no. 682 of 2011 –

Mr Keshav Natu Mhatre vs The Manager, New India Assurance Co. Ltd.

, where the

National Commission dismissed the revision petition as there were concurrent findings of fact of two Fora below that the petitioner had left the vehicle unattended on the road for five and half hours which was a breach of important terms and conditions of the insurance company. In the said case, the keys of the vehicle had been taken away by the driver whereas in the case in hand the driver even left the keys inside the truck while going for urination. In ‘Delhi Dhulia Road Carrier vs United India Insurance

Company Ltd., III (2011) CPJ 36 the claim lodged by the owner for loss of his vehicle by way of theft was repudiated by the insurance company and that repudiation was upheld by the State Commission of New Delhi on the ground that the complainant ad not taken any care of the vehicle as he left it unattended and unlocked. A similar view was taken by the State Commission of Uttar Pradesh in the case of “United India

Insurance Company Limited vs Shivali Cement Pvt. Ltd., 111 (1999) CPJ 264.

No law to the contrary was cited by the counsel for the complainant.

Since the driver of the complainant went for urination after leaving the truck unattended and with keys inside, his act amounts to negligence in not safeguarding the truck/vehicle and as such the insurance company was justified in repudiating the claim of the complainant for the loss of his vehicle.

Resultantly, the complainant is dismissed as being without any merit” .

Aggrieved by the order of the District Forum, the petitioner filed appeal no. 285 of

2012 before the State Commission. The State Commission vide their order dated

13.03.2012 has dismissed the appeal in limine by stating that “ we have gone through the impugned order and have taken into consideration the facts and circumstances of the case and are of the view that admittedly petitioner was required to take due care of his vehicle as per the terms and conditions of the policy, but the act of the appellant/complainant by leaving his vehicle unattended with the keys amounts to breach of the terms and conditions of the policy. In this regard, we have taken notice of the case titled ‘Suraj Mal Ram Niwas Oil Mills (P) Ltd., vs United India Insurance

Co. Ltd., and another reported in 2011 CTJ 11 (Supreme Court) (CP) wherein it has been held by the

Hon’ble Apex Court that ‘in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer’.

In the present case, the negligence on the part of the complainant by leaving his vehicle unattended and unlocked, is sufficient to hold that there is violations of the terms and conditions of the policy and for that reasons, there was no deficiency in service in repudiating the claim of the complainant by the opposite party. Finding strength from the Suraj Mal Ram Niwas Oil Mills case (supra), we do not find any force in this appeal”.


- the State Commission as well as the District Forum failed to appreciate that there is no question of breach of the terms of policy by insured in the present case. The driver had the truck parked with goods and left the truck for a period indefinitely leaving the keys inside the truck. He had parked the vehicle by the side of the road near a place where the driver could go into bushes for the call the native away from the village. Unless the action of the driver of having left the keys in the dumper truck is intentional and the grounds are not sufficient to repudiate the claim by the insurance company. In Blacks Dictionary malicious act is denied as an intention or wrongful act performed against other without any justification or excuse but where there is a bonafide mistake on the part of such employee who is the lawful custodian of the vehicle as a driver of the petitioner. The State Commission cannot endorse the findings of the District Forum observing by itself deemed to be a sufficient ground to absolve the insurance company from the liability of payment the claim.

- the State Commission as well as the District Forum have failed to appreciate that the observation in the case of National Insurance vs Nitin Khandelwal 2008, Apex

Division, 45 and Amalendu Sahoo vs Oriental Insurance Co. Ltd. 11 (2010) CPJ 9 (SC), wherein it has been held that in case of theft of vehicle breach of condition is not germane – the insurance company is liable to indemnify the owner of the vehicle which the insured has obtained from the insurance company i.e., comprehensive policy for the loss caused to the insured.

- the question as to whether the theft took place of the vehicle or by snatching of the vehicle or otherwise, repudiation of the claim is not justified. The only question to be considered is whether a theft has taken place and loss has been occasioned to the insured. Repudiation of the claim on the ground that in case of burglary or house breaking or snatching of vehicle has taken placed at par when the culprit entered the premises in the presence of the open gape in the gate, there can be no justification by repudiation of claim by the insurance company. This was so held in New India

Insurance Company vs Sakar Iron Industries, reported as 1996 (2) CPC 188 decided by the National Commission, Delhi. It is clear that simply because there is a mistake on the part of driver in leaving the keys in the truck at that time when he himself was around cannot be a ground to repudiate a claim by the insurance company. There is a settled distinction between a bonafide mistake and a malafide act especially so as to conclude breach of condition of policy by the insured as stated above.

- the State Commission has relied on judgments declaration which have no application to the facts of the case.

We have heard the learned counsel for the petitioner as well as the respondent and gone through the records.

Learned counsel for the petitioner cited the following judgments:

(i) Royal Sundaram Alliance Insurance Co. Ltd., vs Sanju Dongre - II

(2012) CPJ 197 (NC).

(ii) National Insurance Company Ltd., vs Mayur Raj Singh

– IV (2012) CPJ

580 (NC)

(iii) IFFCO Tokio General Insurance Co. Ltd., vs Ram Gopal Soni and Ors –

III (2012) CPJ 235 (NC)

In the case of Royal Sundaram Alliance Insurance Co. Ltd., vs Sanju Dongre one of the r easons for repudiation of the claim was that “the complainant was negligent by leaving the key in the ignition hole of the vehicle, which is a violation of the terms of the policy, though, the fact of the loss of the vehicle due to theft is not disputed. Immediate

FIR was filed and the vehicle never recovered either by the policy or by the Insurance

Company.

………………………………..So far as the question whether the complainant himself was negligent by leaving the key in the car, no sufficient proof has been adduced by the opposite party

– Insurance Company. In our view, therefore, the petitioner – Insurance Company was not justified in repudiating the claim on those grounds. At best it could settle and has been directed to settle the claim on nonstandard basis”.

In the instant case, the question whether the petitioner was himself negligent by leaving the key in the vehicle would not apply as the petitioner has nowhere denied that keys were left in the dumper.

In fact, in the revision petition, the police station who registered the FIR noted down in the FIR the circumstances that the keys were left inside the vehicle. They have further stated that the theft of the vehicle whether with the keys of the vehicle left in the truck or snatching of keys is at par and was not intentional. In the grounds for revision petition they have also admitted that the driver parked his truck and left the truck for a period indefinitely leaving the keys inside the truck. Hence, the citation would not cover the facts of this case.

In National Insurance Company Ltd., vs Mayur Raj Singh – the facts of the case do not apply to the present case.

In the third, i.e., IFFCO Tokio General Insurance Co,

Ltd ., vs Ram Gopal Soni and Ors ., the insurance company was not able to produce any evidence in support of its claim that vehicle was being used for hire or reward, in violation of the policy conditions. In the instant case, the petitioner has himself has admitted both in his complaint and in his revision petition that the said vehicle was being used for commercial purpose and was in fact being used by Shri SatyaNarayan Kasana for same. Nowhere has it been mentioned that it was used to earn his livelihood.

On the other hand, in his complaint, the petitioner has averred that due to nonavailability of the above said vehicle, the complainant has been suffering from business loss to the tune of Rs.2,000/- per day with effect from 15.04.2007 and therefore, he is entitled to receive the business loss to the tune of Rs.7,80,000/- with interest.

Counsel for the respondent drew our attention to the fact that there are four versions regarding the theft. The first contained in the complaint of the petitioner wherein he has stated that as follows:

“ when the said vehicle reached ahead village Gohapur, it was got parked on the side to meet the call of nature. Meanwhile, all of a sudden, a Marshal Jeep came from Utawar side in which about 8/10 persons were sitting, out of them 4-5 persons came down from the said jeep and open the widow of the truck and took away the said truck forcibly. The driver as well as the cleaner of the truck made noise on seeing this and tried to take possession of the said truck, but all in vain because they were in 8 to 10 in numbers and there was apprehension of done to death to the driver and cleaner by the culprits” .

In the FIR it was stated as follows:

“

It was carrying the loaded dumper and my cleaner Rafeeq son of

Abdul Raseed resident of Dhing Daka was accompanying. When I went little head of village Gohapur, I parked my dumper by the side of the road and went for getting fresh to answer the call of the nature, in the meantime a white coloured Marshal Jeep came from the Uthawal Village in which eight to ten people were there in the jeep. Out of those people in the marshal four to five people got down and drove the dumper towards Hatheen. We started shouting and ran towards the vehicle”.

In his evidence by way of affidavit Shri Hanif, driver has stated as follows:

“

On the date of occurrence, i.e., on 14/15.04.2007, at late hours night, when the deponent along with conductor namely Rafique son of Shri AbdulRasheed resident of village Dhingraka, Teshil Hathin,

District Palwal, were coming back after loading stones in the said vehicle from Uttawar to Pall Zone, Faridabad and stopped the vehicle ahead village Gohapur to meet the call of nature along with conductor in the night hours of 14/15.04.2008. Meanwhile a Marshal Jeep white colour, came from Uttarwar side in which about 8/10 persons were there and out of which 4-5 persons got down from the said Marshal Jeep near the vehicle, i.e., Dumper

bearing no. HR 38 L 9211 and took away/ stolen the said dumper along with the loaded material and proceeded towards Hethin side. The deponent along with conductor made a noise loudly but all in vain. The deponent as well as the conductor tried to trace the vehicle/ dumper HR 38 L 9211 and thereafter found that the culprits had taken away the empty dumper and unloaded the material/ stones nearJayanti Mour, near Ghurasar roads”.

In the revision petition, the petitioner has stated that “ the vehicle of the petitioner was stolen/ snatched on 14.04.2007 from the road at Sheed village,Gohapur while going from Faridabad to Utawa (description of the place being on the road to Hatheen (Haryana). Where the insured vehicle was parked by his driver. On his way to driver and unload the stones loaded in the dumper. The driver after reaching the place after crossing the village stopped the vehicle to meet the call of the nature went by the side of the road. When the truck was taken away by four strangers. The driver and cleaner both ran behind the vehicle and when they failed to reach and stop the vehicle then reported the matter to police station. That so called theft that took place on was more like snatching ”.

The versions differ to the extent while in some it is clearly stated that the truck was taken forcibly, there is no such mention of the same in other versions.

The petitioner has not been able to establish that the said vehicle was snatched forcibly. The counsel for the respondent cited two judgments of National Commission:

Devinder Kumar vs National Insurance Company Ltd ., (RP no. 3840 of 2011 decided on 02.04.2012) wherein it has been recorded as follows:

“ We have seen the facts of the case, as narrated by the driver of the dumpertruck in the FR of 09.07.2006, in comparison with the facts as detailed by the complainant in his consumer complaint filed before the District Forum on

04.06.2007. The complaint petition is found to contain a significant omission. It does not mention that they key of the vehicle was left inside and that the cabin lock of the vehicle was not working. Both the these pieces of information are contained in the FIR as well as in the written statement of the OP/ National

Insurance Company. There is no explanation why the complainant chose to omit these details when they had already figured specifically in the FIR.

It is strange that the driver of the dumper truck chose to leave the key in the vehicle, knowing that the lock of the cabin of the vehicle was not functioning. It is equally strange that the driver who claimed to be sleeping practically at no distance from the vehicle had to be told by someone else that the vehicle had been stolen. In our view, the District Forum was wrong in holding that there was no negligence on the part of the driver. For the same reasons, we find ourselves in full agreement with the view taken by the State Commission. The revision petition has no merit and fails to carry any conviction. The same is therefore, dismissed and the order of the State Consumer Disputes Redressal Commission,

Haryana in FA no. 1230 of 2008 confirmed. No order as to costs”

.

In the case of RCI India Pvt. Ltd. Vs Parthasarthy (RP no. 443 of 2007 decided on 11.01.2012) reads as follows:

“Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India

Insurance Co. Ltd., MANU/SC/0409/2011: 2011 (3) Scale 654 has observed:

“Also it is to be noted that the revisional powers of the National

Commission are derived from section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National

Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invokved. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section

21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fo ra” .

In the instant case, the petitioner has not raised any legal issues in the revision petition.

The said theft was also reported to the police on 16.04.2007 after almost 40 hours. Further, the matter was reported to the respondent only on 23.04.2007.

Counsel for the petitioner has cited the decision of this Commission in New India

Insurance Company Ltd., vs Trilochan Jane in FA no. 321 of 2005 decided on

09.12.2009. It was argued that the insured had the obligation to inform the Insurance

Company immediately about the alleged theft. National Commission held that the word

“immediately” has to be construed “within a reasonable time having due regard to the nature and circumstances of the case”. In the case before us the stand of the revision petitioner is different. As seen from the written statement before the District Forum, the stand of the OP/ revision petitioner is that immediately means within 24 to 48 hours.

This amounts to modifying the import of the terms “immediately” in the policy. Hence, the plea is rejected .

In the instant case, the vehicle was stolen on 14.04.2007 and the insurance company was informed on 23.04.2007. Though the petitioner in his complaint has stated that the insurance agent, namely Mr Ashok Kumar was intimated on

15.04.2007. The petitioner has nowhere mentioned the date when he has informed the respondent.

Hence, in this petition no jurisdiction or legal error has shown to call for interference in the exercise of power under section 21 (b) of the Consumer Protection

Act, 1986, since, the two Fora below have given cogent reasons in their order which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

Accordingly, the present revision petition is not maintainable being devoid of any merits and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).


‘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.


Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish




of the State Commission, Haryana, Panchkula)

Iqbal Singh S/o Talay Ram, Resident of House No.626P, HUDA Colony, Sector-20, Part-II,

Sirsa, Haryana

....Petitioner

Versus

1. Haryana Urban Development Authority, Panchkula, through its Chief Administrator

2. The Estate Officer Haryana Urban Development Authority Sirsa, (Haryana)

….Respondents

BEFORE:



For the Petitioner : Mr. Pardeep Kumar, Advocate


ORDER


In this revision petition filed by the Petitioner/complainant, there is challenge to order dated 10.11.2010, passed by State Consumer Disputes Redressal Commission,

Haryana, Panchkula (for short, ‘State Commission’).

2. Brief facts are that respondents/O.Ps have allotted a plot bearing No.626-P

Sector-20 Part-II measuring 14 marlas vide allotment No.126 dated 7.1.2003. The possession of the plot was delivered to the petitioner vide letter dated 28.4.2003. As per the version of the petitioner, there is a sewerage line passing in front of his plot at a distance of one feet and due to existence of said sewerage line and manhole, he could not construct his house properly as he could not utilize the entire area of the plot.

Further, there was foul smell due to the sewerage line as well as manhole. Therefore, petitioner approached respondents and requested them to remove the sewerage line and manhole but in vain. Thus, alleging it a case of deficiency of service and unfair trade practice, petitioner invoked jurisdiction of the District Consumer Disputes

Redressal Forum, Sirsa (for short, ‘District Forum’).

3. Respondents in their written statement took the plea that complaint was not maintainable, having been filed beyond the period of limitation. They further took the plea that the sewerage line and the manhole was not part of the plot in question and same are within the area of street-road. It is denied that the due to existence of

sewerage line and manhole, petitioner could not construct his house properly. In fact, there is no leakage in the sewerage line/pipe. Denying any kind of deficiency in service, it prayed that complaint be dismissed.

4. District Forum, vide order dated 19.1.2007, allowed the complaint and passed following directions;

“Keeping in view the facts and circumstances of the case we are of the considered opinion that the respondent-HUDA gross negligence and deficient in service towards the complainant. Hence, we held the respondent guilty under Section 2(1)(g) and 1(1)(o) of the Consumer

Protection Act, 1986 (in short the Act). We find that the OPs constructed the manhole in front of the gate and inside the plot of the complainant and due to this reason the complainant could not construct his house properly and he could not utilize the entire area of the plot due to the existence of sewerage line as well as moisture, the front portion of the house including the front portion of the

Varandah, open space, paints and marbel damaged badly and have left its space due to the moisture. Hence, we direct the respondent-

HUDA to remove the manhole from the front portion of the house of the complainant i.e. from the front gate of the complainant. We further direct the respondents to pay a sum of Rs.one lac to the complainant in lumpsum on account of damages caused to the house of the complainant. We further direct the respondents to pay the aforesaid amount and also remove the manhole and sewerage line within a period of one month from the date of the present order failing which the complainant shall be entitled to compensation of Rs.5,000/- on account of physical and mental harassment, pain and agony with costs of proceedings to the tune of Rs.2,500/-. We order accordingly.”

5. Being aggrieved, respondents filed appeal before the State Commission. None had put in appearance on behalf of the petitioner before the State Commission at the time of arguments. After hearing the learned counsel for the respondent, State

Commission allowed the appeal.

6. Being aggrieved by the impugned order, petitioner filed this revision and has also placed on record its written version.

7. It has been contended by learned counsel for the petitioner that act of the respondent is a continuous wrong and provide continuous cause of action and consequently there is no question of statutory limitation of two years. In support, petitioner’s counsel relied upon the following judgments;

(i) Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd.

((2007) 3 SCR 1082 and

(ii) Balakrishna Savlram Pujari Waghmare Vs. Shree Dhyaneshwar

Mahajaj Sansthan

1959 Supp (2) SCR 476.

8. State Commission in its impugned order held;

“At the very outset the question for consideration in this appeal is as to whether the complaint of the complainant is within limitation as prescribed under Section 24A of the Consumer Protection Act, 1986.

Admittedly the complainant was allotted the plot in question vide allotment letter No.126 dated 7.1.2003 and possession of the same was delivered to him on 28.4.2003 whereas the complainant has filed the present complaint on 06.07.2005 i.e. beyond the prescribed period of two years as provided under Section 24-A of the Consumer

Protection Act, 1986. It is well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action.

Reliance is placed on the case titled as Kandimalla Raghavaiah

& Co. versus National Insurance Company Ltd. and another , 2009

CTJ 2009 (Supreme Court)(CP) wherein para No.12 of the said judgment it has been held by Hon'ble Apex

Court;

“12. Recently, in State Bank of India Vs. M/s. B.S.

Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009

(4) SC 191, this Court, while dealing with the same provision, has held as under;

“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.”

The present case is fully covered by the case law cited supra.

Under the facts and circumstances of the case as well as the case law cited supra we are of the view that the District Forum has not considered the factual position on record and committed great error in allowing the complaint and as such the impugned order under challenge, is not sustainable in the eyes of law.

For the reasons recorded above, this appeal is accepted, the order is set aside and complaint is dismissed.”

9. As per averments made in the complaint, possession of the plot in question was delivered to the petitioner on 28.4.2003. It has been alleged in the complaint that during the course of construction of the house, it came to the light that the main sewerage line is in existence through the plot of the petitioner.

10. In the entire complaint, it is nowhere stated as to on which date cause of action arose. However, in para no.10 of the complaint it is stated that about three months back when petitioner started to reside in the newly constructed house the fact of damage to his house due to leakage in sewerage line came to his knowledge. Thus, as per petitioner’s own case, the existence of sewerage line which was going through the plot of the petitioner came to his knowledge during construction of the house.

11. The complaint was filed before the District Forum on 6.7.2005 which is admittedly beyond the prescribed period of two years as provided under Section 24A of the Act.

Interestingly, in its written version, petitioner has put forward another story stating that he came to know about deficiency of service on the part of respondents only in the month of June, 2003. Thereafter, legal notice was sent and finally complaint was filed on 6.7.2005.

12. On 9.5.2012 at the time of admission hearing, counsel for petitioner undertook to file copies of relevant Building Regulation of HUDA which specify the parameter of laying underground main sewerage line as well as house connection therewith.

Petitioner was directed to do the needful within eight weeks. Consequently, operation of impugned order was stayed. Thereafter, petitioner sought number of opportunities to file such guidelines but lastly on 4.12.2012, counsel for petitioner stated that there is no such rule dealing with sewerage line. This shows the conduct of the petitioner who after obtaining ex parte stay had been delaying the matter.

13. Since, complaint filed by the petitioner before the District Forum was barred by limitation, various judgments cited by learned counsel for the petitioner, are not applicable to the facts of the present case.

14. Thus, we hold that there is nothing on record to show that impugned order passed by State Commission is erroneous or there is any illegality in the same. Hence, the present revision petition being without any legal basis and is meritless stand dismissed.

15. No order as to cost.

…..…………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

(1) REVISION PETITION NO. 97 OF 2011

(From order dated 22.11.2010 in First Appeal No. FA-09/255 of the State Consumer


Mahindera Lifespace Developers Ltd. (formerly known as Mahindra Gesco Developers

Ltd.) Registered Office at Mahindra Towers, 5 th Floor, Road No. 13, Worli Mumbai-

400018 Also at: UGF, The Great Eastern Plaza Mahindra Towers, 2-A, Bhikaji Cama

Place, New Delhi

–110066.

……Petitioner

Versus

1. Mr. Sunil Jasuja S/o Late Shri A S. Jasuja 151-B, Beverly Park-II, Gurgaon-

122002.

2. Mr. Samir Jasuja S/o Latge Shri A. S. Jasuja 1511-B, Beverly Park-II, Gurgaon

122002.

3. M/s Gulab Farms(P) Ltd. 2148, Malcha Marg Diplomatic Enclave New Delhi-

110021

4. M/s Sweet Peas Farms(P) Ltd. 21/48, Malcha Diplomatic Enclave New Delhi-

110021

….. Respondents

(2) REVISION PETITION NO. 98 OF 2011

(From order dated 22.11.2010 in First Appeal No. FA-09/256 of the State Consumer


Mahindera Lifespace Developers Ltd. (formerly known as Mahindra Gesco Developers

Ltd.) Registered Office at Mahindra Towers, 5 th Floor, Road No. 13, Worli Mumbai-

400018 Also at: UGF, The Great Eastern Plaza Mahindra Towers, 2-A, Bhikaji Cama

Place, New Delhi –110066.

……Petitioner

Versus

1. Shri Rupinder Singh Oberoi S/o Shri Manmohan Singh Oberoi B-6/55, Safdarjung

Enclave New Delhi-110029.

2. Ms. Tejinder Kuar Oberoi W/o Shri Rupidner Singh Oberoi B-6/55, Safdarjung

Enclave New Delhi-110029.

3. M/s Gulab Farms (P) Ltd. 2148, Malcha Marg, Diplomatic Enclave New Delhi-

110021

4. M/s Sweet Peas Farms (P) Ltd. 21/48, Malcha Marg, Diplomatic Enclave New

Delhi-110021 ….. Respondents

BEFORE:



In RP No. 97 of 2011

For the Petitioner : Dr. M. P. Raju, Advocate with

Mr. Aniket Kumar, Auth. Representative

For the Respondents : Mr. Jitenmdra Rutta, proxy counsel for

Mr. Rahul Sharma, Adv. for R-1 & R-2

NEMO for R-3 & R-4

In RP No. 98 of 2011

For the Petitioner : Dr. M. P. Raju, Advocate with

Mr. Aniket Kumar, Auth. Representative

For the Respondents : Mr. Sanjeev Nirwani, Advocate for R-1

NEMO for R-2, R-3 & R-4

Pronounced on: 15 th May, 2013

ORDER


Mahindra Gesco Developers Ltd.-Petitioner in above noted petitions was

Opposite Party No.3 before the District Forum, has filed these petitions under Section

21 (b) of the Consumer Protection Act, 1986(for short, ‘Act’) against order dated

22.11.2010 passed by the State Consumer Disputes Redressal Commission, Delhi (for short, ‘State Commission).

2. Respondents No.1 & 2/complainants filed Consumer Complaints before the

District Forum on the allegations that they have entered into an agreement with respondents no.3 & 4/O.Ps No.1 and 2 for purchase of Apartments in the Group

Housing Society in Central Park, Sector-42, Gurgaon, Haryana. This agreement was signed on behalf of respondents no. 3 and 4 through its constituted attorney, Petitioner.

Subsequently, sale deed of the Apartments was executed in favour of respondents no.1 and 2 by respondents no. 3 and 4.

3. Respondents No.1 and 2 filed complaint against petitioner as well as respondents no.3 and 4 alleging that the escalation charges, service tax, maintenance and subscription charges for the residential club etc. as demanded, were not payable.

4. Respondents No. 3 and 4 contested the case on merits and filed their written statement, while petitioner filed an application to delete its name from the array of the parties on the ground that there was no privity of contract between respondents no.1 and 2 and the petitioner who acted as an attorney/agent of respondents no. 3 and 4 and respondents no. 3 and 4 being his principals were already impleaded.

5. District Forum after hearing the parties, vide order dated 11.2.2009, dismissed the applications of petitioner.

6. Order of the District Forum was challenged by the petitioner before the State

Commission which dismissed the appeals of the petitioner, vide its impugned order.

7. Hence, present revision petitions.

8. We have heard the learned counsel for the parties and gone through the record.

9. It has been contended by learned counsel for the petitioner that State

Commission erroneously refused to follow the clear proposition of law laid down by the same State Commission in the case of present petitioner itself in an identical case relating to the same housing project though the complainant happened to be another buyer identical to the present complainants/respondents. It was the specific case of the petitioner that the said proposition of law and principle laid down by the said State

Commission in its decision dated 4.11.2008 in Complaint Case No. 2007/223 in the matter of Vikas Chaariya and others vs. Mahindra Gesco Developers Ltd. & others, wherein the State Commission had directed the deletion of the petitioner from the array of parties relying on Section 230 of the Indian Contract Act, wherein the present petitioner was impleaded as a party as the agent of the owners of the land, project and buildings. It is pertinent to mention that the said judgment and order dated 4.11.2008 in

Complaint Case No. 2207/223 has already been upheld by this Commission also.

Learned counsel, in support of its contentions also relied upon following judgments ;

(i) Radhakrishna Sivadutta Rai & Ors. Vs. Tayeballi Dawoodbhai

(1) SCR Supreme Court Reports 81 and

(ii) Prem Nath Motors Vs. Anurag Mittal

AIR 2009 Supreme Court 56.

10. On the other hand, learned counsel for respondents no.1 and 2 has contended that petitioner is not only the agent of respondents no. 3 and 4 but is also the developer of the land and Project Manager in its individual capacity. It was the petitioner with whom original agreement was made and it was the petitioner who has been dealing with these respondents with regard to construction. Further, in order to effectually and completely adjudicate the controversy between the parties, petitioner is a necessary party. Thus, there is no illegality or infirmity in the impugned order.

11. State Commission in its impugned order observed ;

“7. It will be noticed that appellant (OP-3) in the case is the developer of the land, and the project manager. He is as such real executor. The

OP-1 & 2 may have signed the sale deed as owners, but the man behind the scene, who holds the strings is the appellant (OP-3). It is

OP-3 with whom the original agreement was made. As such, even if the sale deed was not executed by OP-3, merely because the ownership lay with OP-1 & 2, it cannot be said that he is completely a outsider, and has nothing to do with the controversy in question.

8. The guiding principle is that if there is some doubt about the question, whether a person should be made a party to the proceedings or not, the court should usually decide in favour of retaining the person as a party. The reason is that, when after all facts have been unfolded, and at the time of hearing, it is found, that the person concerned was a necessary or proper party, whole exercise will have to be restarted, while on the other hand if it is found at the final stage that the person in question was not a necessary party, he can be exonerated.

9. The order for deletion of a party at the initial stage has to be passed only in cases, where prima facie and per se, the party in question is completely outsider, and has nothing to do with the case, and the court therefore feels that he should not be subjected to the tribulations of a trial. This is not the case here. The appellant made the initial agreement with the complainant which ultimately led to the sale deed.

He is the developer and the project manager. It cannot therefore be said at this stage that he is not a necessary or a proper party.

10. The appeal is accordingly rejected ”.

12. It is an admitted case of all parties that petitioner is duly constituted attorney of respondents no.3 and 4. As per Project Management Agreement dated 12.09.2000, petitioner was authorized to develop the ‘Central Park’ and to market Apartments to the prospective buyers and to make advance sales to the prospective buyers and to make allotments to the allotteees. Further, an Apartment Buyer Agreement dated 08.04.2003 was entered into between the Owners-Opposite Parties No. 3 and 4 and Petitioner of the first part and Respondents No.1 and 2-complainants on the second part (copy of

Agreement is at Page No. 56 of the Paper Book). In pursuance of the Buyer

Agreement, a sum of Rs.8,69,288/- had been deposited with the present petitioner

(photo copy of receipt is at page 54 of the Paper Book). Again, it is the petitioner alone who has issued letter dated 8.3.2003 to one of the complainant stating as under ;

“We may inform you that we have accepted your application for allotment of aforesaid apartment in the ‘Central Park’ Gurgaon”.

13. Therefore, on the basis of above documents it is manifestly clear that it is the petitioner who has been dealing directly with respondents no.1 and 2. Thus, petitioner is a necessary party in these proceedings.

14. It is well settled that a person may also be added as a party to the suit, even though he is not a necessary party and no relief is claimed against him, if his presence is necessary for complete and final decision of the questions involved in the suit. In other words, if in the opinion of the court, the presence of a person may be helpful in effectually adjudicating upon all points in dispute, the court has power to direct that he should be added as a party to the suit. Such a person is called the proper party as distinguished from necessary party.

15. It is also well also settled that plaintiff is dominus litis and normally it is for him to select his adversary from whom he seeks relief and it is not for a court to ask him to join any other person as a party to the suit. But it is equally well settled that the matter has to be adjudicated on merits by the court. It is, therefore, the duty of the court to keep in mind a relevant consideration that as far as possible, multiplicity of proceedings should be avoided. If the court feels that in case a person is not impleaded as a party, all questions raised in the suit cannot be finally, completely and effectually decided and there is likelihood of another proceeding which can be avoided by impleading such person as a party to the suit, notwithstanding an objection by the plaintiff, he may be joined as a party since his presence before the court is found necessary.

16. Hon’ble Supreme Court in Anil Kumar Singh Vs. Shivnath Mishra alias

Gadasa Guru (1995) 3 Supreme Court Cases 147 , observed ;

“ though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings ”.

17. Under these circumstances, none of the judgments cited by the counsel for the petitioner are applicable to the facts of the present case.

18. The only purpose of petitioner in filing applications for deletion of its name is to delay the proceedings. Petitioner to a certain extent has succeeded in its design as complaints were filed as earlier as in the year 2007 and even after six years, the pleadings have yet not been completed. Therefore, these petitions being without any legal basis and having no merit have been filed just to harass the complainants. As such, these petitions are liable to be dismissed with punitive cost.

19. Accordingly, we dismiss the above revision petitions with punitive cost of

Rs.20,000/-(Rupees Twenty Thousand Only) in each case, to be paid to respondents no.1 and 2, directly by way of demand draft in their favour, within a period of eight weeks from today. In case, petitioner fails to comply with the above directions within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till its realization.


……..……………………J

(V.B. GUPTA)


…………………………

(REKHA GUPTA)

MEMBER

SSB



(Against the order dated 08.10.2007 in CC No. 23/2006 of the M.P. State Consumer

Disputes Redressal Commission, Bhopal)

Oriental Insurance Co. Ltd. City Branch Office-I Gurunanak Complex 34, Malviya Nagar,

Bhopal Madhya Pradesh Through Chief Manager Oriental Insurance Co. Ltd.

Registerd Office A-25/27, Asaf Ali Road New Delhi-110002

… Appellant

Versus

M/s R.P. Bricks Through its Proprietor Smt. Rukhsana Parvin W/o Late Shri Firoz Gul

Gram Tapra Pathari Tehsil & District Raisen Madhya Pradesh

… Respondent

BEFORE:



For Appellant : Mr. Rahul Sharma, Advocate &

Ms. Uzma Ashraf, Advocate

For Respondent : NEMO

Pronounced 15 th May, 2013

ORDER


1. Oriental Insurance Co. Ltd., Appellant herein and Opposite Party before the M.P.

State Consumer Disputes Redressal Commission, Bhopal (hereinafter referred to as the

State Commission), have filed the present First Appeal against the order of that

Commission which had allowed the complaint of M/s R.P. Bricks, Original Complainant before the State Commission and Respondent herein.

2. Facts of the case are that Respondent/Complainant-M/s R.P. Bricks, which is a proprietorship concern of one Smt. Rukhsana Parvin, was a unit manufacturing handmade burnt bricks from mud in Village Tapra Pathari, Tehsil and District Raisen,

M.P., from the year 2004. Respondent/ Complainant had obtained a Standard Fire and

Special Perils Policy (Material Damage) from the Appellant/Insurance Company for a period of one year from 21.05.2004 upto20.05.2005 for Rs.1 Crore against any loss caused to the stock of green bricks, finished bricks and the kiln by storm, tempest, cyclone, flood and inundation. It was contended that due to heavy rains on the evening

of 13.06.2004, heavy damage was caused to both green and finished bricks as also the kiln. An intimation of the loss was sent to the Appellant/Insurance Company by registered post on 15.06.2004. Appellant/Insurance Company initially appointed

Surveyor-Shri S.K. Kansal to assess the loss, who after conducting a preliminary survey of the area vide his report dated 25.06.2004 expressed inability to continue with the assignment. Appellant/Insurance Company thereafter appointed another Surveyor-

Shri V.K. Gupta. Shri Gupta vide his report dated 10.06.2005 confirmed the damage to the insured stocks/kiln at Rs.31,77,655/- as against Respondent/Complainant’s claim of

Rs.68,62,922/-. He, however, concluded that the loss was caused by normal monsoon rains and not by floods and, therefore, the claim was not covered by the insurance policy. On the basis of this report, the Appellant/Insurance Company repudiated the claim vide letter dated 20.01.2006. Being aggrieved by this repudiation, Respondent filed a complaint before the State Commission on ground of deficiency in service in wrongly repudiating a genuine claim covered under the insurance policy and requested that Appellant/Insurance Company be directed to pay it Rs.68,62,922/- being the actual damage caused, Rs.2,00,000/- for mental agony and harassment and any other compensation as deemed appropriate.

3. Appellant/Insurance Company on being served filed a written rejoinder refuting the allegation of deficiency in service and denied that the claim was wrongly repudiated. It was stated that on scrutinizing the claim papers submitted by the

Respondent/Complainant and the detailed survey report of M/s V.K. Gupta, Surveyor, it was confirmed that the rainfall on the relevant dates being 13.6 ml only no flood or inundation was caused in the area. While admittedly there was some damage to the insured stocks/premises, this was because of monsoon rains which was not an insured peril and was a natural phenomenon, for which precaution has to be taken by the owners. It was also submitted that as per the insurance policy, the claim could have been indemnified only if the loss was due to storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation. In the instant case admittedly the loss was not due to any of the above reasons and the claim based on the report of the Surveyor was rightly repudiated.

4. The State Commission after hearing the parties and on the basis of evidence produced before it partly allowed the complaint by observing as follows :

“6. Surveyor Shri Gupta as also the O.P. – Insurance Company were of the view that the rains on the relevant days were to the tune of 13.6 mm (1.25 inches) and that there was no flood or inundation caused in the area. We are afraid, the surveyor and the officers of the O.P. – Company seem to have misread the report. The report consists of two limbs. The first part pertains to the extent of rains as recorded at the District/Tehsil Headquarter, Raisen while the second part pertains to the rains experienced on 13 th and 14 th of June, 2004 at village Tapra Pathari where the subject insured was situated. If we go by the first part of the report, there were no rains on 13 th and 14 th . It was on 15 th of June

2004 that 13.6 mm rains were recorded. However, in village Tapra Pathari there have been heavy rain fall on 13 th and 14 th of June 2004 creating flood like situation. It is true that no water body like river or pond was situated in the nearby area of the complainant’s unit, but, that by itself is no ground to conclude that there was no flood or inundation. In fact, both these terms flood and inundation are synonymous which as per Chamber’s Dictionary means “over flowing”. As per Webster’s Comprehensive dictionary “inundation” means a flood, a condition of super abundance. Words inundate, flood, over flow are treated as synonyms.

7. It will be thus seen that flood or inundation does not mean that there should be flood in any nearby river or water pond etc. A floor or inundation may take place even in planes due to heavy rains. The report dated 27.07.2004 of the Tehsildar clearly revealed that on 13 th and 14 th of June, 2004 there were heavy rains in village Tapra Pathari creating flood situations in the area. In any case the loss caused by mansoon rains cannot be treated on different footing from the loss caused by floor inundation. As noted by the surveyor, a kiln is always situated in open and the work of preparation of bricks is also carried out in open fields. It was, therefore, wrong on the part of surveyor and opposite party-company to say that the loss caused by rains was not covered by the policy. The opposite party-company in our considered view was liable to compensate the loss as assessed by the survey or.”

Regarding the compensation, the State Commission observed that in her first letter dated 15.06.2004, Respondent/Complainant herself had assessed the loss at

Rs.35,00,000/- only and keeping in view this fact and the detailed report of the

Surveyor, who had assessed the total loss at Rs.31,77,655/-, the subsequent claim of

Rs.68,62,922/- sought by Respondent/Complainant was highly exaggerated. The State

Commission, therefore, directed the Appellant/Insurance Company to pay the

Respondent/Complainant Rs.31,77,655/- with interest @ 6% per annum from the date of repudiation i.e. 09.11.2005 till payment as also Rs.5000/- as costs.

5. Being aggrieved the present appeal has been filed.

6. Learned Counsel for the Appellant/Insurance Company was present. None appeared for the Respondent/Complainant. However, since service was complete, the case was heard ex-parte.

7. Learned Counsel for the Appellant/Insurance reiterated the contentions made before the State Commission and stated that an insurance claim has to be construed strictly in terms of the insurance policy and in the instant case monsoon rains admittedly were not specified as one of the perils, against which the insurance policy had been taken. It was also submitted that as per the dicti onary meaning the term “inundation” means overflow and flood. In the instant case, the damage was possibly due to heavy rains and not because of any flood or overflow. Further, the report of the Surveyor is an important document and has to be relied upon unless contradicted or controverted by more plausible evidence. In the instant case, the State Commission erred in not giving due credence to the report of the Surveyor, which clearly confirmed that the loss occurred due to monsoon rains on 13 th and 14 th June, 2004 and not because of storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation as covered under the insurance policy and the appeal, therefore, may be allowed.

8. We have heard learned counsel for the Appellant/Insurance Company and have carefully gone through the evidence on record. The fact pertaining to the

Respondent/Complainant taking Standard Fire and Special Perils Policy (Material

Damage) to cover the stocks of green bricks, finished bricks and the kiln from the

Appellant/Insurance Company is not in dispute. As stated by the State Commission in its order, it is also a fact that heavy rains were recorded in the village where the insured premises/stocks were located on 13 th and 14 th of June, 2004 creating a flood like situation as per the report of the Revenue Officer of the area. Further, the Surveyor in its report has not disputed that there was damage to the stocks as well as to the kiln amounting to Rs.31,77,655/- due to these rains and that he recommended repudiating the claim only on the ground that the loss occurred due to monsoon rains and not because of flood, inundation or any other peril specified in the insurance policy.

We are unable to accept the above interpretation/contention of the

Surveyor/Appellant-Insurance Company. In a number of cases under almost identical circumstances where claims had been repudiated under the Fire and Special Perils

Policy on the ground that the damage caused to the insured stocks/premises had been caused because of seepage caused due to heavy rains and not due to inundation,

floods etc., we had concluded that the claim was wrongly repudiated since flood/inundation also means outpouring of water. On this analogy loss caused due to seepage following heavy rains into any part of the insured premises would be covered under the definition of “flood” and “inundation” and the claim should in such circumstances be indemnified. Some specific judgments wherein we had reached the above conclusions include Bajaj Allianz General Insurance Co. Ltd. vs. Gondamal Hardyal Mal [IV (2009) CPJ 165 (NC)] ; New India Assurance Co. Ltd. vs. Dani Mourdhwaj Cold Storage Pvt. Ltd. (RP No. 4113 decided on 10.02.2012); and Oriental Insurance Co. Ltd. vs. M/s Sathyarayana Setty & Sons (RP No. 3454 of 2007 decided on 14 th March, 2012). In the instant case, since it is not in dispute that the damage was caused by heavy rains entering the premises, we are of the view that since this was the outcome of inundation around the area, it would be logically covered u nder the policy even though “seepage” or “heavy rains” may not per se have been listed as one of the perils in the insurance policy. Therefore, following our own judgments, we agree with the order of the State Commission, which had allowed the

Respondent/C omplainant’s appeal and uphold the same in toto.

9. The present first appeal is dismissed. Appellant/Insurance Company is directed to pay the Respondent/Complainant sum of Rs.31,77,655/- with interest @ 6% per annum from the date of repudiation i.e. 09.11.2005 till payment as also Rs.5000/- as litigation expenses.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



(From the order dated 02.08.2012 in First Appeal No. 49 of 2008 of the State Consumer

Disputes Redressal Commission, Haryana,Panchkula)

Dr. Ved Prakash Yadav

Dr. Ved Prakash Surgical & Laparoscopic Centre Old Court Road Model Town Rewari

… Petitioners

Versus

1. Nihal Singh Village Kaldawas Tehsil Bawal District Rewari

2. United India Insurance Co. Ltd. Branch Office-4 16-M, Gole Market Maha Nagar

Lucknow

… Respondents

BEFORE:



For the Petitioner : Mr. M.C. Gupta, Advocate

For the Respondent : Mr. Nihal Singh, In-person


ORDER


1. On 17-2-2005, the Respondent/Complainant came to the

Petitioner/Respondent with severe pain in the abdomen. He brought with him an

X-ray and an ultrasound report advised by another doctor. On the basis of those reports the complainant was diagnosed as a case of peptic ulcer, which had perforated and caused peritonitis and needed immediate life-saving surgery. The diagnosis and proposed surgical treatment and its urgency and likely outcome were explained to him and he gave informed consent for surgery. Surgery was performed under anesthesia given by a qualified anesthetist. The duodenum was found to be perforated. There was pus in the abdomen. The perforation was surgically closed. The pus was removed. The operation was successful and the

Complainant’s life was saved. He was discharged from the Hospital on

26.02.2005 in a healthy condition. A modest fee of Rs.10,000/- was charged for various services from 17.02.2005 to 26.02.2005; Surgeon’s fee; Anesthetist’s fee; OT charges; medicines and disposables.

2. The complainant came for follow up review on 29.02.2005 and again on

04.03.2005 when stitches were removed. His condition was healthy. He had no complaints.

3. After lapse of 9 months complainant developed incisional hernia. He consulted at Hindu Rao Hospital during 11/11/2005 to 18/11/2005. The doctors of there at

Hindu Rao Hospital who examined him for the incisional hernia stated that the operation conducted by Dr. Ved Yadav (OP) was wrong due to which he has to suffer. Alleging the medical negligence a complaint was filed in District Consumer

Disputes Redressal Forum (herein District Forum).

4. The District forum on appraisal of pleadings of parties and evidence on record dismissed the complaint. Against the order of District Forum complainant filed an appeal No 49/2008 before State Commission

5. The State Commission heard both the parties and perused all the documents on the file related to treatment chart of OP and other hospitals but State

Commission was not in opinion of occurrence medical negligence by the OP.

Also there was no expert opinion on the file that the treatment given by OP was not up to the medical standards. State Commission considered the reference made by District Forum who relied upon standard medical book on “Principles of

Surgery” and on perusal of the same clearly reads as under: -

“ Incisional hernias result of a healing failure of a prior abdominal wall surgical closure. Although estimates of incidence vary, careful investigation shows that they occur in at least 10 to 15% of all laparotomy incisions. Incisional hernias may be asymptomatic or present with pain, incarceration, or strangulation. Risk factors for the development of a ventral incisional obesity, immuno suppression, and chronologically increased intra-abdominal pressure .”

6. The state Commission concluded the case with observations as follows:

“

Having taking into consideration the facts and circumstances of the case and the documents available on the record, we do not find any kind of medical negligence and deficiency in service on the part of the treating doctor-opposite party No.1. However, at the same it has to be kept in mind that the appellantcomplainant has appeared before us. We have physically seen the operated portion where tissues of the complainant become weak. The complainant is a poor person and needs medical treatment again because the operation conducted by the opposite party No.1 could not give desired result. Under the facts and circumstances of the case we feel that the complainant, who is a poor person and cannot afford the expenses of second operation, should be compensated enabling him to get further treatment as a goodwill gesture. In our view whatever fee has been paid by the complainant to the opposite party no.1 i.e. Rs.16, 000/- be refunded to him as a goodwill gesture.”

7. State Commission ordered the OP to pay Rs.16000/-

8. Against the order of State Commission, this revision.

9. We have heard arguments of counsel of the petitioner and the complainant who was present in person.

10. There was no dispute that OP operated the patient and after 9 months complainant developed incisional hernia. We have perused the evidence of the parties on file and the standard medical texts, books.

11. The evidence of OP suggested that occurrence of Incisional Hernia was a known complication and due to healing defect of patient; and there was no negligence. At the first instance the condition of patient was Peptic perforation and peritonitis. Pus was also removed from abdomen. Therefore, it is clear that

OP conducted the operation with standards of medical practice. As, there was peritonitis some patients show delayed healing of operated wound which is one of the cause for incisional hernia. This textbook paragraph cited supra clearly reveals that the incisional hernia was the result of healing failure of a prior abdominal wall surgical closure.

12. After 9 months during the occurrence of incisional hernia the complainant was given an opportunity by OP to operate the complainant again but the complainant wanted to take benefit of his abnormal physical condition and further his refusal to take any treatment from the doctor itself suggests that he himself is not interested to cure his problem. The complainant consulted Hindu

Rao Hospital, which is a Government Hospital where treatment is done free.

Accordingly pre anesthetic checkup of complainant was performed on

18/11/2005 but he did not undergo surgery at the said hospital with an ulterior motive.

13. Therefore, we do not find any element of medical negligence on the part of

OP. The State Commission ordered payment of Rs.16000/- on the basis of

Goodwill Gesture; which is not prescribed under any law. Therefore we set aside the order of State Commission.

Mss

14. The revision petition is accordingly accepted. No costs.

..…………………..………

(J.M. MALIK) J


……………….……………

(S.M. KANTIKAR)

MEMBER



With

I.A. No.2684 of 2013 (For Stay)


of the State Commission, Chandigarh UT)

HDFC Bank Ltd. SCO-408-409, Sector-8, Panchkula

....Petitioner

Versus

Surender Kumar Singhal S/o Sh. Ram Parkash R/o SCO 15, Sector-26, Chandigarh

….Respondent

BEFORE:



For the Petitioner : Mr. Ajay Monga, Advocate


ORDER


Present revision petition has been filed under Section 21(b) of Consumer

Protection Act, 1986 (for short, ‘Act’) challenging impugned order dated 5.2.2013, passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short,

‘State Commission’).

2. Respondent/complainant filed a consumer complaint under Section 12 of the Act, before District Consumer Disputes Redressal Forum, Chandigarh (for short, ‘District

Forum’) on the allegations that he had availed a loan against his house from petitioner/opposite party. Out of total loan amount of Rs.99,00,000/- (Rupees Ninty Nine lacs only) petitioner deducted an amount of Rs.96,709/- on account of processing fee and insurance charges. Respondent made request to the petitioner several time to send him the copy of insurance policy for which he has been charged Rs.13,281/- but petitioner failed to submit the same. Thereafter, respondent arbitrarily and without assigning any reason increased the rate of interest. Due to restrictive and monopolistic trade practices committed by the petitioner, respondent was constrained to transfer the loan to other Bank. In that process, petitioner charged total pre-payment charges to the tune of Rs.3,67,965.75. Since, petitioner failed to refund the legal charges, respondent filed complaint before the District Forum.

3. The complaint was contested by the petitioner.

4. District Forum, vide order dated 18.1.2012, allowed the complaint and directed the opposite party;

“ (a) Refund amount of Rs.3,67,965.75P and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.

(b) Opposite Parties are also directed to refund Rs.13,281/- and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.

(c) Opposite Parties are further burdened with Rs.15,000/towards cost of litigation.”

5. Being aggrieved, petitioner filed an appeal before the State Commission.

Alongwith the appeal, an application for condonation of delay of 276 days (232 days as per Office report of the State Commission) was filed. State Commission, vide impugned order dismissed the application for condonation of delay. Consequently, the appeal of the petitioner was dismissed being time barred.



8. Main grounds on which condonation of delay was sought before the State

Commission read as under;

“2. That the impugned order has been passed on 18.1.2002.

That immediately on receipt of the certified copy of the order, the appellant bank had instructed the dealing advocate within the limitation available for filing an appeal.

3. That counsel for the bank was also given the demand draft for a sum of Rs.25,000.00 to be deposited before the Hon'ble State

Commission alongwith the appeal. True copy of the demand draft of

Rs.25,000/- dated 28 th of March, 2012 is attached as Annexure

A/5. The grounds of appeal, were got signed by the advocate from the authorized officer of the bank. However, the appeal was never filed.

4. That the concerned advocate confirmed having filed the appeal and started reporting further dates in the matter. The status in respect of various cases, including the present case submitted by e-mail showed that in the case of Surinder Singal the next date was fixed on 27 th of July, 2012. True copy of the said e-mails printout is submitted as Annexure A/6.

5. That the bank came to know only on 18 th of October, 2012 that the appeal has not been filed. The Counsel had been informed even the dates of the appeal to the bank officials. Immediately when the bank officials came to know that the appeal has not been filed,

they went the concerned advocate to get back the file. At that stage, he agreed that he has not filed the appeal. Thus, there is delay in filing of appeal due to the miscommunication and inaction on the part of bank’s advocate.

6. That the bank should not be made to suffer on account of negligence on the part of its counsel. The delay in filing the appeal is un-intentional and is attributed to the circumstances mentioned above.

7. That it is in the interest of justice that delay of 276 days in filing the present appeal be condoned.”

9. It has been contended by learned counsel for the petitioner that delay has occurred on account of wrong information provided by the earlier counsel who was conducting the case before the State Commission. The said counsel always informed the petitioner that appeal has been filed and it is subjudice before the State

Commission. It further contended that petitioner had engaged that Advocate and has paid his fees and was confident that its lawyer will look after the interest of the petitioner. Hence, petitioner should not be made to suffer for inaction, deliberate omission or misdemeanor of its previous counsel.

10. State Commission, while dismissing the application for condonation of delay in its impugned order observed;

“As such, the applicant/appellant, acted in a highly irresponsible and negligent manner, and woke up from their deep slumber, after 232 days. The applicant/appellant did not act, with due diligence, resulting into delay of 232 days, in filing the appeal. It appears that the applicant/appellant has coined a false excuse to cover up its lapse of not filing the appeal in time. The applicant/appellant was required to explain each day’s delay. It, however, miserably failed to explain the delay of 232 days, which is more than nine times, beyond the normal period of filing an appeal, under Section 15 of the Act. Complete in-action and lack of bonafides, of the applicant/appellant is writ large, on the face of record, and attributable to it, in filing the appeal, after a delay of 232 days. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted from the averments, contained in the application, the delay of 232 days cannot be condoned. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case.

The application, is, thus, liable to be dismissed.”

11. Petitioner has taken the usual plea that of to shift entire burden on its previous counsel. We can not overlook this fact that petitioner being a multi-crore Bank is having full-fledged legal offices comprising of battery of lawyers and legal assistants and other

staff. It was duty of the petitioner being a litigant to have pursued the appeal which was to be filed before the State Commission, in a diligent and careful manner. This clearly shows that there is something wrong in the legal department of the petitioner’s bank that they were so careless and negligent that they could not keep track of the appeal. Even if we believe that averments as made in the application for condonation of delay are correct, then why petitioner did not take any action against its previous counsel by not filing any complaint the before Bar Council of India for professional misconduct. Nor did petitioner file any complaint under the Act, against the previous counsel for deficiency in service. It appears that after the order of the District Forum, petitioner bank went into the deep slumber and all of a sudden woke up after 7 months.

Moreover, a valuable right has occurred in favour of the respondent.

12.

It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact.

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.


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 :



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. Hon'ble Apex Court also observed in case

“State of Nagaland Vs. Lipokao and others reported in 2005(2) RCR (Criminal) 414 that;




17. It may also be pointed out that petitioners have also filed an application for permission to place on record the additional grounds. Additional grounds which are sought to be introduced at this belated stage cannot be taken into consideration since they relate to the merits of the case and since the appeal is barred by limitation, there is no question to entertain these additional grounds at this late stage.

18. As apparent from the record, the District Forum has passed the final order as far as in the year 2008 and now more than five years have passed and the only intention of the petitioners is to deprive the fruits of the decree in favour of the respondent and to a large extent the petitioners have succeeded in depriving the benefit to the respondent for a period of five years.

17. Therefore, the grounds stated in the application cannot constitute sufficient cause so as to condone the long delay of 128 days in filing the appeal. Thus, we do not find any infirmity or illegality in the impugned order passed by the State

Commission. Accordingly, we dismiss the revision petition with cost of Rs.25,000/-

(Rupees Twenty Five Thousand only).

18. Petitioners are directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a. till realization.


…..…………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg.



(Against the order dated 01.03.2013 in C-100/2013 of the State Commission, New

Delhi)

South Delhi Municipal Corporation Through its Commissioner CITI Civic Centre, Minto

Road New Delhi


Versus

Shri Shanugananda Welfare Association

Having it’s Office at: Khasra No.53/13, 14, 17,

18 & 26 Tehsil & Village Mehrauli, New Delhi- 110070

.........Respondent

BEFORE


For the Petitioner : Mr.Rahul Kumar, Advocate for

Mr. Gaurang Kanth, Advocate

For the Respondent : Mr. Rohit Jain, Advocate


ORDER


South Delhi Municipal Corporation (hereinafter referred to as SDMC) has filed this revision petition challenging the order of the Delhi State Consumer Disputes Redressal

Commission in Consumer Complaint No.100 of 2013, passed on 1.3.2013. The State

Commission has admitted the complaint and fixed the matter for 29.5.2013 for further consideration. While doing so, the Commission has also considered an interim application filed on behalf of the Complainant and made the following order:-

“After hearing the Ld. Counsel for the Complainant we find that there is a prima-facie case and also the balance of convenience lies in favour of the complainant and irreparable loss and injury will caused to the complainant if interim order is not granted to the complainant society. In view of the facts and circumstances of the case, it is hereby directed that

South Delhi Municipal Corporation, the OP is restrained from demolishing the super structures constructed on Khasra No.53/13,14,17,18 & 26 behind

Liver Hospital and D-2, Kishan Garh, New Delhi more particularly known as

Shri Sai Kunj Apartment till further orders.

It is further directed that SHO of PS Vasant Kunj South will not provide any aid/assistance to the South Delhi Municipal Corporation for taking any coercive action against the super structure constructed on

Khasra No.53/13,14,17,18 & 26 behind Liver Hospital and D-2, Kishan

Garh, New Delhi more particularly known as Shri Sai Kind Apartment till further orders.”

2. The above ex-parte interim order is challenged by the revision petitioner. The case of the petitioner/SDMC is that under Sections 331 to 341 of the Delhi Municipal

Corporation Act, 1957 (hereinafter referred to as the DMC Act) any construction of a building requires prior sanction of the building plan. Section 343 of this Act permits the

Corporation to order demolition of construction in its violation. It is also the case of the petitioner that a Monitoring Committee has been appointed by Honb’ble Supreme Court in M.C. Mehta Vs. Union of India 2006 (3) SCC 429 to check unauthorised constructions in residential/non-conforming areas of Delhi. The structures in question in the impugned proceedings before the State Commission, were inspected by the

Monitoring committee on 12.2.2013. Allegedly, “

During the inspection, Monitoring

Committee also noticed that a complex (containing 56 flats) has been developed by the builders on an agriculture land i.e. the said Property without any prior building plan sanctioned from the Petitioner or DDA or SDM.”

This was followed by a show cause notice, instructions to disconnect water supply and electricity and sealing of the flats. On 19.2.2013 notice for demolishing was issued under Section 434 of the DMC

Act.

3. The prayer of the revision petitioner is to set aside the order of the State

Commission passed on 1.3.2013 and also to quash the complaint no.100 of 2013 before the State Commission in which the order of 1.3.2013 was passed.

4. Mr. Gaurang Kanth, Advocate was heard on behalf of the petitioner Corporation on 10.4.2013. He argued that the provision in Section 21 (b) of the Consumer Protection

Act, permits intervention of this Commission even in matters, which are pending before the State Commission. He argued vehemently, for ex-parte stay of the impugned order, but simultaneously expressed his inability to give an undertaking that in case of such an ex-parte stay being ordered no further action will be taken by the Corporation until the next date of hearing. Therefore, the matter was adjourned for notice to the respondent.

5. It needs to be mentioned here that despite dasti service of notice through the petitioner/Corporation, none appeared on behalf of the respondent/ Shanugananda

Welfare Association. Mr. Neeraj Kumar Advocate did appear but without any authorisation and only to inform that the main counsel is Mr. Rohit Jain, Advocate, who was yet to file his Vakalatnama. Thereafter, the matter was heard on 6.5.2013 and

8.5.2013.

6. Counsel for the petitioner pointed out that this revision is against the ex-parte order passed by the Delhi State Consumer Disputes Redressal Commission on

01.03.2013, which was made on the day of admission of the complaint itself. Counsel for the respondent accepts that the matter pertains to an unauthorized colony but states that house tax from its residents is already being collected by the revision petitioner, as submitted before the State Commission. Counsel for the revision petitioner does not deny that property tax is being collected. However, he referred to the notice of demolition given by the Corporation on 11.02.2013 followed by the demolition order of 19.02.2013.

7. From the above chronology, it is clear that the consumer complaint before the

State Commission has been filed in the background of the notice of 11.02.2013 and demolition order of 19.02.2013, both emanating from the petitioner/Corporation. It is equally clear that the visit of the Monitoring Committee is the background in which the notice and the demolition order have both issued. Both parties informed that the matter now stands posted to 29.05.2013 before the State Commission for filing of reply.

8. Mr.Rohit Jain, counsel for the respondent/complainant explained that, for the purposes of the consumer complaint, the obligation of the petitioner/Corporation as the ‘service provider’ does not flow from any contractual agreement between the parties but from the provision under Section 42 of Delhi Municipal Corporation Act,

1957. This provision details the obligatory functions of the Corporation. Mr. Jain specifically pointed to clauses-a, c, i, m, n, o thereof. It was argued that

‘consideration’ for these services is paid by the complainant to the

Corporation in the form of the ‘House Tax’, which is being regularly paid, as stated in para-4 of the complaint.

9. At this point, attention of the learned respondent counsel was drawn to the averment in para-6 of the complaint, which reads as follows:

“That apartments are old and occupied and comply all the statutory requirements. The apartments are having all the basic facilities which are required for living in any residential accommodation.”

Therefore, in a situation where ‘the agreed service’ is admittedly being provided, there would be no case for ‘deficiency of service’, as alleged in the complaint. When asked, the respondent counsel explained that these facilities being provided as of now, is a matter of fact and is not denied. However, the revision petitioner by issuing notices and order for demolition is attempting to withdraw these services. This attempt, it is argued, amounts to deficiency of service. He also claimed that payment of tax can constitute ‘consideration, for hiring or availing service for consideration, if it does not go into the Consolidated Fund of Union of

India or State concerned. The counsel contended that property tax collected from them does not go into the Consolidated Fund. Section 113 of the DMC Act allows the Corporation to levy many other taxes. However, it was clarified by the counsel for the revision petitioner that all taxes collected in terms of the provision in Chapter

VIII of the DMC Act go into the Consolidated Fund of the Government of India.

10. Detailed reference to the provisions of the Delhi Municipal Corporation Act,

1957, from Section 331 to 347 in the revision petition raises the foremost argument that these are statutory powers flowing to the Corporation from the Act and not from any agreement/contract between the parties. Section 347 E specially bars jurisdiction of Courts in matters arising under these provisions. Therefore, the prayer of the revision petitioner is not only to set aside/quash the impugned order alone but the complaint itself filed before the State Commission.

11. Counsel for the revision petitioner has relied upon the decision of this

Commission in The Mayor, Calcutta Municipal Corporation Vs. Tarapada

Chatterjee & Ors. I (1994) CPJ 99 (NC). The issue involved was very similar to that in the present case. The matter arose from the direction of the District Forum

Calcutta, confirmed by the West Bengal State Consumer Disputes Redressal

Commission. The Municipal Corporation was directed by the fora to take immediate steps for improving the pressure of water supply to the premises of the

Complainant. This direction was set aside by the National Commission with the observation that, “the Complainant is paying only “property tax” to the

Corporation, the levy of which is based on the annual value determined as per the provisions of Section 174 of the Calcutta Municipal Corporation Act,

1980. The construction and maintenance of the water works and providing means for supply of water for public and private purposes is specified in

Section 29 of the said Act as one of the obligatory statutory functions of the

Corporation and it is only in the discharge of the said statutory duty that the

Corporation is maintaining the system of water supply to the respondents within the Municipal limits. The complainant is getting the water supply to his premises only by virtue of the performance of the statutory duty by the

Corporation.”

12. A perusal of the impugned order makes it abundantly clear that the State

Commission has not gone into the question whether the complaint is admissible as a consumer disputes. It has merely observed “Heard counsel for the Complainant on admission. Admit. Issue notice to the OP, fixing 29.5.2013 for filing WS and for further orders.” Clearly, the perceived urgency to stop demolition of these structures, has taken precedence over decision on admissibility of the complaint itself.

13. Para 17 in the complaint states that “complainant society is the consumer within the meaning of Consumer Protection Act as it has hired the services of

respondent for consideration”. Para 20, listing the reliefs sought, claims compensation of Rs 25 lakhs for deficiency of service and unfair trade practice. But, there is no attempt in the complaint to explain what ‘service’ was hired by the respondent/Complainant and for what ‘consideration’. Without that, the question of deficiency and unfair trade practice would not arise. Para 4 of the complaint does refer to regular payment of house tax to the Corporation by the apartment owners, but makes no attempt to explain how ‘house tax’ becomes the agreed ‘consideration’ for certain services rendered by the Corporation. Therefore, in my view, the argument of Mr. Rohit Jain, counsel for the respondent/Complainant, is nothing more than an attempt to improve upon the case of the Complainant from what it was in the complaint filed before the State Commission.

14. By claiming that house tax was the ‘consideration’ for the rendering of specifically agreed services, the respondent/Complainant accepts an obligation under Section 2(i)

(d) of the Consumer Protection Act, to establish the same through a contract/agreement. The agreement would necessarily have to be specific the nature and scope of service and the agreed quantum of consideration for it. No such agreement exists. In fact, there can be no contract/agreement for discharge of statutory functions. Learned counsel for the respondent/Complainant pointed to services which are in any case ‘obligatory functions’ of the Corporation under Section 42 of the DMC

Act. There is no explanation how tax collected from the respondent would be spent on

service agreed to be provided to them. It is not the case of the respondent that the money recovered from them as house tax has to be directly spent on services like water, street light, drainage etc. provided to them only. I therefore, have no hesitation in rejecting the contention that for the purposes of Section 2(1) (d) of the

Consumer Protection Act, 1986, obligatory functions under the DMC Act, are to be taken as services and house tax as agreed consideration.

15. In the result, it is held that the matter before the State Commission in Complaint

No.100 of 2013 is not a consumer dispute. Therefore, the impugned order passed by the Delhi State Consumer Disputes Redressal Commission in Consumer Complaint

No.100 of 2013 passed on 01.3.2013, is set aside and the complaint is dismissed.

.……………Sd/-……………

(VINAY KUMAR)



Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

O. Ranjini, D/o (Late) Sh.Karunakaran

R/o ‘Nalleri House’, Near Kavitha Theatre

Kannur , Kannur District

… Petitioner


(From order dated 17.06.2008 in Appeal No. 313 of 2004 of the

Versus

The Bank Manager, Syndicate Bank Taliparamba, Kannur District

… Respondent

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER


For the Petitioner : In person

PRONOUNCED ON_16.05.2013

O R D E R


1. There is a delay of 1462 days in filing the present revision petition. The petitioner had not filed application for condonation of delay. Vide order dated 04.01.2013, she was given an opportunity to file an application for condonation of delay. It is also not out of place to mention here that the petitioner who appears to be an educated lady argued the case herself. She was offered legal aid, but she refused. The State

Commission decided the case against the petitioner vide order dated 17.06.2008. She has explained the delay in the following para in her affidavit:-

“I had filed Writ Petition before the Hon’ble High Court of

Kerala as W.P.(C) No.3147/2012 (P) against the order of the Kerala State Consumer Disputes Redressal

Commission in Appeal No.623/2003 and 313/2004. The

Hon’ble High Court of Kerala passed an order dated

20.09.2012 directing me to file Revision Petition before this

Hon’ble National Commission within six weeks from

20.09.2012. It is submitted that I have filed Revision

Petition before this Hon’ble National Commission within the time gr anted by the Hon’ble High Court. Copy of the said order is produced herewith” .

The petitioner vehemently argued that in view of the order of the Hon’ble High Court, the present case is within time.

2. All these arguments lack conviction. Th e Hon’ble High Court is not authorized to condone the delay of four years which took place from 17.06.2008 to the filing of the

Writ Petition (C) No.3147/2012 (P). The order of the Hon’ble High Court is conspicuously silent about the said four years. The petitioner has also failed to explain the day-to-day delay in filing the revision petition. There is no provision under Consumer

Protection Act, 1986 wherein the petitioner is authorized to file the Writ Petition before the Hon’ble High Court. In an authority reported in M/s. Advance Scientific

Equipment Ltd. & Anr. vs. West Bengal Pharma & Photochemical Development

Corporation Ltd., (Appeal (Civil) Nos.17068 - 17069/2010, decided on 9 July 2010 ) wherein it observed inter alia, as under:-

“…… We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction” .

3. Furthermore, the Apex court in a recent authority reported in Cicily Kallarackal

Vs. Vehicle Factory, IV (2012) CPJ 1 (SC) 1, was pleased to hold as under :-

“Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection

Act, 1986. Once the Legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of the improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds

”.

4. Even as per law, the petition is also not maintainable. The present case also does not come with the ambit of Section 14 of the Limitation Act. The petitioner has failed to prove that she was contesting the case anywhere, from 2008 to 2012. The case is hopelessly barred by time.

5. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011)

CPJ 63 (SC) , the Hon’ble Apex 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.

6. Let us turn to the merits of this case. Ms.O.Ranjini, the petitioner was transacting the business under the name and style of ‘Kerala Steels”, Taliparamba. She used to take financial assistance from Syndicate Bank, Taliparamba, OP 1. She opened a

Savings Bank Account with OP1, on 27.11.1975. Her Savings Bank Account bore

No.10421 in the name of

‘M/s. Kerala Steels’. On 31.03.1978, she opened another account having SB A/c No.34. The said account closed on

24.02.1987. Subsequently, another account was opened in the name of the complainant with account No.829.

7. The grievance of the complainant is that the above said account No.829 of M/s.

Kerala Steels was opened without her consent or knowledge but it was opened at the instance of her brother, Mr.O.C.Premarajan. She filed a case against

O.C.Premarajan as well in the original complaint. She being an unmarried lady, she kept Mr.O.C.Premarajan, her brother, for looking after the day-to-day affairs of her business. It is alleged that her brother Mr.O.C.Premarajan, while working in cahoots with the Manager of Syndicate Bank, OP1, manipulated the account with said

OP. He effected so many withdrawals. O.C.Premarajan, OP2, has forged the signatures of the complainant and OP1 failed to verify the signatures of the complainant appearing on the cheques, produced by said O.C.Premarajan, OP2. Due to the fraudulent and collusive acts of the OPs, the complainant suffered a huge loss of more than Rs.5,00,000/-. However, she limited her claim to Rs.5,00,000/- only.

8. This is an admitted fact that subsequently she deleted the name of her brother from the array of parties. There is no dispute that the complainant is the Sole

Proprietor of her business and she entrusted the day-to-day management of the said business to her brother, O.C.Premarajan. The petition for deletion of his name was filed by the complainant herself, for the reasons best known to the complainant.

9. The complainant did not produce any evidence showing that her signatures were forged. She did not produce the Handwriting

Expert’s evidence or any other evidence to show that her signatures were forged. The entire case hinges upon her sole testimony. She had no explanation as to why the name of the main culprit, O.C.Premarajan, her brother, was deleted. Rather, it appears that she had colluded with her brother, since deceased.

10. On the other hand, OP placed Ex.R-3, authority of letter executed by the complainant authorizing Mr.O.C.Premarajan, to make, draw, accept, endorse and negotiate otherwise sign any Hundies, Bills of Exchange and Promissory Notes or other negotiable instruments to operate or overdraw on the above account with the Bank and also to receive payment of all moneys due to the complainant and to acknowledge debt or debts due from the complainant, etc. It also goes to show that the complainant had authorized her brother to sign cheques on behalf of the complainant. The complainant has denied having executed authority letter, Ex.R-3. She could not produce any evidence to show that it was not executed by her, no Expert evidence was pressed into service.

11. Moreover, the State Commission has observed that she had herself, opened account No.829. It compared the specimen signatures placed at

Ex.R-2 & R-5, which go to show that she had herself opened an account with OP1 on

22.06.1992. All the necessary documents were proved on the record. The State

Commission rightly held that since the issues like forgery, fraud, misrepresentation or collusion, are involved in this case, therefore, the civil court can decide these questions, after opportunity to lead evidence, including the

Handwriting Expert’s evidence. It is, therefore, also noteworthy that no such evidence was adduced before the fora below, by the complainant, who was to carry the ball in proving this case. The case of the complainant must stand on its legs. Due to lack of evidence, her case does not stand proved. The case is meritless and same is, therefore, dismissed as barred by time, as well as on merits.

.…..…………………………J

(J. M. MALIK)


….…..…………………………

(DR.S.M.KANTIKAR)

MEMBER dd/4



(Against the order dated 12-02-2007 in C. No.35/91 of the

Bihar State Consumer Disputes Redressal Commission, Patna)

New India Assurance Co. Ltd. Branch Office – Muzafferpur, MDDM College Road, Near

Jubba Sahani Park, P.O. Ramna District, Muzafferpur, Through its Manager New India

Assurance Co. Ltd., Regional Office No. 1, Level-V, Tower-II, Jeewan Bharati Building,

Connaught Circus, New Delhi -110001

… Appellant

Versus

Ganesh Prassad Singh R/o Village Serpur, P.O. Muzafferpur, P.S. Sadar Muzzaffarpur,

Dist. Muzaffarpur, Patna (Bihar)

… Respondent

BEFORE:



For Appellant : Mr. A.K. Raina, advocate

For Respondent : Mr. B.K. Sinha & Ms. Pratibha

Sinha, Advocates


ORDER


1. New India Assurance Co. Ltd. (Appellant herein) has filed this First Appeal, being aggrieved by the order of the State Commission, which had allowed the complaint of

Ganesh Prassad Singh (Respondent herein) and original complainant before the State

Commission.

2. In this complaint before the State Commission, Respondent/ omplainant has stated that he had insured bus No. BHF-9913 of which he was the owner, with the appellant insurance company under a comprehensive scheme, in the forenoon of 04-

10-1990 and had paid premium for the same on 03-10-1990 through an Agent of the appellant insurance company. The said vehicle while returning from Patna was burnt by some anti-social elements near Village Jarua at about 1.00 P.M. after the passengers had been asked to get down. He immediately lodged a complaint with the Police

Station and an FIR was registered. An insurance claim was also filed with the insurance company. However, the insurance company took a view that the cover note insuring the vehicle was issued after the vehicle had already been damaged and burnt and therefore, the claim was not valid. Being aggrieved by the deficiency in service in wrongly repudiating the respondent’s/complainant’s genuine claim on the incorrect

assumption that the insurance policy and cover note was obtained by misrepresenting facts after the vehicle was burnt, Respondent filed a complaint before the State

Commission and requested that appellants be directed to pay him Rs. 3 lakhs along with damages.

3. Insurance company, on being served, filed a written rejoinder denying the above allegations. It was reiterated that an enquiry conducted into the matter clearly established that the cover note was fraudulently obtained by the respondent with the connivance of the Agent and some staff of the appellant insurance company after the

Bus had been burnt.

In this connection, it was contended that the complainant’s brother took out a copy of the cover note from the briefcase of Shri M. M. Alam, who was an officer of the insurance company without his knowledge and got it signed by the

Probationary Development Officer by misrepresenting that the Development Officer was not available. In view of this fact, the claim was rightly repudiated since there was clear breach of trust by the Respondent. Apart from this, respondent has also suppressed the fact that he had earlier got this vehicle insured with the Oriental Insurance

Company, which policy had also lapsed in August, 1990.

4. The State Commission, after hearing the parties and on the basis of evidence produced before it, partly allowed the complaint, observing as follows:--

“We have considered the facts stated above on behalf of both the parties and also critically analyzed their submissions and the papers on record filed by them. As stated above there is little dispute with respect to fact of the case. The only point arises for decision is whether the policy dated 04-

10-90 has been obtained by the complainant by playing fraud and suppressing the material fact. Whether the occurrence of burnt of the vehicle took place earlier and the policy was obtained on the same day later, are to be scrutinized on the materials available on record. There is no dispute that cover note was issued on the same day of accident by the Insurance

Company. In several decisions the Hon’ble Apex Court and the National

Commission have held that when a policy is taken on a particular date its effectiveness is from the commencement of the day, therefore it should not be doubted that since any accident to the vehicle took place on the same day, therefore, the policy appears to be void and obtained by suppression of material fact, is not a valid contention to be accepted as raised on behalf of the Insurance Company. The liability to prove fraudulent act of the policy holder or suppression of the material fact lies heavily on the Insurance

Company. Only circumstances that accident and insurance of the policy cover is of the same day is not a valid ground to come to the conclusion that the policy has been obtained by suppressing the material fact. We have gone through all the documents carefully and considered the submissions made on behalf of the parties. We are of the view that the cover note on 04-10-1990 cannot be held as obtained by suppression of the material fact and it is void ab-initio as submitted on behalf of the Insurance Company. Admittedly the vehicle was burnt on this day and it was a total loss. The Insurance policy

was for Rs. Three lacs as mentioned in the cover note dated 04-10-90

(Annexure-2). Admittedly it was a total loss of the vehicle due to burning by mob. Hence the complainant is entitled to get compensation for the vehicle to the tune of Rs. Three lacs only.”

The State Commission, therefore, directed Appellant Insurance Company to pay the respondent an amount of Rs. Three lacs with 10% simple interest from the date of repudiation of the order till the date of actual payment, within a period of three months. Hence, the present appeal.

5. Learned Counsel for both parties made oral submissions.

6. Learned Counsel for the Appellant/Insurance Company reiterated that the insurance claim was rightly repudiated since as per investigations conducted into the matter backed by affidavits of its senior officers, it was evident that the cover note/insurance policy was fraudulently obtained by Respondent/Complainant in connivance with the insurance agent and some other officials of Appellant/Insurance

Company by suppressing the fact that the insured vehicle had already been burnt by miscreants prior to the issue of cover note/insurance policy and, therefore, at the time when insurance policy was issued the vehicle had no insurable risk. In this connection, affidavits filed by the Appellant/Insurance Company of Shri M.M. Alam, Development

Officer and Shri S.K. Ojha, Probationary Development Officer as also report of the

Surveyor’s report clearly established two important fact; (i) that the accident had taken place at around 1.00 p.m.; and (ii) the cover note was issued after 3.15 p.m. on the same day. In view of this clear evidence, the State Commission erred in allowing the

Respondent’s complaint.

7. Learned Counsel for the Respondent on the other hand stated that apart from the evidence of the Appellant/Insurance Company’s own officials, who cannot be termed as independent witnesses, no other evidence e.g. copy of the insurance policy or cover note was filed in evidence to prove Appellant/Insurance Company’s contention that the cover note was issued after the vehicle had been burnt. It was stated that the cover note was in fact issued in the forenoon of 04.10.1990 i.e. before the vehicle was burnt by miscreants and the premium for the same had been paid a day earlier i.e. on

03.10.1990.

8. We have considered the submissions made by learned counsel for the parties and have also gone through the evidence on record.

9. At the outset it may be stated that when the case first came up for hearing before this Commission, vide order dated 31 st July, 2006 it was remanded back to the State

Commission on the grounds that the parties had not been afforded an opportunity to be heard and adduce evidence/affidavits in support of their respective contentions as is required in the interest of natural justice and as per procedure laid down under Section

13(2) of the Consumer Protection Act, 1986. Thereafter, the State Commission passed the impugned order on the basis of which the present appeal has been filed.

10. It is an admitted fact that the vehicle was burnt at around 1.00 p.m. by certain miscreants and this fact has also been confirmed by the Appellant/Insurance

Company’s own Surveyor. The disputed issue is as to whether the cover note/insurance policy was taken prior to this incident or thereafter as contended by the

Appellant/Insurance Company. Appellant/Insurance Company, on whom there was onus to prove the above facts, have filed in evidence the statements of their own officials to support their contention. Respondent/Complainant has relied on the money receipt of the premium dated 04.10.1990 (Annexure-I) and an affidavit stating that he had handed over the premium of Rs.9324/- to Appellant’s agent on 03.10.1990 and accordingly the cover note of insurance in lieu of policy was issued at about 7.00 a.m. on 04.10.1990, bearing cover note no. 06727 dated 04.10.1990 being valid from that date to 03.10.1991. The State Commission, we note after analyzing the various statements and papers on record, had allowed the complaint by concluding that the alleged fraudulent act of the policy holder or suppression of material facts could not be established. We find force in this contention since apart from the affidavit of two of its own employees, Appellant/Insurance Company has not been able to produce any other credible evidence to support its contention that the cover note was fraudulently obtained after the vehicle had been burnt. As observed by the State Commission in its order, there are judgments of this Commission as also of the H on’ble Supreme Court of India

(including in New India Assurance Co. Ltd. Vs. Ram Dayal And Ors. [1990 (2) T.A.C.

141]

, wherein the Hon’ble Apex Court had ruled that when a policy is taken on a

particular date, its effectiveness is from the commencement of the day on which the policy has been obtained. In the instant case, in view of the fact that

Appellant/Insurance Company has not been able to establish beyond doubt through credible evidence that the policy was obtained fraudulently after the vehicle had been burnt and respectfully following the judgment of the Hon’ble Supreme Court in

Ram

Dayal And Ors. (supra) , we agree with the order of the State Commission that the

Respondent/Complainant was entitled to his insurance claim for Rs.3,00,000/- in respect of the insured vehicle and the Appellant/Insurance Company was not justified in repudiating this claim.

11. We, therefore, uphold the order of the State Commission and dismiss the present

First Appeal. Appellant/Insurance Company is directed to pay the

Respondent/Complainant a sum of Rs.3,00,000/- with interest @ 10% per annum from the date of repudiation till the date of realization. No costs.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Aj/Mukesh



(From the order dated 16.01.2008 in Appeal No.920/2007 of Rajasthan State Consumer

Disputes Redressal Commission, Jaipur)

Shri Narender Kumar S/o Charan Singh R/o 111/5, E.T.D.C. Staff Colony, Behind

Sector-1, By Pass Road, Malviya Nagar, Jaipur (Rajasthan)

… Petitioner/complainant

Versus

1. Chief Office, Jaipur Municipal Corporation Lal Kothi, Jaipur through its Commissioner

2. Jaipur Municipal Corporation, Sanganer Zone, Jaipur (Raj.) through its Commissioner

… Respondents/Opp.Parties(OP)

BEFORE



For the Petitioner : Mr. R.K. Tiwari, Advocate

For the Respondents: Mr. Narottam Vyas, Advocate

For Mr. B.P. Sharma, Advocate


O R D E R


This revision petition has been filed by the Petitioner/Complainant against the impugned order dated 16.1.2008 passed by the Rajasthan State Consumer

Disputes Redressal

Commission, Jaipur (in short, ‘the State Commission’) in Appeal

No. 920 of 2007 – Narender Kumar Vs. Chief Officer of Jaipur Municipal Corporation

& Ors. by which, while dismissing appeal, order passed by District Forum dismissing

Execution Application was upheld.

2. Brief facts of the case are that Petitioner/Complainant filed Complaint

No.336/2004 before District Forum and learned District Forum vide order dated

21.2.2005 allowed complaint and directed OP/respondent to deliver possession of Plot

No. 145 measuring 160 sq. mt. to complainant and further awarded compensation of

Rs.20,000/- along with cost of Rs.1,000/-. Appeal filed by the OP/respondent was

dismissed by learned State Commission vide order dated 18.1.2007 and directed respondent to give alternate plot of area exceeding 160 sq. mt. in the scheme after receiving balance payment and if no other alternative plot is available, respondent shall refund whole amount deposited by the complainant along with 12% p.a. interest.

3.

In pursuance to State Commission’s order dated 18.1.2007, respondent deposited Rs.2,65,378/- by cheque dated 17.4.2007 with the District Forum along with affidavit that no other alternate plot is available for allotment. Complainant-Petitioner filed Execution Application before the Learned District Forum and requested that two plots No. 40 and 50 measuring 90 sq. mt. each may be allotted to him. Learned District

Forum vide order dated 9.5.2007 dismissed Execution Application on the ground that respondent has already deposited cheque with District Forum and petitioner is free to get the cheque from District Forum. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order on the ground that the State

Commission has no jurisdiction to review its earlier order dated 18.1.2007.

4. Heard Learned Counsel for the parties and perused record.

5. Learned Counsel for the petitioner submitted that there is encroachment over 60 sq. mt. area of the original allotted plot No.145 and remaining 100 sq. mt. may be allotted to the petitioner and revision petition may be disposed of accordingly. On the other hand, learned Counsel for the respondent submitted that order passed by learned

State Commission is in accordance with law and further submitted that, as order of learned State Commission has already been complied with, there remains nothing to be satisfied; hence, revision petition be dismissed.

6. Perusal of record reveals that learned State Commission vide its earlier order dated 18.1.2007 directed respondent either to allot alternate plot of area exceeding 160 sq. mt. after obtaining balance amount or if no such plot is available, refund deposited amount with interest. It further transpires that respondent filed affidavit before District

Forum that no other plot exceeding 160 sq. mt. is available for allotment and deposited cheque of Rs.2,65,378/- dated 17.4.2007 with District Forum. District Forum has not committed any error in dismissing Execution Application, as order passed by learned

State Commission had been complied by respondent and learned District Forum had no authority to modify order of State Commission and pass order for allotment of two

different plots each measuring 90 sq. mt. Learned State Commission has also not committed error in dismissing appeal, as order passed by learned District Forum was in accordance with law. At the same time, learned State Commission had no authority to review its earlier order dated 18.1.2007. In such circumstances, revision petition is liable to be dismissed.

7. During course of arguments, Ld. Counsel for the petitioner submitted that petitioner is ready to take possession of remaining 100 sq mt of originally allotted plot

No. 145, which is not in the possession of trespasser, but still in the possession of respondent. We may suggest the respondent to consider this request and make every endeavour to handover possession of remaining 100 sq. ft. of the plot No. 145 originally allotted, as Registry of that plot also stands in the name of petitioner. If possession is given to the petitioner, Respondent will be entitled to receive back Rs.2,65,378/- from petitioner.

8. Learned Counsel for the petitioner submitted that respondent did not deposit amount in cash or through bank draft, but only deposited cheque with the District forum and still amount is lying with the respondent. If the amount has been deposited by bank draft, petitioner can get bank draft from District forum, which will got revalidated by the respondent within 10 days and if respondent has deposited amount only by cheque, the petitioner is entitled to get aforesaid amount along with 12% p.a. interest from the date of deposit till realization, as ordered by learned State Commission vide its earlier order dated 18.1.2007.

9. With these observations, revision petition filed by the petitioner is dismissed with no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER

K



(From the order dated 29.5.2012 in First Appeal No. 132 of 2010 of the Himachal

Pradesh State Consumer Disputes Redressal Commission, Shimla)

United India Insurance Co. Ltd., Divisional Office, Shimla Division, Timber House, Court

Road Shimla – 171001 Through its Dy. Manager, Regional office No.1, 8 th Floor,

Kanchenjunga Building Barakhamba Road, New Delhi – 110001

... Petitioner

Versus

1. M. Promila Devi, widow of Mohan Lal, Resident of Village Mehan, Post Office

Chandpur, Tehsil Sadar, District Bilaspur, Himachal Pradesh

2. Master Karan Kumar, Son of Mohan Lal, (minor), Resident of Village Mehan,

Post Office Chandpur, Tehsil Sadar, District Bilaspur, Himachal Pradesh

3. Miss Veena Kumari, Daughter of Mohan Lal, (minor), Resident of

Village Mehan, Post Office Chandpur, Tehsil Sadar, District Bilaspur, Himachal Pradesh

4. Miss Anita Kumari, Daughter of Mohan Lal, (minor), Resident of Village Mehan,

Post Office Chandpur, Tehsil Sadar, District Bilaspur, Himachal Pradesh

…. Respondent(s)

BEFORE





For the Petitioner (s) Mr. A.K. Raina, Advocate

For the Respondent (s) NEMO

PRONOUNCED ON : 16 TH MAY 2013

O R D E R



Protection Act, 1986 against the order dated 29.05.2012 passed by the Himachal

Pradesh State Consumer Disputes Redressal Commission, Shimla (hereinafter referred

to as “State Commission”) in Appeal No. 132/2010, vide which the State Commission allowed a sum of Rs. 2,00,000/- to be paid on account of insurance claim to the complainants/respondents and thus modified the order dated 04.3.2010 passed by the

District Consumer Disputes Redressal Forum,Bilaspur, Himachal Pradesh, according to which Rs. 1,65,000/- had been allowed to be given along with 9% interest per annum from the date of filing of the complaint i.e. 21.10.2008 till realization to the complainants.

2. Briefly stated, the facts of the case are that the deceased-Mohan Lal purchased a tractor by raising loan and executed a hire-purchase agreement with the financer. The said tractor was registered as a Light Commercial Vehicle/Tractor/Trolley as per registration certificate and it was insured with the petitioner/opposite party for a sum of Rs. 1,65,000/- for the period from 20.10.2006 to 19.10.2007. The policy also covered the risk of the death of the insured in an accident of the insured vehicle. On

07.10.2007, when the tractor was being used to plough the fields, it met with an accident, as a result of which, it fell into a well in the fields and the insured died after the accident. A report was lodged with the Police and also intimation about the accident was given to the petitioner/opposite party. The petitioner repudiated the claim for the death of insured on the ground that the vehicle was a commercial vehicle, but the licence possessed by the deceased was for Light Motor Vehicle and hence it was not a valid and effective licence. Moreover, the fitness of the vehicle had not been certified beyond 11.01.2006 and hence, the complainants who were legal heirs of the deceased, were not liable to be indemnified.

3. The District Forum after taking into account the evidence of the parties, directed to pay Rs. 1,65,000/- with interest @ 9% per annum, besides a cost of Rs. 2,000/- to the complainants. An appeal against this order was made before the State Commission, and vide impugned order the State Commission modified the order saying that Rs.

2,00,000/- will be given to the complainants because the amount payable on account of accidental death under the policy was Rs. 2,00,000/-. The State Commission held that when the accident took place, the tractor was being used for ploughing the fields and hence it was not used for commercial purpose. The deceased driver was having licence for LMV, which was a valid licence for driving the tractor. The State

Commission also held that non-transport vehicles do not require any fitness or

certification for first fifteen years and in the present case, the tractor did not require any fitness certification before the year 2020.

4. At the time of arguments before us, the learned counsel for the petitioner vehemently argued that at the time of accident, the deceased driver did not have a valid and effective driving licence. The vehicle in question was a commercial vehicle and had been registered as such and hence the person driving the vehicle was supposed to get an endorsement made on the licence from the appropriate authority for driving a commercial vehicle. The learned counsel in support of his arguments, has drawn our attention to the judgement passed by the Hon’bleSupreme Court of India as reported in 2006 ACJ 1336 SC in the case of National Insurance Company Limited

Vs. Kusum Rai & Ors.

, in which it has been held that the Insurance Company was not liable to make payment of claim if the driver was not possessing a valid licence. He has also drawn our attention to the ruling given by the Hon’ble Apex Court in New India

Insurance Co. Versus Prabhu Lal reported in (2008) I Supreme Court Cases 696 , in support of his contention, that if there was no endorsement on the licence, authorizing a person to drive a transport vehicle, he was not entitled to claim any compensation from the insurer.

5. We have examined the entire material on record and given our thoughtful consideration to the arguments advanced before us. The facts of the case make it very clear that at the time of the accident, the tractor was being used for agricultural purposes only. It cannot be stated by any stretch of imagination that the tractor was being used for a commercial purpose. The deceased driver had valid driving licence at the time of accident, which was valid for LMV. Moreover, it is a matter of fact that tractor is a vehicle, primarily meant for agricultural operations and hence it is an

LMV. Only when a trolley is attached to the tractor and it acquires special permission for being used for commercial purposes, it can be termed as a transport / commercial vehicle. In general practice, however, a tractor is meant to perform agricultural operations only. Further, the Government of India in the Ministry of Surface Transport issued S.O. No. 1248 (E) dated 05.11.2004 under Section 41 (4) of the Motor Vehicles

Act, 1988 (published in the Gazette of India Extra, Pt. II Sec. 3(II) dated 05.11.2004], in which the types of motor vehicles have been mentioned and classified as

Transport/Non-Transport vehicles in the table published under the said standing order. In the said table, the agricultural tractor and Power Tillers have been categorised

as ‘Non-Transport Vehicle’. However, ‘Power Tiller and tractors using pubic roads’ have been categorised as ‘Transport Vehicles”. In the instant case, when the tractor was being used in the agricultural fields at the time of accident, it can only be categorized as

‘Non-Transport Vehicle.’

6. The State Commission vide impugned order has modified the award given by the

District Forum from Rs.1.65 lakh to

Rs.2 lakh saying that the accidental death benefit in terms of the Insurance Policy was

Rs.2 lakh. However, this contention has not been substantiated by any document on record. A perusal of the insurance policy in question also does not indicate anywhere that the sum assured is Rs.2 lakh in case of death by accident. In para 2 of the consumer complaint, it has been mentioned that Mohanlal being the owner of the said tractor was also insured under Personal Accident claim amounting to Rs.2 lakh. In their written statement, the petitioner/OP have stated that para 2 of the complaint is a matter of record. It is clear from record, therefore, that the figure of Rs.2 lakh has not been mentioned anywhere and hence, the order passed by the District Forum awarding a sum of Rs.1.65 lakh seems to be correct. The order passed by the State Commission, therefore, needs to be modified and a sum of Rs.1,65,000/- is awarded in place of Rs.2 lakh.

7. Further, we fully agree with the conclusion arrived at by the State Commission that there was no need to certify the fitness of this vehicle before a period of fifteen years i.e. before the year 2020 if it was being used as ‘tractor’ only.

8. In the light of the discussion above, the order passed by the State Commission is modified and amount of Rs.2,00,000/- awarded by the State Commission is reduced to

Rs.1,65,000/-. The revision petition stands disposed of accordingly with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/SB/4



With

I.A. No.01 of 2012 (For Stay)

(From the order dated 1.10.2012 in Appeal No.163/2012

of the State Commission, U.T. Chandigarh)

United India Insurance Company Ltd. Through the Regional manager,DRO-1,

Kanchenjunga Building, 8 th Floor, 18, Barakhamba Road, New Delhi – 110001.

…Petitioner

Versus

1. Gopal Krishan Sharma S/o Shri D.R. Sharma, First Address: House No.202/1, Bank

Colony, Pipliwala Town, Manimajra, Chandigarh Second Address: H. No.3401/1, Sector-

45-D, Chandigarh

2. HDFC Bank Limited Plot No.28, Industrial Area, Phase-I, Chandigarh

….Respondents

BEFORE:



For the Petitioner : Mr. Naveen Kumar, Advocate


ORDER


Petitioner/Opposite party No.1 being aggrieved by order dated 1.10.2012, passed by. State Consumer Disputes Redressal Commission, U.T. Chandigarh (for short, ‘State Commission’) has filed this revision petition.

2. Brief facts are that respondent no.1/complainant purchased Indigo vehicle, bearing registration No.CH-04-C-4536 from Smt. Prema Mehta. After purchase, the car was transferred in his name by the Registering Authority, Chandigarh. The car was got insured by the transferor in her name, before the sale thereof. After the car was transferred in the name of respondent no.1, he approached petitioner on 4.8.2009 for transfer of the insurance policy, in his name but same was not done. On 7.8.2009, respondent no.1 again approached petitioner but dealing official told him to submit a cheque of Rs.680/- on account of transfer fee. It was stated that on 10.8.2009

respondent no.1 through UPC sent the application for transfer of insurance policy alongwith necessary documents and cheque No.278974 dated 7.8.2009 amounting to

Rs.680/- to the petitioner but no reply was received.

3. It is further stated that on the night intervening 16/17.3.2010, vehicle in question was stolen from outside his house and said incident was intimated to the Police on

17.3.2010. Accordingly, FIR No.89 dated 20.3.2010 was registered. Thereafter, respondent no.1 intimated the Registering and Licencing Authority, Chandigarh and petitioner as well as respondent no.2, regarding theft of the vehicle. Petitioner deputed an investigator, who visited place of the respondent no.1 and was provided all the necessary papers alongwith untraced intimation dated 25.5.2010. It was further stated that petitioner vide letter dated 14.7.2010 raised objection that Policy had not been transferred in the name of respondent no.1, within 14 days of transfer of the ownership of the vehicle. The said letter was replied by respondent no1, vide letter dated

26.7.2010. It was further stated that vide letter dated 8.10.2010, petitioner repudiated the claim of respondent no.1 on the ground that he was not insured of the vehicle as per the Insurance Company’s record on the date of theft. It was further stated that as per provisions of law, respondent no.1 informed the petitioner within 14 days of the transfer of the ownership of the vehicle with request that insurance policy, in the name of the earlier owner, be transferred in his name but petitioner did not act upon his request. The repudiation of the claim of respondent no.1 by the Petitioner, being illegal and arbitrary is liable to be set aside. It was further stated that aforesaid acts of petitioner amounted to deficiency in rendering service, as also indulgence into unfair trade practice. When grievance of respondent no.1 was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, ‘Act’) was filed praying to quash the impugned letter dated 8.10.2010; pay

Rs.4,03,940/- being the Insured Declared Value of the stolen value; pay a sum of

Rs.one lac on account of travelling expenses incurred by respondent no.1 in connection with his job; pay Rs.one lac as compensation on account of indulgence into unfair trade practice, and rendering deficient service; and pay an amount of Rs.10,000/- as litigation expenses

4. Petitioner in its written version, stated that as per their record Smt. Prema Mehta w/o Sh. Rakesh Kumar Mehta was the owner of vehicle No.CH-04-C-4536 and she had got insured the same with them for the period from 28.4.2009 to 27.4.2010. It was further stated that neither respondent no.1 nor Smt. Prema Mehta ever applied for transfer of the insurance policy in the name of respondent no.1, nor they received a cheque of Rs.680/- on account of transfer fee, nor they received any letter dated

10.8.2009 through UPC, alongwith documents, as alleged in the complaint. It was further stated that intimation through UPC was not a recognized mode of communication in the legal system. It was further stated that petitioner received letter dated 30.6.2010 from respondent no.1. It was further stated that original owner Smt.

Prema Mehta never approached petitioner for setting her claim. It was further stated that on receipt of letter from respondent no.1, petitioner sent him a registered letter that as per their record, the Insurance Policy stood in the name of Mrs. Prema Mehta on the date of alleged theft and as such, he was not entitled to any claim, the vehicle being not insured in his name. It was denied that petitioner was deficient in rendering service, or indulged into unfair trade practice.

5. Respondent no.2, in its written version stated that respondent no.1 had taken a loan of Rs.2,56,320 from it. It was further stated that vehicle was hypothecated in its favour. It was further stated that respondent no.1 has paid regular instalments of

Rs.6,580/- P.M. to respondent no.2. It was denied that there was any deficiency in rendering service, on the part of respondent no.2, or it indulged into unfair trade practice.

6. District Consumer Disputes Redressal Forum, Chandigarh 1, (for short ‘District

Forum’) vide order dated 3.4.2012, allowed the complaint and ordered as under;-

“As a result of the above discussion, the complaint is allowed and the Opposite Parties No.1 and 2 are directed to pay

Rs.4,03,940/- to the complainant being the insured value of the vehicle after deducting the depreciation value, as per the terms and conditions of the insurance policy. Opposite Party No.1 and 2 are also directed to pay Rs.50,000/- to the complainant as compensation for mental agony and harassment besides

Rs.10,000/- as costs of litigation.

This order be complied with by Opposite parties No.1 and 2 within one month from the date of receipt of its certified copy, failing which Opposite party No.1 and 2 shall be liable to pay the awarded amount alongwith interest @ 12% p.a. from date of filing of the complaint i.e. 6.9.2011 till its realization besides Rs.10,000/- as litigation costs.”

7. Being aggrieved by the order of the District Forum, petitioner filed appeal before the State Commission which was dismissed vide impugned order.


9. We have heard learned counsel for the petitioner and have gone through the record.

10. It has been argued by learned counsel for the petitioner that respondent no.1 is not a ‘consumer’ as there was no privity of contract between him and the petitioner. It is further contended that respondent no.1 never approached petitioner for transferring the insurance policy of the vehicle neither petitioner received any cheque on account of transfer fee nor the alleged letter dated 10.8.2009 sent by UPC. Moreover, the service under UPC is not in accordance with law. Under these circumstances, State

Commission has wrongly held that respondent no.1 has sent an application for transfer by UPC. In support, learned counsel for petitioner has relied on following judgments; i) State of Maharashtra versus Rashid B. Mulani,

Appeal (Cr.) 557 of 1999 and ii) M/s. Naresh Kumar Sandeshkumar & Company versus United

India Insurance Company Ltd.

(Revision Petition No.4063 of 2007 decided on 29 th March, 2012 by this Commission).

11. The State Commission while dismissing appeal in its impugned order observed;

“12. Admittedly, the original owner of the vehicle was Smt. Prema

Mehta. There is also, no dispute about the factum that the vehicle in question was insured, in her name for the Insured Declared

Value of Rs.4,03,940/- for the period from 28.4.2009 to 27.4.2010.

The question arises as to when the vehicle was purchased and transferred, in the name of the complainant, by the Registering

Authority, Chandigarh. Annexure C9 is the letter, which was written by the Deputy Manager, Service Hub, Regional Office,

Chandigarh, to the complainant vide this letter, he was intimated that Mr. Anurag Midha, their investigator investigated the case and submitted his report, to the effect, that the ownership of the vehicle was transferred in his name (complainant) on 29.7.2009, whereas the policy was in the name of Mrs. Prema Mehta, as on the date of alleged theft. Thus, from the letter annexure C9, which was written by opposite parties no.1 & 2 to the complainant, it was proved that the vehicle, in question was transferred in the name of the complainant on 29.7.2009. It means that on the date of accident the vehicle had already been transferred in the name of the complainant and he was the registered owner thereof. The District

Forum was also right, in holding so. The submission of the counsel for the appellant in this regard, being devoid of any merit, must fail, and stands rejected.

13. The next question, that arise for consideration, is as to whether intimation within 14 days from the date of transfer of the ownership of the vehicle, in the name of complainant was given by him to opposite parties no.1 & 2, with the request that the insurance policy be transferred in the name or not. The complainant in his complaint stated that immediately on transfer of the ownership of the vehicle, in his name, he met the officials of opposite parties no.1 & 2 on two occasions but they put him off on one pretext or the other. At page 55 of the District Forum file, there is a copy of the letter dated 9.8.2009, vide which request for transfer of insurance policy in the name of the complainant in respect of vehicle No.CH04C4356 was made by him

(complainant). Alongwith this letter the relevant documents and a cheque in the sum of Rs.680/- were also attached. This letter was sent through UPC, copy whereof is Annexure C3. The stamp of the

Post Office, affixed on the photocopy of the UPC receipt bears the date 10.8.2009. The UPC receipt was issued by the officials of the

Post Office, in due discharge of their official duties. The official acts, done by the public servants, in the due discharge of their officials duties, carry a presumption of correctness, until proved to the contrary. In the face of the letter, referred to above, sent through the UPC Annexure C3, it was for opposite parties no.1 & 2 to produce evidence, to rebut the same. However, no evidence, in this regard, was led by opposite parties no.1 & 2. It may be stated here that intimation through UPC is one of the legality recognized mode of communication. Under these circumstances, authenticity of the letter at page 55, which was sent through UPC, copy whereof is Annexed C3 could not be doubted.”

12. Even assuming for the sake of argument that respondent no.1 has sent an application alongwith cheque for transfer of insurance policy to the petitioner by UPC, but petitioner’s own surveyor in its report has admitted that respondent no.1 has sent letter dated 10.8.2009. It would be pertinent to point out that Mr. Anurag Midha,

Investigator who investigated the matter was appointed by the petitioner company itself. This surveyor in its investigation report with regard to the theft claim of the vehicle in question has categorically stated that respondent no.1 has sent two letters through

UPC for transfer of insurance policy in his name. His report is dated 30.5.2012. The relevant observation and opinion of the investigator states;

“6. It is important to mention here that Sh. Gopal Krishan Sharma also sent two letters through U.P.C. for transfer of Insurance Policy in his name. On perusing the letters sent by Sh. Gopal Krishan Sharma it has come out that the first letter was sent by him on 10.08.09 and further on 24.08.09.

Opinion:-

In view of the facts stated above and circumstantial evidence available, I am of the opinion that vehicle Tata Indigo car bearing

No.CH04c4536 is registered in the name of Sh.Gopal Krishan

Sharma but insurance policy is still in the name of Mrs. Prem Mehta,

(Previous owner). It was stolen on the intervening night of

16/17/03.2010 from the ground near H. No.202/1, Bank Colony,

Pipliwala town, Manimajra, Chandigarh and not recovered yet.”

13. Since, petitioner’s investigator himself admits that respondent no.1 has sent two letters through UPC for transfer of insurance policy in his name, then we fail to understand as to how petitioner has taken this plea, that they have not received any letter with regard to transfer of insurance policy from respondent no.1.

14. The judgments cited by learned counsel are not applicable to the facts of the present case as respondent no.1’s letter dated 10.8.2009 for transfer of insurance policy was duly received by the petitioner.

15. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

16. There is nothing on record to show that impugned order passed by State

Commission is erroneous, or there is any illegality in the impugned order. Present petition being without any legal basis and being meritless, is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

17. Petitioner is directed to deposit the cost by way of demand draft in the name of

“Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization.


…..…………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg/


REVISION PETITION NO. 837 OF 2013

WITH

(I.A. NO.1507 OF 2013, For C/Delay)

(Against the order dated 09.10.2012 in Appeal No. 844/2012 of the State

Commission, Haryana, Panchkula)

Jai Prakash S/o Sri Ratti Ram R/o Mohalla Shiv Nagar, Near KLP College, Rewari,

Tehsil & Distt. Rewari

....... Petitioner

Versus

1. Bajaj Allianz General Insurance Co. Ltd. Through Branch Manager, SCO 30, SF,

Brass Market, Sector-1, Rewari

2. Bajaj Allianz General Insurance Co. Ltd. GE Plaza Airfort Road, Yerwada, Pune

…... Respondents

BEFORE

:

HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioners : Mr. S.S.Dahiya, Advocate with

Ms.Arna Das, Advocate

Pronounced on : 17 th May, 2013

ORDER

PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER

In this revision petition, there is challenge to order dated 9.12.2010, passed by

Haryana State Consumer Disputes Redressal Commission, Panchkula (short, “State

Commis sion”).

2. Brief facts are that petitioner/complainant got insured his vehicle i.e. Santro Car bearing No.HR-47T-0440 with the respondent/opposite party for the period from

24.9.2007 to 23.9.2008. Unfortunately, during the subsistence of the insurance policy, the vehicle in question was stolen on 17.2.2008. Petitioner lodged the FIR in the concerned police station on 18.2.2008. Intimation in this regard was given to the respondent but it failed to settle the claim submitted by him. Thus, alleging it a case of deficiency in service, petitioner invoked the jurisdiction of the District Forum.

3. In the written statement, respondent took the plea that the vehicle in question was stolen on 17.2.2008, whereas, petitioner informed it with respect to alleged theft on

12.9.2008 i.e. after a period of 207 days from the date of alleged theft. Since, petitioner failed to inform the respondent well in time, he has violated the terms and conditions of the insurance policy. Therefore, he is not entitled for any insurable benefits. Denying any kind of deficiency of service, it was prayed that complaint merit dismissal.

4. District Consumer Disputes Redressal Forum, Rewari (short, “District Forum) vide order dated 13.3.2012, allowed the complaint and passed following order ;

“This complaint is hereby allowed with a direction to the opposite parties to pay insured amount of Rs.3,32,000/- to the complainant with interest @ 12% from the date of theft i.e.

17.2.2008 till payment. The complainant is also allowed damages to the tune of Rs.10,000/- for harassment and litigation expenses of Rs.1,100/-. The complainant shall however, place on record duly filled form no.29, 30 and 35E and subrogation letter etc. which may be collected by the opposite parties, so that in case at any stage which is found then the ownership thereof may be got changed by the insurance company in its own name.”

5. Being aggrieved by the order of District Forum, respondents filed appeal before the State Commission which allowed the appeal and consequently, dismissed the complaint of the petitioner.

6. Hence, the present revision petition. Along with it, an application seeking condonation of delay of 31 days has also been filed.


8. The State Commission while dismissing the complaint of petitioner held ;

“Undisputedly, the vehicle in question was stolen on

17.2.2008 for which FIR was registered by the complainant on

18.2.2008. The complainant has failed to establish on record that he informed the insurance company about the alleged incident well in time. The complainant in his complaint has intentionally not mentioned the date of giving information to the insurance company whereas it was specifical stand of the insurance company that the information regarding theft of the vehicle was given to the company after 207 days from the date of alleged theft and the same was not rebutted by the complainant. Since, the complainant has given information to the insurance company on 12.9.2008, i.e., after a period of 207 days from the date of alleged theft, thus, there is violation of the

terms and conditions of the insurance policy and as such, the complainant is not entitled for any insurable benefits, in view of the observation made by the Hon’ble Apex Court in case cited a Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India

Insurance Co.Ltd. andanother, 2011 CTJ 11 (Supreme

Court) (CP) case (supra) as under :-

“22. 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 a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.

24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, 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 risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavor of the court should always be interpret the words in which the contract is ex pressed by the parties.”

The facts and circumstances of the instant case are fully attracted to Suraj Mal Ram Niwas Oil Mills (P) Ltd.

case (supra).

The District Consumer Forum has not appreciated the factual position on record and committed great error while accepting the complaint of the complainant and as such, the impugned order under challenge is not sustainable in the eyes of law.

Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.”

9. The only ground on which condonation of delay has been sought states;

“3. That the petitioner could not file the Revision Petition in time as because the petitioner received FIR copy lately from the police station. The ld. counsel received the certified copy of FIR on

25.2.2013. After that the ld. counsel for the petitioner take few

days’ time for translation of FIR from Hindi into English. Due to this, the delay has been caused in filing the Revision Petition. On account of procedural compliance such as translation of documents there is a delay of 31 days and the same deserves to be condoned in the interest of justice and equity.”

10. As per petitioner’s case, the certified copy of the FIR was received only on

25.2.2013. The impugned order was passed on 9.10.2012 and copy of the same was despatched to the petitioner on 31.10.2012. Revision petition was filed only on

1.3.2013. We fail to understand as to where was the need for the petitioner to have applied for the certified copy of FIR at this belated stage since he had already mentioned about the FIR dated 18.2.2008, in his complaint filed before the District Forum. Be that as it may, certified copy of FIR has not been filed before this Commission, till date.

11. It is well settled that “Sufficient Cause” for condoning the delay in each case is a question of fact.

12.

Under the Consumer Protection Act, 1986 (short, ‘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.

13. Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development

Authority, IV (2011) CPJ 63(SC) has observed ;

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras ”.

14. Thus, no ground whatsoever for condoning the delay is made out. Accordingly, application for condonation of delay stand dismissed. Consequently, the present revision petition, being barred by limitation is hereby dismissed.


…………………..………..J

(V.B. GUPTA)


…………………..………..

Sonia/

(REKHA GUPTA)

MEMBER



(Against the order dated 14.02.2013 in S.C. Case No.CC/94/2010 of the State

Commission, West Bengal)

M/s. Vivekanand Construction Company At Phase -4, Block-6, 493/C/A, G.T. Road

(South), Howrah -2 West Bengal

……….Appellant

Versus

1. Suraj Ratan Mundra At Flat No.303 C, Block- Back (rare) At Devangan Apartment,

176, Bidhan Sarani, Kolkata- 700006

2. Kailash Undra At Flat No.303 C, Block-Back (rare) At Devangan Apartment 176,

Bidhan Sarani, Kolkata- 700006.

.........Respondents

BEFORE


For the Appellant : Mr.Dipak Kr. Jena & Mr. Yatharth Nautiyal

Advocates


ORDER


This appeal is filed against the order of West Bengal State Consumer Disputes

Redressal Commission in CC/94/2010 in which complaint of the present respondents has been allowed.

2. The case of the Complainants is that they have purchased a flat from the

Appellant /OP and were put in possession of the same in 1999. But, despite payment of full agreed price and repeated reminders, the OP did not register the sale deed in their favour, until the filing the complaint on 13.12.2010. In this background the State

Commission, in its order of 14.2.2013, has directed the appellant/OP to execute and register the deed of conveyance within 45 days. The Commission has also awarded compensation of Rs.3 lakhs.

3. De hors the claim of the complainants, the plea of the Appellant /OP before the

State Commission was that-

“the opp. Party completed the flat and issued possession letter on 21.04.99 and requested the opp. Party for registration of the documents but the petitioner was not interested to register the documents for the purpose of squeezing money from the Opp. Party. It is submitted that the Opp. Party requested the petitioner for making arrangement for registration and paying cost of registration including stamp duty and other requires so that the Opp.

Party can execute the documents before the Calcutta Registration office but the petitioner did not pay any heed to it nor given any response.” The State

Commission did not accept this plea and held that“There is practically no tangible answer on the part of the OP as to what caused such abnormal delay in execution and registration of the deed in question, which, in our opinion, tantamounts to deficiency in service”

4. We have carefully perused the records of the appeal and heard Mr. Dipak Kumar

Jena, Advocate on behalf of the appellant.

5. As is evident from the record, the flat had not been registered in the name of the

Complainants for almost 10 years from the date of possession till 13.12.2012, when the jurisdiction of the State Commission was invoked. The observation of the State

Commission that there was no answer on the part of the OP as to what caused this abnormal delay in execution of the deed of conveyance was put to the appellant counsel. Learned counsel admitted that no documentary evidence in this behalf had been placed before the State Commission. Only oral submissions had been made to the effect that the efforts made by the Appellant/OP to get the sale deed registered were frustrated by non-cooperation of the respondent/Complainant. It is therefore, clear that no evidence of any value was adduced before the State Commission in support this contention.

6. The appeal petition, as well as the arguments of the counsel for the appellant, have both laid considerable stress on the fact that the consumer complaint was filed nearly 10 years after the admitted date of possession of the flat. It is argued that if the cause of action arose on 21.4.1999, i.e. the date of possession, the complaint would become inadmissible on the ground of delay. On this point, the case of the Complaints, as seen from para 13 of the complaint before the State Commission was that:-

“That the cause of action of this case arose on 21.04.1999 being the date of giving possession of the flat in question by the opposite party and further on 16.05.2008 being the date of issuance of first legal notice through S.G.

Muskara and then on 17,09,2010 being the date of last legal notice through

Barun Prasad, advocate and denial to execute the deed of conveyance of the flat by the opposite party the same is continuing till date.”

The only response to this in the pleadings of the appellant/OP before the State

Commission was a bland denial that the cause of action arose on 21.4.1999 and that it arose again on subsequent dates of legal notices.

7. Learned counsel for the appellant has sought to rely upon the decision in Haryana

Urban Development Authority Vs. B.K., Sood, (2006) 1 SCC 164.

In this matter, the complaint before the State Commission was filed 10 years after taking possession of the bhattis and 8 years after the cause for alleged damage had commenced. But, there was not even a prayer to condone the delay. Hon’ble Supreme Court observed that the

National Commission had proceeded on an incorrect factual basis that the bhattis had been removed during the pendency of the appeal before it. This finding was held to be contrary to the records as the offending bhattis had already been removed, three years before the consumer complaint was filed.

8. On comparison, facts of the present case are found to be very different. The case of the Complainants, as already observed, was that the cause of action began with the possession of the flat in 1999 and continued till the filing of the complaint, due to nonregistration of the conveyance deed for the same. Therefore, in my view the decision relied upon by the appellant will not come to his rescue. Moreover, the plea of continuing cause of action was not challenged before the State Commission.

9. In Lata Construction and others Vs. Dr.Rameshchandra Ramniklal Shah and another, (2000) 1 SCC 586, the question of ‘continuing cause of action’ arose directly for consideration before the Supreme Court of India. The case of the Complainant was that under a written agreement of 27.1.1987 the builder-developer had promised to provide a flat but had failed to do so. This agreement contemplated that Lata

Construction would construct and hand over a flat on the ground floor. This was not done. However, the two sides entered into a fresh agreement on 23.2.1991 in which the builder agreed to pay the Complainant Rs.9.51 lakhs in lieu of the flat. Hon’ble

Suprme Court held that:-

“

4. A perusal of the agreement dated 23-2-1991 would show that it was specifically stipulated therein that the rights under the agreement dated 27-

1-1987 would remain unaffected. It was for this reason that in the claim petition filed before the Commission, it was clearly mentioned that their rights under the agreement dated 27-1-1987 as also those under the agreement dated 23-2-1991 may be enforced. It was also specifically mentioned in the second agreement that the first agreement of 1987 would be treated as terminated only on fully payment of the stipulated amount of

Rs.9,51,000 to the respondents. Since the rights under the agreement of

1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated “cause of action” to be a

“continuing cause of action” and came to the right conclusion that the claim was not beyond time.”

10. The law laid down above on continuing cause if action, applies equally to the present case. The sale of the flat to the respondent/ complainant, receipt of the agreed price by the vendor/appellant and physical delivery of the flat by the vendor/OP to the purchaser/Complainant, are facts established on the record. While the appellant has failed to prove that the respondent was responsible for the delay, non execution of the conveyance deed remains an admitted fact. More than anyone else, the appellant, being a construction company, should know that sale of a flat is completed with registration of the sale deed and not with mere transfer of physical possession. Clearly, the cause of action, which began with delivery of physical possession, continues till the deed of conveyance is registered. Therefore, the question of limitation does not arise.

11. In the above background, I find no substance in the grounds of appeal against the impugned order. The appeal is therefore dismissed and the order of the West Bengal

State Consumer Disputes Redressal Commission in Consumer Complaint No

CC/94/2010 is confirmed. No orders as to costs.

.……………Sd/-……………

(VINAY KUMAR)




With

(I. A. No. 446 of 2013 for Condonation of Delay)

( I. A. No. 447 of 2013 for Stay)

(From order dated 25.09.2012 in Appeal No. 1080 of 2011 of Andhra Pradesh State

Consumer Disputes Redresdsal Commission, Hyderabad)

M/s Padmaja Construction, Rep. by its Proprietor, Sri K. Yedukondalu S/o Venkata

Ratnam, Aged about 49 years, R/o Flat No. 501, Sri Ventakeswara Enclave,

Yellareddyguda, Hyd. District, Andhra Pradesh

………Petitioner

Versus

1. Smt. P. Annapurna, W/o Late P. Veerfappa, Aged about 54 years, Occ: House

Hold, (died on 12.07.2011) by L.Rs.

1A. Sri P. Buchi Raju S/o late P. Veerappa, Aged 38 years, Occ: Service.

1B. Sri P. Veeresham, S/o lage P. Veerappa Aged about 33 years, Occ: Service.

1C. Sri P. Vishwanath S/o lage Verappa, Aged 24 years, Occ: Student.

All Residing at H. No. 7-1-205/5, Ameerpet, Hyderabad, Andhra Pradesh

…… Respondents

BEFORE:



For the Petitioner : Mr. V. Sridhar Reddy, Advocate


ORDER


There is an application seeking condonation of delay filed by the petitioner. As delay is of only 9 days, same stands condoned.

2 Petitioner/Opposite Party being aggrieved by order dated 25.9.2012, passed by

Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ‘State Commission’) has filed present revision petition.

3. Brief facts are that respondents/complainants entered into a development agreement with petitioner on 03.05.2007 to develop and construct residential flats and hand over possession. Petitioner agreed to construct and give flat of 1250 Sq. Ft. in second or third floor within 24 months with a grace period of four months. The petitioner completed the construction in December,2009 and the advance of Rs.2,00,000/- taken from the respondents was also returned on 12.12.2009 but did not handover the

property due to which respondents are sustaining loss of Rs.25,000/- per month till date.

On that, respondents gave legal notice claiming possession, Rs.5,00,000/- towards loss of rents from October,2008 to May, 2010, Rs. 2,00,000/- towards mental agony.

Petitioner gave a reply stating that it was ready to deliver the flat provided respondents paid Rs.61,000/- towards electrical charges and municipal taxes paid by it. Alleging that all this amounts to deficiency in service, respondents claimed possession of the property besides Rs.7,00,000/- towards damages for mental agony with interest at 24% p.a. and costs.

4. Notice of complaint was issued to the petitioner for 24.11.2010, which was received back with the Postal remarks “Not claimed” and posted the matter for respondents evidence. Thereafter, respondents filed an application for amendment of the complaint.

Notice of this application was issued to the petitioner. On behalf of petitioner,

Mr.D.Krishna Prasad, Advocate appeared and filed his Vakalatnama and stating that he did not propose to file counter and will argue the matter on the basis of allegations made in the complaint. Thereafter, application for amendment of the complaint was allowed by the District Forum on 28.2.2011 and matter was adjourned to 14.3.2011. On that date, amended copy of the complaint was filed and matter was adjourned to

6.4.2011 for filing of counter on behalf of the petitioner. On that date, petitioner did not file the counter and sought time. Accordingly, matter was adjourned to 18.4.2011 for filing of counter, subject to payment of Rs.200/- as cost. On 18.4.2011, again counter was not filed and cost not paid and there was no representation on behalf of the petitioner before the District Forum and accordingly, matter was posted on 6.5.2011 for respondents’ evidence. Thus, petitioner did not file any counter/reply to the complaint before the District Forum nor did it pay the adjournment cost.

5. Thereafter, District Forum, vide order dated 21.07.2011 partly allowed the complaint of the respondents and passed the following directions ;

“(1) That complaint is partly allowed directing the Opposite Party to deliver the flat admeasuring 1,250 sq. ft. in the 2 nd floor and in case if it is not possible for the Opposite Party to handover the flat in

2 nd floor, it is directed to handover the flat in 3 rd floor without demanding any amount from the Complainants.

(2) The Opposite Party is directed to pay an amount of Rs. 9,000/per month from the month of December, 2009, till the flat in the 2 nd or 3 rd floor is delivered.

(3) The Complainants are entitled to costs of Rs.2,000/from the

Opposite Party.

This order is to be complied within four weeks from the date of receipt of this order ”.

6. Since District Forum disallowed compensation towards mental agony and rent at

Rs.25,000/- per month instead of Rs.9,000/- per month along with interest @ 24% p.a. from December, 2009 till the date of possession, respondents filed appeal before the

State Commission.

7. State Commission, vide impugned order disposed of the appeal with direction to the petitioner ;

“It is not known as to why the complainants having succeeded in the complaint, while preferring appeal did not choose to file additional documents for claiming rent at a higher rate. In the first place it could have taken possession and recover whatever amount that was awarded by the

District Forum. therefore, it cannot be said that the opposite party was at fault. Absolutely, we do not see any merits in the appeal except a direction to the opposite party to deliver possession of the flat in third floor immediately, together with costs that were awarded by the District Forum.

In the result, this appeal is disposed of with a direction to the opposite party to hand over possession of the flat immediately, and pay rent as directed by the District Forum together with costs within four weeks from the date of receipt of this order.”


9. We have heard learned counsel for the petitioner and gone through the record.

10. It is contended by learned counsel for the petitioner that due to the fault of the respondents in not paying the extra cost for extra area of the flat and Municipal Tax, the flat is lying vacant and as such petitioner is not liable to pay any rent to the respondents as awarded by the fora below. Other contention is that petitioner cannot be made liable to deliver possession of the flat unless respondents pay extra cost of Rs.51,000/- incurred by it on the construction of the extra area of flat and Rs.5,000/- towards the

Municipal tax paid by the petitioner.

11. District Forum, while allowing the complaint held ;

“The Opposite Party admitted in his reply notice Ex.A10 that the flats were constructed long back and not in the month of December,

2009 as contended by the complainant and it was ready to deliver the flat in the 3 rd floor as per the terms of Ex.A1. If that be the case of the Opposite Party, it is for the Opposite Party to show as to why it did not inform the complainants in writing that it was ready and

willing to deliver the flat as per the terms of Ex.A1 and as to why it was kept quite till the date of receipt of original of Ex.A5 notice, dated 22.06.2010. No reasonable or at least possible explanation is forthcoming to prove that aspect. In the facts and circumstances of the case and also after going through the documents relied upon by the Complainants, it is to be held that the non delivery of the flat to the complainants as the terms of the Ex.A1 Development

Agreement after completion of the construction of the flats in the site belongs a deficiency of service on the part of the Opposite

Party ”.

District Forum further held ;

“Since the Opposite Party failed to deliver the flat either in the

2 nd floor or 3 rd floor as per the terms of the Ex. A1 after completion of the construction of the flats even before the month of December,

2009, it is liable to pay rent @ 9,000/- per month form the month of

December, 2009 to till the date of delivery of the flat, either in the

2 nd floor or 3 rd floor. The Opposite Party shall not demand

Rs.61,000/- as claimed in the reply notice Ex. A10 for the reason that it failed to deliver the flat soon after the completion of the construction of the flats. Because of non delivery of the flats to the

Complainants as per the terms of the Ex.A1 Development

Agreement, the complainants are subjected to harassment and mental agony besides being sustained monetary loss ”.

12. As apparent from the record, petitioner did not file any written statement before the

District Forum nor it paid the adjournment cost and as such matter was decided by the

District Forum in the absence of the petitioner. Thus, petitioner has no defence in this case.

13. It is also an admitted fact that petitioner never challenged the order passed by the

District Forum. Hence, order of District Forum has become final.

14. Further, as per Development Agreement petitioner, has to construct and deliver the possession of the flat to the respondents after due construction. Till date, petitioner has not handed over possession to the respondents. This plea taken by the petitioner in the present revision that respondents have to pay extra cost for the extra area constructed by the petitioner, cannot be taken into consideration since petitioner has no such defence before the

District Forum nor same has been proved by the petitioner.

15. Under these circumstances, we do not find any ambiguity, infirmity or illegality in the impugned order. The present petition has no merits at all and same is hereby dismissed with cost of Rs.10,000/-.(Rupees Ten 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 eight

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.


……..……………………J

(V.B. GUPTA)


……………………………

(REKHA GUPTA)

MEMBER

SSB



(From the order dated 30.08.2011 in F.A. No.320/2006 of the Haryana State Consumer


Mohan Singh s/o Shri Kehar Singh r/o House No.712 / 14B-11

Milap Nagar, Ambala City (Permanent Resident of Village Bhano-Kheri Tehsil and

District Ambala)

.….. PETITIONER

Versus

1. National Insurance Co. Ltd., Having its Regional Office SCO No.332-334, Dec. 34A

Chandigarh Through its Regional Manager

2. Authorised Signatory / Divisional Manager The National Insurance Company Ltd.

106, Rly Road, Ambala Cantt

....... RESPONDENTS

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner : Mr.Sameer Singh, Advocate

For the Respondents : Ms.Neerja Sachdeva, Advocate


ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMB ER

This revision is directed against the concurrent finding of the State Commission

Haryana resulting in dismissal of consumer complaint filed by the petitioner

– complainant.

2. Briefly put facts relevant for the disposal of this revision petition are that complainant insured his Fiat UNO car with OP No.1 vide insurance policy no. 2688891 for the period w.e.f. 02.04.2002 to 01.04.2003. The car met with an accident on

09.04.2002. The accident was immediately intimated to the opposite parties. The opposite party appointed a Surveyor who after conducting survey of the damaged car assessed the loss caused as Rs.35,807/-. The surveyor assessed the value of the salvage as Rs.1000/-. The insurance company repudiated the claim on the ground that petitioner had obtained the comprehensive policy by concealing the fact that the vehicle in question was already insured with New India Insurance Company Ambala City for third party claim. The complainant claiming the repudiation to be deficiency in service, filed consumer complaint under section 12 of the Consumer Protection Act seeking compensation of Rs.80000/- against bills of repair besides compensation of Rs.50000/-

on account of mental torture and harassment as also Rs.5000/- against the cost of litigation.

3. The opposite parties in their written statement admitted the factum of insurance as also the damage caused to the car in accident. The opposite party justified the repudiation of claim on the plea that the petitioner obtained Double Insurance concealing the fact of earlier third party insurance with New India Insurance

Company. Thus, according to the opposite party there is no deficiency in service.

4. The District Forum on consideration of the record and evidence of the parties found merit in the reason given for repudiation of claim and dismissed the complaint.

5. Feeling aggrieved by the dismissal of complaint, the petitioner / complainant preferred an appeal before the State Commission and the State Commission with following observations dismissed the appeal:

“From the record it is seen that after expiry of the previous insurance policy on 26.01.2002, the complainant got insured his Fiat UNO car with the New India Insurance Company, Ambala City Branch, which was third party policy. The aforesaid vehicle met with an accident on

09.04.2002. After three months the complainant obtained another comprehensive policy for the aforesaid vehicle from the National

Insurance Company. Thus, the claim of the complainant seeking compensation with respect to the damage of his vehicle on 09.04.2002 was denied because at that time the vehicle was not insured comprehensively and it was a third party insurance policy.

Taking into account the facts and circumstances of the case, we hardly find any ground to interfere with the well reasoned order whereby the complaint has been dismissed. Hence, this appeal is dismissed being devoid of any merit.

6. It is against the aforesaid dismissal the appellant has preferred this revision petition.

7. Learned counsel for the petitioner has contended that order of the State

Commission is not sustainable for the reason that the State Commission has committed a grave irregularity in ignoring the fact that the claim of the petitioner was in respect of

“own damage” covered under the comprehensive insurance which damage was not covered under the earlier third party insurance obtained from New India Insurance

Company. Learned counsel submitted that if at all there was Double Insurance, it was only in respect of third party claim. Therefore, the opposite party after having received the full premium for comprehensive insurance cannot get away from its responsibility by taking plea of concealment of fact of vehicle having been insured with New India

Insurance Company.

8. Learned counsel for the respondent on the contrary has submitted that insurance contract is a matter of trust and in the instant case admittedly the petitioner has obtained Double Insurance cover concealing the existence of earlier third party insurance. Therefore, the respondent was justified in repudiating the claim. Learned counsel referred to Indian Motor Tariff GR 22 which deals with the case of Double

Insurance and submitted that since the insurance policy in question is a subsequent policy, it is liable to be treated as cancelled.

9. We have considered the rival contentions and perused the record. The main issue for consideration is whether taking of the comprehensive insurance policy of the car by the complainant / petitioner during the currency of an existing third party policy amounts to such a concealment of fact which would deprive petitioner of the claim for the accidental damage caused to the car?

In order to find answer to this question, it would be useful to have a look on GR

22 dealing with cancellation of insurance and Double insurance which is reproduced thus:

“Double Insurance

When two policies are in existence on the same vehicle with identical cover, one of the policies may be cancelled. Where one of the policies commences at a date later than the other policy, the policy commencing later is to be cancelled by the insurer concerned.

If a vehicle is insured at any time with two different offices of the same insurer, 100% refund of premium of one policy may be allowed by cancelling the later of the two policies. However, if the two policies are issued by two different insurers, the policy commencing later is to be cancelled by the insurer concerned and pro-rata refund of premium thereon is to be allowed.

If however, due to requirements of Banks/Financial Institutions, intimated to the insurer in writing, the earlier dated policy is required to be cancelled, then refund of premium is to be allowed after retaining premium at short period scale for the period the policy was in force prior to cancellation.

In all such eventualities, the minimum premium as specified in the tariff is to be retained.

In either case, no refund of premium can be allowed for such cancellation if any claim has arisen on either of the policies during the period when both the policies were in operation, but prior to cancellation of one of the policies”.

10. On reading of the above rule, it is clear that this rule nowhere provides that obtaining of the Double Insurance would deprive the insured of the benefit of the insurance cover. The rule only states that if two policies are in existence on the same

vehicle with identical cover, one of the policy may be cancelled. The rule also deals with the refund of premium in respect of cancelled policy. In the instant case admittedly, the insurance cover taken from New India Insurance Company is third party insurance whereas the insurance cover obtained from the opposite party is a comprehensive insurance.

The comprehensive insurance cover includes “own damage” as well as “theft” besides the third party cover. Therefore, in our considered view, the insurance cover obtained by the petitioner from the opposite party is not fully identical cover in respect of vehicle in question because the earlier insurance policy did not provide cover against theft or own damage. Therefore, under this rule, subsequent insurance policy cannot be cancelled and the earlier policy has to be cancelled to ensure that the petitioner may not claim the third party relief twice. Ld. Counsel for the respondent has failed to show any law / rule / terms of Insurance which provides that obtaining Double Insurance on the same vehicle would disentitle the insured to get claim under the policy. This crucial fact has been ignored by the District Forum as well as the State Commission. Therefore, in our considered view the impugned order of the

State Commission dismissing the complaint suffers from a grave factual infirmity, accordingly, not sustainable.

11. Coming to the question of compensation. In this regard, case of the complainant is that he is entitled to Rs.80000/- as damages for the loss caused to the vehicle as he has paid repair bills to that extent to the workshop. In this regard, the complainant is relying upon the copy of the bills of Delhi Automobiles Ltd. and various dealers from whom the spare parts were allegedly purchased. On the contrary, respondent has placed on record photocopy of the report of surveyor Vikas Kohli who has assessed the damage caused to the car at Rs.35,807/-. The surveyor has also assessed the value of the salvage at Rs.1000/-. The petitioner has not led any evidence on the record to show that the copies of the bills placed on record relate to the repair of the damage caused by the accident only. There is no evidence on record to show that report of surveyor who is an independent person is not reliable. Therefore, going by the report of the Surveyor, we conclude that the damage to the extent of

Rs.35,807/- was caused to the car. Salvage has been valued at Rs.1000/- Since there is no evidence of return of salvage, in our view, respondent is liable to pay a sum of Rs.34,807/- to the appellant against his insurance claim.

12. In view of the discussion above, we allow the revision petition and set aside the impugned order and partly allow the complaint. The opposite party no.1 / respondent no.1 is directed to pay to the petitioner a sum of Rs.34,807/- as damages alongwith 9%

interest thereon from the date of claim till realisation of the amount. Revision petition is disposed of accordingly.

Sd/-

…………………..………..

(AJIT BHARIHOKE, J.)


Sd/-

……………….……………

(SURESH CHANDRA)

MEMBER

Am



(From the order dated 11.10.2012 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula in Appeal no. 987 of 2009)

Banta Ram Son of Ram Kala Resident of village Ujhana Tehsil and District Kaithal

Haryana

Petitioner

Versus

1. Jai Bharat Beej Company Super Market, Kaithal District Kaithal

2. P H I Seeds Ltd., Cooperative Office 3 rd Floor, Babu Kronic Millinils Center House no. 6-3-1099/1100 Raj Bhavan Road Samaj Guda Hyderabad

– 500082

Respondents

BEFORE:



For the Petitioner Ms Neelam Singh, Advocate


ORDER

REKHA GUPTA

The present revision petition has been filed against the judgment and order dated

11 th October 2012 of the Haryana State Consumer

Disputes Redressal Commission,Panchkula

(the ‘State Commission’) in Appeal no. 987 of 2009, which was filed against the final order dated 15 th June 2009 passed by the

District Consumer Disputes RedressalForum, Kaithal (‘the District Forum’) in Complaint case no. 300 of 2005.

The petitioner in his complaint before the District Forum has stated that the petitioner/ complainant is an agriculturist by profession and own 10 acres of land at villageUjhana Tehsil and District Kaithal. The petitioner purchased the seeds of paddy namely Paddy Hybrid Pioneer PHB 71 from the respondent on 13.05.2005 and paid

Rs.8,200/- to the respondent as the price of the seeds. The petitioner is fully prepared his field before sowing the above said seeds and took all care and cautions and even obtained the test report of the soil. Proper irrigation was done but in spite of taking all care and cautions and putting a lot of hard work by the petitioner the germination as assured by the respondents did not take place.

On the directions of Deputy Director, Agriculture Department, Kaithal, a team was formed which inspected the fields of the petitioner in which the seeds supplied by the respondent was sown by the petitioner and the seeds were found to be of very poor quality and it was also found by the team on inspection that only 30 to 35% of germination have took place on the seeds so supplied by the respondent.

The respondent no.1/ opposite party no.1 in their reply have stated that the complaint is not maintainable against respondent no. 1 as the respondent no. 1 is the authorised dealer of producer of complaint seed (respondent no. 2). Respondent no. 1 has sold the seed in question in a sealed packing and in the same condition in which the respondent no. 2 supplied to respondent no. 1. Respondent no. 1 is the licence holder from the Deputy Director, Agriculture Kaithal and is the authorised shop keeper in respect of the seeds in question for sale.

This defect in seed (though denied) if proved than only the producer

(manufacturer) i.e., respondent no. 2 is responsible and not the respondent no.1

(dealer).

The petitioner has purchased the seeds in question for commercial purpose, so the petitioner is not a consumer of the respondents.

The report (if any) of Deputy Director, Agriculture, Kaithal is false and has been prepared in collusion with the petitioner without inspection of field. No notice was given to the respondents for the alleged inspection of field. The report (though false) does not attribute the quality of seed for low germination.

Petitioner may be asked to prove the ownership as well as cultivation by producing cogent evidence. However, the seeds were of good/ excellent quality and are certified by the State of Andhra Pradesh Seeds Certification Agency and also is notified seed by Central Government of India. The Agriculture Department, Kaithal also recommends the use of the seed in question. The seeds supplied by the respondent to the petitioner were not of poor quality.

Low germination (though denied) may perhaps due to reasons totally external to the quality of seed. The germination of seeds depends upon so many factors such an appropriate period of sowing, the soil condition, climate lessor of lack soil, moisture, pests and disease, application of fertilisers and nutrient availability in the soil. It is wrong that the complainant prepared his field improper manner and took all care and caution.

It is denied that the petitioner obtained any test report of soil. The report, if any, is false and has been obtained in collusion. It is wrong that proper irrigation was done. It is wrong that the germination was low.

The report of team formed by the Deputy Director, Agriculture, Kaithal is false and has been prepared in collusion with the petitioner without the inspection of field. No notice was given to the 5 external to the quality of seeds.

The District Forum vide order dated 15.06.2009 have observed as under:

“ the counsel for the respondents has laid much stress on the evidentiary value of the Agriculture Officer stating that the same was got prepared from the

Agriculture Officer in collusion with the petitioner. No notice of the same was send to the respondent for associating in the inspection as required by the direction of Director Agriculture, Haryana, Panchkula vide letter no. 52-70 dated

03.01.2002. Counsel for the respondent further argued that the respondent no. 2 has taken a preliminary objection compliance of mandatory provision of Section

13 (i) (c ) of Consumer Protection Act was not made as no sample for determining the defect in the seed has been send to any appropriate laboratory and on this score alone the complaint of the petitioner is liable to be dismissed in support of his arguments. The counsel for the respondents has relied upon 2009

(1) CPC page 471 (NC) Maharashtra Hybrid Seeds

Co. Ltd. Vs Parchuri Naryana, 2006 (1) CPC Page 36 (NC) Hindustan

Insecticides Ltd. Vs Kopolu Sambasiva Rao and Ors, 1993 CPC Page 530,

State Commission, Haryana, Chandigarh, Jasdev vs Deputy Director,

AgricultureAmbala and Ors. In the present case also, the petitioner has filed to get the seed in question analysed from any approved Laboratory. Without the report of the analyses, it cannot be determined whether the seed supplied by the respondent were of inferior quality. Further, it is submitted by the counsel for the respondents that the seed in the present case was certified by Central

Government of India vide notification no. S O 647 (E) dated 09.09.1997, wherein the quality supplied to the petitioner by the opposite parties is also listed as PHB

71 (paddy) at S No. 7. However, learned counsel for the petitioner to refute the argument of the counsel for the opposite parties has submitted that the petitioner was just an ordinary agriculturist and he was not expected to preserve the seed for laboratory test and on the other side, the respondent also could exercise this right and send the seed for analysis to an authorised laboratory which the opposite party failed to do and these circumstances, the report of Agriculture

Officer must have taken as conclusive proof and binding on the respondents. In support of his contention, he has relied upon 1998 (2) CPC page 359

(Supreme Court) Maharashtra Hybrid Seeds Company

Ltd., vs Alavalapati Chandra Reddy and Others 11 (1998) CPJ Page

320 (Andhra State Commission) Maharashtra Hybrid Seeds Co.

Ltd., vs Parsad and Ors.

With due respect to the above cited judgments, we are of the view that the same are not applicable in the instant case keeping in view of the latest view as expressed by the Hon’ble National Commission 2009 (1) CPC Page 47

Maharashtra Hybrid Seeds Co. Ltd., vs Parchuri Narayana and our own Hon’ble State Commission as cited above and also the fact that the

Agriculture Officer failed to associate the representative of the respondent and also did not follow the direction given by his own Department and also that the seeds supplied by the respondents to the petitioner was duly certified and the

Agriculture Department itself advise the farmers to use the same as mentioned in the news item.

Keeping in view the above discussion, we are of the view that the petitioner has failed to prove that the seeds supplied by the respondents to the petitioner were of inferior quality. This complaint, therefore, is dismissed with no order as to costs”

.

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide its order dated 11.10.2012 has observed as under:

“

It is an admitted case of the petitioner that he had not got tested seed from the laboratory as required under the provisions of Section 13 (1) (c ) of the

Consumer Protection Act, 1986. It is also not the case of the complainant that he ever had moved an application before the concerned authorities for getting the seed of same batch number tested from the laboratory. However, the report submitted by the official of the Deputy Director Agriculture, Kaithal revealed that

‘the nursery of PHB 71 has been sown in about 2 Kanal area and the plant stood in the nursery was about 50% only. The nursery of other varieties, from different seed source, at the nearby site is in satisfactory condition. The soil and water conditions seems to be satisfactory. The circumstances indicate that the quality of seed appears to be one of the reasons for poor plant stand in the nursery’. There was no evidence in the shape of report from appropriate laboratory regarding seed to be substandard. Thus, the report given by the

Agriculture Department is hardly of any significance with respect to the claim sought by the complainant. The District Forum after considering each and every aspect of the case has rightly dismissed the complaint. Thus no ground to interfere in the impugned order is made out.

Hence, finding no merit in this appeal, it is dismissed”.

Hence, the petitioner has filed this present revision petition before us. We have heard the learned counsel for the petitioner and have gone through the record.

The main grounds of the petitioner are as follows:

- that the State Commission and also the District Forum failed to consider the fact that whatever seeds purchased by the petitioner were sown by him and he had no seed with him to send for testing, whereas, respondent no. 1 was in the business of selling seeds and certainly must be having the stored seeds of that same batch and could have made it available for testing.

- the State Commission has erred in not considering the report of the Agriculture

Department which in their report categorically state that ‘the plant stand in nursery is about 50% only. The soil and water condition seems to be satisfactory. The circumstances indicate that the quality of seed appears to be one of the reasons for poor plant stand in the nursery’.

- the State Commission has failed to appreciate the law laid down by the Supreme Court as in M/s National Seeds Corporation Ltd.

vs M Madhusudhan Reddy (AIR 2012 SC 1160) were it has been held that

“procedure for trail of complaint – complaint by farmers/ growers of seeds supplied by appellants resulting in less filed – sample seeds not available with complainants as all seeds purchased were sown

– Appellant also not providing sample of seeds sold for analysis

– Consumer Forum appointing agricultural experts to ascertain status and cause of failure of crop – Compensation awarded to complaints on basis of report of

experts

– Procedure adopted by forum cannot be said to be contrary to section 13 (1) ( c)

– Order of Forum not liable to be set aside on specious ground that procedure prescribed under section 13 (1) (c) had not been followed”.

- the State Commission has erred in not considering the fact that District Forum could have asked the respondent no. 1 to produce the same batch seed and could have asked it to get it tested from certified laboratory.

Along with the present revision petition an application for condonation of delay of

11 days has been filed. The reasons given for the delay are as under:

“ The petitioner went to his counsel in State Commission at Chandigarh on

02.02.2012 and collected the documents and gave it to the counsel in Delhi on

05.02.2013.

Two days were taken for drafting the present revision petition leading to the delay of 10 days in filing the present revision petition ”.

Petitioner has not even mentioned when he received the impugned order and has not accounted for the period from the passing of the impugned order on 11.10.2012 to

02.02.2013 and when he went to his counsel in Chandigarh to collect the document.

Indisputably the petitioner had not got the seed tested from any laboratory as required under the provisions of section 13 (1) ( c) of the Consumer Protection Act,

1986. He had also not moved an application before the concerned authorities for getting the seed of same batch number tested from any laboratory. Further, the report of the

Agriculture Department cannot be accepted as no notice of inspection of the field for associating them with the inspection.

Hence, we agree with the findings of the District Forum as also the State

Commission that the petitioner has failed to prove that the seed supplied by the respondents to the petitioner were of inferior quality. Further, the report given by the

Agriculture Department is hardly of any significance with respect to the complaint sought by the petitioner.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with no order as to cost.

Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the order dated 06.05.2010 in Appeal no. 137 of 2009 (1500 – 2008) of the

Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Jodhpur)

WITH IA/2940/2013

Shree M.B. Industries F-228, Road No.1, Mewar Industrial Area Udaipur

… Petitioner

Versus

1. Sushil Bhatar 47,B/3, PWD Colony, Jodhpur

2. Mangaldeep Industries Through Sushil Bhatar G-284, IInd Sector, Boranada, Jodhpur

... Respondents

BEFORE:



For the Petitioner : Mr. Sandeep Jain, Advocate

For the Respondents : Mr. Prashant Jain, Advocate

PRONOUNCED ON 20 th MAY 2013

O R D E R


1. Sh. Sushil Bhatar, complainant No.1 is the Proprietor of Mangaldeep Industries,

Jodhpur, OP2. Complainant No.2 is a Small Scale Industry registered with Industries

Department since 24.12.1996 and is engaged in manufacture of chalk powder by grinding stone in pololazer machine. Sh. Sushil Bhatar purchased a 3-roller grinding machine from M.B.Industry, OP, for a sum of Rs.5,40,000/-. The said transaction was finalized on 26.03.2005 and the complainant had paid a sum of

Rs.1,01,000/- to OP, vide cheque dated 26.03.2005, Rs.20,000/- were paid on

22.05.2005 and Rs.3,33,000/- were paid vide draft dated 16.07.2005. The complainant had also paid a post-dated cheque (03.10.2005) amounting to

Rs.50,000/-. It was agreed between the parties that the said postdated cheque was to be presented before the Bank only if it transpired that the machine was functioning satisfactorily.

2. The complainant wrote a letter to the OP alleging that machine in question was not working properly and as such, post-dated cheque in the sum of Rs.50,000/- dated 03.10.2005 should not be presented. The OP replied that, that was a false allegation sent with ulterior motive for withholding Rs.50,000/- belonging to the

OP.

3. Ultimately, a complaint was filed with the District Forum. The District

Forum concluded that some parts of the machine supplied to the complainant were defective which were to be repaired and replaced by new parts. The

District Forum based its finding on the Inspection Report of Mr.O.P.Sharda who is

Bachelor of Engineering in Mechanical Branch. He had inspected the machine on

22.08.2005. Aggrieved by that order, the OP approached the State Commission. The

State Commission passed the following order:-

“From Exhibit 8, it is clear that the Non-applicant Mukesh

Choudhary had assured the complainant that cheque for

Rs.50,000/- would be presented before the Bank after 45 days only when the machine gave satisfactory results. The complainant went on approaching the Non-applicant who sent his Mechanic and Operator to the complainant. It also appears that the complainant had to spend money on repairing and replacement of parts. He had to spend amount for going to

Udaipur from time to time and it also appears that the machine after its installation could not run satisfactorily till

7.11.2005. Keeping in view all facts, a sum of Rs.31,357/-

has been awarded to the complainant for the replacement and repairing of the parts, Rs.19,000/- were

awarded paid by the complainant to Sh.Hanuman, Mistry,

Meghnath and Shanker. As the machine remained nonoperational for more than two and half months, compensation of Rs.20,000/- was also awarded. As we find that some parts of the machine were defective which needed repairing and replacement and under such circumstances, if impugned order has been passed, it cannot be said to be erroneous”.

4. It is not out of place to mention here that vide order dated 08.01.2007, the District

Forum refused to hear this matter and directed the parties to appear before the Civil

Court as it involved contentious issues which can be heard and adjudicated by the Civil

Court only. Thereafter, the State Commission remanded this case back to the District

Forum with the direction to decide the case. The District Forum again settled the case on 08.05.2008.

5. The principal issue raised by the counsel for the petitioner was that the petitioner had obtained the machine for commercial purposes and not for selfemployment. He contended that his case is clearly supported by the Apex court’s view in Laxmi Engineering Works VS. P.S.G. Industrial Institute, (1995) 3 SCC 583. In that particular case, the Supreme Court came to the conclusion that the machine was purchased for commercial purpose and the appellant in that case was not a ‘consumer’.

6. We are unable to locate substance in these arguments. We have perused the affidavit of Sh.Sushil Bhatar. He has stated on oath the following facts. He is the owner of Mangaldeep Industries. This is a Small Scale Industry. He earns Rs.9,000/- p.m. He is earning the amount for his family members and for himself, for livelihood. He contended that he does not have any other source of income. There is no evidence in rebuttal. The complainant is working there with the help of his operator. His affidavit puts his case in an impregnable position and makes his version to be guileless one. It appears that this was a half-hearted plea raised by the OP. This question was never raised before the State Commission. Counsel for the petitioner failed to point

out that this point was raised in the revision petition. He further argued that so many workers are working in the factory, but there is no such proof.

7. Mr.O.P.Sharad, in his report, in para No.2, has given/shown a number of defects in the machine. All those defects were discussed by the State

Commission. The same hardly needs any reiteration. The revision petition is devoid of merit and, therefore, the same is dismissed.

..…………………………



..…………………………

(S. M. KANTIKAR)

MEMBER

dd/1


REVISION PETITION NO. 4891 OF 2012

(Against order dated 29.09.2012 in First Appeal No. 666 of 2003 of the

Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

1. Dr. Prabha G. Nair Gyneacologists, KVM Hospital, Cherthala, Alappuzha, Kerala

2. Dr. V.V. Haridas, Medical Officer, KVM Hospital, Cherthala, Alappuzha, Kerala

3. M.P. Mathew Present Administrator KVM Hospital, Cherthala, Alappuzha,Kerala

…Petitioners

Versus

1. Sri. Mohanan, Kunjithayyil House, Kadakkarapally Panchayat Ward-8, Thaikal

P O Cherthala, Alappuzha, Kerala

2. Saish, S/o Mohanan, Kunjithayyil House, Kadakkarapally Panchayat Ward-8,

Thaikal P O Cherthala, Alappuzha, Kerala

3. Anish, S/o Mohanan Kunjithayyil House, Kadakkarapally Panchayat Ward-8,

Thaikal P O Cherthala, Alappuzha, Kerala

…Respondents

BEFORE:



For the Petitioner(s) : Mr. Sheji P. Abraham, Advocate


ORDER


1.

The Revision Petition is filed under section 21(b) of the Consumer Protection

Act 1986 (The Act) against the final order dated 29.09.2012 passed by the

Consumer Disputes Redressal Commission, Trivandrum, Kerala state (herein

State Commission) in Appeal No. 666/03.

2.

Facts in brief

The Petitioners were opposite parties in original compliant in District Forum file

No 83/1997 and the Respondents were Complainants as husband and two children of deceased Shobhana.The Petitioners/Opposite Parties (OP) No 1 is Gynecologist and the Petitioner/OP No 2 is Chief Medical Officer

and Petitioner/OP No 3 is Administrator of the Hospital. The patient Sobhana wife of Respondent/Complainant undergone delivery on 04.12.1995 at night

12.45 p.m. The duty doctor informed the OP-1 that delivery by vaccum extractor has failed. By 09.00 p.m. the OP-1 conducted episiotomy followed by forceps delivery and a still born baby was delivered. The baby was died by cord compression. Immediately after the delivery the patient had profused bleeding along with expulsion of placenta and due to fatal injury to uterus. The patient Sobhana died on 8/12/1995 at 5.20 pm .The death of male baby and

Sobhana was due to reckless act o f OP-1. The OPs did not inform the critical condition of Sobhana relative even after repeated enquiries. Further OPs did not allow the relatives to transfer the patient to the medical college hospital.

Subsequently on 08.12.1995 due to severe low blood pressure the patient died at

05.00 p.m. Thereafter, the complainant filed a complaint No.432/95 registered in the local Police Station under Section 304 of IPC. The Complainant also filed the

Consumer Complaint No. OP/83/1997 in the District Consumer Disputes

Redressal Forum, Alapuzha (hereinafter referred to as the District Forum) claiming an amount of Rs.4, 75,000/- with interest and cost for having lost the affectionate and dedicated wife and children lost their mother. The opposite parties filed a joint version and contented that there are complicated questions of fact and law which need elaborate enquiry and matter is to be decided by Civil

Court.

3. On the basis of evidence and the Post mortem report the District Forum held

OP 1& 2 for deficiency in service as they have failed to diagnose cause of profuse bleeding earlier and their treatment fell below the standard of medical practice and not taken reasonable care during conducting delivery causing the death of the patient i.e. the wife of Complainant No.1 and mother of Complainant

No.2 & 3. The District forum passed an award of Rs.1,60,000/- with

10% interest from the date of petition and cost of Rs.4,000/-.

4. The Session Court acquitted the first Petitioner for the charge of Section 304A of IPC. Against the acquittal a Criminal Appeal No. 203/08 was preferred by complainant before the Hon’ble High Court of Kerala. The Appeal was dismissed on 08.08.2012.

5. The Petitioner preferred an appeal No.666/2003 before the Kerala State

Consumer Disputes Redressal Commission Thiruvananthapuram (hereinafter referred to as State Commission).

6. State Commission after hearing the counsel of both parties and on the basis of post mortem report ascertained the relevant important point as cause of death of

Sobhana ; the relevant para reproduced as follows;

“ 9. Postmortem examination on the body of Shobhana was conducted at the Medical College, Alappuzha on 08.12.1995 itself. Ext. P2 is the copy of the postmortem certificate. The opinion as to cause of death given is that the death of Shobhana happened due to complications following rupture of gravid uterus.

Of the ante mortem injuries, the 3rd injury noted in Ext.R4 is important. It reads:-

“Rupture of uterus 15 X 10cms obliquely placed involving its full thickness including peritoneum on the posterior surface of the lower segment of uterus communicating at its lower part with the injury no.2, it edges were thinned out with blood clots, dark red in colour.” Injuries 2 & 4 were apparently caused when episiotomy was done. So, the cause of death was complications that followed rupture of gravid uterus. The doctor who conducted postmortem examination is examined as PW2. He affirmed the cause of death.

11.According to PW2 who conducted the postmortem examination if forceps is applied by inexperienced hands, rupture can occur. The suggestion was that rupture of uterus can occur due to complications of delivery. The complication is suggested in the light of the ill health of the woman. If that was the case the 1 st appellant should have been extra cautious in applying forceps. It was also suggested that rupture can occur when the size of the baby and the size of the uterus is disproportionate. But this contradicts the case of the appellant that child was suffering from IUGR and was not normal size. It is pertinent to notice that the appellants did not even note the birth weight of the still born baby.

13. The survival of patient closely depended on early detection of the rupture of uterus once that happened. PW3 is a radiologist. According to him

3 rd injury noted on Ext.P4 can be diagnosed using ultra sound scanning. If there is strong bleeding also the injury can be revealed through scanning. By scanning it can be revealed whether there is fluid inside the abdomen and that fluid could be blood. The suggestion put to PW3 is that there are many possibilities for the cause of bleeding. These are rupture due to tubal pregnancy rupture of uterus, bleeding disorders etc. but the context in which bleeding occurred rules out the possibility of tubal pregnancy which was never suspected. It was a delivery after full term. Bleeding disorders were never suspected. Then the only possibility was rupture of uterus. Though the PW3 is not a Gynecologist his version that collection of fluid in the abdomen can be revealed through ultra sound scanning cannot be questioned.

7. The State Commission dismissed the appeal FA 660/1999.

8. Hence, aggrieved by the order of State Commission this present Revision

Petition filed.

9. Learned counsels appearing for both the parties made oral submissions and vehemently reiterated the submissions made by the two parties before the State

Commission.

10. We have carefully considered the entire materials placed on record, the contentions of both the parties and also referred several standard medical texts.

OP 1 contended that, the mortality rate in babies with IUGR is about 6 times

more than the normal newborns. Most of the babies die within 24 hours. Anaemia is one of the causes for maternal death. The patient Sobhana was died because of numerous complications which was mostly due to the irresponsible acts and omissions on the part of the lady and her husband who did not care for anemia.

Hence, the complainants were not entitled to get any compensation and there was no negligence on the part of the opposite parties.

11. On perusal of evidence on file and the post mortem report ; question before us that whether the OP 1 is negligent? Whether the doctors at OP hospital acted reasonably in accordance of Standards of Medical Practice? Whether act of OP was a negligent act?

The hospital case sheet and notes reveals the sequence of events which led to deaths of two lives a baby and mother.

12. OP-1 was` examined as RW-1 deposed as Sobhana was 3 rd para (

3 rd pregnancy) consulted OP-1 on 18/9/1995 with the history of 30 weeks pregnancy but the clinical assessment by OP-1 revealed uterus was of 26 weeks size. Patient was anemic i.e. in poor state of health. She was treated for anemia by injection Inferon ,vitamins and dietary supplements and one uint of blood transfusion was given prior to delivery.

On 4/11/1995 a patient was in labour room with full monitoring ; at 9 pm duty doctor called OP-1 as vaccum delivery failed. Thereafter, OP-1 carried out outlet forceps delivery and delivered still born baby with cord tight around neck. The anesthetist tried to resuscitate baby but did not help. To stop the bleeding of Sobhana injection IV

Methergin was given and injection Pitocin drip was started and cervical tear was repaired and blood transfusion also given. During cross examination OP 1 did not answer the questions specific to diagnosis of rupture of uterus and it’s management.

13. On perusal of Annexure A 8 , the case sheet placed on page case notes reveled the condition of patient as follows;

4/11/1995 :

9.10 pm baby delivered by outlet forceps by OP1 Placenta

9.30 pm expelled entire, bleeding within normal limit.

On examination cervical tear +,Rt fornix

tear seen.

While suturing patient went in to shock.

Pulse feeble. Xxxxxxx.

5/11/1995 :

12 (00hrs): Patient still bleeding,xxxxxxx.

12.20 am Under General anesthesia, cervical tear sutured. Vaginal pack with 3 roller gauze and one sponge. Bleeding controlled.

1245 am: xxxxxxxxxx. Patient had Tachycardia and tachypnea. Xxxxx,

Ryle’s tube aspiration to reduce distension.

9.20 am Patient has dyspnoea, Tachycardia, tachypnea.

9.45 am Bilateral crepts+,acidosis +

4.30pm Patient dyspoenic.

On 6 -7/12/1995 the periodic entries in case paper showed that patient has dyspneoic episodes and there was Tachycardia ( Pulse rate was more than 120/ min) and tachypnoea (Respiratory rate was more than 40/min)between and there was distension of abdomen still persisted.

On 7/12/1995, at 6pm as per Dr.Bhat’s opinion patient was diagnosed as ‘Extra renal uremia, septicemia. There was polymorphonuclear leukocytosis (Total count = 28,000/cmm; Granulocytes 94%). At 8.15 pm did ultra sound scan which showed bilateral pleural effusion,free fluid in peritoneal cavity.. At

9pm, USG guided pleural tapping done by Dr.Divekar which showed aspiration of 120 ml on Rt side and 80 ml on left sided serosangunous fluid aspirated. Patient was having tachycardia and tachepnoea, distension of abdomen..

On 8/12/1995 at 12.30 am the CMO seen the patient , the patient was continuously dyspnoeic, ultimately died at 5.20am.

14.

Careful analysis of events stated in para (13 supra) it is apparent that OP was negligent and liable for the death of Sobhana and her baby. i) The patient Sobhana was in critical condition during delivery on 4/11/1995 because of tears in Cervix and Rt fonix tear with bleeding. Usually , such tears are not possible in hands of the experienced obstetrician like OP Dr. Prabha Nair. The experienced doctor will apply forceps only after full dilation of cervix. In the case on hand it appears that, the duty doctor applied the forceps due to which the cervix pulled by traction leading to extension of cervical tear up to the fundus of uterus i.e. rupture of uterus. The PM report confirms the antemortem injuries as No.1 & 2 as rupture.

Further, OP has not produced any evidence to establish the qualification and experience of duty doctor. If we presume the OP has performed forceps delivery after getting call from duty doctor; it is clear that she was negligent in application of forceps which resulted in cervical tear subsequently rupture of uterus. Hence, the submission of OP that she herself conducted forceps delivery is not trustworthy

ii) After delivery, the OP should have initially assessed the cause of cervical taer and possibility of rupture of uterus. The patient had pain , distension of abdomen , tachypnoea and tachycardia for 5 days i.e till her death The blood test showed polymorphonuclear leuocytosis ( 90% ) which is the diagnostic features of peritonitis due to rupture of uterus. It indicates the OP failed to diagnose such complication in early stage. The ultrasound and X-ray findings clearly revealed the hemorrhage in abdominal cavity and also fluid in pleural cavity. Despite of all above clinical signs of perforation the

OP continued to treat the patient vaguely for 5 days without arriving proper diagnosis. ; which is negligence on the part of OP-1 who failed to take reasonable care to diagnose the rupture of uterus.

15.

Another important point for discussion is evidence of PW 2 (Annexure A4) the doctor Dr.P.Babu ,Assistant Professor in Forensic Medicine,Medical

College,Kottayam who conducted the post mortem of deceased Sobhana and issued the PM report (Exhibit P2). Dr.Babu in his evidence stated that “The cause of death-death was due to complications following rupture of gravid uterus in respect of injury no.3. Gravid uterus means in the stage of pregnancy. Ext. P4 true copy of the original signed by me. It may also happen if forceps are applied by inexperienced hands.”

The PM report describes findings of injuries as follows:

B. INJURIES (ANTEMORTEM)

Multiple infected superficial lacerations over an area involving the right labia minora.

1.

Sutures infected lacerated wound 4 cm long obliquely placed on the right posterior surface of the cervix.

2. Rupture of uterus 15 X 10 cm, obliquely placed involving full thickness including peritoneum on the posterior surface of the lower segment of uterus, communicating at its lower part with the injury

No.2.

It’s edges were thinned out with ragged appearances. The ruptured area was seen covered with blood clots, dark red in colors.

3. Sutured infected surgical episiotomy wound 5 cm. on the right mediallateral part of the vagina.

C OTHER FINDINGS

Abdominal cavity contained 2.5 ltrs of fluid blood and 500 gm. of blood clots (dark red colour). Air passages pale anmd contained illegible frothy

fluid. Right and left chest cavities contained 100 and 90 ml of straw coloured fluid respectively.

After going through all records, deposition of witnesses on both sides, we are in opinion that the death of Sobhana was due to not proper care and diagnosis of crucial complication. The OP -1 is Specialist as Gynecologist and also few doctors of in OP-3 hospital including CMO have seen the patient but nobody suspected commonest cause of distension of abdomen by hemoperitoneum . The early diagnosis in this case was needed and would have saved life of patient. At least OP should have taken second opinion to know the cause of distension of abdomen from any other specialist or from Medical

College which was located in their own city. But , the OPs failed to diagnose rupture of uterus and treated casually for five days.

16. The death of baby is due to non prudent approach of OP-1. As the baby was of

IUGR and patient was anemic why the OP-1 did not prefer elective Cesarean

Section operation and allowed vaginal delivery. The fetal heart sounds (FHS) were noted till 8.30 pm and thereafter disappeared upon which the OP should have performed LSCS in such fetal distress. The vaccum failure and forceps application in this patient was a wrong decision. Several medical texts denotes that early diagnosis complication of forceps delivery and prompt management is life saving for mother and baby. The baby was not sent for Post mortem therefore, delivery of dead baby also creates suspicion of negligence by OP during forceps application.

17. The principles of what constitutes medical negligence is now well established by number of judg ments of this commission as also the Hon’ble Supreme Court of India, including Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in

Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. One of the principles is that a medical practioner 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. This Court in Dr. Laxman Balakrishna Joshi vs. Dr.

Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.

18. Therefore, we are in view that there is deficiency in service by OPs leading to death of mother and baby. This is a deficiency in service resulted in medical negligence for which OP are liable for the loss of two lives ,mental agony and psychological trauma. Hence, pass the following ORDER;

The revision petition is dismissed. The petitioners herein are directed to pay

Rs.1,61,000/- with interest @ 10% per annum from 11/3/1997 i.e. the date of filing complaint before District Forum and cost of Rs.4,000/- . The petitioners have wasted the precious time of District Forum, State Commission and this

Commission. We therefore impose punitive cost of Rs.1,00,000 which is to be paid to the complainants within 45 days ,failing which it will carry interest @ 9% till the recovery.

..…………………..………

(J.M. MALIK J.)


……………….……………

(S.M. KANTIKAR)

MEMBER



(Against the order dated 07.03.2008 in Appeal No.179/2005/(Pb)/RBT/103/2008 of the State Commission, UT, Chandigarh)

Punjab Urban Planning & Development Authority (PUDA) Through its Estate Officer

SCO-41, Opposite Tehsil Complex Ladowali Road, Jalandhar City

....... Petitioner

Versus

Gulshan Rai S/o Shri Ram Prakash R/o Old Tehsil Road, Phillaur, District Jalandhar

…... Respondent





....... Petitioner

Versus

Inderjit Bansal S/o Shri Shadi Ram R/o Grain Market, Phillaur, District Jalandhar

…... Respondent





....... Petitioner

Versus

1. Sahib Chand S/o Shri Ram Prakash R/o Old Tehsil Road Phillaur, Distt.

Jalandhar

2. Rajiv Makkar S/o Shri Sahib Chand R/o Old Tehsil Road Phillaur,

Distt. Jalandhar

…... Respondents





....... Petitioner

Versus

1. Rajiv Makkar S/o Shri Sahib Chand R/o Old Tehsil Road Phillaur, Distt. Jalandhar

2. Sahib Chand S/o Shri Ram Prakash R/o Old Tehsil Road Phillaur, Distt. Jalandhar

…... Respondents

BEFORE:



For the Petitioners : Mrs. Rachana Joshi Issar, Advocate

For the Respondent : Mr. Munish Goel, Advocate

Pronounced on : May, 2013

ORDER

REKHA GUPTA

Revision Petition No.2099 of 2008 (PUDA Vs. Gulshan Rai), Revision Petition No.2100 of 2008 (PUDA Vs. Inderjit Bansal), Revision Petition No.2101 of 2008 (PUDA Vs.

Sahib Chand & Anr.) & Revision Petition No.2102 of 2008 (PUDA Vs.

Rajiv Makkar & Anr.) have been filed under section 21 (b) of the Consumer Protection

Act, 1986 (short, ‘Act’) against the orders dated 7.3.2008 passed by State Consumer

Disputes Redressal Commission, UT, Chandigarh (short, “State Commission”) in Appeal No.179/2005/(Pb)/ RBT/103/2008 ; Appeal No.187/2005/(Pb)/RBT/844/2007 ;

Appeal No.188/ 2005/(Pb)/RBT/846/2008 and Appeal

No.189/2005/(Pb)/RBT/845/2008. The Revision Petitions involve common points of law, though the orders are passed separately in each case. Hence, we propose to pass a common order. The facts of the case have been taken from RP No.2099 of 2008, i.e., the case of Gulshan Rai.

Brief facts of the complaint are that in the year 2001, the petitioner/ opposite party (PUDA) had launched a scheme for setting up residential and commercial plots at

Old Police Academy, Phillaur through its advertisements in the newspaper for auction on 7.2.2001 at Phillaur, District Jalandhar. In response to the said advertisement the respondent/complainant had purchased residential plot No.11, near Veterinary

Hospital, Phillaur 400 sq.yds. at the Old Police Academy, Phillaur in an open auction held on 7.2.2001 for Rs.15,00,000/- from the petitioner.

At the time of the auction, the respondent was informed that the petitioner will develop the said scheme by laying out sewerage, water supply, street lights, parks and roads at the site. On this assurance, the respondent deposited an amount of

Rs.1,50,000/- being 10% of the sale price vide receipt No.68, Book No.1334 issued by

the PUDA on 7.2.2001 and the remaining amount of Rs.2,25,000/-,15% of the total amount was deposited vide draft No.839634 dated 5.3.2001 issued by the State Bank of

India, Phillaur in favour of the petitioner. The balance amount of Rs.11,25,000/-, 75% of the price of the plot is to be paid in three equated half yearly installments along with interest of @ 15% per annum on reducing basis is paid in lump-sum and without interest if the remaining sale price is paid within 60 days from the date of auction and in that event a rebate of 5% will be given on the balance amount of 75%.

According to para 12 of the allotment letter memo No.2001/EO/PUDA-JAL/3790 dated 15.6.2001, the possession of the site was to be given within 30 days from the issue of allotment letter by the PUDA, whereas the petitioner failed to deliver the possession to the respondent in terms and conditions of allotment letter. The respondent had deposited the balance amount of Rs.10,68,750/- vide receipt No.53, book No.873 dated 2.8.2001 to the petitioner and it was mentioned in the receipt that it was in full and final payment. The respondent had written a letter to the Estate Officer,

PUDA on 13.7.2001 that the respondent had deposited 25% of the price of the plot as per terms and conditions of the allotment order, but the petitioner had failed to perform its terms of contract as mentioned in para 12 of the allotment order dated 15.6.2001 and the possession of the plot was not delivered.

As per terms and conditions of allotment order, the possession of the plot was to be delivered, within a period of 30 days on the issue of allotment order and the development works were also to have been completed by the petitioner (PUDA) before the delivery of possession of the plot and no interest on installments were to be charged till all facilities are provided to the plot holder. According to para 16 of the allotment order dated 15.6.2001, the building shall be completed within 3 years from the date of issue of letter after getting proposed building plan approved from the petitioner. In case of non-construction of the plot, on the request of the allottee, the extension in time may be allowed by the petitioner for construction of the building on deposit of extension fee to be determined by the petitioner.

The respondent had requested the petitioner vide letter dated 2.8.2001 that the possession of the Plot No.11 was to be delivered to the respondent within 30 days from the date of issue of the allotment order dated 15.6.2001.

The respondent had waited for a period of 5 months, but no such letter was received by him nor possession of the plot was delivered. The respondent then had written a letter dated 13.7.2001 to the petitioner for handing over the physical

1.

2.

3. possession of the plot with necessary amenities as committed by the petitioner. The said letter was acknowledged by the petitioner vide receipt No.1207 dated

13.7.2001. Despite this letter, no action was taken on the request of the respondent.

Then again on 1.8.2001, the respondent visited the office of the petitioner and personally requested them to hand over the physical possession of the plot. A letter was also given on the same date, which was acknowledged vide receipt No.1354 dated

1.8.2001 by the petitioner. The possession of the plot was delivered on paper on

1.8.2001, not at the site of the plot, but in the office of PUDA at Jalandhar. Actually, no physical possession, by taking measurement or actual demarcation of the plot, was delivered at the spot to the respondent. This could not possibly be done as the Zoning

Plan had not sanctioned by the Competent Authority.

It is important to mention here that auction of the Plot took place on 7.2.2001 and the allotment order was issued on 15.6.2001. In the said allotment letter, the details of installments payable by the respondent with interest are given as under :-

Installment Due Date

7.8.2001

7.2.2002

7.8.2002

Amount

Installment

3,75,000/-

3,75,000/-

3,75,000/-

11,25,000/- of Interest

84,375/-

56,250/-

28,125/-

1,68,750/-

Total amount payable

4,59,375/-

4,31,250/-

4,03,125/-

12,93,750/-

The petitioner – PUDA had wrongly and illegally claimed an interest of

Rs.84,375/- on the first installment of Rs.3,75,000/- though the respondent had deposited the balance amount of Rs.10,68,750/- vide receipt No.53, Book No.873, dated 2.8.2001 and it was specifically mentioned by the petitioner in the receipt itself that it was full and final payment of the plot. This amount was claimed arbitrarily and against the principle of natural justice, equity and fair play. The respondent had applied for “No Due Certificate” of Plot No.11 allotted to him on 28.5.2002, but the petitioner had wrongly and illegally made a demand of Rs.1,15,772/- vide letter ED-PUDA-JAL/S-

5/2000/4841 dated 12.6.2002 by charging compound interest on the illegal demand of interest of Rs.84,375/-. The respondent had written a letter on 26.6.2002 to the petitioner, which was acknowledged vide receipt No.1243 dated 26.6.2002 requesting him to give the details of the demanded amount. It was also mentioned therein that the

respondent had already deposited the balance amount of sale price of the plot vide

Receipt No.53, Book No.873 dated 2.8.2001 and the petitioner had also mentioned in the Receipt itself it was a full and final payment in respect of the plot allotted to the respondent. The respondent had again issued a reminder letter dated 8.11.2002 acknowledged by the petitioner, vide receipt No.2223 dated 8.11.2002 again requesting for the of “No Due Certificate”. The respondent further clarified that he is not liable for any interest etc. as full and final payment had already been made to the petitioner.

The petitioner had issued another letter No. ED-PUDA-JAL/S-5/2000/10185 dated 20.11.2002 asking for the deposit of Rs.1,23,342/- without giving its details for the issue of “No Demand Certificate” as requested by the respondent.

The respondent had issued a legal notice dated 13.1.2003 through his lawyer indicating that the petitioner had not provided the facilities/amenities as undertaken by him within the stipulated period and had withheld the payment illegally without providing the necessary amenities/ development works etc. but the petitioner had not given any satisfactory reply to this notice. In the said reply of the notice the petitioner vide Memo

No. ED-PUDA-JAL/S5/2000/1464 dated 27.2.2003 had written to respondent’s lawyer to direct his client (respondent) to submit the building plan as early as possible, so that physical/demarcation of the plot could be given. This clearly proves that physical possession of the plot had not been delivered till the reply of the notice dated

27.2.2003. Respondent further stated that the building plan of Plot No.11 has already been submitted on 16.12.2002 to the petitioner.

The respondent had represented the matter to the Chief Administrator, PUDA,

SCO No.64, Sector-17, Chandigarh on 6.3.2003 indicating clearly that basic amenities/facilities had not been provided by the PUDA so far. Besides this, the Zoning

Plan of the area in question had not been approved by the Competent Authorities, in the absence of which no physical possession of the plot could be delivered nor the site plan of the plot can be sanctioned by the petitioner. The house cannot be built within the stipulated period of 3 years according to the condition mentioned in the allotment order. Therefore, the claim of interest with further compounded interest is illegal, unjust, unfair and against the principle of natural justice. The copy of the said letter was handed over to the petitioner on 6.3.2003, which was acknowledged vide receipt

No.1036 dated 6.3.2003. However, no reply was received by the respondent from the petitioner.

In order to avoid harassment and mental torture, the respondent had deposited an amount of Rs.80,000/- 26.8.2003 vide Receipt No.082, Book No.41 dated 26.8.2003 to the petitioner under protest with the hope that the petitioner shall refund the excess amount after necessary calculations. Without considering the conditions of allotment order and the assurance given by the petitioner to provide the basic amenities/development works, the petitioner had issued another letter ED-PUDA-JAL/S-

5/2000/9975 dated 9.10.2003 enhancing the demand of Rs.1,14,668/-, which is totally illegal, unjustified and the same is not borne out from the record of the petitioner.

The respondent had applied for the sanction of the plan of Plot No.11 on

16.12.2002 after depositing the requisite fee with the petitioner. The site plans of Plot

No.11 along with other plans were returned by District Town Planner, Jalandhar replying vide Letter No.146-DTP-J-4B-1(J) dated 21.1.2003 that the Zoning Plan of the site of

Police Academy, Phillaurhad not been approved by the Chief Town Planner, Punjab,

Chandigarh and the Chief Administrator, PUDA, Chandigarh. In the absence of the approval of the Zoning Plan of the said site, the plan of Plot No.11 and other plots could not be approved and therefore, the site plan submitted by the respondent were returned in original to the Estate Officer, PUDA, Jalandhar. This fact also proves that physical possession of the plot cannot be delivered nor the facilities/amenities were provided. Since, the respondent had deposited the entire remaining price of the plot amounting to Rs.10,68,750/- other than the money deposited at the time of auction of the Plot and remaining 15% within 30 days with the petitioner, so the respondent is entitled to interest on this amount due to non-development works. The respondent is entitled to an interest @ 18% p.a. on the balance amount of Rs.10,68,750/- deposited on 2.8.2001 with the petitioner. He is also entitled to the refund of Rs.80,000/- with interest, which was got deposited under pressure on 26.8.2003.

The Zoning Plan is the back bone of the scheme and indicates the width of the roads, width of open space to be left by the allottee in front, rear portion of the plot, height of the building, location of the main gate, width of green belt etc. Thus, there are so many factors for the finalization of the scheme depending upon the Zoning

Plan. The Zoning Plan for this site was not approved by the Competent Authority till

March 2003 in the absence of which, physical possession of the Plot could not be given to the respondent. Actual possession by demarcation is necessary to know where the allottee is expected to raise the construction. The site Plan cannot be sanctioned by the petitioner till the Zoning Plan is approved. The petitioner has delivered the physical possession of the Plot No.11 in the month of May, 2003.

Petitioner – PUDA, in their reply to the complaint have raised some preliminary objections and giving the following facts ;

“That even as per the Section 8 of the Arbitration and

Conciliation Act, 1996, this forum has no jurisdiction to entertain, try and decide the present complaint being the dispute based on Arbitral Agreement.

That as per terms and conditions laid down in Annexure – I which is the “invitation to Offer” in case of the dispute relating to the terms and conditions or legal dispute relating to the Allotment

Letter, the decisions of the Chief Administrator would be final and the parties would be bound by the same. The complainant had participated in the auction by accepting such condition. The respondent had not approached the Chief Administrator, PUDA in respect of hisdispute, as such the present complaint is barred under the law because the efficacious remedy known to the complainant was available under the law.

That the present complaint is hopelessly barred by limitation because as per the Annexure V attached with the complaint, the complainant on 1.8.2001had confirmed for having received the possession of the said plot. The present complaint has been filed now on 27.11.2003 i.e., after the gap of 2 years. Even the

Annexure VIII is also the proof of the fact that the complainant had acknowledged on 1.8.2001 that he had taken the possession. As such, the complaint it to be dismissed out-rightly.

That the complainant has tried to mislead this forum by claiming the interest on the ground that the possession has not been delivered, whereas the Annexure VII belies the stand of the complainant, wherein he has acknowledged on 1.8.2001 for having taken the possession simpliciter fact stated in the

Annexure VIII that possession was taken under protest does not extend the period of limitation because once the possession was taken whether willingly or under protest, the limitation for filing the complaint will not stop running.

That the complainant is not entitled to the rebate of 5% because as per Annexure – V of the complaint, the complainant could have claimed the rebate, had he deposited the amount within 60 days from the date of auction. Admittedly, the auction took place on 7.2.2001 and the such benefit of the rebate cold be taken uptil 6.4.2001 but the complainant has stated to have deposited Rs.10,68,750/- on 2.8.2001 vide two drafts of

Rs.5,00,000/- and Rs.5,68,750/-. The plea taken by the

complainant that the benefit of 5% was to be given not from the date of auction but from the date of the delivery of possession is not available to the complainant because the complainant is admittedly a consenting party to the terms and conditions mentioned in the Annexure V. even the plea guidelines of the

Punjab Govt. to charge penal interest and penalty to be chargeable from the date of delivery of the possession to the purchaser is also not available to the complainant, as the guidelines so stated are in contradiction to the Annexure –

V. The guidelines, if any, cannot be enforced. They are to be made applicable where the terms and conditions are silent. Here, the terms and conditions in Annexure – V clearly specified that the interest is to be calculated from the date of auction.

That the amount of the interest of Rs.84,375/- as mentioned in the Annexure IX is legal and valid. The complainant was bound to pay the interest so demanded.

That since the complainant did not pay the interest of Rs.84,375/- as mentioned in the Annexure-IV, the subsequent interest continued and as such the demand vide Annexure-XII for

Rs.1,15.72/- and the demand vide Annexure-XV for Rs.1,23,542/-

is legal and valid.

On Merits

That in reply to this para No.6 of the complaint, it is submitted that it is not disputed that the complainant had deposited Rs.10,68,750/- but such amount was not full and final because the complainant was also bound to pay the interest. The writing of the letter dated 13.7.2001 is not disputed but it is wrong to say that the possession of the plot was not delivered or that the

PUDA failed to perform its terms and conditions of the contract as mentioned in the paraNo.12 of the Allotment Order dated

15.6.2001. The contents of the above said para of the reply may be read as the part of this para.

That in reply to this para No.10 of the complaint, it is submitted that the writing of the letter dated 2.8.2001 is not disputed, however the possession was deemed given as per the

Allotment Letter within 60 days. The date on the letter of possession is not to taken as the date of possession.

That the contents of para No.15 of the complaint are wrong and hence denied. The complainant was bound to pay the interest of Rs.84,375/- because the benefit of the lower interest or

5% rebate interest could be availed only if the lump sum payment of balance principal amount had been made within the period of

60 days from the date of auction, i.e., 7.2.2001. Had the payment

been made uptill 7.4.2001, then the matter would have been different. The answering respondent has rightly and legally claimed the interest of Rs.84,375/-.

That the contents of this para of the complaint are denied for the want of knowledge. The Chief Administrator has not been arrayed as a party in the present complaint and the contents of this para of the complaint are related to the Chief Administrator,

PUDA. However, the copy of the letter so mentioned in this para was received by this office.”

The District Consumer Disputes Redressal Forum, Jalandhar (short, “District

Forum”) vide order dated 12.10.2004, after hearing counsel for the parties and going through the record came to the following conclusion ;

“After hearing the rival contentions of the counsel for the parties, we agree with the contention raised by the counsel for the complainant that remedy and rights under Consumer

Protection Act are additional remedies and even Arbitration clause could not prevent to the jurisdiction of the Consumer

Forum. Therefore, this objection of the counsel for the respondent is without any basis and is rejected as such.

Counsel for the respondent has also argued that according to clause of the allotment letter, the complainant was bound to refer the dispute to Chief Administrator, PUDA whose decision was final between the parties and he alleged that complaint under the Consumer Court was not maintainable. This objection of the respondent is without any force as complainant has referred the matter to Chief Administrator, PUDA according to para No.20 of the complaint but no reply has been sent by the

Chief Administrator, PUDA even the copy of the letter was handed over to the respondent on 6.3.2003 and this fact is admitted by the respondent on 6.3.2003 and this fact is admitted by the respondent in his reply in para No.20. Therefore, if the

Chief Administrator has not decided the matter of 8 months then respondent cannot take the objection that the complainant has not availed the opportunity provided under the Act for making request to Chief Administrator, PUDA. Therefore, this objection of the respondent also failed and the same is rejected.

After considering the rival contention of the counsel for the parties, it is clear that claimant had made last payment on

26.8.2003 of Rs.80,000/- and the respondents are raising further demand of Rs.1,31,000/- as late as on 23.9.2003 according to para No.20 of written statement. Therefore, it is proved that the complainant has a continued cause of

action because respondents are demanding extra amount as late as on 23.9.2002 according to para No.20 of the written statement and complainant is still claiming that no amenities have been provided so far even after filing written statement. Therefore, the complaint is well within time.

Counsel for the complainant argued that in this case necessary facilities and amenities have not been provided so far by the respondent for which the complainant is demanding back the excess amount charged from him and he is also claiming interest on it as the amount has been used by the respondent. He also argued that respondent has not approved the Zoning Plan which was back bone of the scheme and was necessary for location of the plots and other necessary building location like Green Belt, Main Gate and road and said Zoning

Plan was not approved by the respondent as late as March, 2003 and in the absence of which physical possession could not be given. He argued that allegation in para No.20 of the complaint was not denied.

The stand of the respondent in para No.27 of the written statement is ridiculous. On the one hand, they have taken the plea that complainant was bound to make construction within 3 years from the issuance of the allotment letter and or the same time they have mentioned that the construction can only be made after getting building plan approved from the Competent

Authority. In this case, the respondent had written letter Ex-C-20 dated 21.1.2003 in which they have mentioned the Zoning Plan has not been sent for sanctioning to Chief Town Planner,

Chandigarh and unless and until such sanction is received of

Zoning Plan, the maps given by the parties cannot be approved and they have sent back the maps to the party. Therefore, letter

Ex.C-20 clearly shows that they were guilty of negligence and deficiency as they have not approved the Zoning

Plan upto 21.1.2003 while they have received the full and final payment from the parties as late as 2.8.2001 and the respondent was not able to give paper possession what to talk of physical possession as they have returned the maps 21.1.2003 vide letter

Ex.C-20. Therefore, respondent could not demand the extra amount or interest even upto 21.1.2003. They have not mentioned in the reply that the Zoning plan has been sanctioned with the site plan of the parties for making construction. Therefore, respondent has failed to show that they were able to deliver the possession even after filing the present written statement.

Therefore, in the present circumstances, it clear that the demand of the respondent who claimed interest upto 21.1.2003

was unjustified even the respondent was not ready to deliver the possession.

In this case the complainant had made the full and final payment by 2.8.2001 after the letter of allotment. Therefore, respondent cannot contend that such payment should have been made within 60 days from the date of auction only when they are not doing any duty of their part even after filing the written reply in the year 2003. Therefore, the full and final payment made by the complainant on 2.8.2001 had exonerated the complainant from making further payment of interest.

As such complainant is entitled for compensation for not developing area upto even filing of the written statement and he suffered loss due to escalation of the prices and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e., 2.8.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2,000/- as costs of litigation. Compliance of the order be made within one month from the receipt of the copy of this order. Copies of the order be sent to the parties fee of costs under the rules. File be consigned to the record room.”

Aggrieved by order of the District Forum, petitioner as well as respondent filed appeals before the State Commission. After hearing counsels for the parties and having carefully gone through the record, State Commission gave the following order ;

“It is an admitted fact that residential plot No. 11, near

Veterinary Hospital, Phillaur at old police Academy, Phillaur was purchased by Sh. Gulshan Rai, Complainant in open auction on

7.2.2001 for Rs.15,00,000/-. He had deposited Rs.1,50,000/- being

10% of the sale price vide receipt No.61 dated 7.2.2001 and the balance amount of Rs.2,25,000/- on 5.3.2001 so, as to make 25% vide demand draft dated 5.3.2001 issued by State Bank of

India, Phillaur in favour of PUDA. Ex.C.-1 is the pamphlet issued by

PUDA for the auction which was to be held on 7.2.2001. According to it, possession was to be delivered to the successful purchasers on depositing of 25% of the amount and they would be authorized to make construction after getting site plan sanctioned. Ex. C.- 2 is the receipt dated 7.2.2001 vide which Rs.1.50.000/- were deposited. Ex. C.3 is the receipt dated 5.3.2001 vide which an amount of Rs. 2,25,000/- was deposited, so, as to make 25% Ex.

C.- 4 is the allotment letter dated 19.6.2001 according to which an amount of Rs.3,75,000/- i.e. 25% was deposited earlier and the balance amount of Rs.11,25,000/- i.e. 75% was to be deposited within 60 days from the date of auction, so, as to claim rebate of

5%. According to clause-16 of the allotment letter, construction on the plot was to be made within three years from the date of

issuance of allotment letter, after getting iste plan of the building sanctioned.

Ex.C.-5 is receipt dated 2.8.2001 vide which Rs.10,68,750/- were deposited and this amount was accepted as full and final. i.e it was got deposited after giving rebate of 5%. It is true that according to allotment letter, balance amount after deducting 5% as rebate was to be deposited within 60 days from the date of auction. In that way the amount was deposited late but since it was accepted as full and final payment vide ex. C. –5, so, PUDA cannot go against the said receipt. It means that PUDA after waiving condition NO.5 accepted the payment as full and final payment. There was a reason for it because allotment was issued on 19.6.2001 i.e. more than after 4 months of auction. Since, complainant came to know late of the terms of allotment letter, so, 5% rebate was allowed on deposits within 60 days from issue of allotment letter. Therefore, we hold that the full amount had been paid.

A perusal of the letter Ex.C.

–7 dated 1.8.2001 issued by complainant shows that he had written to Estate Officer, PUDA,

Jalandhar that the development had not taken place as necessary amenities like water supply, electricity, storm water and park had not been provided. There is also another letter Ex. C.-8 on file. On the other hand vide letter dated 20.11.2002 Ex. C.-12 PUDA had demanded Rs.1,23,542/- as balance amount. Vide receipt Ex. C.-

15 dated 26.8.2003 complainant had deposited Rs.80,000/- regarding balance amount.

PUDA has not led any evidence that it had provided electricity, roads, sewerage, water supply etc. On the other hand, it had stated that the water supply and sewerage were to be provided by the Municipal Corporation. Primarily is was duty of PUDA to make arrangement to provide amenities at the earliest. It is not mentioned in the written reply as to when the amount was deposited with Municipal Corporation to provide these facilities. It is stated in the written reply that the possession was delivered to the complainant on 1.8.2001 and otherwise also under the auction letter the complainant was bound to take possession within 30 days. Taking of possession within 30 days from the date of issue of allotment letter or on 1.8.2001 was meaningless because no amenities were provided and further complainant could not make an application for getting site plan sanctioned because so far zoning plan had not been approved.

There is letter Ex. C.-18 dated 21.1.2003 bearing memo No.

146 which shows that zoning plan had not been approved with respect to sanctioning of the site plan of Plots No. 10,11,12, and 13 of old police Academy, Phillaur. Since, zoning plan had not been approved by the Chief Town Planner and also by the Chief

Administrator, PUDA, so, site plan could not be sanctioned. Thus,

recovery of Rs.84,375/- as interest could not be held valid because no interest could be recovered as the site plan was not sanctioned as zoning plan was not got approved and further amenities had not been provided. Therefore, demand of PUDA for interest vide letter dated 21.1.2003 was not justified. Since, amenities had not been provided and the zoning plan had not been approved, so, District

Consumer Forum had rightly ordered refund of Rs.80.000/-

which was deposited in excess. It had further awarded compensation of Rs.20,000/- per year from the date of final payment upto the period when actual possession was to be delivered and amenities were to be provided and zoning plan was sanctioned.

No basis has been laid for awarding compensation of

Rs.20,000/- per year. We think it will be appropriate if compensation by way to interest on the amount deposited by complainant is awarded till the amenities are provided and site plan is sanctioned. We further think it appropriate if interest @ 18% p.a. is awarded. It will also care of escalation in cost of construction as well as mental agony etc. Thus, instead of compensation of

Rs.20,000/- per year, we award interest @18% p.a. from the date of respective deposits till amenities are provided and site plan is sanctioned. The Hon’ble Supreme Court in Ghaziabad

Development Authority Vs Balbir Singh (2004) 5 Supreme

Court Cases 65 has awarded interest @ 15% to p.a. by way of compensation for escalation in cost of construction etc.

Counsel for respondent also contended that the matter should have been referred to the arbitrator and further to the Chief

Administrator as per terms and conditions. However, contention of the learned counsel is not tenable because under Section-3 of the

Consumer Protection Act, the provisions of the C.P.Actare in addition to and not in derogation of the provisions of any other law for the time being in force and inspite of provisions of arbitration, complaint can be filed under the C.P.Act. Thus, with some modification as above, both appeals are dismissed.

Copies of this order be communicated to the parties, free of charge.”

Hence, the revision petition.

The instant revision petition seeks to raise the following questions of law germane to the jurisdiction of consumer Fora under the Act ;

I. Whether the statutory mandate of Section 24-A of the Consumer Protection

Act, 1986 in the present case can be legitimately ignored contrary to the ratio

of the Hon’bleSupreme Court’s judgment in Kerala Agro Machinery Corpn.

Ltd. Vs. Bijoy Kumar Roy (2002) 3 SCC 165 and in Harayana Urban

Development Authority Vs. B.K.Sood(2006) 1 SCC, 164 ?

II. Whether an allottee of valuable residential plot, is not legally bound to avail the benefit of the said residential plot only in consonance with the agreed terms of allotment made on “as is where is” basis following an open auction to which, as held by the Hon’ble Supreme Court in Ahmedabad Municipal

Corporation Vs. Haji Abdul 1971 Supp. (1) SCR 63 , the principle of caveat emptor is applicable ?

III. Whether a defaulting allottee of a public housing authority can legally be permitted by the consumer fora to lay the consequences of his own action/inaction at the door of the public housing authority contrary to the ratio of the Hon’ble Supreme Court’s judgment, inter alia, in Prashant Kumar Shahi Vs. Ghaziabad Development Authority (2000) 4

SCC 120 ; Ghaziabad Development Authority VS. Balbir Singh (2005) 9

SCC 573 and Bangalore Development Authority Vs. Syndicate Bank

(2007) 6 SCC 711 ?

IV. Whether the consumer for a below were justified in erroneously assuming deficiency of service on the part of the petitioner authority in the present case contrary to the ratio of the Hon’ble Supreme Court’s judgment in Ravneet Singh Bagga (2000) 1 SCC 66, wherein Lordships were pleased to hold, inter alia, as under :

“The deficiency of service cannot be alleged without attributing fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be performed by person in pursuance of a contract or otherwise in relation to any service.”

V. It is not beyond the jurisdiction of the consumer fora to assume deficiency of service on the part of the opposite party inspite of the complainant’s failure to carry out the onus to prove any such deficiency ?

We have heard learned counsels for the parties and carefully gone through the records.

Counsel for petitioner stated that the respondent had been allotted the said plot through public auction and hence, could not be a “consumer” under the C.P.Act. In support, she has relied upon the judgment “ UT Chandigarh Administration and

Another Vs. Amarjeet Singh and Others (2009) 4 SCC 660” and do specific attention to para 14 to 21. We are of the view that the said citation does not apply to the facts of the present case.

Counsel for petitioner further stated that the District Forum and State

Commission are guilty of “twisting the facts of the case”. We, however, find after going through the records that it is the counsel for the petitioner who has tried to mislead the

Bench. Counsel for petitioner repeatedly drew the attention of the Bench to the Extracts from auction notice published in newspaper and more specifically para 2, which is reproduced as follows :-

“ Successful bidder will deposit 10% of the amount after the end of bid in the form of Bank Draft at the same day of Auction and

15% of the amount will be deposited in 30 days from the date of auction. For property mentioned at S.No.1 – the balance 75% amount shall be deposited within 90 days. For property mentioned at S. No.2 & 3 balance 75% amount (in the shape of reducing balance) may be deposited at the rate of 15% per annum in the shape of 3 equal half yearly installments. If the bidder deposits the

75% amount lump sum within 60 days from the date of Auction 5% rebate will be granted.”

We drew her attention to the allotment letter dated 15.6.2001 which had been received by the respondent on 19.6.2001. The said allotment letter had been issued four months after the date of auction which was held on 7.2.2001 and hence, we are of the view that the 60 days limit could not justifiably be counted from the date of auction as the allotment letter itself has been issued after four months of the auction. Counsel for the petitioner then drew our attention to para 27D of the respondent’s complaint wherein he has stated that he has received physical possession of Plot No.11 in the month of May, 2003 and para 13 which reads as follows :-

“13. That despite this letter, no action was taken on the request of the respondent, then again on 1.8.2001, the respondent visited the office of the petitioner and requested personally to hand over the physical possession of the plot. A letter was also given on the same date, which was acknowledged vide receipt No.1354 dated 1.8.2001 by the petitioner. The possession of the plot was delivered on papers on 1.8.2001 and at the site of the plot, but in the office of PUDA at Jalandhar. Actually, no physical possession by taking measurement or actual demarcation of the plot was delivered at the spot to the respondent. This could possibly be not done at

the Zoning Plan was not sanctioned by the Competent

Au thority”.

This para confirms the facts given in para 27-D of the complaint that physical possession was not given on 1.8.2001.

Counsel for respondent drew our attention to Office Order dated 24.6.2008 of

Chief Administrator, PUDA, Mohali to the petitioner, which is reproduced below :-

“This matter was considered in item no.54.07 of

54 th meeting of finance and accounts committee of PUDA held on

10.6.2008 and after consideration it was decided that the prior to

1.2.2005 the plot/house/commercial sites sold through auction in which the delay made in issuing allotment letter theallottee/applicants who have challenged the condition of rebate in court, in those cases who have made payment of 75% in lump sum were given 5% rebate for payment within 60 days not from the date of auction but from the date of allotment letter.”

Hence, it is apparent from the above-mentioned order that in case of plot/house/commercial sites sold through auction prior to 1.2.2005 through auction in which there delay was in issuing allotment letters and the allottee/ applicants had challenged the condition of rebate in court, and in those cases where payment of 75% had been made in lumpsum they were to be given 5% rebate for payment within 60 days not from the date of auction but from the date of their allotment letters. Thus, the

Office Order fully covered the case of the respondent and this fact had also been mentioned in his affidavit dated 11.5.2009.

Counsel for petitioner then admitted that she had not been aware of the said policy order and if it exists and if the respondent is entitled to be covered under the same, she would admit his entitlement for the rebate of 5%. It is indeed unbelievable that the counsel for the petitioner was not aware of such an important policy order and nor had she been suitably briefed by the petitioner. The said policy order should have been produced by the petitioner as it is their document and not been left for the respondent to obtain and place on record. The petitioner and their counsel were seeking to deny the legitimate claim of the respondent, i.e., the 5% rebate, by repeatedly agitating the matter before different fora and further hurting his interest by claiming penal interest.

PUDA had vide receipt No.53 dated 28.8.2001 received Rs.10,68,750/- from the respondent on account of full and final payment and hence PUDA’s coercive and aggressive actions against the respondent in repeatedly demanding further money on account of interest is unacceptable, particularly as PUDA is a Public body set up to work for the welfare and benefit of the people.

In their written statement, PUDA has recorded that as per terms and conditions of Annex.I, ‘invitation of Offer’, the respondent had not approached the Chief

Administrator, PUDA in respect of its dispute and as such, the respondent’s complaint is barred under the law because the efficacious remedy known to the complainant was available under the law. Even, on this count PUDA has sought to deliberately mislead as the respondent had written to the Chief Administrator on 6.3.2003 and copy of that letter had been sent to PUDA. In their written statement in para 20, it has been admitted that copy of letter had been received by PUDA.

Counsel for the petitioner repeatedly stated that possession had been given to the respondent on 1.8.2001. The said possession was given on paper in the office of

PUDA. On the same date, respondent had written to Estate Officer, PUDA asking for possession of the said plot so he could raise construction. Counsel for respondent drew our attention to letter no.EC-PUDA-JAL/S-5/2000/4841 dated 12.6.2002.

This would belie the averments of counsel for the petitioner that not only had the physical possession of the said plot been given on 1.8.2001 but his plans have been approved and yet the respondent had failed to construct. Hence, he could not claim any relief.

The case of the other respondents in Revision Petition No.2100 of 2008

(PUDA Vs. Inderjit Bansal), Revision Petition No.2101 of 2008 (PUDA Vs. Sahib

Chand & Anr.) & Revision Petition No.2102 of 2008 (PUDA Vs. Rajiv Makkar & Anr.) are similar in facts. The particulars are given below :-

In RP No. 2100 of 2008 (Appeal no. 187 of 2005/ (PB)/ RBT/844/ 2007 ) –

PUDA vs. Inderjit Bansal, in which Shri Bansal had purchased a residential plot no. 4 of

400 sq. yds.from PUDA for Rs.15,20,000/-. The facts of this case are also almost identical to the case pertaining to PUDA vs. Gulshan Rai and the District Forum had passed the following order on 21.12.2004:

“ Complainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund

back of Rs.1,20,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e, on

02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible.

Complainant is also awarded Rs.2000/- as cost of litigation ”.

The State Commission in appeal no. 187 of 2005 upheld the order of the District

Forum , but instead of compensation of Rs.20,000/- per year awarded by the District

Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned.

In RP no. 2101 of 2008 (Appeal no. 188 of 2005/(PB)/RBT/846 of 2008 ) –

PUDA vs. Sahib Chand and Anr., in which Shri Sahib Chand had purchased a residential plot no. 9 of 350 sq. yds. from PUDA for Rs.15,20,000/. The facts of this case are also almost identical to the case pertaining to PUDA vs Gulshan Rai and the

District Forum had passed the following order on 21.12.2004:

“Complainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e, on


Complainant is also awarded Rs.2000/- as cost of litigation”.

The State Commission in Appeal no. 188 of 2005 upheld the order of the District

Forum , but instead of compensation of Rs.20,000/- per year awarded by the District


In RP no. 2102 of 2008 (Appeal no. 189 of 2005/(PB)/RBT/845 of 2008) –

PUDA vs. Rajiv Makkar and Anr., in which Shri Rajiv Makkar had purchased a residential plot no. 10 of 400 sq. yds. from PUDA for Rs.15,00,000/-. The facts of this case are also almost identical to the case pertaining to PUDA vs. Gulshan Rai and the

District Forum had passed the following order on 21.12.2004:

“ Complainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e., on


Complainant is also awarded Rs.2000/- as cost of litigation”.

The State Commission in Appeal no. 189 of 2005 upheld the order of the District

Forum, but instead of compensation of Rs.20,000/- per year awarded by the District


In view of the above facts, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Forabelow have given detailed and reasoned orders which do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petitions are hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only) in each case.

Petitioner is directed to deposit the cost of Rs.10,000/- in each case, by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within eight weeks. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

List on 26.7.2013 for compliance.

…………………..………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………...……….

(REKHA GUPTA)

(MEMBER)

Sonia/



(From order dated 31.12.2012 in Appeal No. 537 of 2011 of Chhattisgargh State Consumer

Disputes Redresdsal Commission, Raipur)

Sahdeo Ram S/o Late Shri Jirjodhan R/o Gontiapara, Near Panchayat Office

Wadrafnagar, Thana Basantpur Post/Tah. Wadarfnagar, Dist. Surguja Chhattisgarh

………Petitioner

Versus

State Bank of India Through its Branch Manager, Branch Surajpur Dist. Surguja,

Chhattisgarh

…… Respondent

BEFORE:



For the Petitioner : Mr. Ashish Deep Verma, Advocate


ORDER


Being aggrieved by order dated 31.12.2012, passed by Chhattisgarh State

Consumer Disputes Redressal Commission, Raipur (for short, ‘State Commission’) petitioner/complainant has filed this revision petition.

2. Brief facts are that petitioner purchased a tractor & trolley which was financed by

Respondent/Opposite party in year 2004 and for which a loan account was opened. It is stated that loan repayment was being done and as per the terms of loan agreement, respondent had been insuring the tractor and trolley every year. It is further stated that tractor and trolley met with an accident on 24.4.2010 resultantly the same got fully burnt, whereby no physical loss was there. A report was made to the Police and intimation was given to the respondent. Thereafter, petitioner filed claim with the respondent. However, he was informed that insurance of the tractor and trolley for the relevant period from 2009 to 2010 was not done by the respondent. It is alleged that the act of respondent in not getting petitioner’s tractor and trolley insured, amounts to deficiency in service. A survey was got done by registered Surveyor who assessed the complete loss for Rs.3,65,000/-. Thereafter, petitioner filed a complaint before District

Consumer Disputes Redressal Forum, SargujaAmbikapur(for short, ‘District Forum’) seeking direction to the respondent to pay compensation of Rs.3,65,000/- and not to charge interest on his loan account for the period after 24.6.2010. Compensation

towards mental and physical harassment for Rs.50,000/- and interest @ 9% p.a. on the total amount together with cost of litigation, was also sought.

3. Respondent in its written statement has stated that petitioner was not regular in repayment of the loan installments due from 18.09.2007 and Rs.2,49,448.85 was outstanding in his loan account. Hence, the loan account became “Bad Debt” which came in the category of ‘Non Productive Account’ (for short, ‘N.P.A’). Thus, in accordance with Bank Rules, insurance was not done thereafter. It is further stated that petitioner was intimated to the effect that his loan account became N.P.A. So, as per

Bank Rules it was his duty to get the insurance done. As loan account became a bad debt on 29.05.2010 so insurance for the relevant period from 2009 to 2010 was not done by the respondent. Thus, petitioner has not come with clean hands, as such he is not entitled for any compensation.

4. District Forum, vide order dated 30.8.2011 allowed the complaint and passed following directions;

“(i) Non-applicant will pay an amount of Rs.2,73,750/-

(Rupees two lac seventy three thousand seven hundred fifty only) to the complainant within 1 (one) month from the date of order and will pay simple interest @ 6% (six percent) from

16.11.2010 i.e. the date of institution of the dispute till the date of payment of entire amount.

ii) Non-applicant will pay to the complainant an amount of

Rs.2,000/-(Rupees two thousand only) in respect of the physical and mental trouble and inconvenience suffered by the complainant.

iii) Non-applicant will bear its own expenses and Rs.1,000/-

(Rupees one thousand only) towards expenses of the dispute of the complainant in which fee of the advocate has also been included.

iv) Complainant will give salvage of the vehicle Tractor No. CG 15A

3324 and trolley No.CG15A 3325 to the non-applicant within 1

(one) month from the date of the order and non-applicant bank can use/utilize the same

”.

5. Being aggrieved, respondent filed an appeal before the State Commission which allowed the same, vide impugned order and dismissed the complaint of the petitioner.


7. We have heard the learned counsel for petitioner and gone through the record.

8. It is contended by learned counsel for the petitioner that as petitioner’s account was converted into a ‘Non Productive Account’, thus respondent was under lawful duty

to continue or renew the insurance policy from 27.10.2009 to 26.10.2010 which was never been done by it nor it was conveyed to the petitioner. Thus, there was severe lapse on the part of the respondent, which amounts to breach of contract and deficiency in service.

9. The State Commission in the impugned order observed ;

“The only question to be decided is whether the appellant Bank was deficient in providing Banking service in not insuring the questioned tractor & trolley at the relevant time and could be held liable to pay compensation to the respondent/complainant for the loss caused to the questioned tractor & trolley due to accident?.

Defence of the appellant bank is that it was the duty of the respondent/complainant to get his tractor & trolley insured and then to ply the same on road as per provisions of Motor Vehicle Act.

Appellant bank had in initial few years got the tractor & trolley insured but since the respondent/complainant defaulted in repayment of loan installments so his loan account acquired states of ‘Bad Debt’ as such insurance was not done by it for the year

2009-2010 and more over it was not obligatory on its part to get the insurance of secured property under finance as per terms and conditions of the agreement.

We find that condition no. 5 of the first schedule of

Hypothecation Agreement (document no./2 at pages no. 60) stipulates as following:

“That the borrower(s) shall at all times keep such items of security as are of insurable nature, insured against loss or damage by fire and other risks as may be required by the bank and shall deliver to the Bank all such policies. It shall be also lawful for but not obligatory upon the bank to insure by debit to the borrower(s) account(s) in respect of the security as are of insurable nature. The proceeds of such insurance shall at the option of the bank either be applied towards replacement of the security or towards the satisfaction of the bank’s dues ”.

Thus the position is clear that it was lawful but not obligatory upon the appellant bank to insure the financed tractor & trolley by debiting the borrower’s account. Appellant bank had in initial few years continued to insure the questioned tractor & trolley so long the respondent/ complainant was regular in repayment of loan installments but when he defaulted in repayment of further loan installments, it stopped to insure the questioned tractor & trolley. As per settled law position, the terms & conditions of the contract are binding on the respondent/complainant so if the appellant bank did not insure the questioned tractor & trolley then it can not be held to have committed deficiency in service in terms of loan agreement. Otherwise also the respondent/

complainant being the owner of the questioned tractor & trolley had the primary duty to insure that the questioned tractor & trolley were properly insured since he could not ply the same on road without being insured. The respondent/ complainant, as per version of the appellant bank, supported by affidavit dated

24.08.2012 of Shri Ved Parkash Agrawal its Branch Manager, had been in default in repayment of loan installments as such he owed overdue amount to the appellant bank so should not have expected insurance of the questioned tractor & Trolley to be done by the appellant Bank. Respondent/ complainant did neither mention in his complaint about his defaulting conduct in regular repayment of loan installments in terms of loan agreement nor by way of affidavit in rebuttal of the version of the appellant bank. When debit balance of the respondent/complainant started growing due to defaults in loan repayment of installments then appellant Bank as per trade norms was not expected to enhance further debit in his loan account by insuring the financed vehicle further. In case of default in repayment of loan installments, obviously it was the duty of the respondent/complainant to get his tractor and trolley insured and not to shift his financial burden over the appellant

Bank. The respondent/ complainant was very well aware of his defaulting status, so there was no necessity of the appellant

Bank to give a notice about further insurance to the respondent/ complainant. Respondent/ complainant being owner of questioned tractor & trolley ought to have taken steps to renew insurance after its expiry i.e.26.10.2009 (document no.A-5) but he continued to be negligent about the same for a further period of about 8 months till occurrence of the accident of questioned vehicle on 04.06.2010, so he cannot derive benefit of his own neglectful conduct. If the appellant bank had done earlier insurance on behalf of the respondent/ complainant then it was just to safeguard mutual interest against unforeseen event but only so long repayment of loan installments were regularly received but it was not obligatory on its part. Learned District

Forum has drawn an erroneous conclusion in its impugned order about holding the appellant Bank of having committed deficiency in service and directing it to pay compensation as has been awarded therein.

In the facts of the case and foregoing discussion, the appeal finds substance to succeed therefore, it is allowed. The impugned order of learned District Forum, being not sustainable, is set aside and the complaint of the complainant is also dismissed. No order as to cost

”.

11. As per averments made in the complainant, petitioner has simply stated that he has been paying the installments of the loan on time to time basis. However, petitioner has nowhere stated as to for which period he had paid the installments and what was the number of installments due at the time of filing of the complaint.

12. On the other hand, defence of the respondent is that petitioner was not paying installments on time and as such his loan account became debt and a sum of

Rs.2,49,448.45P are due from the petitioner.

13. Petitioner has approached the District Forum by concealing the material facts with regard to the loan amount due against him on the date of filing of the complaint.

Since, petitioner is a defaulter in this case, the respondent was not obliged to renew his insurance policy. Moreover, a defaulter cannot get any discretionary relief and for its own fault, petitioner can not shift burden upon the respondent.

14. In our view, the order of the State Commission cannot be termed as erroneous as the same is based on correct analysis of the facts and evidence produced in this case.

Consequently, we do no find any infirmity or ambiguity in the impugned order passed by the State Commission. Present revision being without any legal basis and having no merit is hereby dismissed.


……..……………………J

(V.B. GUPTA)


……………………………

(REKHA GUPTA)

MEMBER

SSB



(From the order dated 1.2.2008 in Appeal No.2934/1998 of U.P. State Consumer

Disputes Redressal Commission, Lucknow)

Km. Ponnamma K.K., Daughter of Sri Krishnan C/o Senor Matron K.G.M.U.

Hospital Chowk, Lucknow


Versus

Lucknow Development Authority Pradhikaran Bhawan, Vipin Khand, Gomtinagar,

Lucknow

– 226010

… Respondent/ Opp. Party

BEFORE



For the Petitioner : Mr. Om Prakash Jalan, Advocate

For the Respondent : Mr. Shakil Ahmad Syed, Advocate

Mr. Shuaib-Uddin, Advocate


O R D E R


This revision petition has been filed by the Petitioner/complainant against the impugned order dated 1.2.2008 passed by the U.P. State Consumer

DisputesRedressal Commission, Lucknow

(in short, ‘the State Commission’) in Appeal

No. 2934 of 1998 – LDA Vs. Km. Ponnamma K.K. by which, while disposing appeal, order of District Forum allowing complaint was modified.

2. Brief facts of the case are that complainant/petitioner was allotted Plot No. 3/157 in a draw dated 31.12.1984 at the estimated cost of Rs.46,501/- by

OP/Respondent. Complainant earlier deposited Rs.12,100/- and deposited Rs.34,401/- on 28.5.1985 instead of 31.3.1985. She was asked to deposit money on different dates

in different heads and she deposited some amount according to Rules of

L.D.A. Complainant was entitled to get 4% p.a. interest on money deposited, but as interest has not been paid to her and OP was delaying registration, complainant filed complaint with a prayer that OP may be directed to get sale deed registered. OP filed written statement and submitted that complainant is required to deposit interest as per rules and he has not supplied stamp papers; hence, registration could not be done and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to return excess interest received from complainant along with 18% p.a. interest and further directed OP to inform complainant, as to the value of the stamp papers to be deposited and other formalities required to be completed for registration of sale deed. Appeal filed by the OP/respondent was partly allowed by learned State Commission vide impugned order and order of District forum was modified against which, this revision petition has been filed.


4. Learned State Commission has observed in impugned order that complainant has not deposited freehold charges, sewer charges, etc. as per rules and has not given stamp papers and in such circumstances, it would not be possible to handover possession of the plot after carrying out registration.

5. During course of arguments, both the parties apprised that sale deed of plot measuring 348 sq. mt. has been executed by respondent in favour of petitioner on

10.10.2002, whereas learned State Commission has observed in its order dated

1.2.2008 that complainant has neither deposited money nor supplied stamp papers for registration, which is apparently against the record. Perusal of impugned order does not reveal what modification has been made in the order passed by District forum.

6. During course of arguments, it was observed that allotment letter does not contain area of the plot and now dispute between the parties is in respect of excess area of the plot being the corner plot. Learned Counsel for the petitioner submitted that petitioner does not want to have excess area of land and wants to take possession of the land comprising sale deed, whereas learned Counsel for the respondent submitted that petitioner is bound to make payment of excess area as per demand notice. These

facts are not part of complaint or written statement; hence, cannot be decided in this revision petition.

7. As impugned order is contrary to facts admitted by the parties regarding payment towards freehold charges, sewer charges and supply of stamp paper and registration of the sale deed, we deem it proper to set aside the impugned order and remand to the

State Commission for deciding it afresh after considering admitted facts.

8. Consequently, revision petition filed by the petitioner against respondent is allowed and impugned order dated 1.2.2008 passed by learned State Commission in

Appeal No. 2934/1998 - LDA Vs. Km. Ponnamma K.K. is set aside and matter is remanded to the learned State Commission to decide it afresh preferably within 3 months after giving an opportunity of being heard to both the parties.

9. Parties are directed to appear before the learned State Commission, U.P. on

8 th July, 2013.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 01.09.2009 in Appeal No. 1212/2007 of M.P. State Consumer

Disputes Redressal Commission, Bhopal)

Satish Kumar S/o Shri K.T. Barde R/o Shivaji Nagar, Rai Sahab Garden

Kothi Bazar Baitul Tehsil and District Baitul (M.P.)


Versus

Branch Manager Life Insurance Corporation of India Gurudwara Road, Baitulganj

Baitul (M.P.)


BEFORE



For the Petitioner : Mr. Gautam Awasthi, Advocate

For the Respondent : Mr. Amit Bansal, Advocate


O R D E R


This revision petition has been filed by the Petitioner/complainant against the impugned order dated 1.9.2009 passed by the Madhya Pradesh State Consumer

Disputes Redressal Commission, Bhopal (in short, ‘the State Commission’) in Appeal

No. 1212 of 2007

– LIC Vs. Satish Kumar by which, while allowing appeal, order of

District Forum allowing complaint was set aside.

2. Brief facts of the case are that petitioner/complainant obtained “Asha Deep Policy” from respondent/OP on 15.11.1993, but policy lapsed in May, 1997 and was revived in the year 1998. On 15.5.2001, complainant was detected to be the heart patient and was operated. Complainant submitted claim for payment of amount spent by him in operation, but OP repudiated it by letter dated 8.10.2001 on the ground that complainant did not disclose that he had suffered from diabetes and hypertension. Complainant alleging deficiency on the part of OP filed complaint. OP

resisted complaint on the ground mentioned in repudiation letter. Learned District

Forum after hearing both the parties allowed complaint and directed OP to pay claim amount along with 6% p.a. interest and further directed to pay Rs.5,000/- as compensation and Rs.2,000/- as litigation expenses. OP/respondent filed appeal before the State Commission and learned State Commission vide impugned order while allowing appeal dismissed complaint against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that petitioner did not disclose any disease, as he was not aware of the disease and learned District forum rightly allowed complaint, but learned State Commission has committed error in allowing appeal and dismissing complaint on the ground of suppression of disease; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. Perusal of record reveals that petitioner obtained insurance policy from the respondent on 15.11.1993 and after lapse in 1997, it was again revived in the year

1998. Perusal of record further reveals that petitioner was admitted in Apollo Hospital on 8.5.2001 on account of heart trouble and after operation on 15.5.2001, he was discharged on 22.5.2001. Consultant Cardiologist of Apollo Hospital submitted report on 14.8.2001 in which he mentioned that petitioner had symptoms of heart disease from

23.3.1995 and it was further mentioned that petitioner was having diabetes since

1995. Operating Surgeon of Apollo Hospital in his report dated 14.8.2001 mentioned that petitioner was diabetic since 10 years. In discharge summary dated 22.5.2001 issued by Apollo hospital the complainant was observed as under:

This 44 years old gentleman, normotensive, diabetic since 10 years, was admitted with history of an old antero septal MI in March

1995, class III angina since 3 months and a positive TMT, for further cardiac evaluation. He was evaluated by cardiac cath and coronary angiography which revealed triple vessel disease with mild

LV dysfunction. He was advised

CABG surgery”.

Thus, it becomes clear that complainant was admitted in the Apollo Hospital for treatment and was found diabetic since last 10 years meaning thereby, he was diabetic since 1991, whereas complainant obtained policy in 1993 and after lapse; he got it revived in the year 1998. At the time of taking original policy and subsequently at the time of revival of policy, complainant was under obligation to disclose previous disease of diabetes, but he has not disclosed this fact and fraudulently suppressed material facts. Learned State Commission rightly observed that complainant suppressed preexisting disease twice, firstly at the time of taking original policy and secondly, at the time of revival of policy. Learned State Commission rightly observed in paragraph 5 as under:

“It is difficult to believe that such a major ailment was not known to the complainant. The documents relating to treatment taken for these diseases for long period are filed on record, therefore, it cannot be believed that he did not know about their existence.

Under these circumstances, we find that the respondent is not entitled to any relief”.

6. On account of suppression of material facts, respondent has not committed any deficiency in repudiating claim. We do not find any illegality, irregularity or jurisdictional error in the impugned order, which calls for any interference and revision petition, is liable to be dismissed.

7. Consequently, revision petition filed by the petitioner against the respondent is dismissed with no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 7.3.2011 in Appeal No.973/2005 of State Consumer

Disputes Redressal Commission, Punjab, Chandigarh)

Punjab Urban Planning & Development Authority through the Estate Officer Opposite

Tehsil Complex Jalandhar City

… Petitioner/Opp. Party

Versus

Puneet Gupta S/o Sh. Rabinder Parshad Gupta, R/o 305-WE, Ali Mohalla, Jalandhar

City.


BEFORE



For the Petitioner : Mrs. Rachna Joshi Issar, Advocate

Ms. Ambreen Rasool, Advocate

For the Respondent : Mr. Ravinder Gupta Power of Attorney of

Respondent


O R D E R


This revision petition has been filed by the Petitioner/OP against the impugned order dated 7.3.2011 passed by the State Consumer Disputes RedressalCommission,

Punjab, Chandigarh (in short, ‘the State Commission’) in Appeal No. 973 of 2005 –

Puneet Gupta Vs. Punjab Urban Planning and Dev. Authority by which, while allowing appeal, order passed by District Forum was set aside.

2. Brief facts of the case are that OP/Petitioner invited applications for allotment of plot by way of draw. Complainant/respondent deposited Rs.27,750/- and in a draw, plot

No.155 measuring 300 sq. yds. in Urban Estate, Kapurthala was allotted to the complainant vide allotment letter dated 18.1.2001. Complainant deposited Rs.1,38,750/- being 25% price of the plot allotted. It was alleged that complainant wrote many letters to the OP for handing over physical possession, but physical possession was not

delivered to him. It was further alleged that OP vide letter dated 23.10.2001 asked complainant to meet Shri Harjit Singh, J.E. to take physical possession on 7.11.2001, but as the aforesaid letter was received in the evening of 7.11.2001, the complainant could not meet Harjit Singh that date and afterwards complainant visited site on next three consecutive Wednesdays, but Harjit Singh was not available at site and physical possession of the plot and demarcation could not be given to him. Alleging deficiency on the part of OP, complainant filed complaint with a prayer to amend/revise the allotment letter dated 18.1.2001 and deliver physical possession with complete demarcation, etc. OP contested complaint and submitted that complainant has not made payments as per schedule and complainant did not come for taking possession within stipulated period. It was further pleaded that actual physical possession/demarcation of the plot can be given to the complainant only after submission of building plan for approval and complainant has so far not submitted plans for approval. Therefore, actual demarcation of the plot could not be given to the complainant and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint to the limited extent and directed complainant to submit building plan within one month and OP was directed to give physical possession and demarcation of plot within one month from receipt of building plan from the complainant. Complainant was further directed to make payments of remaining balance price. Appeal filed by the complainant was allowed by learned State

Commission vide impugned order by which, while setting aside order of District Forum, petitioner was directed to deliver possession of the plot within one month on payment of balance price of plot without any interest or penalty and further directed to pay

Rs.10,000/- as special cost, Rs.20,000/- as compensation and Rs.5,000/- as litigation expenses against which, this revision petition has been filed.

3. Heard learned Counsel for the petitioner and authorised representative of the respondent.

4. Learned Counsel for the petitioner submitted that as per terms and conditions of allotment letter, symbolic possession was to be delivered only after approval of building

plan and learned District Forum rightly directed complainant to submit building plan and directed petitioner to give physical possession along with demarcation within one month, but learned State Commission has committed error in directing petitioner to deliver possession of the plot after receiving balance price without interest or penalty; hence, revision petition be allowed and impugned order be set aside. On the other hand, authorised representative of respondent submitted that building plan can be submitted only after getting physical possession and demarcation of the allotted plot and order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. Perusal of record reveals that petitioner allotted plot No. 155 measuring 300 sq. yds. to respondent vide allotment letter dated 18.1.2001. Petitioner vide letter dated

23.10.2001 asked respondent to take physical possession of plot from Shri Harjit Singh,

J.E. on Wednesday. As per complaint, respondent could not take physical possession of plot from Shri Harjit Singh. As per allegation in the complaint, respondent went to the site on three consecutive Wednesdays, but Harjit Singh, J.E. was not available and it appears that vide possession certificate dated 9.4.2002, possession was given to the respondent by handing over possession certificate.

6. Admittedly, possession certificate reveals number of plot and dimension 36’ x 75’ measuring 300 sq. yds. This possession certificate does not contain sketch of allotted plot by which East, West, North, South sites length and width can be ascertained as well number of adjoining plots and location can be ascertained. Without these specifications, building plan cannot be prepared by an architect and in such circumstances, the arguments of learned Counsel for the petitioner is devoid of force that physical possession was to be delivered only after approval of building plan.

7. It is admitted case of the parties that petitioner has informed respondent vide its letter dated 23.10.2001 to take physical possession of plot meaning thereby physical possession was to be taken only on the site and not in the office of the

petitioner. Possession certificate issued by petitioner also contains para second as under:

“The allotee/representative was requested to take possession on spot on ____but the allottee/representative did not come on that day to take possession. The date of possession may be considered with effect from___”.

This para has been crossed by petitioner, as respondent did not reach on the site on that day meaning thereby necessary possession was to be given by the petitioner to respondent only on the site after measurements as per clause 2 of allotment letter and not in the office. As per clause 11 of the allotment letter, respondent was required to take possession of plot within 60 days from the date of issue of allotment letter. It nowhere contains that symbolic possession was to be given in the office. As per clause

12 of the allotment letter, construction was to be completed by respondent within 3 years after getting the plans of the proposed building approved from the Estate

Officer. In such circumstances, learned State Commission has not committed any error in directing petitioner to deliver possession of the plot to the respondent.

8. Ld. State Commission further directed that possession is to be given on payment of the balance price of the plot in question without adding any interest or penalty. It is admitted case of the parties that respondent has paid only 25% price of the allotted plot and rest of the payment was to be made by the respondent as per clause 6 or 7 of the allotment letter. As respondent has not made payment, he is bound to make payment as per terms and conditions of allotment letter and Ld. State Commission has committed error in directing petitioner to receive balance price of the plot in question without any interest or penalty.

9. As far extension fee is concerned, extension fees will be payable only if construction is not completed within period of 3 years from the date of receiving actual physical possession.

10. Consequently, revision petition filed by the petitioner against respondent is partly allowed and impugned order dated 7.3.2011 passed by learned State Commission in

Appeal No. 973 of 2005

– Puneet Gupta Vs. Punjab Urban Planning and Dev. Authority is partly set aside and modified. Petitioner is directed to deliver possession of plot in question to the respondent within one month from the receipt of this order subject to payment of balance price of the plot along with interest and penalty as per terms and conditions of allotment. Rest of the order passed by learned State Commission is upheld.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 24.07.2012 in F.A. No. 300 of 2011 of the Andhra Pradesh State

Consumer Disputes Redressal Commission, Hyderabad)

M/s Kum Kum Silk and Sarees Rep. by its proprietor, O. Manohar Singh S/o Oto Singh,

10/464, Opp. Raghuveera Towers Subhash Road, Ananthapur Town

...Petitioner

Vs

Branch Manager United India Insurance Company Ltd. D. No. 15/130, Subhash Road,

Ananthapur Town

...Respondent

BEFORE :



For the Petitioner : Mr. Sagar Saxena, Advocate

For the Respondent : Mr. Abhishek Kumar, Advocate

Mr. Naveen Pandey, Advocate

Pronounced on 21 st May, 2013

ORDER


This revision petition has been filed by the original complainant against the impugned order dated 24/07/2012 was passed by A.P.State Consumer

Disputes Redressal Co mmission,Hyderabad ( in short “ the State Commission”) in FA No 300/2011 and FA No. 366/2011 both in Consumer Complaint 104/2010.

1. Briefly stated the facts of the case are the Petitioner/Complainant is a proprietary firm doing business in selling sarees and dress material on retail basis in

Ananthapur. The complainant-firm insured its stock with the opposite party-insurance company under “Standard Fire and Special Perils Policy” bearing number

051004/11/08/11/00001686 covering for the period from 13.01.2009 to

12.01.2010. On 5.05.2009 at about 10.30 P.M. the complainant-firm premise set on fire due to short circuit resulting in damage to the stock and furniture of the complainant-firm. On receiving intimation the Fire Department arrived at the spot and extinguished the fire. The Fire and Emergency department ,Anantpur issued certificate to that effect and estimated loss of Rs.25 lacs. The complainant-firm

lodged complaint on 6/5/2009 with the Police registered as Crime no.146/2009 and for Claim with the opposite party-insurance company. The opposite party deputed surveyor to assess the loss sustained by the complainant-firm. The surveyor assessed the loss to the tune of Rs.5,71,095/-.

2. The complainant contends that the surveyor demanded for certain amount which the complainant refused to pay and the complainant-firm got estimated the loss of the property by an engineer who assessed the loss to the wooden furniture at Rs.3,94,860/- and in addition to the amount, the complainant-firm sustained loss to the tune of Rs.20 lakh, a total amount of Rs.23,94,860/-. The complainant-firm restricted its claim to Rs.20 lakh and got issued notice to the opposite party on 19.06.2010.

3. The claim was resisted on behalf of the opposite party-insurance company on the basis that the complainant is not a consumer; the insurance policy was obtained for commercial purpose; the matter involves complicated questions of facts which cannot be determined without elaborate evidence which can be possible in civil court. The complainant firm had not submitted bank statement for the period from 01.04.2006 to 31.03.2007, 01.04.2007 to 31.03.2008, 01.04.2008 to 31.03.2009 and 01.04.2009 to 31.05.2009 and charge sheet etc in-spite of request made through letters dated 17.08.2009, 8.10.2009, 21.06.2010 and

29.06.2010.

4. It is contended that the surveyor assessed the loss at Rs. 5,71,895/- on all counts. The complainant filed some documents which were not submitted to the surveyor and fabricated for the purpose of filing the complainant. As per Section

64(2) UM of the Insurance Act the opposite party has right to settle claim for an amount different from that assessed by the surveyor. The complainant did not inform the opposite party at any time about the demand made by the surveyor.

There was no deficiency in service on the part of the opposite party.

5. The proprietor of the complainant firm has filed his affidavit and the documents

Exs. A1 to A10. On behalf of the opposite party, the Assistant Manager has filed his Affidavit and the documents Exs. B1 to B12.

6. The District Forum allowed the complainant on the basis of , that the surveyor omitted to take into consideration of the value of the stock mentioned in the annexures No.1 to XI of his report and the District Forum held the complainant entitled to the sum of Rs. 13,22,790/- towards the loss sustained by the complaint-firm in the fire accident that occurred on 05.05.2009. The District

Forum awarded interest @ 9 % p.a. and costs of Rs. 5,000/-.

7. Aggrieved by the aforesaid order of the District Forum, the respondent preferred an appeal being F.A. No. 300 of 2011 challenging the order of the Ld.

District Forum; and the petitioner preferred a cross appeal being F.A. No. 366 of

2011 of enhancement of the amount of compensation before the State

Commission at Hyderabad.

8.

The opposite party-insurance company contended that the District Forum awarded amount of Rs.13,22,790/- with interest contrary to the assessment made by the surveyor and in contravention of settled principles of law. The State

Commission heard counsel of the both parties and on the basis of evidence on file and the Surveyor’s decided the point that whether the order of the District

Forum is vitiated by mis-appreciation of facts or law on record made observations

on? The relevant pars of observations made by State Commission are reproduced as follows:

12. Many of the facts of the case are beyond dispute as to the issuance of insurance policy in respect of the stock and furniture of the complainantfirm, occurrence of accident, damage cause to the insured stocks and furniture and assessment of loss caused to the stocks and furniture and assessment of loss caused to the stocks and furniture by the surveyor.

The District Forum awarded the amount of Rs. 13,22,790/- on the premise that the surveyor has not taken into consideration of the stocks purchased by the complainant-firm from Calcutta, Surat, Vijayawada, Bangalore and he did not mention the stocks are whether good or bad. The District Forum had drawn interference that the Surveyor has not mentioned in Annexure-

IV, VI, VII and VIII were good stocks or damaged stocks and therefore it presumed that the stocks mentioned in the said annexure are only damaged stocks.

14. The District Forum under mistake came to the conclusion that the surveyor had not mentioned in the annexure IV as to whether the stocks are good or bad. The surveyor had considered all aspects and assessed the loss at Rs. 5,71,095/-. The surveyor had prepared his report on the basis of physical stock inventories, which were tallied with the purchase bills produced by the complainant. In the annexure IV, VI, VII and VIII has also filed, the surveyor had specifically mentioned the damage caused and assessed the loss in appropriate manner which at any time was not found fault with.

15.

The Surveyor’s report and the assessment made therein cannot be ordinarily deviated from, except in the circumstances, where the insured would establish the arbitrary assessment made by the surveyor. In the instant case we do not find any infirmity or arbitrariness in the assessment of the surveyor. The District forum had taken an erroneous view that the surveyor had not mentioned that whether the stocks mentioned in the annexures were whether in good or bad condition.”

17. The surveyor, in our opinion had taken into consideration all parameters while assessing the loss and he came to the conclusion only on being satisfied with the entries in the purchase bills and those available at the time of preparing the physical stock inventory. The District Forum has misdirected itself from deviating from the assessment of the loss as was made by the surveyor and as such the order of the District Forum awarding the amount more than what was assessed by the surveyor is liable to be modified.”

9. The State Commission disposed of both the above mentioned F.A. Nos. 300 and 366 of 2011 by it’s common order on 24/7/2012 which allowed the appeal

F.A. No. 300 of 2011 and modified the order of the Ld. District Forum thereby reducing the amount of compensation from Rs. 13,22,790/- to Rs. 5,71,095/-.

The State Commission dismissed the FA No.366/2011.

10. Aggrieved by the order of State Commission the petitioned preferred this revision petition before us.

11. The counsel of both parties vehemently argued the matter and reiterated the submissions made before the State Commission.

12. There was no dispute about the Petitioner insured his business with the respondent by a “Standard Fire and Special Perils Policy” for the effective period from 13.01.2009 to the midnight of 12.01.2010. Petitioner suffered loss due to fire of his shop on 5/5/2009 and subsequently registered before the concerned Police

Station vide Cr. No. 146/2009 and intimated the respondent to settle the claim.

13. Petitioner submitted that, the respondent deputed a surveyor to access the loss due to fire. The petitioner handed over the requisite original files to surveyor to facilitate the surveyor for preparing survey report the petitioner. But, the Fire

Survey Report dated 28.01.2010 prepared by the surveyor with mala-fide intentions. The report showed the net loss suffered by the petitioner as

Rs.5,71,095/- which was prepared without taking consideration of all ( I to XI)

Annexure while calculating the net loss due to fire.

14. But, the Respondent (OP) put more emphasis on Ex A10 documents as which are nothing but created for the purpose of claiming huge compensation towards damages and as such they said documents cannot be relied upon. Under insurance clause as per the terms and conditions of the Standard Fire and

Special Perils Policy and as per Ex.B12 surveyor’s report, the net loss to the complainant in the said accident was @ Rs. 5,71,095/-. OP contended that the surveyor’s report has to be accepted for arriving net loss sustained by the complainant in the said accident and in support of his contentions he placed reliance on several reported decisions which held that “ Surveyor’s report as an important document; can not be brushed aside easily without v alid justification”: {

Priya Gopal Stores Vs. National Insurance Co. Ltd. 1 (2009) CPJ 22

(NC); Pentagaon Steel Pvt. Ltd., Vs. New India Assurance Company Ltd.

& ors III (2010) CPJ 339 (NC);Ashu Textiles Vs. New India Assurance Company

Ltd. & anr. III (2009) CPJ 272 (NC);Dabiruddin Cold Storage Vs. New India

Assurance Company Ltd. & or I (2010) CPJ 141 (NC);New India Assurane

Company Ltd., Vs. Rabindra Naryana. I (2010) CPJ 80 (NC)}.

“17. The surveyor in his report ExB12 has shown the details of stocks verified by him as :

Annexure-I Physical Stock Inventor Good Sarees Category-I (Surat Fancy item).

Annexure-II Silk Combination (Good stock)

Annexure-III Fancy Rolling Sarees Good Stock

Annexure-IV Purchased from Calcutta , Surat and Vijayawada Work Saree

Material(Fancy).

Annexure V-Loss purchased from weavers Gadwal Saree

Annexure-VI Banaras stock

Annexure –VII Dress Material (Fancy) Surat

Annexure-VIII Silk Sarees purchases from Dharamavaram/Bangalore

Annexure-IV Dharamavaram Silk Sarees (Loss).

Annexure-X Partial Loss Damages and Full damages fire

AnnexureXI Miscellaneous stock (Magutam silk).”

18. The surveyor in his report has assessed the loss assessment which is extracted hereunder:

Loss assessment.

A. Loss on Stock of Sarees/Misc. Stocks

1. Physical Loss from Annexure

–IX

Rs. 1,95,145-00

2. Physical Loss from Annexure-X Rs. 2,80,460-00

3. Physical Loss from Annexure-XI Rs. 23,300-00

Rs. 4,98,935-00

Less Salvage Value Rs. 98,800-00

Rs. 4,00,935-00

B. Loss of FFF (Furniture, Fixures, Fittings)

1. Physical Loss from Annexure FFF Rs. 1,80,160-00

Less Policy Excess Rs. 10,000-00

Net Loss suffered by insured

Rs. 5,71,095-00

Rs. 5,71,095-00

19. On perusal of the above mentioned both paras 17 & 18 and the gross discrepancies are evident. In Para No 17 the Annexure-V mentioned as “loss purchased from weavers Gadwal Saree”. Therefore, the value mentioned in the said Annexure V of Rs.89775/- also has to be taken in to consideration to assess the loss sustained by the complainant in the said fire accident.”

Similarly, we have noted on file that the surveyor has only taken total damage value of Rs. 3,49,860/- in respect of ward robes, cash counter and wooden ceiling but he has not calculated and not taken into consideration the

damage costs of beds over the flooring which the surveyor himself stated as “LS and the damage cost is mentioned at Rs. 45,000/-

” and he has not given any reason in Ex B12 for not considering the same. Accordingly, the complainant is also entitled for the said amount of Rs. 45,000- towards loss sustained.

Therefore, we are in opinion that there is an apparent mistake in surveyor’s report as calculated erroneously and incomplete one. The surveyor has excluded wrongly the damages under heading of Annexure V mentioned as loss purchased from weavers Gadwal Saree for Rs.89,775/- and damage of cost of beds over flooring Rs.45,000/- apart from Rs.5,71,095/- Such is the case, the complainant is entitled for Rs.5,71,095 + Rs.89,775 + Rs.45,000/- = 7,05,860/- in total. Hence, there is deficiency in service by the OP.

20. We have referred the authority B.N.Badini Vs Oriental Insurance Co Ltd; I

2012CPJ 272(NC). It is well settled in law that “ a Surveyor’s report has significant value unless it is proved otherwise which petitioner has to failed to do so in the instant case.”

Therefore, we set aside the order of State Commission and pass the order that; the respondent is directed to pay Rs.7, 05,860/- to the complainant. The order should be complied within n45 days failing which it will carry interest @ 9% per annum till the recovery.

The parties shall bear their own costs.

.…..…………………………



Mss

.…..…………………………


MEMBER



With

I.A. No.01 of 2012 (For Stay) and

Application for filing additional documents

(From the order dated 11.7.2011 in Appeal No.A/09/811

of the State Commission, Mumbai, Maharashtra)

1. M/s. Shriram Finance Company Ltd. Having its office at 101/105, Shiv Chambers,

1

2 st nd

Floor, B-Wing, Sector-11, CBD Belapur, Navi Mumbai

– 400 604 and also at 217,

Floor, Swastik Chambers, in CST & ST Road, Chambur, Mumbai – 400071.

2. Citicorp Finance (I) Ltd. A company incorporated under the Companies Act, 1956 and having its registered office at Citi Tower, 2 nd Floor, 61, Dr. S.S. Rao Raod, Patel,

Mumbai – 400012.

…Petitioners

Versus

Aziz Miya Patel, Indian Inhabitant Having address at Channel Paradise, Plot No.426, TPS,

Flat No.702, Panvel, Navi Mumbai

….Respondent

BEFORE:

For the Petitioners : Mr. Lenin Singh Hijam, Advocate



For the Respondent : Mrs. Kumud Nijhawan, Advocate with

Mr. Dinesh Patel, Advocate


ORDER


Present revision petition under Section 21(b) of Consumer Protection Act, 1986

(for short, ‘Act) has been filed by the petitioners/opposite parties challenging order dated 11.7.2011, passed by State Consumer Disputes Redressal Commission, Mumbai,

Maharashtra (for short, ‘State Commission’).

2. Brief facts are that respondent/complainant, filed a complaint before District

Consumer Disputes Redressal Forum, Thane, Maharashtra (for short, ‘District Forum’) against petitioners for causing deficiency in service in providing advance for purchase of the vehicle and taking forcible possession of the vehicle without the consent/notice and prior intimation to the respondent.

3 Petitioners contested the complaint before the District Forum.

4. District Forum, vide order dated 6.12.2008, partly allowed the complaint and passed the following directions;

“(i). The Opponents no.1 and 2 are jointly and severally responsible to compensate for Rs.8,55,000/- (Rs.Eight Lakhs Fifty Five Thousand only) for causing damage/loss due to taking forcible possession of 2 vehicles and sold the same to third party without prior notice/intimation to the complainant.

(ii). Opponents no.1 and 2 are jointly and severally liable to pay to the Complainant Rs.10,000/- (Rupees Ten Thousand only) towards mental agony.

(iii). Opponents no.1 and 2 are jointly and severally liable to pay

Rs.5,000/- (Rs.Five Thousand only) towards cost of the complaint.

(iv). This order should be followed within 45 days by direct payment or else if the execution proceeding filed then penal interest @ 5% p.a. will be charge from the date of filing the complaint.”

5. Being aggrieved by the order of the District Forum, petitioners filed (First

Appeal No.A/09/811) alongwith (Miscellaneous Application No.09/920 for Delay). State

Commission vide impugned order, dismissed the application for condonation of delay and consequently appeal was not entertained.

6. Now, petitioners have filed present petition challenging the impugned order.

7. Respondent in response has filed its counter affidavit.

8. We have heard learned counsel for the parties and have gone through the record.

9. It has been contended by learned counsel for the petitioners that delay caused in filing of the appeal was not intentional, since the concerned employee has to proceed suddenly to his native village due to some family problem and as such he has kept all the relevant documents of this case in his locker. After that employee returned to the office, immediately thereafter the appeal was filed. As such, there are sufficient grounds for condoning the delay. In support, learned counsel has relied upon the following judgments;

“i) Suryapal Singh Vs. Siddha Vinayak Motors & Another

II (2012) CPJ 8 (Supreme Court);

ii) Laxmi Engineering Works Vs. P.S.G. Industrial Institute

1995 SCC (3) 583 and iii) Kiran Singh Vs. Chaman Paswan

AIR 1954 SC 340. ”

10. On the other hand, it has been contended by learned counsel for the respondent that explanation given by the petitioners cannot be considered just and proper. Further, right accrued to the respondent cannot be taken away by the negligence of the petitioners. In support, learned counsel has relied upon number of judgments as mentioned in its reply.

11. State Commission, while dismissing the application for condonaton of delay of

128 days, in its impugned order observed;

“It is stated on behalf of applicant/appellant that copy of the impugned order dated 06/12/2008 was received by it on 29/12/2008 and thereafter, the applicant which is Finance Company entrusted the papers to its employee Mr. Nityanand S. Vazhakulath for the purpose of filing appeal. It is further stated that said employee suddenly proceeded to his native place due to some family problem keeping the papers locked in his locker. He returned on 07/04/2009 and thereafter, lawyer was contacted and then after completing necessary formalities relating to Section 15 of the Consumer

Protection Act, 1986 the appeal was filed on 04/06/2009.

To support the application for condonation of delay, affidavit of Mr. Nityanand S. Vazhakulath dated 18/02/2011 is filed. This is nothing but the verification affidavit to the application for condonation of delay. Neither this application nor the affidavit speaks about the circumstances under which this employee suddenly required to leave for his native place and why he could not make arrangement regarding filing of appeal or brought it to the notice of his employer. Therefore, such statement itself is vague.

As far as second ground of delay is concerned, it relates to preparing the necessary demand draft in order to file appeal and to comply simultaneouslythe provisions of Section 15 of the

Consumer Protection Act, 1986. Since, the provisions of law regarding filing of appeal are well settled, there cannot be a confusion when the assistance of lawyer is taken. Under these circumstances, this ground also does not find any merit and certainly, does not explain the delay.

For the reasons stated above, we find that the applicant/appellant failed to explain the delay in satisfactory manner and holding accordingly, we pass thefollowing order;

-: ORDER :-

1.

Misc. Appl. No.920/2009 for condonation of delay stands rejected.

2.

Consequently, appeal No.811/2009 is not entertained.”

12. It is well settled that “sufficient cause” in each case, is a question of fact.

13. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 , it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then

the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

14. 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.”

15. 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.”

16. Since, in the application for condonation of delay no particulars of delay nor the period of delay was mentioned, consequently, State Commission vide order dated

27.10.2010, granted permission to the petitioners to amend application for condonation of delay. Subsequent to the order of the State Commission, petitioners filed amended application for condonation of delay dated 14.1.2011. The main ground on which condonation of delay was sought states;

“The Appellant submits that the order dated

6 th December, 2008 was received by the Appellant on

29/12/2008 and the certified copy of the order and other documents were entrusted to the concerned employee

Mr. Nityanand S. Vazhakulath on 30/12/2008 with instructions to prepare for filing of the Appeal. The Appellant submits that the said Mr. Nityanand S. Vazhakulath suddenly proceeded to his native village the same day evening due to some family problems keeping the certified copy of the order and other relevant documents in his locker. The Appellant submits that

Mr. Nityanand S.Vazhakulath returned to office on 07/04/2009 and immediately thereafter the Appellant contacted their

Advocate who advised to arrange for DD for Rs.15,000/-

towards mandatory deposit and DD for Rs.4,35,000/- being the 50% of the decreetal amount for filing the Appeal”.

17. As per application for condonation of delay, petitioners have received the copy of impugned order dated 6.12.2008 passed by the State Commission on 29.12.2008 which was entrusted to their employee Mr. Nityanand Shankar Vazkulath on 30.12.2008 on instruction to prepare for filing of the appeal. It is petitioners’ case that the said employee suddenly proceeded to his native village on the same day due to some family problem keeping the certified copy of the impugned order and other relevant documents in his locker and he returned to the office only on 7.4.2009 and immediately, thereafter petitioners contacted their Advocate who advised petitioners to arrange for demand draft for mandatory deposit.

18. Petitioners’ employee Nityanand Shankar Vazkulath in its affidavit filed alongwith application for condonaton of delay dated 14.1.2011, nowhere specifically states as to why he has to suddenly proceed to his native village on

30.12.2008 nor he has stated that he kept the documents in his locker. Relevant portion of the said affidavit read as under;

“I say that we have filed the amended Application for condonation of delay in filing the first Appeal against the order dated 6 th December, 2008 of the Hon'ble District Forum, Thane in Complaint No.51/2005. I say that the delay of 128 days in filing the Appeal was not intentional but due to various circumstances and misguidance given by our earlier Advocate.

For the sake of brevity and with a view to avoid repetition, I crave leave of this Hon'ble Commission to adopt, confirm, repeat and reiterate the said statements and averments made therein, as if the same were specifically set out herein and formed a part and parcel of this Affidavit.”

19. Thus, as per above affidavit, petitioners have shifted the entire burden with regard to the delay, on their Advocate. Interestingly, name of that Advocate has not been mentioned. Even otherwise, neither petitioners nor Nityanand Shankar Vazkulath in its affidavit has stated as to what was the family problem for which the employee had to remain away from the work for over three months. Moreover, it has also not been stated as to what was the nature of leave, which was taken by that employee. The application is absolutely silent on these material aspects.

20. 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.


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 :



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

”.

22. Hon'ble Apex Court also observed in case “State of Nagaland Vs. Lipokao and others reported in 2005(2) RCR (Criminal) 414 that;




24. Therefore, grounds stated in the application cannot constitute sufficient cause so as to condone the inordinate delay of 128 days in filing of the appeal. Even otherwise, the District Forum decided the complaint of the respondent about four and a half years

ago and if such type of application for condonation of delay is allowed, then it would defeat the very object of the Act which provide for expeditious justice to the consumer.

25. It would be pertinent to point out that petitioners have also filed application for bringing on record the additional grounds. Most of the grounds as averred in the application pertain to the merit of the case and at the revisional stage, we cannot take into consideration the additional grounds which the petitioners want to take now. Moreover, most of the judgments cited by counsel for the petitioner pertain to the merit of the case. Since, the State Commission dismissed the appeal of the petitioner on the ground of delay alone, those judgments are not applicable to the facts of the present case.

26. We, do not find any infirmity or illegality in the impugned order and there is no reason to disagree with the findings given by the State Commission. Accordingly, the present revision petition, being not maintainable, is hereby dismissed with punitive cost of Rs.25,000/- (Rupees Twenty Five Thousand only) and the same shall be paid by the petitioners to the respondent by way of demand draft in his name, within eight weeks.

27. Petitioners are directed to deposit/remit the aforesaid cost within eight weeks, failing which it shall be liable to pay interest @ 9% per annum till realization.


.

…..………………………J

(V.B. GUPTA)


…..…………………………

(REKHA GUPTA)

MEMBER

Sg/



(From the order dated 26.09.2011 in Appeals No.1297 & 3952 of 2010 Karnataka State


T.S. Muthukrishnan 166, 1 st Floor, 8 th Cross, II Stage, Indira Nagar, Bangalore 560038


Versus

1. The Branch Manager Indian Overseas Bank Indira Nagar Branch, C.M.H. Road,

Indira Nagar, Bangalore

– 560038

2. Managing Director United India Insurance Co. Ltd. 24, Whites Road, Chennai

–

600014

… Respondents/Opp. Parties (OP)

BEFORE



For the Petitioner : Ms. Neena Singh, Advocate

PRONOUNCED ON 21 st May, 2013

O R D E R


This revision petition has been filed by the Petitioner/Complainant against the impugned order dated 26.9.2011 passed by the Karnataka State Consumer Disputes

Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No.

1297 of 2010 – The MD, United India Ins. Co. Ltd. Vs. T.S. Muthukrishana & Anr. and in Appeal No. 3952 of 2010

– T.S. Muthukrishana Vs. Branch Manager, Indian

Overseas Bank & Anr. by which, while dismissing appeals, order passed by District

Forum allowing complaint partly was upheld.

2. Brief facts of the case are that Petitioner/Complainant purchased an Indian

Overseas Bank Health Care Plus Policy on 1.9.2005 from OP No.1/Respondent

No.1. Subsequently, the said policy was renewed from OP No.1/Respondent No.1, but

OP changed three insurance companies in 4 years. Complainant’s wife suffered a

fracture in the spinal cord and when the complainant approached hospital, he was denied cashless service by the third party administrator on the ground that policy is

“very fresh”. It was further alleged that OP repudiated claim. Complainant alleging deficiency on the part of OPs filed complaint before District Forum. OPs contested complaint and submitted that complainant failed to establish deficiency in service on their part; hence, complaint be dismissed. Learned District Forum after hearing both the parties allowed complaint partly and directed OP No. 1 to pay compensation of

Rs.10,000/- and directed OP No. 2 to pay compensation of Rs.1,00,000/- and

Rs.5,000/- as litigation expenses. It was further observed that complainant can claim reimbursement of medical expenses as per policy, terms and conditions and it cannot be considered in this complaint. Both parties filed appeal before learned State

Commission and learned State Commission vide impugned order dismissed both the appeals against which, the petitioner has filed this revision petition.

3. Heard learned Counsel for the petitioner at admission stage and perused record.

4. Complainant under complaint prayed for awarding Rs.5,00,000/- for reimbursement of hospitalization and post hospitalization expenses and Rs.3,00,000/- from each of the OPs as compensation on account of mental agony and Rs.20,000/- as cost of the proceedings. Learned District Forum awarded Rs.1,10,000/- as compensation on account of mental agony and Rs.5,000/- as cost of the proceedings and further observed that claim of reimbursement of medical expenses cannot be considered in this complaint.

5. Learned Counsel for the petitioner submitted that learned District Forum has committed error in allowing only Rs.1,10,000/- as compensation and learned State

Commission has committed error in dismissing appeal for enhancement of compensation; hence, revision petition be admitted.

6. As observed earlier, learned District forum has not considered claim for reimbursement of medical expenses, as claim for medical reimbursement has not been repudiated by OP No. 2/Respondent No.2. In such circumstances, award of

Rs.1,10,000/- as compensation cannot be said to be award on lower side. There is no justification to enhance quantum of compensation. Learned State Commission has not committed any error in dismissing appeal for enhancement of compensation.

7. We do not find any illegality, impropriety or jurisdictional error in the impugned order, which calls for any interference and revision petition is liable to be dismissed.

8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs

..………………Sd/-……………



..………………Sd/-……………


MEMBER k



(From the order dated 28.10.2010 in Appeal No.405 of 2010 of the M.P. State

Consumer Disputes Redressal Commission, Bhopal)

Smt. Shalini Singh W/o Shri Karan Singh R/o at Gram Ankona, Tehsil Raghuraj Nagar,

Thana Kolgawa, At present R/o Police Line, Room No.48/2-8, Riwa (M.P.)


Versus

1. The Manager Tata Motors Finance Ltd. Satana Plaza, Near UTI Bank,

Riwa Road, Satana (M.P.)

2. Tata Motors, Head Office, Nanavati Mahalya, IIIrd Floor, 18, Hami MOdi Street,

Mumbai

3. Tata Motors, Ltd. Tata Finance, D.P. House, Fourth Floor, Old Prabhadevi Road,

Mumbai

… Respondents/Opp. Parties (OP)

BEFORE



For the Petitioner : In person along with Mr. Ashish Singh,

Auth. Rep/son of petitioner

For the Respondents: Mr. Satish Mishra, Advocate


O R D E R


This revision petition has been filed by the Petitioner/Complainant against the impugned order dated 28.10.2010 passed by the M.P. State Consumer

DisputesRedressal

Commission, Bhopal (in short, ‘the State Commission’) in Appeal

No. 405 of 2010

– Smt. Shalini Singh Vs. The Manager, Tata Motors & Ors. by which,

while dismissing appeal, order passed by District Forum dismissing complaint was upheld.

2. Brief facts of the case are that Petitioner/Complainant’s vehicle Tata 407 was financed by OP No.1/Respondent No.1 on 2.3.2006. Complainant was paying instalments regularly, but could not pay three instalments on account of financial crises and on 21.1.2008, some persons of OP No.1 after beating complainant’s husband, took away the vehicle and against this act, an FIR was lodged. On 31.5.2008, complainant deposited Rs.1,17,835/- with OP No.1 and OP No.1 issued letter for release of vehicle.

Complainant went to Ganpati Yard, Riwa on 1.6.2008 for release of vehicle, but it was not released and complainant was asked to pay Rs.22,600/- as Gunda Tax. It was further alleged that vehicle in the yard was without tyres and window glasses and was not in running condition and damages were to the extent of Rs.80,000/-. Alleging deficiency on the part of OP, complainant filed complaint for grant of Rs.3,00,000/- as compensation and release of vehicle. OPs filed written statement and denied allegations of the complainant and further denied demand of Rs.22,600/- and damages of Rs.80,000/- in the vehicle and prayed for dismissal of the complaint. Learned District

Forum after hearing both the parties dismissed complaint against which, petitioner filed appeal before learned State Commission. Learned State Commission vide impugned order dismissed appeal and upheld order of District forum dismissing complaint against which, this revision petition has been filed.

3. Heard authorised representative of the petitioner in person and perused record.

4. Authorised representative of the petitioner submitted that in spite of depositing amount, vehicle was not released and later on, on the direction of District Forum vehicle was released, which was not in running condition and without any tyres, window glasses, etc. even then, his complaint was dismissed by learned District forum and learned State Commission has committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned

Counsel for the respondent submitted that, as the vehicle was received by petitioner in good condition, learned District Forum has not committed any error in dismissing complaint and order passed by learned State Commission does not call for any interference; hence, revision petition be dismissed.

5. It is admitted case of the petitioner that 3 instalments were not paid by the petitioner. It appears that on account of non-payment of instalments, vehicle was possessed by persons of the respondents and only after payment of due instalments, vehicle was released. Perusal of record further reveals that vehicle was released to the petitioner in good condition and petitioner had no complaint at that time about any damages in the vehicle. In such circumstances, it cannot be inferred that vehicle was

not released in the condition in which it was taken by the persons of the respondents. It appears that vehicle was not released immediately after depositing due amount as petitioner did not pay parking charges and this complaint was filed on 24.7.2008 with the motive of avoiding parking charges in which he succeeded ultimately as District

Forum directed on 19.9.2008 to release the vehicle without paying parking charges and vehicle was released on 20.9.2008 without paying parking charges.



..…………………Sd/-…………



..………………Sd/-……………


MEMBER k



(From the order dated 21.09.2012 of the Rajasthan State Consumer

Disputes Redressal Commission, Jaipur in Appeal no. 451 of 2012)

1. Head Post Master Head Post Office, Mitidoongari Alwar, Rajasthan

2. Post Master Sitapura Industrial Area Jaipur, Rajasthan

Petitioner

Versus

Neeraj Gupta Son of Shri B S Agarwal Resident of Mohalla Halwaipada Near Jain

Hospital Alwar, Rajasthan

Respondent

BEFORE:



For the Petitioner Mr Utsav Sidhu, Advocate

Pronounced on 21 st May 2013

ORDER

REKHA GUPTA


Consumer Protection Act, 1986 challenging the order dated 21.09.2012 passed by the

Rajasthan State Consumer Disputes Redressal Commission, Jaipur (‘the State

Commission’) in appeal no. 451 of 2012 filed against the order dated 22.02.2012 passed by the District Consumer Disputes Redressal Forum, Alwar,

Rajasthan (‘the

District Forum’) in Case no. 269 of 2011.

The brief facts of the case as per the complainant/respondent are as follows:

Complainant/ respondent is a resident of Alwar City and is an educated unemployed. The office of District Parishad, Alwar had invited applicants for appointment to the posts of Gram Sewak and ex-officio Secretary, whose final date was fixed as 27.12.2010. For this post, the complainant/ respondent properly filled the application on 23.12.2010 and send the same through Speed Post through nonapplicant no. 2/ petitioner no. 2 and submitted the application to the Chief Executive

Officer, Office Jilla Parishad, Alwar. For that the non-applicant no. 2 after receiving charges of Rs.25/- issued one receipt no. ER 014280739 IN on 23.12.2010. Hence, the complainant/ respondent is a consumer of the non-applicant.

At the time of giving receipt, the non-applicant no.2 gave this assurance to the complainant/ respondent that the time prescribed for reaching the Speed Post is 24

hours and the above Speed Post shall reach the stated place safely on 24.10.2010. On that the complainant/ respondent believed in good faith.

After sending the form, the non-applicant did not enquire into reaching of the said form to the prescribed place, because of believing in good faith the assurance of the non-applicant no. 2 and assumed this that the above form has reached the desired place in the prescribed time. But in the last week of December, the above form sent through Speed Post was received in the house of the complainant/ respondent, undelivered on which there was a stamp dated 30.12.2010.

When the complainant/ respondent enquired about the returning of the above form, the complainant/ respondent was not given any satisfactory reply. The complainant/ respondent enquired from Jila Parishad Alwar, then he got this information that the forms which were received by them after the prescribed time limit were not accepted by the above office and they have been returned and the form received by the complainant/ respondent is the above returned form. In this way, it is clear that the form has not been delivered in the prescribed time to the prescribed place and in this way the above act of the non-applicant comes under the category of fault in those services.

The complainant/ respondent had the last chance to apply for the above job and due to the above careless act of the non-applicant, the complainant/ respondent has been deprived to appear in the above examination whose adverse results have to be borne by the complainant/ respondent in future.

The petitioner/ opposite party no. 1 while admitting that the Speed Post article has been received. They have given the sequence of events which reads as under:

Manager, Speed Post Centre, Jaipur G P O through his letter no. S P/ J P/ Jaipur

DCPF case no. 269 of 2011 dated 21.06.2011 has informed this that the above Speed

Post letter, after being entered in the Sitapura Post Office, Jaipur on 23.12.2010 at S

No. 13/123 reached Speed Post Centre/ 2A, Jaipur on 23.12.2010. Speed Post Centre/

1 A, Jaipur on 24.12.2011 and getting entered at S no. 188/ 218 in the Speed Post Bag entered at S no. 5/6-6 was out through JP 26 and through JP 26 out was sent to the

Main Post Office, Alwar on 24.12.2010. The main Post Office, Alwar sent the above

Speed Post letter for distribution to Moti Doongri Post Office, Alwar. Moti Doongri Post

Office, Alwar sent the letter on 29.122010 for delivery to the receiver, which the receiver refused to take. Moti Doongri Post Office entered it in the Speed Post list at no. 19/43 on 29.12.2010 and returned it to the complainant/ petitioner.

The Central Government using the laid down powers in Post Office Act, 1898 (6 of

1898) section – 21 has made the following amendment in Indian Post Office Rule 1933, rule 66 – b, condition 5 (which was published in the Gazette of India dated 21.01.1999 under G S R 40 (E):

- In distribution of domestic Speed Post things, in case of delay according to laid down guidelines from time to time, the indemnifying amount shall be equal to the total speed post charges. According to Business Development Directorate, New letter no. 43-

4/87 – BDD dated 22.01.1999 – in delivery norms published from time to time, as part of money back guarantee, the Speed Post charges paid by the customer will be refunded.

After establishing that the Speed Post article has been distributed late according to laid down guidelines, therefore, under the Department’s Rules under Money Back

Scheme, the Senior Post Master, Jaipur, GPO through his office memorandum no. SP /

J P/ OW

– 4966/ 2011 dated 21.06.2011 issued sanction to give the complainant the

Speed Post charges Rs.25/- after deducting Rs. 2/- service. Rs. 23/- and the Senior

Post Master, Jaipur G P O sent the amount of Rs.23/- at the address of the complainant/ respondent through Reserve Bank of India, Jaipur cheque no. C

– 681 dated 28.06.2011. The complainant/respondent was eligible for getting refund of Speed

Post charges only which the opposition has already paid. Besides this, the complainant/ respondent is not eligible for getting any indemnity from the opposite party no. 1 and 2.

The complainant/ respondent had filed this complaint at the

Hon’ble Court directly. Before this, the complainant/ respondent had not lodged any complaint to the

Postal Department for delay in distribution. If the complainant/ respondent had complained to the Postal Department, then the non-applicant no. 1 and 2 would have tried to redress the complaint according to Department’s rules earlier itself and there would not have been any need to bring this complaint to theHon’ble Court by the complainant/ respondent. Therefore, the complaint of the complainant/ respondent being opposite to the provisions of the Consumer Protection Act, is fit to be dismissed in the first stance itself.

The District Forum vide their order dated 22.02.2012 came to the conclusions that “ in this way, the opponent Postal Department by conveying the above application after the prescribed date, had deprived the complainant/ respondent to appear in the organised competitive examination, as such have defaulted in service against the complainant/ respondent. Therefore, in our humble opinion, the complaint of the complainant/ respondent against the Postal Department has been found fit to be accepted in the following way:

Therefore, it is ordered that the opponent Postal Department, to indemnify the complainant/respondent against the economic and mental agony, shall pay Rs.20,000/- within one month from today. By not abiding the above order in the prescribed time, the complainant/ respondent shall be eligible to obtain the above all amount of Rs.20,000/- along with interest @ 12% per annum from the date of judgment till the date of payment” .

Aggrieved by the order of the District Forum, the petitioner has filed an appeal before the State Commission which was dismissed vide order dated

21.09.2012. Hence, the present revision petition.

The main grounds of the revision petition are as follows:

Section 6 of the Indian Post Office Act, 1898 was interpreted by this Hon’ble Commission consistently in various judgments delivered by it from time to time clearly stipulates that the Government shall not incur any liability by reason of loss, mis-delivery or delay of, or damage to any postal article in course of transmission by post except in so far as such liability may in express terms be undertaken by the

Central Government. It further stipulates that no officer of the Post Office shall incur any liability by reasons of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default.

By posting a letter or handing over a packet at the post office for transmission, the send does not enter into any contract with the Government. In law, the sender really avails of a service statutorily provided by the Government. Although it is true that postage stamps have to be affixed, but that is for augmentation of Government revenue and the same are not in the nature of a price paid for the service as has been held by a

5 Member Bench of the National Commission in Post

Master, Imphal vs Dr Jamini Devi Sagolvad (2000) 1 CPJ 28 and which decision has been followed in various other recent decisions.

The orders passed by the District Forum and the State Commission in the instant case are contrary to provisions of the Indian Post Office Act, 1898 and the Indian Posts

Rules, 1933 besides being in the teeth of various judgments delivered by the Hon’ble Commission in cases involving similar questions of law and facts.

The respondent had booked his Speed Post through the Post

Master, Sitapura Industrial Area, Jaipur and the cause of action in the instant case arose at Jaipur and therefore the District Forum, Alwar had no jurisdiction to entertain the complaint and on that ground alone the orders of the District Forum and consequently the non-speaking order of the State Commission have to be set aside in the interests of justice.

Along with the revision petition, the petitioner has filed an application for condonation of delay of 63 days. The reasons given in the application forcondonation of delay are as follows:

- The State Commission, Rajasthan passed the impugned order on 21.09.2012.

However, the office of the petitioners herein received the order of the State Commission only on 09.10.2012 as there was the Gujjar agitation going on in the State of Rajasthan due to which various State activities and functions were handicapped.

- Thereafter on 01.11.2012, the Chief Post Master General, Rajasthan Circle, after going through the file, requested for legal advice from the Ministry of Law.

- Upon obtaining the legal opinion of the Ministry of Law and considering the question of law involved in the present case, a decision was taken to file the present revision petition.

We have heard the learned counsel for the petitioner and have also gone through the records of the case.

Counsel for the petitioner could not explain the reason for the gap from 09.10.2012 to when the order of the State Commission was received and date on which Chief Post

Master General requested for legal advice from the Ministry of Law on 01.11.2012. The

Counsel could not also explain as to when the said advice was received and the sequence of events between 01.11.2012 to 20.02.2013 when the revision petition was filed. Hence, the petitioner has failed to prove sufficient cause for condonation of delay.

It is indeed surprising to note that in respect of the inordinate delay in delivery of the Speed Post article which had cost an unemployed youth his chances for obtaining a job, the department is trying to get out by paying a paltry compensation of Rs.20,000/- to the respondent. We feel that Rs.20,000/- can in no way compensate the respondent for the lost opportunity. The petitioner would rather seek protection under section 6 of the Indian Post Office Act, 1898. The petitioner is a service provider and the Consumer

Protection Act should be consumer friendly and not one which works against the interest of the Consumer. The petitioner should also see whether it is justifiable and fair to deny paying a meagre compensation of Rs.20,000/- to the consumer by spending far more on legal expenses in fighting the case in different Fora.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is dismissed on merit as well as on limitation with cost of Rs.20,000/-.

Petitioner is directed to pay Rs.10,000/- to the respondent directly by way of demand draft and the balance amount of Rs. 10,000/- be deposited by way of demand draft in the name of “

Consumer Legal Aid Account

” of this Commission within eight

weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.


Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the order dated 22.03.2012 in First Appeal No. 200/2010 of Tamilnadu State


Mr. R Sarto Irudayaraj, 9, Navaneetthamal Street, Ayyavoo Colony, Chennai

– 600029

... Petitioner

Versus

1. M/s. Sivanesan & Co., represented by its Managing Director, Vaikiki Complex,

289, Purasawalkam High Road, Chennai – 600007.

2. M/s. Amara Stores, represented by its Proprietor, No. 29, Pulla Avenue,

Aminjikarai, Chennai

– 600030

…. Respondent(s)

BEFORE







Ms. Asmita Singh, Advocate

Mr. Manoranjan Padhi, Advocate

PRONOUNCED ON : 21 st MAY 2013

O R D E R


This revision petition has been filed against the impugned order dated 22.03.2012, passed by the Tamilnadu State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in FA No. 200/2010 ‘M/s. Sivanesan & Co. & Anr.

Vs. Mr. R. SartoIrudayaraj

”, by which, while allowing appeal against the order dated

02.02.2010 passed by the District Consumer Disputes Redressal Forum, the complaint filed by the petitioner before the District Forum was ordered to be dismissed.

2. The District Forum vide said order had allowed the claim of the complainant and directed the OP to pay a total sum of Rs.55,505/- under various heads.

3. Brief facts of the case are that as per complaint no. 234/2000 filed before the

District Forum, Chennai, by the present petitioner and his wife, the complainants purchased a Premier brand 7.5 litre pressure cooker from M/s. Amara Stores

(respondent no. 2 in the present petition), who is authorised dealer of M/s. Sivanesan &

Co. (respondent no. 1 in the present petition). It has been stated in the complaint that bill no. 31748 dated 31.12.1997 was issued by the dealer and a guarantee card no. 8231400 was also issued by which the manufacturer had issued a guarantee for the product for the period of 10 years from the date of purchase. The second complainant, the wife of the present petitioner was operating the said pressure cooker on 07.09.1999 when the pressure cooker is stated to have exploded and injured the wife of the petitioner badly. The petitioner found his wife lying unconscious on the floor and profusely bleeding all over her face. She was rushed to the nearby hospital where an emergency surgery was done. It has been stated that despite the surgery, the victim did not fully recover from the injury. The petitioner sent a letter dated 6.04.2000 informing respondent no. 1, the manufacturer about the incident and calling upon them to reimburse medical expenses of Rs.35,000/- and a sum of Rs.2 lakh towards compensation. However, vide letter dated 3.05.2000, respondent no. 1 accused the complainants of mishandling the cooker. There was further correspondence between the petitioner and respondents, but of no avail. It is the case of the complainant that the explosion had occurred due to some manufacturing defect in the pressure cooker and hence, the OPs are liable to pay compensation to the complainants for the supply of defective goods. The explosion took place within the period of warranty stipulated by the OPs. They are, therefore, guilty of unfair trade practice and liable to pay the damages to the complainants.

4. The OP No. 1, in their written statement took the stand that the petitioner had not produced the bill dated 31.12.1997 by which the said cooker is stated to have been purchased. The guarantee card produced indicates that the said cooker was of 6 litre capacity. Further, the complainant had earlier stated that the cooker was purchased in

December 1998, but now they were saying that the same was purchased in December

1997. Further, the accident had taken place on 07.09.1999, but a report was made to

the OP for the first time on 06.04.2000, i.e., after an inordinate delay of 7 months. OP also took the stand that from the year 1995 to 2000, they had manufactured about

5,77,974 pressure cookers, which were sold in India and abroad but there was not a single case of explosion reported by any consumer. OP denied any manufacturing defect in the said cooker and stated that the cooker in question had functioned well for

18 months from the date of purchase.

5. The District Forum after taking into account the evidence of the parties, allowed the complaint and directed the OP No. 1/respondent no. 1 to pay a total sum of Rs.55,505/- to the complainants, including Rs.950/- as cost of cooker, Rs.34,555/- as reimbursement of medical expenditure, Rs.15,000/- as compensation for mental agony and Rs.5,000/- towards cost of the proceedings. An appeal was filed before the State

Commission against this order by respondent no. 1 which was allowed by the State

Commission. The order passed by the District Forum was set aside and the complaint was dismissed.

6. It has been observed by the State Commission that the complainant had failed to produce the cash memo for purchase of pressure cooker and it had not been proved that the second complainant sustained injuries because of explosion of cooker. It has also been observed that cooker would have started giving trouble from day first itself, had there been any manufacturing defect. It is against this order of the State

Commission that the present revision petition has been filed.

7. Heard the learned counsel for the parties and perused the material on record.

8. It has been stated by the learned counsel for the petitioner that the said pressure cooker with 7.5 litre capacity was purchased from respondent no. 2 on 31.12.1997, but they had misplaced the bill for the same. However, copy of the guarantee card has been produced before us upon which alth ough the words ‘6 litres’ have been printed, but the figure ‘6’ had been changed to ‘7.5’. Learned counsel invited our attention to the test report given by the laboratory of ‘Bureau of Indian Standards’ on 16.01.2007 saying that the product did not meet various safety requirements, as mentioned in the report. Moreover, it was clear from the ‘discharge summary’ issued by the hospital at

Chennai, in respect of the wife of the petitioner that she was a victim of accidental pressure cooker blast, following which she had to undergo repair of cartilage of the nose

and repair of the lachrymal duet. It is also mentioned in a certificate given by a Doctor that she required further corrective surgery. Learned counsel stated that the explosion had occurred within the warranty period and hence the complainant wereentitled to get compensation from the OPs. The consumer complaint had been filed within time from the date of the incident. It has also been stated that the petitioner’s wife was a homemaker and was accustomed to handling the pressure cookers and hence there was no mishandling on her part. The explosion had occurred due to manufacturing defect only. Learned counsel has also made written submission which is part of record.

9. In reply, learned counsel for respondents stated that information about the said incident which is stated to have taken place on 7.09.99, was given to respondent no. 1 after a lapse of seven months and there was no justification for such inordinate delay in giving this information. Vide their letter dated 6.04.2000, the complainant asked the respondents to inspect the product after explosion, but it sounds quite absurd to do such inspection, after a long period of seven months. The learned counsel has drawn our attention to the terms and conditions as printed on the copy of the guarantee card produced by the petitioner.

One such condition states that, “the guarantee card duly stamped and signed by the dealer along with cash memo should be preserved and produced along with the unit sent to the service centre,otherwise, the claim will be treated as invalid.” In the instant case, since the petitioner have not been able to produce the cash memo for the purchase of pressure cooker, they are not liable to get the claim from the opposite party. The learned counsel further stated that the Technical

Executive of their company,H Sankaranarayanan had filed an affidavit saying that the pressure cooker manufactured by respondent no. 1 conformed to the ISI and

Underwriters Laboratory (USA) standards. The respondent no. 1 was holding licence from the Bureau of Indian Standards (ISI) since 1991 and the said licence was never revoked or suspended any time. Regarding the hospitalisation of the wife of the petitioner, the learned counsel says that she was discharged on 9.9.99, i.e., two days after the admission and hence the petitioner could have given intimation about the alleged incident to the respondents earlier.

10. From a careful consideration of the facts on record and the oral arguments advanced before us, it is quite apparent that there was no valid justification on the part of the complainants to write to respondent no. 1, seven months after the alleged incident. They requested respondent no. 1 to depute a responsible person from their office to inspect the product. They have also called upon them to pay Rs.35,000/- for medical expenses and Rs.2,00,000/- as compensation for ensuing medical treatment and sufferings of the family. No explanation has been offered by the petitioner as to why they could not give intimation to the respondents earlier. It is also quite absurd to ask for inspection of the product after the lapse of such a long time. Further, the cash-

memo as a proof for the purchase of the pressure cooker is a very crucial document in the whole scenario, but the same has not been produced by the petitioner and no reasons have been given as to why it could not be produced. The petitioners earlier gave the version in three letters that the pressure cooker was purchased in December

1998, whereas later on they have been taking the plea that the same was purchased in

December 1997. There is controversy regarding the capacity of the pressure cooker as well. The petitioners say that the pressure cooker was of 7.5 litre capacity, while copy of the guarantee card produced by them has figure ‘6’ printed on the same. It has been argued by the learned counsel for the petitioner that the numeral ‘6’ has been changed to ‘7.5’ in hand, but this version is not clear from a perusal of copy of the guarantee card.

11. It becomes clear from the above facts that the petitioners/complainants have failed to prove that they purchased the same cooker which had exploded. We agree with the arguments taken by the State Commission that a complai nant becomes a ‘consumer’ only, when he proves beyond doubt that the purchase was made by him and the saleconsideration, date of purchase and description of goods is clearly stated. In various letters sent by the petitioner, including the one dated 6.4.2000 sent to respondent no. 1, reference has been made to a cooker purchased in December 1998. However, later on, they have taken the stand that the cooker was purchased in December 1997. The price of the product has not been mentioned anywhere. Even the terms and conditions mentioned on the guarantee card state very clearly that the claim can be treated as valid only if accompanied by the cash-memo. In view of all these facts, it is held that the petitioners have not been able to substantiate their claim against the respondents and the order passed by the State Commission reflects correct appreciation of the facts and circumstances of the case on record. The revision petition, is therefore, ordered to be dismissed and order passed by the State Commission upheld, with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 30.5.2012 in First Appeal No.1580/2011 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

Sh. Jogender S/o Shri Leela Ram Village

– Basana Distt. Rohtak

..…. Petitioner

Versus

1. U.H.B.V.N.L Through SDO, Sub. Division No.4, Rohtak

2. U.H.B.V.N.L Through Executive Engineer Rohtak

3. U.H.B.V.N.L Through Sub. Division Kalanaour District Rohtak

BEFORE:

HON’BLE MR.SURESH CHANDRA, PRESIDING MEMBER

..... Respondents

For the Petitioner : Mr. R.K. Sharma, Advocate

For the Respondents : Mr. S.S. Hooda, Advocate

Pronounced on : 22 nd May, 2013

ORDER

PER SURESH CHANDRA, PRESIDING MEMBER

This revision petition is directed against the impugned order dated 30.5.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula

(‘State Commission’ for short) in F.A. No.1580 of 2011 by which the State Commission, on an appeal filed by the OPs/respondents, modified the order of the District Forum and reduced the amount towards the cost of a buffalo from Rs.50,000/- to Rs.25,000/- thereby reducing the amount of compensation payable by the OPs to the petitioner/complainant.

2. Briefly put, the facts relevant for disposal of this revision petition are that complainant’s two buffaloes got electrocuted when old electric wires belonging to the

OPs fell down on them. One buffalo died on the spot and OPs were approached and police was informed. The cost of the said buffalo as estimated by the veterinary surgeon was approximately Rs.50,000/-. The other buffalo also died subsequently. The petitioner / complainant filed a complaint seeking a compensation of

Rs.1 lakh as the cost of the two buffaloes besides compensation/interest/ litigation expenses of Rs.50,000/-. On appreciation of the evidence and hearing the parties, the

District Forum vide its order dated 30.10.2011 allowed the complaint and directed the

OPs to pay a sum of Rs.1 lakh to the complainant on account of death of his buffaloes.

Aggrieved by this order of the District Forum, the OPs challenged the same before the

State Commission which vide its impugned order partly accepted the appeal and modified the order of the District Forum as stated above. Aggrieved of the decision of the State Commission, the complainant/petitioner has now filed the present revision petition against the impugned order praying for restoration of the order of the District

Forum which awarded the compensation of Rs.1 lakh on account of the death of the two buffaloes to the petitioner.

3. We have heard learned counsel Mr. R.K. Sharma, Advocate for the petitioner and learned counsel Mr. S.S. Hooda, Advocate for the OPs/respondents.

4. The State Commission vide its impugned order having returned its concurrent finding regarding the negligence and deficiency in service on the part of the respondents/OPs, the limited issue for our consideration in the present revision petition is in respect of the quantum of the damages to be awarded to the petitioner. It is seen that the petitioner had filed his affidavit in support of his complaint and it was stated therein that he had purchased a buffalo from one Shri Sita Ram for a sum of

Rs.40,000/- on 1.11.2007. In addition to this buffalo, he was also having another buffalo and he had taken good care of both the buffaloes. He had further submitted in his affidavit that the cost of the buffaloes was assessed as Rs.50,000/- each by the veterinary surgeon in his report and hence he had claimed Rs.1 lakh on account of the cost for the two buffaloes besides other compensation. No other evidence was put forth by the OPs before the District Forum in respect of assessment of the cost of buffaloes.

Placing reliance on the affidavit of the petitioner and the report of the veterinary surgeon, the District Forum awarded an all inclusive compensation of Rs.1 lakh on account of death of the two buffaloes due to electrocution. Perusal of the impugned order shows that there was no other evidence placed before the State Commission regarding the cost/price of the buffaloes. Even then, the State Commission modified the amount of damages on account of cost of buffaloes from Rs.50,000/- to Rs.25,000/- each. While doing so, the State Commission has made the following observations:-

“Accordingly, it is ordered that the complainant is entitled to compensation on account of death of one buffalo only. The

District Forum has awarded compensation of Rs.50,000/- on account of cost of buffalo as assessed by Veterinary Surgeon in his PMR report. However, we are of the view that the cost of the dead murrahbreed buffalo approximately assessed by the Veterinary Surgeon as Rs.50,000/- is not based on any market value rather the same was assessed by way of approximation without there being any evidence with respect

to the cost of the buffalo. We, therefore, feel that the cost of the one murrah breed buffalo of the complainant @

Rs.50,000/- as assessed by the Veterinary Surgeon by way of approximation is on higher side and we reduce the same from Rs.50,000/- to Rs.25,000/-. Thus, the complainant is entitled is entitled to compensation of Rs.25,000/- i.e. the cost of one buffalo.”

5. It is evident from the aforesaid observations of the State Commission that it did not have any particular reason or basis to differ from the finding of the District Forum in respect of the assessment of the cost of the buffaloes. In the circumstances, the impugned order modifying the cost of the buffaloes cannot be sustained and is liable to be set aside. We, therefore, set aside the impugned order and confirm the order dated

13.10.2011 passed by the District Forum which was based on the affidavit evidence of the petitioner and the report of the veterinary surgeon.

6. The respondents are directed to comply with the order of the District Forum within a period of 30 days failing which they shall be liable to pay interest @ 9% p.a. on the awarded amount till the date of actual payment.

7. The revision petition is allowed in terms of the aforesaid directions with no order as to costs.

………Sd/-….……………

(SURESH CHANDRA)


SS/


FIRST APPEAL No 275 of 2007

(Against the order dated 5/4/2007 in Complaint No.55/2004;Karnataka State Consumer

Disputes Redressal Commission,Bangalore)

1. M/s Manipal Hospital Bangalore, (A Unit of Medical Relief Society of South Kanara,

(Regd.), No. 98, Rustom Bagh, Airport Road, Rep. by R. Basil, Chief Executive

Officer Bangalore-56043 i) Medical Relief Society of South Kanara, Manipal EDU, University Building,

Manipal -576104

2. Dr. Meera Ramakrishnan, Pediatrician, Pediatric Intensive Care Unit.

3. Dr. Vasudeva Rao, Vascular Surgeon,

4. Dr. Arvind Shenoy, Consultant Pediatric

5. Dr. Jayanth Iyengar, Pediatric Surgeon

… Petitioners

Versus.

1. Mr. Alfred Benedict,

2. Mrs. Rani Benedict Both residing at No. 18, Trinity Blossom Geddalahalli, Hennur main Road, Bangalore-56043

….Respondents

FIRST APPEAL No 178 of 2008

(Against the order dated 5/4/2007 in Complaint No.55/2004;Karnataka State Consumer

Disputes Redressal Commission,Bangalore)

1. Mr. Alfred Benedict, S/o Mr. Edwin Tobbias No.18, ‘Trinity Blossom’ Geddalahalli,

Hennur Main Road, Bangalore-43

2. Mrs. Rani Benedict, Parents of Sandria Rinu Benedict(Baby Sandria) No.18,

‘Trinity Blossom’ Geddalahalli, Hennur Main Road, Bangalore-43

…….. Petitioners

Versus

1. M/s Manipal Hospital Bangalore, (A Unit of Medical Relief Society of South Kanara,

(Regd.), No. 98, Rustom Bagh, Airport Road, Rep. by R. Basil, Chief Executive Officer

Bangalore-56043 ii) Medical Relief Society of South Kanara, Manipal EDU, University Building,

Manipal -576104

2. Dr. Meera Ramakrishnan, Pediatrician, Pediatric Intensive Care Unit.

3. Dr. Vasudeva Rao, Vascular Surgeon,

4. Dr. Arvind Shenoy, Consultant Pediatric

5. Dr. Jayanth Iyengar, Pediatric Surgeon

….Respondents

BEFORE:

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE Dr. S.M. KANTIKAR, MEMBER

For Appellant : Mr. Vivek Singh, Adv.

For Respondent 1 & 2 : Mr. Joshna Samuel Adv.

Pronounced on ……..May 2013

ORDER


1. Two cross-appeals are filed, namely, First Appeals No. 275 of 2007 and

F.A.178 of 2008, have been filed by M/s Manipal Hospital Bangalore and Mr.

Alfred Benedict and Anr. Opposite Party and Complainant respectively before the

Karnataka State Consumer Redressal Commission, Bangalore (hereinafter referred to as the State Commission) challenging the order dated 05.04.2007 of that Commission. 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. 275 of 2007. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Mr. Alfred Benedict and Anr. will be referred to as “ Complainant” and the M/s Manipal Hospital Bangalore and ors as “ Opposite Party.”

2. Complainants took their two-year-old daughter who was suffering from cold and cough to opposite party No. 4-doctor who advised them to admit her in opposite party No.1-hospital. On admission she was taken to pediatric intensive care unit and diagnosed that she was suffering from cold & cough as well as from pneumonia. She was given intravenous fluids by inserting needle on the dorsal aspect of right wrist from Aug. 26, 2002 to Aug. 28, 2002: however, the baby developed gangrene initially in the finger tips which spread to the portion of the hand below wrist joint due to blockage of blood supply. The complainants further contend that on 29.08.2002 and 30.08.2002, OPs 2 to 4 conducted Angiogram and confirmed that there was complete blockage of blood supply to the right forearm. The Opposite parties conducted operation on the right forearm to restore blood supply but the same could not be restored and, eventually, the daughter of the complainant had to lose her right forearm. It is alleged that the complainants, thereafter, came to know that the needle was wrongly inserted into artery instead of vein due to which the blood supply was blocked. Thus, imputing the opposite parties of negligence and deficiency in service, complaint was filed before the State Commission praying compensation of Rs. 1,00,00,000/- as the complainants’ daughter has to spend the rest of her life without the right forearm.

2. OPs contended that the gangrene of right forearm was due to septic shock. They contend that what happened to the patient in this case was a known complication and it’s not a case of negligence in any treatment given in their hospital. They deny that there was any negligence on the part of the OPs. They also deny liability to pay compensation.

3. The OPs have filed common version before the State Commission contending that at the time of admission in the hospital the baby was not only suffering from cold & cough, but also suffering from pneumonia. It is further contended that the baby was having microcephaly and recurrent seizures and was being seen by Dr. S.R. Suresh Rao Aroor for seizures and developmental delay.

According to the OPs,the baby was also suffering from Pharyngitis. She was found toxic coupled with fever and was having weak cry due to worsening Pharyngitis.

They further contended that she was drowsy, irritable & had developed signs of

Broncho pnenumonia. They have denied that the child was conscious or alert when she was admitted in the hospital; OPs have admitted that when the patient was in

Pediatric Intensive Care Unit (PICU), oxygen was administered and I.V. fluids were administered with intravenous cannula. In the early morning of 27.08.2002, the patient was diagnosed to have metabolic acidosis. Blood pressure started dropping, for which, bolus of normal saline was given. At about 2.30 PM, the patient was seen by OP2 who started the patient on injection dopamine. At 3.30 PM, BP was not recordable by non-invasive means due to septic shock. Hence, right radial arterial line was started by Dr. Sandra and arterial BP monitoring started. Throughout that day, BP remained low and dopamine had to be increased. It is contended that only single use cannula was used for administration of I.V. Fluids and intra radial use.

4. OP-2 has admitted that at about 8.00 AM on 28.08.2002, the right index and little fingers of the patient were found to be cyanosed and swollen. However, they contend that it was noticed by the nursing staff and not by the Complainants.

They further contended that at about 8.10 AM, Dr. Venkatesh on information saw the child followed by OP2 at 10.00 AM and cannula was removed. The patient was referred to the vascular surgeon Dr. Vasudeva Rao-OP No. 3, who examined the patient and advised elevation of the right forearm and infusion of heparin. It is contended that no surgery could be done because it was only the microvasculature that was affected. They further contend that OP3 decided to continue heparinisation and elevation of the limb. Doppler study showed presence of arterial pulsation till the level of wrist. On 29.08.2002, OP3 advised angiography and the same was done by

Dr. Subhash Chandra, a consultant Invasive Cardiologist, which showed no flow beyond the brachial artery. OP No 3 contended that it was due to intense spasm of all the vessels and an aberrant right sub clavian artery; and that after injecting vasodilators (Pepaverine and Nitroprusside), some flow was seen in the radial and

ulnar arteries and palmar arch and situation was duly explained to the Complainants by OP3. Fasciotomy was also done on 29.08.2002 which means opening up of the covering of the muscles of the arm in order to relieve pressure and to establish better blood supply. OPs, however, contend that there was no question of any situation for amputation. On 30.08.2002, the patient was seen by OPs 2 & OP-5 being a consultant pediatric surgeon; having gone through the records, advised to do Right Cervical Sympathetic Nerve Block was performed in consultation with Dr.

Parameshwara, Consultant Anesthetist. Following this, there was improvement in the cold area of the upper arm, which became warm below the elbow. The procedure was repeated on 31.08.2002.The patient was managed conservatively till the line of demarcation became apparent. On 14.12.2002 the complainants had informed OP5 about the falling of the gangrene part. The patient was brought to OP5 who noticed that a little edge of bone was jutting out. The patient was readmitted on

16.12.2002 and dressing was done. Subsequently, the patient was regularly seen by

OP5 and the wound was dressed regularly till it healed fully. The OPs contend that it was unfortunate that complications had taken place and the patient was being resuscitated for septic shock which could have been fatal.

5. The State Commission after hearing the parties and on the basis of evidence produced before it allowed the complaint by observing as follows:

I.“According to the OPs, the gangrene that affected the right fore arm of the child had nothing to do with the Hospital or the Doctors or the treatment given by them and it was due to septic shock. But, OPs have made an attempt to improve their case in the affidavit filed by OP4-Dr. Aravind Shenoy, who, at para 21 of his affidavit has stated that infection which started with Pharyngitis spread to the lungs to cause pneumonia and subsequently increased so much resulting in the fall of blood pressure. When blood pressure falls, blood supply to non-vital organs other than the brain, heart & kidneys is reduced or cut off resulting in the severe reduction of blood supply to the limbs. If the reduction in the blood supply is very severe as it was in this case, as proved by Angiography, gangrene could occur in spite of all possible measures, which were very promptly taken by the concerned specialists in the Hospital. Such instances though rare are known. This case is one such typical case where despite best efforts of the

Doctors, limb could not be saved.

II.

OPs have not produced expert evidence or medical literature to show that this explanation is acceptable. The OPs, therefore, have failed to rule out the possibility of having caused cyanosis on account of cannulation or arterial invasion. This is a case where res ipsa loquitor applies. We, therefore, hold that the treatment given to the baby Sandria at OP1 hospital suffers for want of proper care and in other words, the treatment was deficient.

III. Cannulation and arterial invasion was done as per the advice of OP2. There is no clear cut evidence as to who exactly was the person who did the cannulation and arterial invasion, because that was done in the ICU and the

complainants being the parents of the child were outside the ICU. However, OP1 being employer is vicariously liable for the negligence committed by the doctors and the nursing staff working in the hospital.

The complainants have claimed compensation of Rupees One Crore under various heads. According to the complainants, they and the child have suffered physically

& mentally and also incurred heavy expenses for the treatment of the child. They have produced bills, which are marked as Ext. C3, which go to show that they have spent more than Rs. 1,10,000/- for the treatment of the child. They have also produced at Ext. C13, a letter from Otto Bock Health Care, which shows that more than Rs. 12.00 lakhs are required for providing artificial limb to the child who has lost the right fore arm.”

6. State Commission in the order dated 5/4/2007 therefore directed the opposite party No.1 to pay Rs.500000/-to the complainants which shall be spent for the rehabilitation of baby Sandria by providing artificial limb and proper education and care. OP-1 was further directed to pay Rs.10000/- to the complainants towards the cost of litigation. Order be complied within 30 days failing which the same shall carry interest @ 10% p.a. from August

25,2004 till the date of payment.

7. Against the order of State Commission two separate appeals have been filed. Appeal FA No.275/2007 is filed by the respondents in which they have challenged the order of State Commission. The complainant filed appeal FA

No 178/2008 for enhancement of compensation amount. Both the appeals are disposed of by this single order.

8. Learned Counsel for opposite party essentially reiterated the facts as stated by them in the rejoinder filed before the state commission. We have carefully gone through the evidence and records of PICU made on 26-28 August 1993, which has brought some element of suspicion in our mind about the treatment of baby Sandria.

It is not disputed that Baby Sandria was admitted in PICU under treatment of

OP 2-5 for treatment of Pneumonia and who subsequently suffered septic shock. It is apparent that patient required an immediate attention and proper care. The medical record placed on file shows that patient was on IV lines,

Oxygen supply and Blood pressure monitoring. Therefore, at this juncture it important to discuss;

Why gangrene had developed only in the Right hand?

Was there any negligence by the OPs in PICU?

Whether OPs failed in performing their duties as per standards of medical practice?

Could it be labeled as a medical negligence?

Point No.1: As contented by OP-3 that during septicemia, when blood pressure falls, blood supply to non-vital organs other than the brain, heart & kidneys is reduced or cut off resulting in the severe reduction of blood supply to the limbs. For recording of Blood pressure the OP performed Rt radial artery cannulation; but they have ignored that the use of arterial catheter may contribute mechanical obstruction to the blood flow also. Therefore, only the right hand in which cannulation was performed showed gangrenous changes and other limbs did not show any signs of gangrene even-though there was of severe reduction of blood supply.

Point No.2: The records show that the right hand was swollen; but the reason for it was not recorded in the case sheet. As per medical literature during septicemic shock; there will be severe collapse of peripheral veins and therefore it will be difficult to administer the IV fluids. The baby Sandria was in septicemic shock and was advised several IV medications. Due to collapsed veins it was difficult to locate veins despite several attempts, and such multiple pricks led to rupture of veins or small arteries of the right hand during

IV medication. In such instance infusion of fluid in subcutaneous tissue instead of veins leads to swelling of hand.

Point No.3: Radial arterial cannulation procedure itself needs expertise and it should be performed by a doctor who has expertise and experience in such procedures. As per the standards of medical practice, it the duty of a doctor to maintain all the records in detail pertaining to treatment, any procedures, interventions under his signature as to time, name of person performing the procedure, site of cannulation, technique of puncture (transfixation/direct fixation technique), method adopted, the size and type of cannula/catheter

(teflon or polypropylene) etc.

Though the OP 2 contended in her version that with her advise Dr.Sandra started Rt radial artery line but, we did not find any cogent evidence or any entries in the case sheet about the procedure performed by Dr.Sandra. The complainants being the parents of the child were outside the ICU. Therefore, who exactly was the person who did the radial artery cannulation in the ICU is matter of concern. Hence, we can reach the conclusion that the nursing conducted the radial arterial cannulation.

Point 4: Furthermore, OPs contended that, due to septicemia baby

Sandria’s Blood pressure (BP) was not recordable therefore Right Radial

Arterial line was started to monitor the blood pressure (BP) of patient. Since, that Manipal Hospital is one with international standards having sophisticated

ICU infrastructure etc. It is expected that , the PICU will have facilities like

Multi-parameter monitors (which can record ECG, Pulse, SPO2, Invasive BP recording graphs etc). As the patient was in PICU on admission it is more surprising that OP did not produce any acceptable records like the ICU electronic BP recording graphs/ charts, Pulse oxymeter/SPO2/ABG records.

We have observed the manual recordings made in continuation sheets, which are not a substitute for automatic electronically monitored records like graphs, printouts or photographs. Such manual records can be created any point of time.

Point No 5: Early recognition of gangrene is the most important means to reduce permanent injury. The patient herein was catherised in the afternoon

at about 3 pm and next day morning at 8 am the hospitals staff noted the bluish discoloration of fingers i.e. after 17 hrs. Throughout night, if the PICU staff would have vigilant such delay would have been prevented. Transient blanching and cyanosis of the lower extremeties are the most common ischemic manifestations and should serve as a warning sign and an indication for catheter removal In our opinion to prove their case the Ops failed to produce several concrete records pertaining to hand Doppler study and

Angiography study by the way of graphs, printouts etc. Even we did not see the detailed procedural aspects of Cervical Sympathetic Block or Fascioctomy which the respondents performed. The entries made in the progress sheet should be supported by proper records, printouts, graphs or films etc.

We have relied upon several medical texts, literature and reviews:

In the article titled “Radial Artery Cannulation: A Comprehensive Review of Recent Anatomic and Physiologic Investigations ” (Anesth An alg

2009:109:1763-81) it is clarified that the radial artery is the preferred site for arterial cannulation as it has consistent anatomic accessibility, ease of cannulation and low rate of complications. A combination of profound circulatory failure, hypotension and high dose vasopressor therapy may increase in the risk of hand ischemia , the Table No 6 of the article also highlighted the several risk factors assessment before radial artery Catheter

Placement (catheterization).

Under the heading of catheter and placement technique the related risks are stated as:

Inexperienced operator

Hematoma at punctured site

Vasospasm of radial artery precipitated by manipulation of catheter

Other factors like-

Number of puncture attempts

Large indwelling catheters(> 20 guage)

Polypropylene catheter (In comparison of teflon catheter)

Female gender

Infiltration of local anaethetic aroud radial artery precipitating vasospasm

Transfixation cannulation technique(In comparision to direct puncture cannulation technique).

Recannulation of previously cannulated artery.

In another review article published in The South African Journal of

Critical Care, Vol. 4, No.1,1998 titled “Complications Of Arterial

Lines” discussed.

The various complications of arterial lines discussed in this review should be incorporated into management algorithms for critically ill patients.

Complications of arterial monitoring lines are uncommon but can produce serious morbidity. Constant awareness and early recognition are the key to reducing this morbidity. Arterial cannulation for pressure monitoring and blood gas analysis is a common procedure in critically ill patients. The radial artery is the most frequently used, but other arteries are also used.

Hand Ischemia Following Radial Artery Cannulation:-

Prolonged cannulation, Catheter size and, arterial and the insertion technique have been implicated as predisposing to ischaemia. Thus, the femoral artery has been recommended for prolonged catheterization. In the shocked patient on vasoactive drugs, where radial artery catherization carries a high risk of ischaemia the femoral artery may also prove safer.

Whenever the question of ischaemia arises, prompt removal of the catheter is mandatory, as these changes are often reversible after decannulation.. The usual tendency is to temporize and treat the patient conservatively because spontaneous recannalization of the thrombosed artery can be expected. Proximal intra-arterial injection of papaverine or reserpine and sympathetic ganglion blocks have been tried in attempts to overcome peripheral vasoconstriction, which is, believed to contribute to ischaemic damage. Intravenous heparin and dextran have also been used.It is unclear whether these empirical measures are of any benefit.

In a Case report cited in S.Afr Med J 1985;68;491-492 titled as Gangrene of the hand and forearm after inadvertent intra-arterial injection of pyrazole : explains about ;

The inadvertent intra-arterial injection of solutions meant for intravenous use results in arterial injury, a situation which is being recognized with increasing frequency. In recent years, many reports describing one or several cases of intra-arterial injection of various drugs have underlined the disastrous effects. Prevention of intra-arterial injections is of paramount importance.

9. The OPs did not substantiate their ground to prove their contention that there was no negligence because it appears they have not followed the standards of medical practice when conducting the arterial cannulation on the patient.

10. The principles of what constitutes medical negligence is now well established by number of judgments of this commission as also the Hon’ble

Supreme Court of India, including Jacob Mathew vs. State of Punjab [(2005)

6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC

651]. One of the principles is that a medical practioner 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 forgoing paragraphs that a reasonable degree of care was not taken in treatment of patient in PICU.

11. Medical records revealed that patient was on higher antibiotics and several IV medications. We have referred to medical literature, which clearly state that inadvertent intra-arterial injection in the radial artery was the main cause of gangrene of the hand or fingers. It is also to be noted that the Right little finger also showed signs of gangrene. Thus, there was also injury to ulnar artery. The swelling of the right hand is due to multiple pricks for IV lines and further damaging the arterial circulation. We, therefore, hold that due care was not taken during the invasive procedure i.e. Right radial arterial cannulation to baby Sandria in PICU which ultimately resulted in gangrene. This clearly constitutes medical negligence and deficiency in service.

12. Therefore on the basis of medical texts and reviews on the arterial cannulation it is apparent, as stated earlier that not maintaining proper records of invasive procedures, charts, graphs is the deficiency in medical treatment. Apart from this the doctors from appellant hospital have not able to explain how the gangrene of Right hand occurred. Therefore the instant case is case of res ipsa loquitur where medical negligence is clearly established and for which OPs are liable. OP1 being employer is vicariously liable for the negligence committed by the doctors and the nursing staff working in the hospital.

13. In the first appeal 178/2008 the complainant prayed for enhancement of compensation. We agree that complainant suffered mental agony and spent more than Rs.1,10,000/- for the treatment of the child as bills produced. Considering the facts that the child has to spend the entire life without her right forearm, we feel that interest of justice requires that compensation of Rs. 5,00,000/-, in the least, has to be granted in favour of the complainant.We therefore, agree with the order of State Commission and up hold the same and pass the ORDER as follows:

The present both the appeals FA No.275/2007 and FA No. 178/2008 are dismissed. The Appellants are directed to pay Rs.500000/-to the complainants which shall be spent for the rehabilitation of baby Sandria by providing artificial limb and proper education and care. OP-1 was further directed to pay Rs.10000/- to the complainants towards the cost. Order be complied within 45 days failing which the same shall carry interest @ 9% p.a. from the date of this order till the date of payment.

…..…………………

(ASHOK BHAN J.)

PRESIDENT

…..………………..

(VINEETA RAI)

MEMBER

…..…………………

(Dr. S. M. KANTIKAR)

MEMBER



(From the order dated 09.08.2012 in F.A. No.1996/2005 of the Rajasthan State


1. Dr. Suresh Gupta Liberty Hospital, O-18, Durga Path, Ashok Marg, C-Scheme,

Jaipur, Rajasthan

2. Dr. Smt. Suman Rawat, Managing Director, Liberty Hospital, O-18, Durga Path,

Ashok Marg, C-Scheme, Jaipur, Rajasthan

3. Dr. Sudhir Bansal, Surgeon, Liberty Hospital, O-18, Durga Path, Ashok Marg, C-

Scheme, Jaipur, Rajasthan

4. Dr. Mradula Kulsrestha, Liberty Hospital, O-18, Durga Path, Ashok Marg, C-

Scheme Jaipur, Rajasthan

.

………Petitioner(s)

Vs

Vinod Kumar Rawat S/o Shri P.K. rawat, R/o 34/378 Pratap Nagar, Sanganer, Jaipur,

Rajasthan

…….. Respondent(s)

BEFORE :



For the Petitioner : Ms. Aishwarya Bhati, Adv.

Mr. K. Singh, Adv.

For the Respondent : Mr. Naresh Chandra Goyal, Adv.

Pronounced on ….. May, 2013

ORDER


1. The Petitioners have filed the instant Petition under Section 21(b) of the

Consumer Protection Act, 1986 against the impugned order dated 09.08.2012 passed by the Hon’ble State Consumer Disputes Redressal Commission,

Rajasthan, Jaipur in Appeal No. 1996 of 2005.

2. The brief facts ;

On 24.06.1999 a notification was issued in a newspaper by the Liberty hospital for conducting free camp for laparoscopic operations in the liberty hospital by the

Petitioners (doctors) from 4 th July, 1999. The complainant’s wife Suman Rawat ( in short Suman) after consultation with the respondents/ petitioners (herein as the petitioners’) operated on 4/7/1999 for stone in the gall bladder. Soon after the operation, the wife of the complainant died and the complainant filed a

complaint No.671/2005 before the District Consumer Disputes Redressal Forum

II, Jaipur ( in short as District Forum) which was dismissed vide order dated

26.10.2005.

3. Against the order of District Forum the complainant preferred an appeal before

State Commission on the ground that the learned District Consumer Forum erred in exonerating the respondent doctors without considering medical board report which clearly shows the negligence and carelessness by doctors leading to death of his wife during and after operation.

4. The State Commission after hearing counsel of both parties and relying upon the report of medical board held the respondent doctors for medical negligence.

The State Commission in it’s relevant observation stated in ;

Para 6. “Though no post-mortem was done on the deceased, but from the report of the Medical Board, which is prepared on the basis of bed head ticket and other documents submitted by the hospital, it is evident that no conclusive or specific cause of death has been assigned in the matter and three possible causes of death i.e.

(1) Intra-abdominal hemorrhage

(2) Acute Massive myocardial infarction

(3) Choking of the respiratory passage due to aspirated vomiting.

On the basis of the report of Medical Board, it appears that patient Smt.

Suman Rawat died about two hours after the operation at around 2.15 a.m. and before the death, she complained a nausea, vomiting and slight pain at

2.20 a.m. the report of the Medical Board also suggests that there was great disparity in medical case sheet record i.e. the Bed Head Ticket and the patient was not adequately assessed properly in view of mildhypertension, mild cardiomegaly and changes for ECG, which reflects that the non-petitioners were thoroughly careless and negligent in assessing the fitness of the patient for surgery. There is no evidence to show that the patient died of intra-abdominal hemorrhage or acute massive myocardial infraction but in the other hand, it is evident from the report of the Medical

Board that the patient had vomiting just before her death and which resulted in choking of respiratory passage. This possible cause of death has been mentioned in the report of the Medical Board and this fact is also corroborated by the fact that the patient had vomiting just before her death.”

Para 8 :

“the report of the Medical Board clearly shows that bed head ticket did not mention that who attended the patient, when she complained of pain and vomiting and no details of post operative care were mentioned in it. The bed head ticket also showed that the patient was again taken to the operation theatre one hour after the death, but no reason was assigned for shifting the patient to the operation theatre. Thus, from the report of the

Medical Board, it is evident that the non-petitioners were grossly careless and negligent before, during and after operation of Suman Rawat, the deceased. Pre-operative negligence and carelessness of the non-petitioners is also clear from the report of the Medical Board which reveals that she was not adequately and properly assessed for hypertension, cardiomegaly and ECG changes and after operation she was not taken care of properly by the doctors”.

The State Commission allowed the appeal and awarded Rs.10 lacs as compensation and Rs.25,000/- as a cost to the Complainant.

5. Hence, aggrieved by the order of State Commission the present revision.

6. We have heard the learned counsel of both sides who argued vehemently argued and reiterated the submissions made before the State Commission . We have perused the evidence on file and referred several medical texts.

7. It was admitted fact that, on 4/7/199 at 6pm patient Suman admitted in Liberty

Hospital for laparoscopic cholecystectomy (removal of gall stones). On same day she was operated in late night between 11.30 pm to 12.15 am.

We have noted the chronology events in this case were as;

Petitioner (OP1) operated the patient from 11.30pm to 12.45 am under general anesthesia. At about 2.20 am the patient complained of nausea and vomiting, slight pain at operated site, thereafter, at 2.30 am copious vomiting and breathlessness for which the duty doctor administered inj.

Atropine, phenergan, dopamine and Oxygen; but condition deteriorated and subsequently patient died at 2.55 am.

8. The OP contended that patient died due to known complication of surgery and anesthesia i.e. postoperative vomiting and aspiration pneumonia. The Post mortem was not conducted as the complainant and relatives were satisfied with the cause of death; therefore took the body for cremation. After gap of 2

½ months i.e. on 25/9/1999 filed FIR No 202/90 in Ashok Nagar Police Station,

Jaipur with the allegation of medical negligence by the OPs. On request of SHO,

Police Station Ashok Nagar, on 1/11/1999 the Medical Board issued the a report.

9. The medical Medical Board comprised of the seniors like Dr.D.K.Khandelwal

,Professor and Head of Department of Surgery and Dr.A.P.Veram,Professor of

Anesthesia Dept. in SMS Medical College,Jaipur and others. They verified all the concerned hospital records of deceased Suman including lab , ECG,X ray and ultrasound reports. Also verified the FIR and death certificate. The medical board concluded with following discussion: i) It appears that the deceased Smt. Suman Rawat was not adequately

assessed properly in view of

- Mild hypertension

- Mild Cardiomegaly

- ECG changes ii) She was admitted on 04/07/1999 at 6 p.m. and thereafter she wanted to leave for home and come next morning. What was the emergency under which she was operated in the night? (No evident on record) iii) Whether the patient was fasting or not – not evident from record iv) Whether hemodynamic monitoring/cardiac status during operation was done- not evident from record.

v) Two LSCS with big hernia B/L divarication of recti makes the laparoscopic cholecystectomy relatively contraindicated.

vi) The dead body was not sent for post-mortem for examination by the police.

vii) The possible causes of death could be a.

Intra-abdominal hemorrhage b.

Acute massive myocardial infarction.

c.

Choking of the respiratory passage due to aspirated vomits.

10. The Learned Counsel for the petitioners argued that cause of vomiting was due to taking of food after operation by the patient against the advice of the doctors.

As the operation was performed at around 11.30 p.m. on 04.07.1999 and it might have taken around one hour in the surgery, but soon after shifting the patient from the operation theatre to the ward, she complained of pain and she also vomited. We rely upon the medical texts as the patient during recovery after general anesthesia usually has nausea and vomiting. Hence, the OP’s contention was quite impossible for the deceased to take food Roti Sabzi soon after the operation, which was still under influence of anesthesia and not recovered completely. Hence we do not agree with such the allegations of petitioner and not acceptable which are false. The patient was shifted to the ward after surgery; but it is pertinent to note that the nursing staff in ward was not vigilant in monitoring the post-operative patient . Also, there was no other evidence to show that the patient took any food soon after her operation. So relying of the words of the OP that she was given bread and butter by the husband is totally unacceptable.

11. Even if we consider that, the petitioners did not charge any fees from the complainant for the operation of his wife, but no evidence has been produced by

Liberty Hospital that it provides free medicines for all patients, therefore, in absence of this if charges are recovered from some of the patients and not all patients are treated free. The OP has charged for certain laboratory tests, Ultra sound ECG investigations. This has been well established by decisions of

Hon’ble Apex court in Indian Medical Association Vs V.P.Shantha

[(1995)

6SSC 651]. Therefore in our opinion patient is consumer under CP Act 1986.

12. It is pertinent to note that on filing of FIR; the Medical Board was constituted in

November, 1999. The entire record which was in the custody of the OP was called. The Medical Board pointed out number of discrepancies in the record which have caused death of the wife of the complainant.

13. We are in opinion that the conduct of OP is questionable on following points; i) The OP advertised for Free Surgical Camp which ought to have fixed timings. The deceased Suman was not an emergency patient to be operated. The medical board made the observations that patient under her signature on 4/7/99 stated on BHT as “Hum ghar ja rahe hain, subah aa jayenge” . Despite this request , the OP operated her in late night in odd hours. OP should have performed the said operation on next day morning. It appears fishy that What was the intention and hurry for the OP conducted such operation at

00.00 hrs? ii) Medical board also made a reference of “There was no record about pre-anesthetic fitness , or any operative notes. iii) After operation OP should have monitored patient during recovery phase from anesthesia. But, it is careless attitude to send patient to the ward without any proper assessment; this is a negligence. The OPs did not perform their duties with reasonable prudence which resulted in to death of complainant’s wife Suman. iv) The conduct of OP again made us suspicious that the patient

Suman died at 2.55 am on 5/7/1999. The OP forcibly sent the dead

body in the ambulance during the night itself to the residence of the complainant. The respondent did not inform the police and did not get the Post mortem done. It was the bounden duty of hospital to report the police for such unnatural deaths and PM should be conducted. This is a deficiency in service and negligence by OP. v) Therefore, it is pertinent that because of such negligence there is every possibility that “ cause of death could be Intra abdominal hemorrhage/ Acute massive myocardial infarction/Choking of the respiratory passage due to aspirated vomitus” as stated by Medical Board.

14. Moreover, the entire record reveals that the deceased was in good health. Her lab reports, x ray, ECG reveal that she was not suffering from any decease except from gall stones ( chronic cholecyctitis with cholelithiais.) It is well settled that it is the Complainant who is to carry the ball in proving that there is initial negligence on the part of the Doctors. However, in the case a healthy woman, who remained fit till eleventh hour, how could she die? Certainly, the onus of proof shifts to the OPs. The cause of her death was not known; but the medical board in their opinion clearly mentioned three possibilities for death as discussed in previous para. Hence, Anesthetist and the Surgeon are liable. This is an admitted fact that the lady had walked to the operation theatre of her own, without anybody’s help.We agree that the submission made by the Counsel for the Complainant that this is a clear dereliction of duty by all OPs.

15. Hon’ble Supreme Court laid down the principles of what constitutes medical negligence is now well established by number of judgments of this commission as also the Hon’ble Supreme Court of India, including Jacob Mathew vs State of Punjab [(2005) 6 SSC 1] and in Indian Medical Association Vs

V.P.Shantha

[(1995) 6SSC 651]. One of the principles is that a medical practioner 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).

16. According to Halsbury’s Laws of England, 4 th Edition, Re-Issue Vol. 30(1) Para

197 to establish liability on that basis, it must be shown:

- that there is usual and normal practice;

- that the defendant has not adopted it; and

- that the course of fact adopted is one and no professional man of ordinary skill would have taken had he been acting with ordinary care.

17. An quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J in Bolam Vs. Friern Hospital Management Committeee, WLR p.586 in the following words-(ALL ER p.121 D-F)

'Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not this special skill. ... It is well-established law that it is sufficient if he exercises the ordinary competent man exercising that particular art’

Further, in Para 20, the Court cited with approval that:

The water of Bolam test has ever since flown and passed under several bridges, having been sited and dealt with in several judicial pronouncements, one after the other and has continued to be well-received by every shore it has touched as a neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley Vs. Binnie summarized the

Bolam test.

18. In this context we rely upon few authorities of Hon’ble Supreme Court and this commission.

In Post Graduate Institute of Medical Education and Research, Chandigarh,

Vs. Jaspal Singh & Ors., II (2009) CPJ 92 (SC)=(2009) 7 SCC 330, it was laid down that the failure to perform the duties with reasonable competence amounts to negligence.

In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka &

Ors., II (2009) CCR 61 (SC)=III (2010) SLT 734=(2009) 6 SCC 1, it was held that once the initial burden has been discharged by the Complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital and the attending doctor to satisfy the Court that there was no lack of care or diligence. Same view was taken in Smt. Savita

Garg Vs. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004)

SLT 385=AIR 2004 SC 5088.

In the original petition No170/1999 decided on 6/2/2013 in the case Prem

Prakash Rajagaria Vs Nagarmal Modi Seva Sadan & ors; I(2013)CPJ

672(NC) Hon’ble Mr. Justice J.M.Malik held the Opposite parties jointly and severally liable for medical negligence due to dereliction of duty by OPs.

19. Therefore, considering all evidence on record and above discussions we are in firm opinion that the petitioners/OPs have to be held guilty of medical negligence

/deficiency in service on several counts as mentioned above. They are negligent in performing their duties and lack in the standards of medical services. The

OPs are liable for the deficiency in service causing death due to medical negligence in treatment and care.

20. The compensation awarded by State Commission is just and proper; therefore the present revision petition is dismissed. The petitioners are directed to comply the order of state commission in to- to within two months; failing which it will attract interest @ 9% till the date of recovery.

..…………………..………

(J.M. MALIK J.)

Mss


……………….……………

(S.M. KANTIKAR)

MEMBER



(Against the order dated 28.11.2007 in CC No. C-305/1998 of the Delhi State Consumer

Disputes Redressal Commission)

1. G.K. Sabharwal

2. Smt. Jaishree Sabharwal Both r/o A-3/78, Varun Aptt. Plot No.12, Sector-9, Rohini

Delhi-110085

… Appellants

Versus

1. Dr. Satish Virmani, MBBS Clinic-QU 69-A, Pitampura Delhi-110034

2. Dr. Rajiv Chawla, MD Consultant Physician Cardiologist 180, Jai Apartment, Sector-9

Rohini, Delhi-110085

3. Santham Hospital D-5, Prashant Vihar Outer Ring Road Delhi-110085

4. Dr. Randhir Sood Gastroenterologist Sir Ganga Ram Hospital Rajinder Nagar New

Delhi.

5. Sir Ganga Ram Hospital Rajinder Nagar New Delhi

… Respondents




1. Dr. Rajiv Chawla, MD Consultant Physician Cardiologist 180, Jai Apartment, Sector-9


2. Santom Hospital D-5, Prashant Vihar Outer Ring Road Delhi-110085

… Appellants

Versus

1. G.K. Sabharwal & Smt. Jaishree Sabharwal A-3/78, Varun Aptt., Plot No.12, Sector-9


2. Dr. Satish Virmani, MBBS Clinic-QU 69-A, Pitampura Delhi-110034

3. Dr. Randhir Sood Gastroenterologist Sir Ganga Ram Hospital Rajinder Nagar, New

Delhi

4. Sir Ganga Ram Hospital Rajinder Nagar, New Delhi

… Respondents

BEFORE:



For Appellants in FA/65/2008 : Mr. Sunil Malhotra, Advocate with

& R-1 in FA72/2008

For Appellants in FA/72/2008 & R-2

& 3 in FA/65/2008

Mr. G.K. Sabharwal (in person)

: Mr. Neeraj Jain, Sr. Advocate with

Ms. Roohi Kohli, Adv. and

Mr.Pradhan, Advocate

For R-1 in FA/65/2008 &

R-2 in FA/72/2008

For R-4 & 5 in FA/65/2008 &

R-3 and 4 in FA/72/2008

Pronounced 22 nd May, 2013

ORDER


: Mr. Vipin Jai, Advocate

: Mr. Subhash Kumar, Advocate

1. First Appeal No. 65 of 2008 has been filed by Shri G.K. Sabharwal and another,

Original Complainants 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 granted them lesser compensation of Rs.50,000/- and Rs.10,000/- towards litigation costs against their claim of Rs.20,00,000/- and dismissed the complaint of medical negligence against OPs No.1, 4 and 5.

First Appeal No. 72 of 2008 has been filed by Dr.

Rajiv Chawla and Santom Hospital, OPs No. 2 and 3 before the State Commission, being aggrieved by its order holding them guilty of negligence in not conducting proper investigations in the medical treatment and directing them to jointly and severally pay the Complainants a lump-sum compensation of Rs.50,000/- alongwith Rs.10,000/- as costs. Since the facts and the parties in both appeals are common arising out of the same consumer complaint, it is proposed to dispose of these appeals by a common order by taking the facts from First Appeal No. 65 of 2008. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Shri G.K. Sabharwal and Smt. Jaishree Sabharwal as Complainants,

Dr. Satish Virmani as OP-1, Dr. RajivChawla as OP-2, Santom Hospital as OP-

3, Dr. Ranghir Sood as OP-4 and Sir Ganga Ram Hospital as OP-5.

2. In their complaint before the State Commission, Complainants had contended that their daughter Miss Sonal Sabharwal (hereinafter referred to as the Patient) aged about 19 years was running a fever of 103 on 03.10.1997 and was taken for medical treatment to one Dr. Satish Virmani/OP-1, who gave her medication and advised blood tests for Malaria, Hepatitis, Typhoid etc. The tests were negative for

Malaria, Bilurubin as also Typhoid but since platelet counts were below normal limits,

and Patient’s condition did not improve, OP-1 advised Complainants to take her to OP-

2, who was a Specialist. After examination of the Patient, OP-2 advised the

Complainants to admit the Patient to Santom Hospital/OP-3 for necessary investigations and treatment. It was contended that although the blood tests conducted there were again negative for Malaria, all other symptoms, including very low platelet counts and high temperature were clearly indicative of Malaria but OP-2 did not give any medication for Malaria and on the other hand diagnosed it to be a case of viral hepatitis, for which treatment was given to the Patient till she was shifted to Sir Ganga Ram

Hospital/OP5. Even in that hospital, there was delay on the part of OP-4 (Doctor of OP-

5/Hospital) in starting the treatment since the Patient was brought at 8.30 a.m. on

07.10.1997 and by the time her treatment was started, her platelet counts had come down to 48000. She was detected with Cerebral Malaria at a very late stage and even though Mefloquin was administered, it was too late. Patient was not put on life support nor was she taken to ICU. Because of the negligence on the part of all the OPs, the

Patient could not be saved. Being aggrieved, Complainants filed a complaint before the

State Commission requesting that they be awarded compensation of Rs.20,00,000/- with interest @ 24% per annum from the date of death of the Patient till realization for the irreparable loss suffered by them.

3. OPs on being served filed their written rejoinders. OP-1 contended that he had treated the Patient only for one day and after giving the required medication and advising blood tests immediately referred the Patient to a Specialist namely OP-2. OP-

2 contended that he first saw the Patient on 05.10.1997 and since he was only having a consulting chamber without the required facilities for investigations and tests, he referred her to OP-3/Santom Hospital, where all the necessary investigations/tests were carried out. It was contended that the Patient had told OPs that she had gone to different hospitals and had completed a full course of anti-malaria (Chloroquinine) at

Mangalore. OP-2 further got conducted several investigations both clinical and diagnostic, including three consecutive slides for Malaria, which indicated that it was negative for the same. In this background coupled with gradually increasing Bilurubin levels, low platelet counts and with an ultrasound abdomen report

suggesting viral hepatitis and encephalopathy, medical treatment was accordingly started. Further, that the clinical symptoms of the Patient were not peculiar to Malaria and could occur in a number of other illness including viral hepatitis, viral encephalitis, dengue fever and enteric fever and in view of these facts and since all 3 slides were negative for Malaria, there was no reason to suspect that Patient had

Malaria.

However, when the Patient’s condition did not improve, a Specialist

Gastroenterologist was called and on his advice to rule out Malaria or Encephalitis

Patient was immediately referred to OP-5/Hospital, which is a superspeciality hospital with advanced facilities. OP-4 (a Doctor of OP-5/Hospital) also denied any deficiency or negligence on their part. It was stated that Mefloquin, which is safe drug of choice, was immediately administered when the Patient was detected with Cerebral Malaria following a series of tests, including blood tests. There was no need for any life support equipments or ICU care since the only life-saving drug available for Cerebral

Malaria had been administered to the Patient. The Patient remained in OP-

5/Hospital for only one day before she passed away.

4. The State Commission after hearing the parties and on the basis of evidence produced before it, concluded that OPs 1, 4 and 5 who had treated the Patient for only one day each were not guilty of medical negligence. However, the State Commission found OPs 2 and 3 guilty of medical negligence in not conducting proper investigations by observing as follows :

“28. … At no stage the patient had full course of antimalarial chloroquine when she was brought to OP No.2 and 3. Any reference in this regard is of doubtful nature as OP No.2 and 3 should have ensured that patient had full course of anti-malarial chloroquine on perusing the previous prescription. Thus OP No.2 and 3 are guilty of negligence in either not conducting the tests properly or not giving the proper treatment.

31. In the result, we find only OP No.2 and 3 guilty for negligence in not conducting proper investigation by believing though it was emphatically denied by complainant that the deceased had already taken anti-malarial treatment and not giving the proper and requisite treatment. In the given facts and circumstances of the case we deem that lumpsum compensation of Rs. 50,000/- and Rs. 10,000/- towards cost of litigation shall meet the ends of justice. Remaining OPs are absolved from the charge of negligence.”

6. Hence, the present two appeals by OPs and Complainant, the latter seeking enhancement of compensation awarded by the State Commission.

7. Learned Counsel for all parties made oral submissions.

8. Learned Counsel for OP-1 stated that the State Commission had rightly concluded that there was no medical negligence on his part. The Patient had been brought to him with high fever and after examining the clinical symptoms manifest in the

Patient and prescribing the required blood tests, including for Malaria, Complainants were immediately advised to take the Patient to OP-2, who was a medical specialist.

9. Counsel for OPs 2 and 3 contended that the finding of the State Commission holding them guilty of medical negligence on the ground that they did not conduct the required tests properly and give proper treatment is not borne out by the voluminous evidence, including the case history of the Patient, which is on record. A perusal of this evidence clearly indicates that right from 04.10.1997 when OP-2 first examined the

Patient and after preliminary examination and tests advised admission on the next day in OP-3/Hospital, a number of diagnostic tests were conducted to check the hematological and biochemistry parameters of the Patient. These tests included TLC,

DLC, Platelet Counts, Bilurubin, Cholestrol etc. In this connection, even though an earlier blood test report which the Patient had brought indicated that she was negative for Malaria, she was tested for Malaria Parasite 3 times during her brief stay of less than

3 days in OP-3/Hospital. This was specifically done to rule out Malaria since it is common that often the Malaria Parasite is not confirmed by one blood test and particularly if a patient has taken Chloroquine. It was only after the blood tests indicated that platelet counts were very low and Bilurubin was high and an ultrasound of the abdomen indicated that there were some signs of infective hepatitis that the OP-4 stated treatment for hepatitis. As is well documented the symptoms for Malaria are not peculiar to it and are often found in other viral infections as well, including viral hepatitis, enteric fever etc. It was further contended that as a matter of abundant caution on the

3 rd day, OP-4 called a Specialist Gastroenterologist-Dr. Vivek Bhatia to see the Patient and on his advice to rule out Cerebral Malaria/encephalopathy the Patient was without delay referred to OP-5/Hospital. It was also pointed out that even in that hospital the blood tests conducted on the Patient indicated that she was negative for Malaria

Parasite and Cerebral Malaria was detected only after a series of 6 blood

tests. Looking at the above facts and as detailed in the case history of the Patient a large number of investigations were conducted including specifically in respect of

Malaria and, therefore, the State Commission’s finding that the OPs 2 and 3 were negligent in not properlyconducting the tests and not giving the proper treatment is not borne out by the evidence on record.

10. Counsel for OPs 4 and 5 contended that the State Commission has rightly exonerated them of any medical negligence and deficiency in service. The Patient had remained with them for only one day in OP-5/Hospital during which time OP-4 got conducted a series of tests on the Patient, as a result of which diagnosis for Cerebral

Malaria was confirmed and the life-saving drug of choice i.e. Mefloquine was immediately administered. The fact that the Patient died because the disease was at an advanced stage cannot be attributed to any medical negligence or deficiency in service on the part of OPs 4 and 5.

11. Counsel for the Complainants in his oral submissions challenged the above contentions and stated that the clinical symptoms with which the Patient had reported were clearly indicative of Malaria especially she was suffering from very high fever. He brought to our attention a notification of the Government of India issued in 1995 wherein it was clearly advised that to reduce morbidity and mortality in Patients reporting with high temperature, headache etc., presumptive treatment for Malaria must be given. In the instant case, the Patient had reported with all the clinical symptoms clearly indicative of Malaria and particularly because she had come from Mangalore, which is a coastal area where Malaria is endemic, treatment for the same should have been given. It was further contended that it is well known that initially blood tests may be negative for Malaria in a Patient having Malaria and, therefore, a series of blood tests should have been done consecutively as was done in OP-5/Hospital, which the OPs 2 and 3 failed to do. Further, as per medical literature on the subject to rule out Malaria particularly Falciparum Malaria (Cerebral Malaria) a bone marrow test is also necessary, which was not done in the instant case. The fact that the Patient died of

Cerebral Malaria is confirmed in the death certificate and, therefore, OPs were clearly guilty of medical negligence and deficiency in service in not correctly diagnosing the

Patient’s illness and giving treatment for the same. Had proper treatment for Malaria been given from the time of admission based on a correct diagnosis or if the Patient had been immediately referred to OP-5/Hospital, then her life could have been saved. The

State Commission while concluding that there was medical negligence in the treatment of the Patient because of which she could not be saved, erred in granting only a token compensation to the Complainants for the irreparable loss caused to them due to the death of their daughter who was a promising B.Sc. student.

12. We have heard learned Counsel for the parties and have carefully considered the evidence on record. So far as OPs 1, 4 and 5 are concerned, we agree with the finding of the State Commission that they were not guilty of medical negligence for the reasons recorded in the order of the State Commission, namely, these OPs had examined the

Patient on only one day each and during this short period the required tests and medication was administered to her.

13. So far as OPs 2 and 3 are concerned, the State Commission has found them guilty of medical negligence in not correctly diagnosing that the Patient had Malaria and giving her treatment for the same instead of treatment for viral hepatitis, which she did not have. After going through the case history and the medical records filed in evidence, we are unable to support this finding of the State Commission. We note that right from

04.10.1997 when the Patient was seen by OP-2, he got blood tests conducted to rule out Malaria and on the next day referred her to OP-3 where again a battery of hematological and biochemistry tests were conducted to check the Patient’s TLC, DLC,

ESR, Platelet Counts, Blood Urea, Sugar, Bilurubin, Cholestrol etc. Most importantly, even though Patient had brought an earlier blood test report done on the advice of OP-

1 which showed that it was negative for Malaria, Typhoid etc., OP-2 again got blood tests conducted on 3 consecutive occasions from 5 th to 7 th of October, 1997 to check whether she had Malaria. On all 3 occasions the results of the blood tests clearly indicated that the blood was negative for the Malaria Parasite. Since it is medically well established that most of the clinical and diagnostic symptoms of Malaria are similar to those for other viral infections*

(Source : (i) Malaria Vector Research Centre – www.killmosquito.org

; (ii)

Pathogenesis of Malaria and Clinically Similar Conditions www.ncbi.nlm.nih.gov

, July 2004, Ian A. Clark; (iii) Malaria – Medical

Microbiology – NCBI Bookshelf - www.ncbi.nlm.nih.gov

)

and the ultrasound report also indicated that the Patient may be having viral hepatitis apart from the high Bilurubin and low platelet counts indicated in the blood tests, OPs 2 and 3 cannot be faulted for having concluded that the Patient had viral hepatitis rather than Malaria; this was the indication both as per the clinical symptoms and the diagnostic tests as discussed above.

14. Counsel for the Complainants has contended that since the Patient had come from a Malaria endemic area (Karnataka), as per the Government of India 1995 notification presumptive treatment for Malaria should be given. We have perused this notification and we note that Karnataka was not included as one of the Malaria endemic

State.

15. 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 evident that OP-2, who is a wellqualified medical specialist, had taken due care in respect of both the clinical observation and diagnostic tests in the treatment of the Patient as per his best professional knowledge and skills. Unfortunately, because of the nature of the illness

(Falciparum Malaria) which is often not detected till an advanced stage through blood tests, the Patient could not be saved. However, this unfortunate death cannot be attributed to any medical negligence on the part of OPs. We are, therefore, unable to sustain this finding of the State Commission.

16. We, therefore, set aside the order of the State Commission and allow the First

Appeal No. 72 of 2008. First Appeal No. 65 of 2008 stands dismissed. No costs.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



(Against the order dated 16.04.2012 in First Appeal No. 662 of 2007 of the State

Commission, Punjab)

1. M/s. Worldwide Immigration Consultancy Services Ltd. SCO No. 2415-16, Sector 22-

C, Chandigarh

2. M/s. Worldwide Immigration Consultancy Services Ltd. Rahon Road,

Preet Palace, Nawanshahar Through its Manager/Officer Incharge (Both petitioners represented through its Authorized representative Sh. Bharat Lal)

……….Petitioners

Versus

Shri Ashwani Kumar Bhargav S/o Shri Balbir Mitter, R/o Shanti Niwas, Mohalla

Sarafan, Town Rahon, Dist. Nawanshahar

.........Respondent

BEFORE

HON’BLE MR. JUSTICE J.M. MALIK,


HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioners : Mr. Sunil Goyal, Advocate

For the Respondent : Mr. Sangram S. Saron, Advocate


ORDER

PER MR.VINAY KUMAR, MEMBER

The complaint of respondent Ashwani Kumar Bhargav against the revision petitioner/OP was allowed by the District Forum, Nawanshahar. The OP was directed to refund an amount of Rs.1,10,000/- with 9% interest and compensation of Rs.50,000/-

. Appeal against this order of the District Forum has been dismissed in the impugned order by the Punjab State Consumer Disputes Redressal Commission in FA No.662 of

2007. The State Commission has confirmed the award made by the District Forum and in addition, awarded Rs.20,000/- towards costs. Now in the revision petition before us,

OP, M/s. Worldwide Immigration Consultancy Services Ltd. has challenged the award of the State Commission.

2. Records submitted have been carefully perused and two sides heard. Mr.

Sunil Goyal Advocate has argued the case of the revision petitioner and

Mr.Sangram S. Saron has appeared on behalf of the respondent/Complainant. Counsel for the respondent was permitted time to file his rely to the revision petition. However, no reply has been filed.

3. The facts, in very brief, are that the services of the OP were hired under an agreement of 25.1.2001 for the purposes of immigration to Canada. The requisite fee was paid. However, his application for permanent resident visa was rejected by the concerned authority in the High Commission of Canada.

4. The main ground urged on behalf of the revision petitioner is that the respondent

/Complainant was himself at fault in not appearing for the interview. It is therefore contended that the revision petitioner should not be held responsible for the lapse of the

Complainant. On this point, a perusal of the complaint petition before the District Forum shows that after payment of fees and submission of documents to the OP, the

Complainant was waiting to be informed about the outcome of his application for visa. Instead, he received a legal notice dated 22.8.2006 for non-payment of

Rs.31500/- towards the fee. As per the averment in the complaint “The respondents acted on the assumption that there is non-payment of fee on the part of mine and did not provide efficient and proper services and intentionally with held the letter of interview and other correspondence from me.”

5. In response, the written submission filed by the OPs before the District Forum refers to the additional demand for payment made on the Complainant and states that:-

“The complainant has failed to pay the professional fees of the answering respondents and has also failed to attend the interview which has resulted in rejection of his case vide letter dated 30.8.2006 of the

Canadian High Commission which is annexed herewith as Annexure R-10 in which the Canadian High Commission has clearly stated that the complainant has failed to appear for the interview, therefore the answering respondents cannot he held liable for the wrongs committed by the complainant himself i.e. non-cooperation, non payment of dues, non attendance of interview and failure to perform his duties as per the terms and conditions of the contracts.”

6. It is clear from the above, that the response of the OP has chosen not to answer a very direct and categorical allegation in the complaint that the letter of interview was intentionally withheld from the Complainant. However, on consideration of evidence before it, the District Forum has observed that on

29.6.2006 a letter was despatched by the OPs to the Complainant informing him that the OPs have received the interview letter of the Complainant and he was asked to remit US $ 700 + Rs.5000/- towards fee to enable the OPs to release the interview letter.

It was also said that the release would be made only on receipt of the draft or conformation from the branch office. This has been deprecated by the District

Forum.

7. Considering this, the State Commission has also observed that:-

“The next question would be as to whether the appellants were justified in withholding the interview letter on the ground that the arrears of fee were not paid by the complainant. We are of the opinion that the answer to this question has been rightly determined by the learned District Forum in the negative.”

8. In the course of arguments, counsel for the revision petitioner only reiterated the stand of the OP before the fora below. He, however had no answer for the question how the complainant could be held responsible for non-appearance at interview when the evidence on record shows that the interview letter itself was withheld from him by the OP. Significantly, the letter of interview from the High Commission of Canada to the complainant was itself sent to the address of the OP/WWICS, Chandigarh. It was produced by the counsel for the revision petitioner before this Commission on 21.1.2013.

9. The other ground agitated in the present proceedings is the ground of limitation. According to the revision petitioner, the cause of action arose from the agreement of 25.1.2001 between the two parties while the consumer complaint was filed on 3.10.2006. Therefore, the complaint itself was barred by limitation. This shows an incorrect understanding of the cause of action. The cause of action did not arise in

2001 with the signing of the agreement. It arose in 2006 when the interview letter was withheld from the complainant, resulting in rejection of the visa application itself.

10. In the result, it is held that there are no substantive grounds in the revision petition. It is held to be without merit and dismissed as such. Consequently, impugned order in FA No.662 of 2007 stands confirmed. No order as to costs.

.……………Sd/-……………

(J. M. MALIK, J.)


……………Sd/-…………….

(VINAY KUMAR)

MEMBER s./-



(Against the order dated 16-01-2009 in S.C. Case No. 163/O/2000 of West Bengal

State Consumer Disputes Redressal Commission, Kolkata)

1. LIC of India Represented by its Chairman, Jivan Bima Marg, Mumbai.

2. Zonal Manager, LIC of India Jeevan Deep Building, Calcutta.

3. Divisional Manager, LIC of India Asansol, Burdwan.

4. Branch Manager, LIC of India Asansol City Branch No. 2, Asansol, Burdwan.

All appellants through their Northern Zonal Office Jeewan Bharti Building Connaught

Place, New Delhi-110001.

… Appellants

Versus

5. S. Mitra, Development Officer, LIC of India Asansol City Branch No. 2,

Asansol, Burdwan.

1. Sri Radhey Shayam Kedia

2. Smt. Sobha Kedia

3. Smt. Mina Kedia

4. Sri Sajjan Kedia

5. Sri Arun Kedia

All five respondent being Residents of Shantinagar Kalamandir Road

PO & PS Jarsuguda Orissa

6. Sri Smarjit Nandy Authorized Agent, LIC K.B. Road, Deopara

Asansol, Burdwan

… Respondents


(Against the order dated 16-01-2009 in S.C. Case No. 163/O/2000 of West Bengal

State Consumer Disputes Redressal Commission, Kolkata)

1. Sri Radhey Shayam Kedia

2. Smt. Sobha Kedia

3. Smt. Mina Kedia

All five respondent being Residents of Shantinagar Kalamandir Road

PO & PS Jarsuguda Orissa

… Appellants

Versus

4. Sri Sajjan Kedia

5. Sri Arun Kedia

1. LIC of India Represented by its Chairman, Jivan Bima Marg, Mumbai.

2. Zonal Manager, LIC of India Jeevan Deep Building, Calcutta.

3. Divisional Manager, LIC of India Asansol, Burdwan.

4. Branch Manager, LIC of India Asansol City Branch No. 2, Asansol, Burdwan.

5. S. Mitra, Development Officer, LIC of India Asansol City Branch No. 2,

Asansol, Burdwan.

6. Sri Smarjit Nandy Authorized Agent, LIC, K.S. Road, Deopara,

PO Asansol, Burdwan

… Respondents

BEFORE:



For LIC of India : Mr. U.C. Mittal, advocate

For Respondents No. : Mr. Shakti K. Pattanaik,

1 to 5 in FA/126/2009 Advocate

For LIC Agent : Mr. Diptenroy, advocate

Pronounced 23 rd May, 2013

ORDER


Being aggrieved by the order of the West Bengal State Consumer Disputes

Redressal Commission, both the parties have filed separate appeals.

FA/126/2009 has been filed by LIC of India (herein referred to as appellant)

, which had partly allowed the complaint of Shri Radhey Shayam Kedia & Ors.Respondents herein and original complainants before the State Commission.

FA/190/2009 has been filed by Shri Radhey Shayam Kedia & Ors./ original complainants seeking interest on the awarded amount.

2. Since the parties, as also the facts are common and arise out of the same complaint, it is proposed to dispose of these appeals through a single order by taking the facts from FA No. 126/2009.

3. In their complaint before the State Commission, Shri Radhey Shayam Kedia

& Ors./Original Complainants had contended that they are policy holders in respect of a number of policies that they had taken from the LIC of India (appellants no. 1-5 herein), which had been obtained through the licensed agent of appellant insurance company namely OP-6 (Sri Smarjit Nandy). It was contended that the value of the policies was for a total assured sum of Rs.12 lakhs and the respondents regularly paid the premium

in respect of these policies through OP-6(Agent). However, OP-6 in collusion with OP-1 did not deposit the premium amounting to Rs.3,44,000/-. Besides this, three demand drafts sent by the respondents/complainants in favor of OP-1/Insurance Company for

Rs.14,958/-, Rs.9,653 and Rs.9,547/- towards premium in respect of three policies through registered post, were also not encashed for reasons best known to the

Appellant/insurance company. They instead handed over these over to OP-6 (i.e. the

Agent), which were returned to the respondents/complainant asking for cash payments.

According to the Respondents, such transactions between them and the insurance company through an insurance agent of appellant/Insurance Company was the usual practice prevailing in the field of insurance business, and therefore, the respondents were shocked when they came to know that the premium were never deposited by OP-

6 (Agent). Respondents also came to know at that time, that most of the life policies taken by them were lying in a lapsed condition because of non-deposit of premium and the appellant/insurance company was not ready to acknowledge their complaint against their Agent and revive the policies. Alleging deficiency in service on the part of the appellant/insurance company, who was responsible for the illegal actions of their authorized agent with whom they had a relationship of Principal and Agent, respondents filed the complaint before the State Commission on grounds of deficiency in service and requested that the appellant/insurance company be directed to refund all premiums with prevailing interests, which are still deposited with appellant/insurance company amounting to Rs.1,40,674/- and also refund Rs.2,94,014/- which appellant/insurance company’s agent used for his personal use without paying premium to the appellant insurance company with 18% interest p.a. and Rs.5,000/- as costs.

4. Appellants/Insurance Company on being served filed a written rejoinder. It was specifically stated therein that an LIC agent is not authorized to collect premium on behalf of the insurance company and when he collects premium from the policy holder to deposit the same with the insurance company, he acts as an agent of the policy holder - in this case the respondents and not the LIC/ Insurance Company. This has been clearly stated in Section 8 Sub-Section 4 of the Agents Regulations, 1972 . It was further contended that so far as the three demand drafts were concerned, these

contained only one yearly premium payment for each of the policy, whereas for all the three policies, two yearly premiums were due. It was the respondents, in fact, who vide their letter dated 10-04-1997, had requested appellant/insurance Company to return their respective demand drafts to enable them to pay the premium by cash and it was under these circumstances that the drafts were returned. However, appellants/insurance Company had no knowledge regarding the payment of cash by the respondents to OP-6(Agent), as contended by them. It was further denied that respondents had sent any application for revival of the policies and in any case, policies cannot be revived on adhoc basis, particularly since some of the policies had lapsed for more than five years because of non-payment of premium and as per the rules; these could not be revived. In view of these facts, there was no deficiency in service.

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:-

“It is it was a smooth sailing so far as payment of insurance premium was concerned through OP No. 6, who is an admitted position that the complainants opened several Insurance Policies with the

Insurance Corpn. And that initially authorized agent of the

Insurance Corpn. But subsequently it transpires that the OP No. 6 did not deposit the insurance premiums so received from the complainants. In this aspect we find that from the materials on record there can be a legal presumption that the OP No. 6, who happens to be an authorized agent of the Insurance Corpn., did accept insurance premiums from the complainants, but for reasons best known to the

OP No. 6 he did not deposit those premiums with the

Insurance Corpn. We are also not unmindful to the subsequent agreement between the complainants and the OP no. 6 though this

Commission is not the appropriate forum for detailed enquiry or investigation as regards the evidentiary value of the agreement entered into between the complainants and the OP no. 6. But for the purpose of proper adjudication of the present controversy, this

Commission cannot ignore the existence of the said agreement and it gives rise to a legal presumption that there was some sort of understanding between the complainants and the OP No. 6 so far as it relates to deposit of insurance premiums by the complainants through the OP No. 6. Much has been agitated before us as regards the point of no-liability for the acts and omissions done or incurred at the instance of the authorized agent of the Insurance Corpn. But we find that in a decision reported in 2008 CTJ 554 (CP) (SCDRC),

Page-554, wherein it has been observed by the

Hon’bleCommission that as per the principle of vicarious liability, the principal is responsible for all the acts and omissions of his agents to a third party. If that be the legal position we are of the view that in the present case there is no denial of the position that OP No. 6 is the authorized agent of the Insurance Corpn. We have already discussed that from the materials on record we find that there is no denial on the part of the Insurance Copn. that the complainants relied very much upon the authorized agent of the Insurance Corpn., i.e. OP No. 6, so far as it relates to deposit of insurance premiums. If that be the

position, the lapsed condition of some of the Insurance Policies for non-payment of insurance premiums by the OP No. 6 should not and cannot exonerate the Insurance Corpn. from its vicarious liability as observed by the

Hon’ble Commission in the decision mentioned above.”

5. The State Commission, therefore, directed the appellant/insurance company to jointly and severally refund the premium amounting to Rs.1,40,674/- and Rs.2,94,014/- together with compensation of Rs.1,000/-.

6. Learned counsel for the parties made oral submission.

7. Learned counsel for the Appellants/Insurance Company contended that the State

Commission erred in holding the Appellants/Insurance Company jointly and severally responsible for the deficiency in service along with OP-6, who was an Insurance Agent since it is well established that the Agent has not been given the authority by the

Appellants/Insurance Company to receive any premium on its behalf from an insurer. This has been well settled by a judgment of this Commission in the case of Life

Insurance Corp. of India Vs. Girdharilal P. Kesarwani & Anr. [I (2009) CPJ 228

(NC)] as also by the Hon’ble Supreme in the case of Harshad J. Shah & Anr. Vs. LIC of India & Ors. [AIR 1997 Supreme Court 2459] wherein the

Hon’ble Apex Court had concluded that as per the rules framed by LIC, Agents have been prohibited from collecting money/premium on behalf of the LIC. Therefore, the order of the State

Commission directing the Appellants/Insurance Company to jointly and severally pay the Respondents the premium amount as also other reliefs should apply only to the

Agent who was responsible for the deficiency in service in this case and not to the

Appellants/Insurance Company.

8. Learned counsel for the Respondents reiterated the position as stated by them before the State Commission and again contended that since OP-6 was admittedly an

Agent of the LIC, Respondents had no reason to doubt his bonafide when he had assured them that he was authorized to collect the premium and deposit the same with the Insurance Company. Therefore, the order of the State Commission may be upheld and appeal filed by the Insurance Company be dismissed.

9. We have heard learned Counsels for the parties and have gone through the evidence on record. It is not in dispute that the Respondents had taken a number of

insurance policies from the Appellants/Insurance Company and had been paying premiums for the same to OP-6 who was an Agent of the Appellants/Insurance

Company. Appellants/Insurance Company has contended that as per their Rules, their

Agents are not authorized to collect premium on their behalf. In the instant case, the

Agent, therefore, acted against these statutory provisions by collecting premium amounts from the Respondents and thereafter not depositing the same with the

Appellants/Insurance Company. Appellants/Insurance Company, therefore, cannot be held liable for the actions of the Agent, with whom they also do not have a principal to agent relationship. We find force in this contention of the Appellants/Insurance

Company since the position stated by it is in accordance with the Regulations on the subject. Further, this issue is now settled as per the decision of the Hon’ble Supreme

Court in Harshad J. Shah (supra) wherein the Hon’ble Apex Court had concluded that as per the Rules framed by the LIC, Agents are prohibited from collecting money on behalf of the LIC. The

Hon’ble Apex Court in that case had further observed that they are unable to uphold that the doctrine of Apparent Authority falling under Section 237 of

Indian Contract Act can be invoked especially “when the LIC has been careful in making an express provision in the Regulations/Rules which are statutory in nature, indicating that the agents are not authorized to collect any moneys or accept any risk on behalf of the LIC and they can collect so only if they are expressly authorized to do so …” . The above judgment of the of the Hon’ble Apex Court is squarely applicable in this case and, therefore, respectfully following the same, we are unable to uphold the order of the

State Commission holding the Appellants/Insurance Company also responsible alongwith the Agent for deficiency in service and directing them to pay jointly and severally the awarded amount. We, therefore, partly modify the order of the

State Commission and absolve the Appellants/Insurance Company of the liability for payment fastened upon them by the order of the State Commission and set aside this part of the order. We hold that it is only the Agent who is responsible for the deficiency in service and unfair trade practice in collecting the premium amount illegally from the

Respondents and thereafter appropriating the same without depositing it with the

Appellants/Insurance Company. At this stage, Counsel for the OP-6 (Agent) came

forward and stated before us that out of the total amount of Rs.4,34,686/- directed to be paid to the Respondents, OP-6 had already paid back an amount of Rs.3,83,000/- which he had collected as premium. Counsel for the Respondents challenged the same and stated that so far only a sum of Rs.2,00,000/- had been paid back to the

Respondents and the remaining amount is still to be paid. In view of the above submissions, Respondents are at liberty to initiate execution proceedings only against

OP-6 (Agent) for payment of the actual amount due. We further note that vide order dated 13.04.2009 of this Commission a direction was issued to the

Appellants/Insurance Company to deposit half of the awarded amount with the State

Commission. If that be so, the State Commission is directed to release this amount alongwith accrued interest to the Appellants/Insurance Company in view of our finding that it is not guilty of deficiency in service. Respondents had filed a cross-appeal seeking interest on the awarded amount. Since the premium amount had been unauthorizedly kept by OP-6 (Agent), we direct him to pay interest @ 9% per annum on the awarded amount from the date of passing of the order by the State

Commission till its payment alongwith Rs.2,000/- as costs.

10. Both the First Appeals stand disposed of in the above terms.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Aj/Mukesh



Rakesh Bhartia S/o Sh. Chand Mall Bhartia R/o S-5, Panchsheel Park, New Delhi

… Complainant

Versus

HDFC Bank Ltd D-965, New Friends Colony, New Delhi

…Opp.party

BEFORE:



For the Complainant : Sh. Vijay C. Joshi, Advocate

For the Opp.party : Sh. Rishab Raj Jain, Advocate

PRONOUNCED ON 23.05.2013


ORDER

1. In this complaint case, Sh. Rakesh Bhartia, the complainant has claimed a sum of

Rs.5,00,00,000/- (Rupees five crores only) form HDFC Bank Ltd., OP, as compensation for mental agony, loss of reputation, torture, harassment, etc., for deficiency in services because the HDFC Bank Ltd/OP had freezed all the joint accounts held by the complainant.

`

2. The complainant is a Chief Executive Officer of a large size Public

Limited Company, having a turnover of more than INR 2500 crores and 1300 human beings consisting of Engineers and Professionals of various fields are working under him. The complainant maintains a Savings Bank A/c with HDFC Bank, New Friends

Colony, New Delhi, OP. His Account No. is 00011050068579. He also maintains 7 or

8 joint accounts with the members of his family in the HDFC Bank Ltd., New Friends

Colony, New Delhi.

3. The Income Tax Department issued notice under Section 226(3) of the Income

Tax Act, 1961 instructing the OP to remit a sum of INR.1,03,22,548/- from the single name account on 21.04.2011. On 21.10.2011, the Income Tax Department again issued another notice under Section 226(3) of the Income Tax Act, 1961, directing the

Bank to attach the A/c No.00891930002490, another account, as a measure of recovery of income tax dues. The bank had remitted INR 98,135.49. The OP informed the complainant that in compliance of the notice dated 21.10.2011 under Section 226(3) of

Income Tax Act, 1961, INR.1,55,047.06 had been remitted from the said account.

4. The complainant was also informed that the funds available in Bank Account

Nos. 00891600004455, 00891930002817, 00891930002827, 02481930005871,

02481930005881, 02481930005898, 02481930005916 & 02482070000189, which belong to other family members of the complainant jointly with him, he being the second holder, would remain under a “No Debit” status, as for, full amount required was paid or after the receipt of the revocation order. The Bank accounts of the family members were also attached.

5. The complainant vide e-mail dated 16.11.2011, questioned the authority of the

Manager, regarding freezing the account when the same were not covered under the

Income Tax notice. The OP refused to defreeze the account. Since no remedial steps were taken by the OP despite various correspondence, therefore, the banking

Ombudsman was approached. The Ombudsman informed that the said dispute was not within the ambit of banking Ombudsman Scheme, 2006. The matter was also reported to the Governor, RBI, higher authorities of the Bank and ultimately, this complaint was filed with the following prayers:-

“PRAYER:

It is therefore, most respectfully prayed that this Hon’ble Forum may kindly be pleased to pass:a. an order thereby directing the opposite party to pay a sum of

Rs.5,00,00,000/- (Rupees five crores) to the complainant as

compensation for mental agony, loss of reputation, torture, harassment, etc., for deficiency in services; b. an order thereby directing the opposite party to pay a sum of

Rs.20,000/- to the complainant as cost of litigation; c. any other or further order which this Hon’ble Court deems fit and proper under the facts and circumstances of the case in favour of the complainant and against the opposite party”.

6. We have heard the counsel for the parties. The learned counsel for the complainant vehemently argued that the above said unauthorized act on the part of the

OP has caused lot of mental agony and anguish coupled with harassment, monetary and loss of reputation. He explained that under these circumstances, the complaint should be admitted. It was also pointed out that the order passed by the Income Tax Authorities to recover the amount had been reversed by the

Appellate authority. The accounts of the complainant have defreezed. It is contended that the complainant was harassed for no fault on his part.

7. On the other hand, a copy notice issued under Section 226(3) of the Income Tax

Act, 1961, has been placed on file. Its relevant para reads, as under:-

“…….. The account will remain under a “no debit” status until the full amount required as per the notice is paid or the receipt of the revocation order. Further, we have also marked No debit in your below other A/c Nos. 00891600004455/

00891930002817/00891930002827/02481930005871/02481930005881/0

2481930005898/02481930005916/02482070000189,

Which are all joint A/cs, irrespective of mode of operation.

Request you to submit affidavit regarding the proportion of joint holding. In absence of same, 50% of the amount standing to the credit of the A/c’s shall be paid.

Kindly revert with a stay order or a revocation order from the appropriate authority against the aforesaid notice within 24 hours to make the account fully operational ”.

8. The counsel for OP has produced another copy of notice issued by the Income

Tax Department, under Section 226(3) of the Income Tax Act, 1961, dated 21.10.2011

addressed to the Bank Manager, with a copy to Rakesh Bhartia, the complainant. Its relevant extracts are reproduced, as under:-

“A sum of Rs.1,02,24,710/- is due from Rakesh Bhartia (assesse) on account of Income-tax/penalty/interest/fine. You are hereby required under Section 226(3) of the Income Tax Act, 1961, to pay to me forthwith….. any amount due from you to or, held by you, for or on account of the said assesse for the amount of arrears shown above.

I also request you to pay any money which may subsequently become due from … him/them or which you may subsequently hold for or on account of him/them for the amount of arrears still remaining unpaid, forthwith on the money becoming …. or being held by you as aforesaid.

Any payment made by you in compliance with this notice is, in law, deemed to have been made under the authority of the said assesse and my receipt will constitute a good and sufficient discharge of your liability to the person to the extent of the amount referred to in the receipt.

Please note that if you discharge any liability to the assesse, after receipt of notice, you will be personally liable to me as Assessing

Officer/Tax Recovery Officer, to the extent of the liability discharged, or to the extent of the liability of the assessed tax/penalty/interest/fine referred to in the preceding para, whichever is less.

Further, if you fail to make payment in pursuance of this notice, you shall be deemed to be an assesse in default in respect of the amount specified on this day and further proceeding may be taken against you for the realization of the amount if it were an arrear of tax due from you in the manner provided in Section 222 to

226 of the Income Tax Act, 1961 and this notice shall have the same effect as an attachment of a debt under Section 222 of the said Act”.

9. This clearly goes to show that the Bank was given bottomless powers to attach all the money belonging to the complainant. The joint accounts are covered by this clause. The Bank obeyed the orders of the Income

Tax authority. The fault, if any, lies at the door of the Income Tax Department, the Bank cannot afford to disobey the orders of the Income Tax Department. It is also strange to note that Income Tax Department was not made a party in this complaint case.

10. In view of the discussion, we find that OP has not committed any mistake. It has just followed the orders of the Income Tax

Department. Consumer complaint is devoid of merit and, therefore, the same is dismissed. No costs.

.....…………………..………J

(J.M. MALIK)


.....……………….……………


MEMBER

Dd/14



(From the order dated 23.02.2008 in First Appeal No. 1635/2003 of Rajasthan State


National Insurance Co. Ltd. Regional Office, 10 Narain Singh Road, Jaipur (Rajasthan)

... Petitioner

Versus

1. Shiv Shankar s/o Mahaveer Prasad r/o Ward No. 5, Sadulshahar, owner of

M/s. Mahaveer Prasad Dhanuka Cloth Merchant, Palika Bazar,

Sadulshahar (Rajasthan)

Palika Bazar, 2. M/s. Mahaveer Prasad Dhanuka Cloth

Sadulshahar (Rajasthan) through its owner Shiv Shankar

Merchant,

… Respondent(s)

BEFORE







Mr. Ajay Majithia, Advocate

Mr. Rishi Matouya, Advocate

PRONOUNCED ON : 23 rd MAY 2013

O R D E R


This revision petition has been filed by the petitioner National Insurance Company, against the impugned order dated 23.02.2008 passed by the Rajasthan State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

1635/2003 “National Insurance Co. Ltd. vs. Shiv Shankar & Anr.” by which appeal filed by the petitioner against the order dated 31.07.2003 passed by District Consumer

Disputes Redressal Forum, Sriganganagar, was dismissed. The District Forum had allowed the complaint filed by the present respondents Shiv Shankar and

M/s. Mahaveer Prasad Dhanuka, vide this order.

2. Brief facts of the case are that the complainants/ respondents obtained a cash credit limit for Rs.1,00,000/- from State Bank of India,Sadulshahar for their business of clothes and Insurance Policy was got issued from the petitioner on 22.01.2001 for

Rs.1,50,000/-. On 24.01.2002, at mid-night, fire broke out in the shop of the complainant, resulting in damage to the stocks and building. An FIR was lodged with the police. It has been stated by the complainant that the shop is 20 ft. long and 10ft. wide and wooden racks have been fixed on three sides of the said shop, where clothes are kept. The petitioner appointed a surveyor who calculated the loss to be Rs.22,075/-

. However, the complainants lodged a complaint with the District Forum Sriganganagar, saying that they are entitled for a compensation of Rs.2,01,010/-. The District Forum vide order dated 31.07.2003 directed that the petitioners shall pay Rs.1,40,000/- to the complainants along with Rs.5,000/- for mental agony suffered and cost of litigation. The amount was to be paid within a period of two months. The petitioners were required to pay interest @9% p.a. on the awarded amount with effect from 10.07.2002. The complaint was dismissed, vis-

à-vis, the State Bank of India Sadulshahar. An appeal was filed by the present petitioner against the order of the District Forum, but the same was ordered to be dismissed vide impugned order dated 23.02.2008. It is against this order that the present revision petition has been filed.

3. Heard the learned counsel for the parties and perused the record.

4. While arguing the case, the counsel for the petitioner stated that out of the amount of Rs.1.40 lakh awarded by the District Forum and confirmed by the State Commission, the petitioner had already paid a sum of Rs.1,00,000/- to the respondents. Balance amount of Rs.40,000/- and the interest on the awarded amount had, however, not been paid. Learned counsel for the petitioner has drawn our attention to the findings given by the surveyor saying that the estimated loss was Rs.1,92,300/-, but the assessed loss was Rs.32,460/- only. It has been clearly brought out in the report of the surveyor that the insured had not produced books of accounts, purchase bills, sales bills and other relevant records for which he stated that the same had been burnt. The FIR lodged with the Police is also silent about the burning of the books of accounts and other records. It has also been stated in the said report that the insured is running a ration depot within the same shop and it is not a cloth showroom only. The surveyor has enumerated various items of clothes which are reported to be lost during fire and assessed the total

loss to be Rs.32,460/- and excluding Rs.10,000/- for the excess clause, the assessed loss is only Rs.22,460/-. The report of the surveyor was based on a careful examination of the situation on the spot. Learned counsel argued that a major portion of the premises was being used as ration depot only and there were just two racks of clothes in the shop.

5. The learned counsel for the respondents stated that the stock position shown to the bank as on 1.1.2002 stated that the material worth Rs.2,01,010/- was lying in the shop and the claim had been given as per this figure only. The learned counsel for the respondent further stated that the report of the surveyor could not be relied upon, as it did not present the correct picture on record. The main business of the respondent was the cloth business only and he should be adequately compensated.

6. From the averments made by the parties and material on record, the factum of fire incident having occurred has been proved and has not been denied by the petitioner also. The only controversy is regarding the value of the loss suffered by the complainants during fire episode. The insurance policy has been taken for a sum of

Rs.1,50,000/- and hence the compensation cannot exceed this amount as correctly observed by the District Forum. It has been stated in the written statement filed by the petitioner that half-burnt racks were intentionally taken away, immediately after the fire by the complainant, because of which the surveyor was unable to assess the actual condition of the shop. The surveyor has brought out in his report that the size of the shop was 10ft. X 20ft. but the complainant used only 1/3 rd portion of the shop for storage of cloth in 3 racks fitted therein, which was clear from the fire marks present on the walls for which the insured agreed during his visit. The remaining shop was being used for running a ration depot. The surveyor has stated that the insured had put partly burnt wooden rack in front of his shop and tried his best to change the original position of the spot so as to mislead the facts. He also did not extend any cooperation in getting the salvage checked and did not produce books of accounts, purchase bills, sales bills, etc. saying that the same had been burnt in fire. The FIR was also silent about the burning of books of accounts. His father Mahaveer PrasadDhanuka informed the tehsildar that all goods, furniture and records had been burnt. The insured also put pressure on the surveyor to assess the loss on the higher side.

7. The report submitted by the surveyor says that the total loss assessed was

Rs.32,460/- and making a provision of Rs.10,000/- as excess clause, the amount remains Rs.22,460/- only. The surveyor has based his report taking certain quantities for different items of material but the basis for these figures has not been stated anywhere, neither the basis for the rates mentioned for each item has been explained.

8. It is made out from the record that the insurance company has already made a payment of Rs.1 lakh, whereas the amount for which goods were insured is Rs.1.5 lakh. Considering the overall facts and circumstances of the case and the material on record, it is prudent to presume that the total loss involved in the case may be taken as

Rs.1.10 lakh and making account for the excess clause, the respondent is entitle to

Rs.1 lakh, which he has already received from the petitioner. This petition is, therefore, disposed of observing that no further amount shall be payable by the petitioner to the respondent in addition to whatever respondent has already been paid. There shall be no order as to costs in view of the facts of the case.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 25.04.2007 in Appeal Case No. 996/2000 of UT CHANDIGARH

State Consumer Disputes Redressal Commission)

1. Haryana Urban Development Authority, through its Chief Administrator, Panchkula

2. The Estate Officer, Haryana Urban Development Authority, Sonepat

... Petitioner(s)

Versus

Anil Diwan s/o Puran Chand Diwan r/o 1073, Sector 19-B, Chandigarh

…. Respondent(s)


(From the order dated 20.10.2006 in Appeal Case No. 833/2000 of UT CHANDIGARH


1. Haryana Urban Development Authority, through its Chief Administrator, Panchkula

2. The Estate Officer, Haryana Urban Development Authority, Sonepat

... Petitioner(s)

Versus

Arun Goel s/o Prem Kumar r/o 2048, Sector 27-C, Chandigarh

…. Respondent(s)

BEFORE







Mr. Sanjay Kumar, Advocate

Mr. J.S. Chhabra, Advocate

PRONOUNCED ON : 23 rd MAY 2013

O R D E R


These two revision petitions as described in the headnote have been filed under section 21(b) of the Consumer Protection Act, 1986 and are being disposed of through this single order and a copy of the same may be placed on each file.

2. The State Consumer Disputes Redressal Commission, Union Territory Chandigarh

(hereinafter referred to as ‘State Commission’) has passed two orders dated 20.10.2006 and 25.04.2007 in the instant case. The order dated 20.10.2006 has been passed in three Appeal cases, i.e., Appeal Case No. 834 of 2000 (Haryana)/RBT No. 367/2006

“Arun Goel versus Haryana Urban Development Authority (HUDA) & Anr.”, Appeal Case

No. 833 of 2000 (Haryana)/RBT No. 368/2006 “Anil Dewan versus Haryana Urban

Development Authority (HUDA) & Anr .” and Appeal Case No. 997 of 2000

(Haryana)/RBT No. 369/2006 “Haryana Urban Development Authority (HUDA)

& Anr. versus Arun Goel

”. The order dated 25.04.2007 has been passed by the State

Commission in Appeal Case No. 996 of 2000 (Haryana)/RBT No. 173/2007 “Haryana

Urban Development Authority & Anr. versus Anil Dewan .”

3. Both these orders of the State Commission have been passed against single order dated 08.05.2000 passed by the District Forum,Panchkula vide which complaints filed by the complainants Anil Dewan and Arun Goel were allowed. Revision Petition No.

1738/2007, “HUDA & Anr. versus Anil Dewan” has been filed against both the orders dated 20.10.2006 and 25.04.2007 of the State Commission whereas Revision Petition

No. 1739/2007, “HUDA & Anr. versus Arun Goel” has been filed against the order dated

20.10.2006 of the State Commission.

4. The brief facts of the case are that both the complainants,

Anil Dewan and Arun Goel were allotted plots by HUDA in Urban Estate Sector

23, Sonepat plot no. 2316 and 1593 on 13.08.1991 and 07.08.1991 respectively. The complainants deposited 10% of the value of the plot along with the application and another 15% of the value on allotment, making a total of 25% as tentative cost of the plots, in question. This was strictly in accordance with the scheme formulated by HUDA for allotment of these plots. As per the Scheme, the balance 75% of the value of the plots was to be paid either in lump-sum without interest within 60 days from the date of issue of allotment letter or in six half-yearly annual instalments. The first instalment was to fall due after the expiry of one year from the date of issue of the allotment letter. Each instalment was recoverable together with interest on the balance price at

the rate of 10% of the remaining amount. However, the interest was to accrue from the date of offer of possession of plots. It is also stipulated that interest @18% will be charged on the delayed payment. The possession was to be offered on completion of development works in the area. It is the case of the HUDA that the complainants did not deposit even a single instalment after the initial deposit of 25% and hence notices were sent to them under section 17 of the HUDA Act many times, but the respondents neither deposited instalments, nor appeared in person despite service of notices. Consequently, the allotted plots were resumed by Estate Officer, Sonepat,

HUDA by his order dated 16.08.95 in the case of Anil Dewan & order dated 07.08.95 in the case ofArun Goel. According to HUDA, the complainants did not file any appeal against the said orders of resumption before the competent appellate authority of the

HUDA. According to HUDA, the complaina nts lost the status of ‘consumer’ by not filing the appeal before the higher authorities. However, the complainants on the other hand, have taken the plea that they waited for a long period, hoping to get the possession of the allotted plots and visited the office of OP many times, but they were told that the development work in the area would take long time and possession could not be offered in near future. The complainants wrote letters also to the office of HUDA regarding the delivery of possession but without any result. The area had not been developed on the date of making complaint dated 15.12.98, although more than seven years had passed from the date of the allotment of the plots. HUDA had, therefore, indulged in unfair trade practice, visà-vis the complainants. The complainants filed consumer complaints before the District Forum and the said forum vide order dated 8.5.2000 in both the cases ordered that the physical possession of the plots, in question, should be handed over to the complainants immediately and they should be further paid a sum of

Rs.5,000/- as compensation for mental agony and harassment and Rs.1,000/- should be paid in each case for cost of litigation. Against this order, appeals were filed before the State Commission and as stated above, the State Commission vide order dated

25.04.2007 in the case of “Anil Dewan” dismissed the appeal of HUDA. Vide order dated 20.10.2006 appeal filed by HUDA against ‘Arun Goel’ and two appeals filed by the complainants against HUDA were decided. As per this order, the award of compensation of Rs.5,000/- by the District Forum to the complainants for mental agony / harassment was increased to Rs.40,000/-. The appeal filed by HUDA was ordered to be dismissed.

5. Heard the learned counsel for the parties and examined the records. In both these cases, written arguments have also been filed on behalf of the HUDA and they are placed on file.

6. It was argued by the learned counsel for the petitioner that the Estate Officer,

HUDA vide his order dated 16.08.1995 in Anil Dewan case and order dated 07.08.2005 in Arun Goel case, has made it very clear that show-cause notices were sent to these two complainants under section 17(1), 17(2), 17 (3) & 17(4) at different intervals through registered letters, but they neither deposited the amount, in question, nor appeared before the Estate Officer to explain the reasons for not depositing the amount. The

Estate Officer, therefore, held that there was a breach of terms and conditions of the allotment and there was a wilful default for non-payment of the requisite amount. The

Estate Officer, exercising power under section 17(4) of the HUDA Act, 1977 ordered the resumption of the aforesaid plots and also forfeiture of the amount of Rs.57,525/- in both the cases. In case, the complainants were aggrieved against this order, it was open for them to challenge the same before the appellate authority, but they had not done so, meaning thereby that they had accepted this order as final, and also lost the st atus of ‘consumer’ after the said cancellation. The complaint, in question, was filed on

15.12.98 and hence it was a time-barred complaint as per section 24(A) of the

Consumer Protection Act, 1986.

7. The learned counsel, however, admitted that this plea had not been taken by the petitioners in the grounds of revision petition or in the written arguments filed in the cases. In the memo of appeal filed before the State Commission also, this point had not been touched upon.

8. On the other hand, learned counsel for the respondents vehemently argued that

HUDA had given them non-existence plots and they had not developed the said sites, even after a long lapse of time. Because of their failure to meet the commitment of development of the site, they had no right to resume the plots in question. Learned counsel stated that before passing the resumption order in question, neither notice had been issued, nor the order of the Estate Officer was communicated to him. Regarding the complaint being time-barred, learned counsel argued that since the possession had not been offered/delivered, there was a continuing cause of action available to the complainants and hence the complaints were not time barred. Learned counsel

reiterated that since the development had not taken place on the site, HUDA had no right to resume these plots.

9. A careful examination of the record of the case available on file and the oral arguments before us reveals that the complainant demanded in his complaint dated

15.12.98 that the deposited amount of Rs.57,525/- with HUDA should be refunded along with interest @18% p.a. from the date of deposit till realisation, OR in the alternative, HUDA should be directed to deliver physical possession of developed plot immediately and a compensation of Rs.25,000/- should be given by HUDA for unfair trade practice and Rs.3 lakh would be given as escalation commission.

10. The orders for resumption of plots were passed by the Estate Officer,

HUDA, Sonepat on 16.08.95 and 07.08.95. The primary issue involved in these cases revolves around the fact, whether the resumption order is legally correct or not. It has been claimed by HUDA that notices were sent under section 17(1), 17(2), 17 (3) & 17(4) of the HUDA Act through registered post to the complainant, before passing the resumption order. On this issue learned State Commission has observed as follows:-

“The case of Haryana Urban Development Authority is that plots were resumed vide order dated 07.08.95 as the complainants did not pay balance amount of 75% from 7.5.93 to 7.8.95. It was further stated that notices were served upon them under the HUDA Act on 7.5.93, 3.7.93, 27.8.93, 27.4.94, 10.1.95,

22.5.95 and 7.8.95. None of the notices mentioned in the written reply had been placed on the file of District Consumer

Forum. However, during arguments photocopies of some of notices had been placed on file. One does not know whether the notices were sent under registered cover or otherwise because the postal receipts have not been placed on file. Photocopies of the despatch register as well as of the parcel branch had been placed on file to show that the said notices were sent but it is not known whether the same had been received by the complainants or not.”

11. It is clear from a plain reading of the above observation of the State Commission that the issue of sending of proper notices and their service upon the complainants has not been gone into in depth by the State Commission or the District Forum. It was their duty to call for the record of the case and ascertain whether proper procedure was adopted before passing the order of resumption.

12. In accordance with the terms and conditions of allotment letter, the allottee is supposed to make payment to the OP as per the schedule laid down wherein it has been clearly stated that interest will not be charged till the possession is offered to

the allottee. In so far as delay in developing the site and late delivery of possession is concerned, an allottee has every right to agitate upon this issue and demand adequate compensation from the developer and that can be decided by the competent authority based on the facts and circumstances of the case. It is, however, not open for the allottee to withhold, on its own, the payment of instalments, which was supposed to be paid without interest to the developer.

13. It may be mentioned here that the

Hon’ble Apex Court in their judgement in

“Municipal Corporation of Chandigarh versus ShantikunjInvestment (P) Ltd.” [2006 (iv)

SCC 109], stated that providing of amenities by a developer cannot be made a condition precedent for payment of premium, ground rent etc. The omission on the part of the administration to provide the statutory amenities would not enable the allotteesto get rid of their obligation to pay the instalments. In the present case, therefore, even if HUDA has not been able to develop the land in question within a reasonable time, the allottees cannot refuse to make payment of the instalments as per the payment schedule, more so, when the said instalments do not carry any interest portion as it has been made clear that liability to pay interest shall start from the date of offer of possession only. This, however, does not mean that the developer is at liberty to take abnormally long time in developing the area in question. It is open to the allottees to seek redressal of their grievance by asking for payment of interest etc. on the deposited amount by the HUDA and the appropriate authority can take decision to that effect, looking at the facts and circumstances of the case.

14. In the light of above discussion, we are inclined to accept these revision petitions and direct the State Commission to call for the record of the case and evidence on the subject to find out whether proper procedure was followed by HUDA before passing the order of resumption. It is also clear that the allottees did not file any appeal before the statutory authorities against the said order of resumption which they should have done. The State Commission after examining the legal aspects of the resumption order may then go on to the question of late development of the area and determine whether the allottees are entitled for any relief on that account or not.

15. With the above observations, these petitions are accepted, the orders passed by the State Commission are set aside and cases are remanded back to the State

Commission for giving an opportunity to the parties to lead their evidence afresh and then take decision as per law. No order is being passed as to costs.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 22.03.2013 in First Appeal No. 800/2009 of Delhi State


WITH

I.A. NO. 3161, 3162 & 3163 OF 2013

(STAY, EXEMPTION TO FILE C/C & EARLY HEARING)

Ansal Housing & Construction Ltd. 15, UGF, Indraprakash, 21, Barakhamba Road, New

Delhi

– 110001.

... Petitioner

Versus

Indian Machinery Company, 1508, Farash Khana, G.B. Road, Delhi – 110006

… Respondent(s)

BEFORE





For the Petitioner(s) Mr. Kapil Kher, Advocate


Mr. Siddhartha Jain, Advocate

Md. Ehraz Zafar, Advocate as Caveator


O R D E R


This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 against the impugned order dated 22.03.2013 passed by the Delhi

State Consumer Disputes Redressal Commission ( for short ‘the State Commission’) in

FA No. 800/2009, “M/s. Ansal Housing & Construction Ltd. versus M/s. Indian

Machinery Co.” vide which while, dismissing the appeal filed by the petitioner, the order dated 1.10.2009 passed by the District Forum in consumer complaint no. 967/2007 was upheld.

2. Brief facts of the case are that the complainant/respondent purchased a plot measuring 359 sq. yard bearing no. C/C-287 in the housing scheme of Uttar Pradesh

State Industrial Development Corporation (UPSIDC) at Tronica City, Ghaziabad from

M/s. Jyoti Estates @Rs.2300/- per sq. yard which was transferred in the name of the complainant on 10.2.2001. The complainant made a total payment of Rs.4,78,778/- in six instalments to the petitioner/Opposite Party upto 22.04.2002. The case of the complainant is that they paid security, maintenance charges of the said plot regularly, but the said area was not developed and the market value of the land in question went down to less than Rs.1,000/- per sq. yard. The complainant had been visiting the office of the OP to enquire about the status of the plot, but they were told in May 2006 that the said plot had been cancelled. The complainant maintains that they were not given any notice regarding the cancellation, although they had made the payment of about 58% of the basic cost of the plot. The cancellation amount of Rs.3,96,683/- alleged to have been sent by the OP was never received by them. The complainant/respondent, therefore, filed consumer complaint before the District Forum and vide order dated

06.08.2009, the District Forum ordered the restoration of plot no. C/C-287 to the complainant and directed the OP to deliver the possession to the complainant on depositing the balance amount and without forfeiture of any amount. A sum of

Rs.50,000/- as compensation for mental agony and harassment and Rs.10,000/- as costs was also allowed to the complainant. An appeal was filed by the petitioner/OP against the order of the District Forum before the State Commission, but the same was ordered to be dismissed. It is against this order that the present revision petition has been filed. The complainant/respondent has also filed caveat petition along with an affidavit and the counsel for caveator was also heard at the time of admission hearing.

3. It has been stated in the complaint filed by the respondent dated 3.10.2007 that they had earlier filed a complaint before the District Forum which was ordered to be dismissed on 29.08.2007 because of non-appearance of the complainant. The complainant had noted the date of hearing as 29.09.2007 in place of 29.08.2007. The complainant then decided to file a new complaint with similar facts and circumstances and claims requesting that earlier complaint no. 307/2007 should be considered a part and parcel of the new complaint.

4. At the time of hearing before us, learned counsel for the petitioner has drawn our attention to the ‘list of dates and events’ filed along with the revision petition saying that the plot was first allo tted to “M/s. Jyoti Estates” on 05.02.2001 and it was transferred in favour of respondent on 10.02.2001. The possession of the plot was offered on

1.3.2003 and demand raised for payment of outstanding amount by the respondent to the petitioner. Reminders were sent on 15.06.2004 and 19.07.2004 by the petitioner to the respondent for payment of the outstanding amount. On their failure to make the payment, the allotment was cancelled on 06.04.2005 and a refund cheque was issued on 26.11.2005 after forfeiting 20% of the deposited amount. The legal notice sent by the respondent was duly replied on 26.08.2006. The learned counsel invited our attention to statement of account attached with the petition which indicates that a total amount of Rs.4,74,778/- had been received from the respondent and the balance amount on account of the cost of the plot, lease rent, stamp duty, etc. had been listed in this document. All these amounts were to be paid by 31.03.2003. A reminder was sent for making the said payment vide letter dated 15.06.2004 and again vide letter dated

19.07.2004 and copies of these letters have been placed on record. Vide letter dated

06.04.2005, the allotment of the said property was cancelled and a copy of the said letter is on record. The learned counsel stated that the second complaint filed by the respondent was not maintainable and after the cancellation of the said plot, he has no locus standi to file the complaint. Moreover, the complaint is barred by limitation as well.

5. In reply, the learned counsel for respondent stated that they had paid 58% of the total amount in question to the petitioner and hence, there was no reason to cancel the said allotment in their favour. The order passed by the State Commission is a detailed speaking order and the said order should be upheld.

6. The learned counsel also invited our attention to the clauses of the allotment letter dated 05.02.2001 issued by the petitioner in favour of M/s. Jyoti Estates, wherein it has been made clear in clause VI that in exceptional circumstances, the developer may at its absolute discretion condone the delay in payment by charging an interest @24% p.a. on the delayed payment/outstandings.

7. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us.

8. A material point involved in the present case is that second consumer complaint on the same facts has been made by the complainant after his first complaint was dismissed for his non-appearance on 29.08.2007. It is, therefore, to be examined whether the second complaint is maintainable at all. In the second complaint duly signed by counsel for the complainant, it has been stated as follows:-

“…………

2. That the above said case is dismissed by this Ld. Forum on

29.08.2007, because of non-appearance of Complainant. It is pertinent to mention here that the Complainant by mistake was written down the date of hearing i.e. 29.09.2007 in place of 29.08.2007 in his diary. When the counsel of Complainant appeared before this Ld. Forum, on 29.09.2007 and he found that his case is not listed on the Board, then after enquiry he came to know that his case was listed on 29.08.2007 and it was dismissed by this Ld. Forum. Therefore, the

Complainant has to refile the same Complaint with similar facts, circumstances and claims.

3. That the above said Complaint has already been filed with

Complaint No. 307 of 2007, which has been dismissed by this

Ld. Forum on 29.08.2007. Therefore, new Complaint has been filed by the same Complainant with similar facts, circumstances and claims before this Ld. Forum. It is, therefore, humbly submitted before this Ld. Forum, that kindly consider the Consumer Complaint No. 307 of 2007 as a part and parcel of this case for the sake of the documents attached and also proceed this case from the stage on which the Complaint No. 307 of 2007 has been dismissed.

…………………………………………………..”

Further, in the prayer clause, the complainant has stated as follows:-

“(i) Consider this re-filing of Consumer Complaint as Old

Consumer Complaint No. 307 of 2007 in respect of all facts, circumstances, claims and documents attached herein;

(ii) Proceed this New Complaint from the same stage of hearing as Complaint No. 307 of 2007 was heard, which has been dismissed on 29.08.2007.

…………..”

9. It is very clear from the version of the complainant himself that the first complaint no. 307/2007 was dismissed on 29.08.2007 for his non-appearance. It is a matter of general legal procedure that the complainant could have agitated for getting the said order dated 29.08.2007 set aside from the competent authority. In case, the competent authority did not agree to his request, he could have moved the higher authority by way of appeal, revision petition, etc. The filing of second complaint on the same facts and circumstances has not been provided anywhere as per the established legal

provisions. This Commission has also observed in the case of

“Purusharath Builders Pvt. Ltd. versus Uppal Housing Ltd. & Anr. [III (2012) CPJ 500

(NC)]” that the second complaint was not maintainable. In the said case, the party had withdrawn the previous complaint on the ground that the previous counsel was not competent. The Commission observed that if there was defect in the first complaint, amendment application should have been moved or permission could have been sought or request could have been made to have liberty to file fresh complaint. It was not possible to give permission to fill-up lacuna at this stage.

10. It is very clear from the above facts that the orders passed by the Fora below suffer from a major irregularity as they have dealt with the second complaint which was legally not maintainable. In view of these circumstances, there is no need to go into the other aspects of the case and the present complaint deserves to be dismissed on this ground alone. The petitioners have also taken-up this issue in the grounds of revision petition and also during the course of oral arguments. The revision petition is, therefore, accepted. The orders passed by the State Commission and District Forum are set aside and the consumer complaint is ordered to be dismissed with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 29.3.2007 in Appeal No. 3248/SC/2006 of U.P. State Consumer

Disputes Redressal Commission, Lucknow)

1. Pahuchi Lal S/o Late Shri Veer Sahay - (Abate) R/o Village Ram Bagh,

Post Tharau, Tehsil and District Mainpuri (U.P.)

2. Sardar Singh

3. Shyam Lal

4. Gauri Shanker No. 3 & 4 are sons of Raghuveer All resident of Uddetpur,

Post Prekha, Tehsil and District Mainpuri, U.P.

…Petitioners/Complainants

Versus

The Oriental Insurance Company, Through its Branch Manager, The Oriental Insurance

Company Ltd. Branch Office Shanti Noketan Station, Road Mainpuri, U.P.


BEFORE



For the Petitioners : Mr. Varinder Kr. Sharma, Advocate

For the Respondent : Mr. P.K. Seth, Advocate


O R D E R


This revision petition has been filed by the Petitioners/Complainants against the impugned order dated 29.3.2007 passed by the U.P. State Consumer

DisputesRedressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal

No. 3248/SC/ 2006 – Pahuchi Lal & Ors. Vs. The Oriental Ins. Co. Ltd. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.

2.

Brief facts of the case are that petitioner’s/complainant’s tractor no. UP 64 B 4660 was insured by respondent/OP for a period of one year commencing from 9.10.2001 to

8.10.2002. On 30.6.2002, tractor was looted near the bridge of Arvind River. Report was lodged and after observing all the formalities, OP/respondent paid Rs.2,33,000/- instead of Rs.2,80,000/- to the petitioners and not made balance payment of

Rs.47,000/- Alleging deficiency on the part of OPs, complaint was filed before the

District Forum. OP contested complaint and submitted that Rs.2,33,000/- was given as full and final satisfaction. It was also alleged that previously, Complaint No.306 of 2004 was filed in which, aforesaid amount was given and now petitioner is not entitled to claim any amount; hence, complaint be dismissed. Learned District forum after hearing both the parties dismissed complaint on the ground of full and final payment and further observed that earlier complaint was dismissed as withdrawn on 9.9.2005. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.


4. Petitioners filed revision petition along with application for condonation of delay. Perusal of record reveals that learned State Commission passed impugned order on 29.3.2007, whereas revision has been filed on 30.1.2008 meaning thereby, the revision petition has been filed almost after 10 months. In the application forcondonation of delay, he has given ground for condonation of delay as under:

“2. That the petitioner was not aware of the order passed by

State Commission as the counsel did not inform at all. Now the petitioner went there and get the information hence there is delay.

3. That the petitioner went in December to the counsel to verify the case as other part was saying that the petitioner has lost.

In January, he somehow able to get the copy hence there is delay which is bonafide ”.

He has not disclosed in his application, when he came to know about impugned order. No cogent reason has been given for condonation of delay and in such circumstances; revision petition is liable to be dismissed on the ground of delay alone.

5. By order dated 20.5.2013, it was observed that revision petition filed by petitioner no. 1 abate against the respondent.

6. As far as merits of the case are concerned, learned Counsel for the petitioners submitted that petitioners were entitled to Rs.47,000/- as per declared value in the insurance policy and learned District Forum committed error in dismissing complaint and learned State Commission has committed error in dismissing appeal; hence, revision petition be allowed and Rs.47,000/- may be awarded to the petitioner. On the other hand, learned Counsel for the respondent submitted that, as amount has been received by the petitioner as full and final satisfaction and Rs.47,000/- has been deducted on account of depreciation, order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

7. Perusal of order passed by District Forum reveals that petitioners accepted

Rs.2,33,000/- as full and final satisfaction in earlier complaint No. 306 of 2004 filed before the District Forum. In such circumstances, no second complaint was maintainable and, as the complainants received amount in full and final satisfaction of claim, learned District Forum has not committed any error in dismissing appeal. Order passed by learned State Commission is in accordance with law, which does not call for any interference and revision petition is liable to be dismissed.

8. Consequently, revision petition filed by the petitioners is dismissed with no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(Against the order dated 12.09.2012 in Appeal No.A/08/1087 of the State Commission,

Maharashtra)

Arzoo Yusuf Bagwan (Through Her Naturarl Gardian) Smt. Nafisa Yusuf Bagwan R/o

593, Ganpati Ali, Taluka Wai, Dist- Satara, Maharashtra


Versus

Dr. Prashant Pol R/o Pol Hospital 588

– A, Ganpati Ali, Near Municipal Council, Wai,

Taluka Wai, District

– Satara, Maharashtra

.........Respondent

BEFORE




For the Petitioner : Mr. Keshav Ranjan, Advocate

For the Respondent/

Caveator : Mr. Sudhanshu S. Chaudhari, Advocate

PRONOUNCED ON: 24 May 2013

ORDER


The matter in the consumer complaint related to a 12 year old girl, who was taken to the OP, Dr. Prashant Pol with an ear complaint. She underwent surgery on

10.2.2007. But, the problem did not end with it. Her complaint before the District Forum was that she was not given proper medical treatment and therefore, had to spent over

Rs.2 lakhs in further treatment elsewhere, yet never regain her hearing power. She, therefore, demanded a compensation of Rs.9 lakhs for the treatment undergone and to be undergone as also for mental and financial hardship suffered.

2. The District Consumer Disputes Redressal Forum Satara, allowed the complaint and awarded compensation of Rs.3 lakhs. However, the Maharashtra State Consumer

Disputes Redressal Commission allowed the appeal of the doctor and dismissed the complaint. Complainant Arzoo Yusuf Bagwan has now filed this revision petition against the order of the State Commission

3. We have carefully considered the records and heard two counsels. Mr. Keshav

Ranjan Advocate has been heard on behalf of the RP/Complainant and Mr. Sudhanshu

S. Chaudhari on behalf of respondent/OP.

4. The District Forum has observed that the respondent has admitted that the applicant suffered from meningitis and that he advised her to approach a pediatrician for treatment of meningitis. The Complainant was suffering from vomiting and headache, which are indications of meningitis. The District Forum has therefore, addressed the question whether there was any connection between the ear infection and meningitis in this case. The District Forum has apparently relied upon the statement of Dr. Bokil that the problem of Meningitis was because of the presence of bacteria. It has therefore held that —

“There is no doubt that the applicant since beginning has stated that the respondent removed the bandage of her ear and a strip of bandage and cotton put inside and when it was shown to the respondent it was wet and water was oozing from her ear and it was also stinky. There was septic in the ear. As per the documents at Exhibit 30 filed by the applicant regarding the information as to meningitis, it is clear that when there is infection of bacteria there is pus. There was pus in the ear of the applicant which was operated. It is established that infection of bacteria has emerged from the middle ear of the ear as a result of which the applicant suffered from meningitis. There is no doubt that before the operation

of ear, there was no infection meningitis. The respondent also does not dispute that the applicant has lost hearing ability as a result of meningitis. However, his case is that there is no connection of the respondent therein. However, from perusal of the documents submitted by the applicant and the respondent, the negligence of the respondent is established. MRI of the brain of the applicant is at Exhibit 5/1. On perusal thereof, there is no reference about middle ear. The blood report of the applicant is also available at Exhibit 5 and it is clear that the infection of bacteria is not through blood. The applicant has filed the papers with respect to her examination and treatment in Hearing Health Care Service at

Exhibit 5/15. There is a remark in her audiogram [no response even at highest level (2)] ear and “bill profound hearing loss”. (emphasis supplied)

5. On the other hand, the State Commission has noted that according to the OP meningitis which the Complainant suffered from had nothing to do with the ear operation conducted by him. The Commission has referred to the affidavits of Dr. Jaywant

Manohar Thoke (1.5.2008) and Dr. Shrikant Anil Bokil (also 1.5.2008). It has noted that affidavit of Dr. Bokil speaks about the pathological examinations conducted on

26.2.2007 and 5.3.2007, which confirmed that the Complainant was suffering from meningitis, which was due to bacterial infection. But his evidence does not establish any nexus of the said conditions of the Complainant with the surgery performed by the

OP. Per contra, the evidence of Dr. Jaywant Manohar Thoke was that as per the report of 21.2.2007 from Jeevan Jyoti Laboratory Complainant Arzoo was suffering from meningitis. But he has categorically stated that he did not find any infection in the ear. Therefore, the Commission held that meningitis suffered by the Complainant, had nothing to do with the earlier surgery performed by the OP. It observed that —

“Learned District Forum while assessing the evidence on oath given by Dr. Jaywant Manohar Thoke to the effect that on examination of the

Complainant Aarzoo, he had not found any ear infection in her made on affidavit to contradict the same with the statement/observation appearing in the case-papers, supra, but without giving any opportunity to Dr. Thoke to explain the observations recorded (Obviously by somebody else other than

Dr. Thoke). Thus, it would be improper to discredit the evidence on affidavit of Dr. Jaywnt Manohar Thoke on that count. Whatever it may be but as to whether there was an infection present in the Complainant Aarzoo’s ear or not, one thing is certain and there is no dispute about it, namely, meningitis conditions which the Complainant Aarzoo developed on

20/2/2007 or on 21/2/2007 had nothing to do with the ear operation

carried out on her by the Opponent on 10/2/2007. In view of such situation and in absence of any other evidence to contradict the evidence of

Dr. Jaywant Thoke, we find no reason to disbelieve the evidence of Dr.

Jaywant Thoke. Reasons recorded by the District Forum to discredit the evidence of Dr. Jaywant Thoke are not only inadequate contrary to the rules of evidence and thus, can be categorized as perverse appreciation of evidence on record.” (emphasis supplied)

6.

It is argued on behalf of the revision petitioner that the State Commission should have appointed an expert instead of adopting a hyper-technical approach. It is also contended that while the affidavit evidence of Dr. Thoke was considered by the State

Commission. The affidavit evidence of Dr. Srikant Anil Bokil was not considered. He could have been examined by the State Commission to ascertain whether the

Complainant suffered from meningitis and whether it was caused by bacterial infection.

7. The central question addressed by the District Forum as well as the State

Commission is whether the condition of meningitis, which the Complainant had developed, was caused by the ear infection following the operation conducted by the

OP. The District Forum has held that it was caused by the bacteria in the infected ear.

But this finding is based on an assumption that there was no other infection.

8. At this point, it is significant to note that as per evidence on record the ear surgery was performed on 10.2.2007. Ten days later, the patient was found to be suffering from meningitis, as seen from the report of 21.2.2007 from Jeevan Jyot Hospital. In the case paper of this hospital, referred to by the State Commission, the record of 22.2.2007 notes ‘No active middle ear or mastoid infection’. But, it also says ‘Right Otitis Externa

(infection of external ear). It would mean that infection in the external ear existed, as of

22.2.2007. Significantly, the record also carries an advice

“To review patient after 48-72

hours to find out connection between ear infection and meningitis.”

It is thus clear that further observation for 2 to 2 and half days was required to establish or rule out the connection between ear infection and meningitis. The State Commission has however, chosen to go by the opinion of Dr. Thoke of 22.2.2007 itself about absence of any active ear pathology/infection.

9. The contention of the revision petitioner that the State Commission should have sought expert opinion is to be seen in the above context. However, it is not the case of the petitioner that a prayer in this behalf was made and rejected by the State

Commission. The law does not require appointment of an expert in every case. It was held by Hon’ble Supreme Court of India In V. Kishan Rao Vs. Nikhil Super Speciality

Hospital, (Civil Appeal No. 2641 of 2010) decided on 8.3.2010

“In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.”

10. Therefore, the decision of the State Commission cannot be faulted merely on the ground that independent medical expert opinion was not sought. But, at the same time, the State Commission should have considered the professional assessment of the treating doctors after the recommended observation of 2 to 2 and a half days. Due to this reason, the impugned order cannot be sustained.

11. Therefore, the order of Maharashtra State Consumer Disputes Redressal

Commission in First Appeal No.A/08/1087 is set aside. The matter is remanded to the

State Commission for fresh consideration and decision in the light of the observations made above. No order as to costs.

.……………Sd/-……………

(J. M. MALIK, J.)


……………Sd/-…………….

(VINAY KUMAR)

MEMBER s./-


(1) REVISION PETITION NO. 4533 OF 2010

(Against order dated 30.06.2010 in First Appeal No. 563 of 2004 of the Kerala State

Consumer Disputes Redressal Commission, Vazhuthacaud, Thiruvananthapuram)

T.P. Balagopal, CC 36/2382, Sowparnika, Kathrikadavu, Kaloor P.O, Kochi-17, Kerala

State

....... Petitioner

Versus

1. Alexander John, V. S, S/o V. K. Sebastian, Vaiaparambill House, Kumbalangi

South, Pazhangad, Kochi-7

2. M/s World Marketing & Services (P) Ltd. Represented by Managing Director, Mrs.

Rose Mary Dionisius (Rani Thankachan) W/o Mr.Thankachan, W. P. Wellappally, Canal

Ward, Alleppey- 7 Kerala State-688007 XVII/2125, Eswar Budgs, Church Road,

Alappuzha-688011.

3. G. P. Nair, Devaki Sadanam, Varnam Post, Cherthala, Alappuzha Dist.

...... Respondents

(2) REVISION PETITION NO. 315 OF 2011

(Against order dated 30.06.2010 in First Appeal No. 562 of 2004 of the Kerala State

Consumer Disputes Redressal Commission, Vazhuthacaud, Thiruvananthapuram)

T.P. Balagopal, CC 36/2382, Sowparnika, Kathrikadavu, Kaloor P.O, Kochi-17, Kerala

State

....... Petitioner

Versus

1. Ignatious Roy, V. S, S/o V. K. Sebastian, Valiaparambill House, Kumbalangi

South, Pazhangad, Kochi-7

2. M/s World Marketing & Services (P) Ltd. XVII/2125, Eswar Budgs, Church Road,

Alappuzha-688011.

3. G. P. Nair, Devaki Sadanam, Varnam Post, Cherthala, Alappuzha Dist.

...... Respondents

BEFORE:

HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER


For the Petitioner : Mr. C. M. Jayakumar, Advocate

For the Respondents : All respondents are ex parte.


ORDER


1. Since, facts of above noted revision petitions are similar and common question of law is involved, as such these petitions are being disposed of by this common order.

2. Brief facts are that Respondent No.1/Complainants being attracted by the advertisement of the petitioner/o.p.no.2 and respondent no.2/o.p.no.1 and on the assurance made by them, invested a sum of Rs.6,500/- each in the ‘Diamond Plantation

Scheme’ on 31.12.1994 at Ernakulam. This scheme was for 20 years and following benefits were offered ;

(i) Registration of 10 cents of land in complainants name in

Odaimarchan village, Tamil Nadu State.

(ii) Payment of Rs. 500/- annually from third year onwards till the maturity of the scheme to the complainant.

(iii) Rs. 10,000/- accidental death insurance coverage for

20 years to the complainant.

(iv) New year gift worth Rs. 50/- to the complainant.

(v) On maturity of scheme teak wood worth Rs. 2,88,000/-

To the complainant.

3. It is further stated that among above said promises, they fulfilled only the first promise by registering 10 cents of land each in the complainant’s name. The prayer made in the complaints are for refund of amount paid with 18% interest from date of payment till realization.

4. Before District Forum, petitioner took the plea that complaints are not maintainable, since they are barred by limitation. The other plea is that petitioner is not liable at all as he had resigned as Director from the Board on 31.12.1998.

5. District Forum, vide its order dated 17.2.2004 allowed both the complaints and directed as under ;

“Opposite parties 1 to 3 pay each complainants the amount deposited by them with the opposite parties, as could be seen from Exts. A2 and

A5 receipts Rs. 6,500/- each with 12% interest form date of deposit that is 31.12.94 till payment. We also direct the opposite parties to pay

Rs.500/- each to the complainants as costs of these proceedings

”.

6. Being aggrieved by the order of the District Forum, petitioner filed appeals before the State Commission which were dismissed vide impugned order, dated 30.06.2010.

7. By way of present revision petitions, petitioner has challenged the impugned order.

8. Notice of these petitions were issued to the respondents. Respondents No.2 and 3 were duly served but they did not appear and as such they were proceeded ex parte.

9. As far as respondent no.1 is concerned, he sent a letter dated 19.5.2012 after receipt of the notice but he also did not appear. Hence, respondent no.1 was also proceeded ex parte .


11. The only plea raised by learned counsel for petitioner before us is that since petitioner has resigned from the post of Managing Director of respondent no.2’s

Company on 31.12.1998 and his resignation was accepted by the company vide letter dated 16.1.1999, hence, petitioner cannot be made as a party in these proceedings neither in the representative capacity nor in the personal capacity. Hence, the impugned order passed by the State Commission is liable to be set aside.

12. District Forum, in its order held ;

“ It is seen from the evidence that the office of the first opposite party is functioning in the house of the second opposite party. The address of opposite parties 1 and 2 shown in the complaint is the same. Only the second opposite party has entered appearance and he has not appeared in the capacity of the first opposite party. The case of the second opposite party is that he ceased to be a director of the company on 31.12.98. Ext. B1 is the letter dated 16.1.99 from the first opposite party, which says that the company accepted the resignation of the second opposite party made as per letter dated 31.12.98. The second opposite party has not produced any document from the Registrar of Companies to show that he had resigned from the company on the alleged date. If the second opposite party had resigned there will be Form No. 32 with the registrar of companies. But the second opposite party has not produced the same. The counsel for the second opposite party has relied upon the decision in Dushyant D. Anjria V. Wall Street Finance

Ltd.(2001) 105 company cases 655(Bombay). What is stated in this decision is that the Director is not bound to explain the delay in filling

Form No. 32 with the Registrar of Companies by the company. We had relied upon the decision of the Madras High Court in T. Murari V.

State rendered on 5.9.1975 (1976) 46 companies cases 613(Madras).

What is stated in this decision is that in the absence of any provision in the article of association resignation once made will take effect immediately when the intention to resign is made clear. The articles of association has not been produced and we do not know what are the conditions therein. We find that both the above decisions are applicable to the facts of this case. Ext. B2 is a copy of the vakalath filed in CDRF, Alappuzha by the company, opposite party 1 herein. It has been pointed out that in the said case the company is represented by the Director, Rose Mary. We find no address of the company in

Exts. B2. The 2 nd Opposite Party does not know when Rose Mary became the Director of the company and when she resigns etc. It may be probable that she was authorized by the company to represent the company in that particular case. Ext. B2 does not help second opposite party to show that he was not responsible. However, second opposite party was a director at the time of the complainant paid the amount. It has been admitted by her that Ext. A1, A3, A4 and A6 bear her signature. There is no case for him that the opposite parties had not offered the benefit stated in the complaint ”.

13. Further, State Commission while dismissing the appeals in its impugned order observed ;

“We have perused the entire evidence adduced by the appellant/opposite parties. We do not know what was the difficulty from the part of the appellant to produce a copy of the Article of

Memorandum of the company either before the Forum below or before this Commission. Copy of the Article of Memorandum of the company prepared by the company and served to all the shareholders and the directors but it was suppressed intentionally by the appellant and another aspect is that he produced a photo copy of

Vakalaths filed before the CDRF, Alappuzha and marked as Ext. B2.

What is the difficulty to produce certified copies of all other documents in connection relation with his defence. This is also suppressed with bad intention to some relevant facts. It is clear piece of evidence that the notice of the first opposite party was received by the appellant second opposite party and he represented for the first opposite party before the Forum below suppose he is an innocent person now he received a registered notice of the Forum below and he appeared before the Forum below directly. This Commission is seeing that the order passed by the Forum below is strictly accordance with the law and evidence. The mere contention or version of the appellant/opposite party cannot be treated as an evidence. It is this burden and duty to establish through the documentary evidence that he was not a part and parcel of the transaction done with the complainant. Other arguments are nothing but arrows against the moon. We are not seeing any apparent error in the order passed by the Forum below which is legally sustainable ”.

14. As per petitioner’s own case, he was Managing Director of the Company as on

31.12.1994 when the investments were made by the complainants in the Company.

Further, it is petitioner’s own case that he has resigned form the Managing Directorship of the Company only in the year 1998. Petitioner did not file copy of Form No.32 as envisaged under the Companies Act before the Fora below, for the reasons best known to him. Be that as it may, filing or non filing of the Form No. 32 will not make any difference in these cases, since at the time of acceptance of the deposits on

31.12.1994, petitioner was admittedly the Managing Director of the Company and as such he cannot escape from the liability with regard to refund of money to the complainants.

15. Under section 21 (b) of the Act, this Commission can interfere with the order of the

State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

16. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India

Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“ Also, it is to be noted that the revisional powers of the National

Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the

National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21

(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

17. In view of the concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.

18. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasonings.

19. The present petitions being meritless, bogus and frivolous one are required to be dismissed with punitive cost for wasting time of this Commission and for causing harassment to the complainants. Accordingly, these petitions are hereby dismissed with cost of Rs.15,000/- (Rupees Fifteen Thousand only) in each case.

20. Out of aforesaid cost imposed upon the petitioner, Rs.10,000/-(Rupees Ten

Thousand only)each be paid to the respective complainants by way of demand draft in their name and balance amount of Rs.10,000/-(Rupees Ten thousand only) be deposited by the petitioner by way of demand in the name of “Consumer Legal Aid

Account” of this Commission, within eight weeks from today.

21. In case, petitioner fails to pay/deposit the aforesaid cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

22. List on 26 th July, 2013 for compliance

……..……………………J

(V.B. GUPTA)


…………………………

(REKHA GUPTA)

MEMBER

SSB/



(Against the order dated 05.12.2011 in Appeal No.2025/2004 of the State

Commission Haryana, Panchkula)

Madhu Sharma W/o Shri Parveen Sharma R/o 402/4, Guru Nanak Pura (East)

Near Hari Mandir, Jalandhar – 144009

....... Petitioner

Versus

Haryana Urban Development Authority Through its Chairman/Estate Officer, Faridabad

(Haryana) …... Respondent

BEFORE:



For the Petitioner : Mr. Praveen Sharma, Attorney holder

Pronounced on : 24 th May, 2013

ORDER

REKHA GUPTA

Revision Petition No.1105 of 2012 has been filed against the order dated

5.12.2011, passed by Haryana State Consumer

Disputes Redressal Commission, Panchkula

(short, “State Commission”) in First Appeal

No.2025 of 2004.

The brief facts as given in the complaint by petitioner/complainant are that the respondent/opposite party as per the auction of 29.1.1991, allotted her by sale a commercial Kiosk bearing No.45 in Sector 15-A-II at Faridabad against the price of

Rs.99,300/- measuring 6’-9’’ x 12’-1½”. The petitioner as per terms and conditions on several occasions, deposited the sum of Rs.1,33,500/- against the price of Rs.99,300/-.

As per letter dated 17.3.1997, and the Account Statement dated 13.3.1997, the respondent had demanded a payment of Rs.65,926/- from the petitioner, whereas this demand of Rs.65,926/- of the respondent is illegal, arbitrary and against the terms and conditions of the said allotment letter. The respondent illegally and arbitrarily charged interest against the terms and conditions of the allotment letter.

The respondent in spite of the payment of more than 25% of the price has failed to deliver possession of the said Kiosk to the petitioner against the terms and conditions of allotment letter.

Respondent - HUDA has taken the following preliminary objections in its written statement:-

The Kiosk in question was purchased in auction and as per terms and conditions, the present case does not come within the ambit of the provisions of the

Consumer Protection Act, 1986. Similar observations were made in National

Disputes Redressal Commission in F.A.O. No.80 of 1992 titled “ Ramesh Chand Vs.

HUDA ”. As such, the present petition/complaint is not maintainable before the District

Forum.

Since the petitioner has not availed of the remedy of filing an appeal before the

Administrator, HUDA, Faridabad exercising the power of Chief Administration, HUDA and as such, the present petition is liable to be dismissed.

The jurisdiction of the District Forum is barred under Section 50 of the HUDA Act to entertain and try the present complaint.

The present complaint relates to immoveable property and as such, does not come within the definition of Goods under the “Sales of Goods Act” and as such, the complaint desires dismissal on this score alone.

The site in question being immovable property and a commercial site and as such, the present complaint cannot be launched under the provisions of the Consumer

Protection Act, 1986.

The present complaint is not maintainable as the site in question was purchased in auction.

The petition deserves to be dismissed as the complainant has contravened the terms and conditions of allotment by not depositing the amount due neither within the stipulated period nor till today.

Further, that the petitioner has failed to adhere to the terms and conditions of allotment and has not deposited the amount due from and payable by her in respect of the Kiosk in question and an amount of Rs.65,926/- was due from the petitioner and she was duly informed by the answering respondent vide Memo No.568 dated 17.3.1997 but she failed to do so. Even, the copy of the statement of account was sent to

her. She was again requested to deposit the amount due vide office Memo No.1068 dated 26.5.1997. She was also intimated that in case of non-deposit of the amount due, resumption proceedings will be started. It was admitted they had raised a demand of

Rs.65,926/-.

Interest has been charged as per the terms and conditions of allotment. As a matter of fact, as per terms and conditions of allotment, the amount of remaining 75%, i.e., after depositing 25% price of the Kiosk, was either payable in lump sum within 60 days from the date of allotment or in installments alongwith interest at the rate of 10% per annum. It was also mentioned on the last page of the allotment letter that in case of delayed payment, 10% per annum interest was chargeable.

It was clearly mentioned in the letter of allotment that after the deposit of 25% of the price of the Kiosk, as per clause 5 of the letter of allotment, the petitioner was at liberty to take possession of the Kiosk in question.

District Consumer Disputes Redressal Forum, Faridabad (for short, “District

Forum”) vide their order dated 29.6.2009 came to the following conclusions;

“From the perusal of the pleadings of the parties, evidence adduced by both the parties and after hearing the arguments of the parties, the Forum is of the opinion that the dispute is in between the parties is regarding statement of account. The second issue is regarding handing over and taking over the possession of the Kiosk in question. The complainant has claimed that she has deposited the draft of Rs.25,000/- with the respondent, which has not been reflected in her account. The complainant has also claimed that the account has not been prepared in accordance with the terms and conditions of the letter of allotment. The Forum in these circumstances, is of the opinion that the respondent has failed to give complete details of account by making a bifurcation of the same. This is a big negligence on the part of the respondent. The

Forum has also made up an opinion that it was fault on the part of the complainant that she has not applied for the possession of the

Kiosk in question after depositing of the amount to the extent of 25% of the total sale price. To satisfy the grouse of the complainant following order is passed :-

The respondent is ordered to supply the complete statement of account of the complainant regarding this

Kiosk in question to the complainant, after considering that the complainant has not applied for possession of the

Kiosk after 25% deposit of the sale price. However, there is no order as to costs in the peculiar circumstances of the case. It is also ordered that in case there remains

some dispute regarding statement of account of the parties, then either party can file Execution petition under section 27 of Consumer Protection Act for the compliance of this order of the Forum.”

Not satisfied with the order of District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 5.12.2011, concluded that ;

“Undisputedly, the complainants had purchased the booth in question in an ‘Open Auction’ held by the opposite party being the highest bidder on as and where is basis and no assurance was given by the opposite party as service provider. Thus, the present case is covered by Amarjeet Singh’s case (supra), wherein it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction, cannot be termed the

“Consumer Dispute” and the Consumer Fora have no jurisdiction to entertain and decide any com plaint.”

Hence, this revision petition.

The main ground of the revision petition are as follows ;

The order of the State Commission holding that the case of the petitioner does not fall within the provisions of Consumer Protection Act is wrong. The State

Commission has wrongly held that the Consumer Forum have no jurisdiction to entertain and decide the complaint. State Commission wrongly held that the Booth purchased by the petitioner in open auction facing a Booth (Kiosk) and as such, the dispute between the parties would not fall within the purview of consumer dispute. The

State Commission and the District Forum under the C.P. Act did not appreciate the fact that the petitioner for the purpose of her own use for herself employment purchased the

Booth (Kiosk) in Sector 15 A-II, Faridabad.

The respondent instead of delivering the possession of the Booth refunded the amount of Rs.1,09,687/-. Since, the petitioner is a poor lady and as such, the amount was accepted by her under protest without prejudice to her right to take delivery of the possession.

We have heard Authorized Representative of the petitioner and have also gone through the record carefully.

It is also an indisputed fact admitted by the petitioner in the revision petition that the respondent had refunded the amount of Rs.1,09,687/- and the petitioner has accepted the same. Once she has accepted the money, she ceases to be a

“Consumer” even if for argument sake she was earlier.

The State Commission had in a very well-reasoned order come to the conclusion that the petitioner had purchased the Kiosk in question in an open auction held by the respondent. Thus, the present case was covered by “ UT Chandigarh Administration

& Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660 ” , wherein, it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction cannot be termed the “ Consumer Dispute ” and the Consumer Fora have no jurisdiction to entertain and decide any complaint. Hence, the petitioner’s appeal to the extent of seeking prayer for compensation of Rs.3 lakhs was dismissed without touching the relief already allowed by the District Forum.

In the revision petition, petitioner has for the first time pleaded that said Kiosk was purchased for the purpose of her own use for self-employment. Such a plea has not been made in her complaint before the District Forum and as such, cannot be entertained now.

In the above circumstances, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since,

State Commission has given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).


‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.


…………………..………..J

(V.B. GUPTA)


…………………..………..

(REKHA GUPTA)

MEMBER

Sonia/



(From the order dated 16.11.2011 of the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai in Appeal no. 637 of 2007)

Smt Anagha Shirish Jaitpal 2/3 Saishree Apartment Shivaji Nagar Ratnagiri

– 415639

Petitioner

Versus

1. Indraprastha Sahakari Griha Nirman Sanstha Maryadit Rajendra Nagar S V Road,

Ratnagiri Through Shri Sanjay Shivajirao Palande Managing Committee Residing at A

Wing Ground Floor, Indr aprastha Apartment Rajendra Nagar S V Nagar, Ratnagiri

2. Master Aditya Shirish Jaitpal (through his natural Guardian Mrs Anagha Shirish

Jaiptal) Residing at 2/3 Saishree Apartment Shivaji Nagar, Ratnagiri – 415639

3. Miss Apurva Shirish Jaitpal (through his natural Guardian Mrs Anagha Shirish

Jaitpal Residing at 2/3 Saishree Apartment Shivaji Nagar, Ratnagiri

– 415639

4. Mrs Suhasini Janardha Jaitpal Residing at 2/3 Saishree Apartment Shivaji Nagar,

Post Taluka District Ratnagiri

Respondents

BEFORE:



For the Petitioner Mr Balasaheb Deshmukh, Advocate


ORDER

REKHA GUPTA

This revision petition no. 2309 of 2012 has been filed under section 21 (b) of the

Consumer Protection Act, 1986 against the order dated 16.11.2011 passed by the

Maharashtra State Consumer Disputes Redressal Commission, Mumbai (the ‘State

Commission’) in appeal no. 637 of 2007.

The brief facts of the complaint as per respondent no. 1/ complainant are as follows:

The complainant is residing at Indraprastha Apartment and the same was constructed by the respondent

– Builder, Developer and Contractor and the said

Apartment was constructed on the property, the description of the property is as follows:

The property bearing Survey no. 188, Hissa no. 5 and Survey no. 188, Hissa no.

4/ 3A area admeasuring about 2760 sq mtrs., situated within the Grampanchayat Mauje

Nachane, within the limits of Ratnagiri City Council the flat no. 20 is constructed in

Indraprastha Apartment buildings.

The above property was owned by deceased Shirish Jaitpal (the husband of respondent no.1 and father of respondent nos. 2 and 3 and son of respondent no. 4) and constructed Indraprastha Apartment through M/s Bhagwati Construction Company, who died in an accident and after his death the respondents are the legal heirs and they are looking after the day to day affairs of the said firm. The complainant is a member of the said building, the flat in his possession was purchased by him by registered sale deed. The complainant Society was formed on 09.12.2005, at that time 49 flats were sold and 11 flats unsold. However, since the inception of the flat’s possession the respondents have never cooperated with the complainant society and on each occasion had adopted an adamant policy with regard to cutting off the water supply and locking the electricity pump room. Regarding the same, complaint was also made. In spite of repeated demand to form Society, however, the respondents had not formed the same in time and many interruptions were made by the respondents in the formation of the society. Legally the respondents are bound to do so. A resolution was passed on behalf of the Society within which all the rights and power given in favour of Shri Sanjay

Shivajirao, a member of the Society and its Management Committee on behalf of the complainant’s Society –the present complaint.

The said property described herein above the respondents are legally bound to transfer the said property in favour of the complainant

– society, however, the complainant repeatedly demanded, in spite of that the respondent did not transfer the same in favour of the complainant –society. The complainant – society was registered and formed on 09.12.2005 as per the requisite registration the respondents should have transferred the said property in favour of the complainant

– society after registration of 4 months, however, eight months over, the respondents did not to do so, the prime demand is to convey the said property in favour of complainant – society by the respondents.

After formation and registration of the society the remaining flats were sold by the respondents.

Some flats are in the name of the relatives, however, tenants were living in the said flats, however, the tenants’ maintenance charges are not being deposited with the society. The said maintenance charges are being deposited with the respondents.

Previously for some flats the electricity was provided through a common meter, therefore the electricity Bill was paid by the complainant

– society. However, unsold flats in B Wing, Block no. G

– 3 the said flat was given on rental basis and no electricity bill, monthly service bill and water charges were paid. However, at the time of registration of the society in Z Form, an affidavit made mentioned/ narrated that the said flats will not be allotted or given for leave and licence or lease basis as per paragraph 6 of the said affidavit. The same has been violated and hence the complainant

– society filed the complaint for recovery of the maintenance charges which include service tax, nonoccupation tax, sinking fund and electricity charges.

The petitioner as well as respondent no. 2 and 3/ opposite party no. 1, 2 & 3 in their combined written statement have denied all the allegations of respondent no.

1/complainant, that land and building had not been conveyed, that the soci ety’s members have not given the maintenance charges of Rs.18,016/- and also not given the Society registration expenses of Rs.8,100/- therefore, the conveyance is pending due to the non-payment of the same is pending.

It is specifically mentioned in paragraph 5 of the agreement to sale that

Conveyance will be done after the receipt of entire payment, otherwise the conveyance will not be conveyed.

Regarding the same as per section 11 of Maharashtra Flat Ownership Act, 1963 is clearly mentioned. The respondents sent the notice dated 04.01.2006 to the complainant it is specifically mentioned regarding the maintenance charges and also in the letter dated 17.01.2006, 07.03.2006 and 10.05.2006 regarding the maintenance charges is informed to the complainant

– Society.

The complainant has not replied any letter and it is not mentioned regarding the maintenance charges is not due and payable by them nor the maintenance charges paid by them. Due to the above, the respondents have not conveyed or transferred the said property in favour of the complainant society.

After formation of the Society, regarding the sold flats that the information was not provided is totally incorrect one and denied by the respondents herein and all the flat holders as per the information of the respondents they became the members of the said

Society and their particulars are as follows:

S no. Flat Purchaser’s name Flat no.

1.

2.

3.

Shri Vijay Garade

Shri Anant Govind Surve

Shri Sanjay Adavade

A G 3

A G 5

A 301

Respondent no. 4/ OP no. 4 in her written statement has stated that ‘actually the said Apartments were constructed by her deceased son – Shirish Janardha Jaitpal as a

Builder, Development after his accidental death, respondent no. 4 is one of the legal heirs of the deceased Shirish Jaitpal.

After death of respondent no. 1’s husband, she looks after all the affairs, as respondent no. 4 is an old aged person. For looking after the affairs of the construction activities and other allied activities this respondent had given Notarised Power of

Attorney dated 28.05.2004 and 03.06.2004 to look after the maintaining the said construction activities.

In the month of June 2006, it was noticed by the respondent no. 4 by virtue of the

Notarised Power of attorney the respondent no. 1 had acted illegally and this respondent had cancelled and revoked the Power of Attorney dated 22.06.2006, pursuant to the same a reference letter was given to respondent no. 1 by Registered

Post AD. However, respondent no. 1 has sent false reply on 23.06.2006.

Actually the respondent no. 4 has no business with the property, only after death of this respondent’s son she has 1/4 th share in the said property. Therefore, this respondent has given the reply to the present complaint, therefore the respondent no. 4 should be deleted from the complaint. Respondent no. 4 has not entered into any transaction with the complainant - society directly or indirectly and respondent no. 4 has not given any false assurance to the complainant society. Till date all the transactions byrespondent no. 1 have been done without the consent of respondent no. 1, therefore respondent no. 4 has no concern with the complaint.

The District Consumer Disputes Redre ssal Forum, Ratnagiri, (the ‘District Forum’) in their order dated 23.04.2007, gave the following order:

“1. Petitioner/ appellant, herein should execute conveyance deed in favour of the complainant.

2. Amount of Rs.18,016/- towards the maintenance and Rs.8,100/- towards registration charges to pay the same to the respondent no. 1.

3. Petitioner/ appellant should inform the unsold flats to the complainant society.

4. Petitioner/ apellant should pay the maintenance amount of Rs.20,900/- to the complainant.

5. Petitioner/ appellant should remit the amount of Rs.75,950/- which is received under the pretext of Society registration fees to the complainant.

6. Petitioner/ apellant should remove the chain in the covered parking and do not prevent while parking the flat purchasers.

7. Petitioner/ apellant should make arrangement to provide 24 hours water supply and the loosed wall to reconstruct the same.

8. Petitioner/ appellant should make arrangement to close the telephones wires which are lying in the air near the building.

9. The leakage should be removed or to make good in respect of the flats no.

AG1, AG 4, BG 2, B

– 104, B 202, C 303 and CG1.

10. Petitioner/ appellant should pay an amount of Rs.20,000/- towards the physical and mental torture and an amount of Rs.10,000/- towards the costs of this complaint to the complainant.

11. The above order should be implemented by the parties hereto on or before

23.06.2007, if such party are failed to comply the same, other party to file recovery proceeding under the provisions of Consumer Protection Act”.

Aggrieved by the order of the District Forum the petitioner/respondent no. 1 filed an appeal no. 637 of 2007 before the State Commission. The State Commission vide order dated 16.11.2011, dismissed the application for condonation of delay on the following grounds:

“ This is an application for condonation of delay in filing the miscellaneous application no. 539 of 2010 for restoration of an appeal no. 637 of 2007 which stood dismissed for default on 29.03.2010. Since there is a delay of 122 days in filing this application for restoration, this application is accompanied with an application for condonation of delay. These application are opposed by respondent/ original complainant Society on the ground that the delay of 153 days and not only of 122 days and further that the reasons mentioned in the application are not at all convincing and the delay is not satisfactorily explained.

The order which sought to be recalled is dated 29.03.2010 and which reads as under:

Appellant is absent. Appellant has not provided two sets of appeal memo.

Respondent’s advocate is present. Hence, this appeal is dismissed for defaults.

Thus, it is clear that on that on that day none was present for the appellant and the impugned order was passed in those circumstances, firstly for their nonappearance and since directions earlier were not complied with.

Before dismissal, as per impugned order the matter was taken up on 1 st February

2010. On that day pursis was given to hear the application for the stay and that mater was adjourned to 29.03.2010.

As per the certified copy of the impugned order filed along with this application it could be see that copy of the said order was first issued by the Commission to

the parties on 20.07.2010. It ought to have been received in the normal course. It is not disputed that it was sent on current address. However, there is no statement made in the application as to on which date said copy was received.

However, endorsement further shows that the first copy which was issued on

20.07.2010 was delivered to him and the duplicate copy thereafter was obtained by the applicant/appellant on 30.08.2010. Therefore, the delay ought to have been counted from 20.07.2010 to meet this application for recalling the order, in other words for restoration.

The reasons mentioned seeking condonation of delay, relevant for the purpose of decision of this application for condonation of delay are contained in paragraphs nos. 7 to 11. It first concluded that impugned order received by the applicant/appellant on 13.08.2010 when it received a notice in execution application under section 27 of the Consumer Protection Act, 1986. Thereafter, it is pleaded that mother of the applicant – Ms Anagha was hospitalized due to her ailment and therefore, she could not take immediate steps and thereafter she herself hospitalised since April 2010. Then it is further stated that from

01.09.2010 she was not keeping well again. It is contended that on 30 th August

2010 she obtained the certified copy and then made this application.

Though it is not expected to go too technically to scan reasons given to explain the delay on day-to-day but it is reasonably expected that the delay should be properly explained. The delay is tried to be explained making statement that the applicant/appellant’s mother was ill and hospitalized. The statement is vague and does not show that the applicant was so circumtised that it was not possible for her to attend her routine life or there exists circumstances (no statement including such circumstances is made) from which it could be reasonably inferred that it was really not possible for her to take steps to file the application in time.

Considering the totality of the circumstances, we find that this enormous delay is not at all satisfactorily explained. Reasons mentioned for so called delay are not at all convincing. We hold accordingly and the pass the following order:

Application for condonation of delay stands dismissed.

In the result Miscellaneous Application no. 539 of 2010 for restoration viz., the recalling the order dismissing the appeal in default is not maintainable”.


- The main grounds for the revision petition have been that the learned Court ought to have adopted a common procedure as is being adopted by the State Commission,

Maharashtra, Mumbai when the matter is admitted and kept sine-die. The State

Commission, Maharashtra, Mumbai ought to have issued a notice to the respective parties of the final hearing there is a delay in the present appeal this exercise has not been done by the State Commission. This shows that the State Commission has not exercised the jurisdiction vested under the law. Hence, the impugned judgment and order may be quashed and set aside.

- Learned Court has not at all considered the fact that the mother of the applicant, who is aged and was having heart problem at the relevant time and when the applicant

no. 1 produced medical certificate to that effect this aspect was not at all considered in the prospective sense. Hence, interference of this Court is necessary.

- Learned Court ought to have considered that the applicant no. 1 herself was not well as she herself was having fever and severe malaria and she was taking medical treatment from his doctor in addition to this the applicant has produced the medical certificate, documents of the petitioner/applicant no. 1 certifying that the petitioner/applicant no. 1 was having fever and having severe malaria. This aspect has not all considered by the State Commission in its prospective sense and came to the wrong conclusion. Hence, interference of this Hon'ble court is necessary.

Along with the revision petition an application for condonation of delay has also been filed. The reasons given in the application for condonation of delay of 120 days are as follows:

The applicant states that the applicant is a widow and she is having two school going children and one aged mother and aged father. The applicant states that the applicant i.e., widow is the only person in her family to look after the entire family and the entire family is dependent upon the applicant herein.

The applicant states that after getting the impugned judgment and order dated

16.11.2011 in the month of December 2011, the applicant approached the trial court

Advocate for taking advice to take appropriate steps in respect of the said impugned judgment. The applicant states that the trial court advocate assured that he will give and suggest the name and refer the matter to appropriate Advocate who will file appropriate proceedings before this Hon’ble National Commission. The applicant states that the applicant being a widow and does not have any contacts with the Advocate practicing this Hon’ble Commission, therefore, the applicant solely relied and depended upon the trial court Advocate. Therefore, the applicant states that the aforesaid reasons were beyond the control of the present applicant, therefore, delay may be condoned. Applicant states that the applicant kept following up with the said Advocate from time to time. Applicant states that some time he responded that he is in contact with the Advocate at Delhi, sometime had said that he could not get the time to contact the Delhi Advocate. Applicant states that in the month of April 2012, the said Advocate raised his hand and informed the applicant that he is unable to refer my matter. It was shocking and surprising for me. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble Court as the reasons beyond the control of the present applicant.

The applicant states that she is a widow and she is the only member who is required to run everywhere.

The applicant states that the applicant’s mother is 62 years of old age and she is a heart patient with Pulmonary, Hyper Tension with Deefvein, thrombin, Dee cellulites.

The applicant states that on 15.02.2012 the applica nt’s mother was complained pain in her chest, she was admitted at Sparsh Clinic on 15.02.2012 to 23.02.2012.

The applicant states that the mother of the applicant after discharge advised regular treatment and periodic follow-up therefore, the applicant is required to be with her mother. The applicant states that about 2 months the applicant was required to be with her aged mother as there is no male member in her family who will look after and assist her. The applicant states that Dilip Kulkarni the Doctor who has given regular and periodical treatment for congenital heart disease – Esinmeger Syndrome. The said Dr

Kulkarni is still giving periodical treatment of the mother of the applicant herein.

The applicant states that the father of the applicant is also aged and he is not able to assist the present applicant as his both knees are not supporting him. The applicant states that the father of the applicant’s knee is not supporting to stand own foots as both the knees are getting paid and therefore, he is not in a position to stand.

The applicant states that father of the applicant is also aged and he is also required regular treatment on his both the knees. The applicant states that due to the aforesaid reasons the applicant could not appr oach this Hon’ble Court within time. The applicant craves leave to refer to any rely upon the medical certificate at the time of oral hearing of this application.

The applicant states that the applicant is having two school going children. The applicant states that the applicant is required to take care of the patient i.e., aged mother as well as her father and also required to take her school going children and their examination, school etc. The applicant states that the children’s examination was held in the month of April/ May 2012 and therefore due to the examination of the children the applicant could not get time to approach this Hon’ble Court challenging and filing the present revision petition. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble Court as the reasons beyond the control of the present applicant. Hence, the delay may be condoned on the aforesaid ground.

The applicant states that in the mid may vacation of 2012 one of her friends gave the contact number of the present advocate. Thereafter, she forwarded may papers to him. The applicant states that as it is bulky proceedings and being only lady and widowed women she could not attend his office at Delhi. Therefore, sometime has been lapsed for giving instruction and preparation of the present proceedings. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble

Court as the reasons beyond the control of the present applicant. No prejudice, would be caused to the respondent if this application is allowed, whereas if this application is not allowed, grave and irreparable loss will be caused to the applicant which cannot be compensated in terms of money. Even otherwise, for meeting ends of justice, the applicant submits that the application be allowed.

It is seen that the petitioner has taken almost the same plea in the application for condonation of delay that she had taken before the State Commission. She has appended some medical certificates. The first being regarding herself where she has stated that she has been 5 of this Commission within eight 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 2 nd August 2013 for compliance.

Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish



(Against the order dated 25.10.2007 in Original Case No.57/01 of the

M.P. State Consumer Disputes Redressal Commission, Bhopal)

Dr. Sunil Bhandari D. Ortho, C/o Fracture Clinic Near Punjab National Bank

Trimulgiri, Secunderabad-500115 Andhra Pradesh

… Appellant

Versus

1. Ku. Pooja Kori D/o Shri Mohanlal Kori R/o Near Pisanhari Ki Madhya

Kori Mohalla, Purwa Jabalpur, Madhya Pradesh

2. Laxmi Narayan Hospital Through Director Madan Mahal, Opp. Belasing School

Nagpur Road, Jabalpur, Madhya Pradesh … Respondents

BEFORE:



For Appellant : Ms. Swati B. Sharma, Advocate

For Respondents : Mr. Narendra Chauhan, Advocate for R-1


ORDER


1. Dr. Sunil Bhandari, Appellant herein and Opposite Party No.1 before the M.P.

State Consumer Disputes Redressal Commission, Bhopal (hereinafter referred to as the

State Commission) has filed this appeal challenging the order of that Commission which had found him guilty of medical negligence in the complaint filed by Ku. Pooja Kori

(hereinafter referred to as the Patient) through her father Shri Mohan Lal Kori, Original

Complainant before the State Commission.

2. In his complaint, Mohan Lal Kori, father of the Patient, had stated that he had taken his daughter (the Patient) who had a mild deformity in her left leg diagnosed as

Post-Polio Residual Paralysis (PPRP) to Appellant-Dr. Sunil Bhandari, an Orthopedist, in response to an advertisement that patients who required surgery for disability would be operated by Appellant-Doctor in Laxmi Narayan Hospital (Opposite Party No.2) on payment of Rs.7000/-. After examining the Patient, a surgery was recommended by the

Appellant-Doctor and Complainant was advised to deposit Rs.8000/- as charges for hospital, operation etc. On 08.01.2001 the surgery was performed on the Patient under general anesthesia. After the surgery, Patient continued to complain about the

excruciating and agonizing pain in her operated leg but she was discharged the next day without being examined by the Appellant-Doctor and without adequate postoperative care, advice and treatment. Appellant-Doctor only advised analgesic for the pain and asked her to come for a review check-up on 09.02.2001. 2 or 3 days after the surgery, there was blue colouration on the operated leg, which started spreading accompanied with pain and, therefore, Appellant-Doctor was contacted on phone who stated that he would examine the Patient on his next visit to Jabalpur and that there was nothing to worry. When the Patient was brought to Appellant-Doctor for review checkup on 09.02.2001 the operated leg had become completely black with loss of sensation.

Appellant-Doctor, however, did not give any satisfactory explanation for this development and only admitted that the operation had not been successful. He thereafter reapplied the plaster on the operated leg. However, since the health of the

Patient kept deteriorating, she was taken to Netaji Subhash Chandra Bose Medical

College, Jabalpur, where Dr. H.S. Verma, Orthopedic Surgeon, after examining the

Patient informed that gangrene had developed because of cessation of blood supply in the operated limb. The report of the Colour Doppler examination of the arteries of the left lower limb conducted at Charak Diagnostic & Research Centre, Jabalpur suggested that there was possibility of resistance of flow in the left popliteal artery, which is indicative of deficiency of blood supply. Because of the development of gangrene, the operated leg of the Patient had to be amputated leaving her totally and permanently handicapped and her aspiration to become an athlete or a police officer was no longer possible impacting on her entire quality of life. A legal notice was sent to Appellant-

Doctor in this regard but because of the unsatisfactory response, Complainant filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that Appellant-Doctor and OP-2/Hospital be directed to pay a compensation of Rs.18,99,000/- to the Complainant.

3. Appellant-Doctor on being served filed a written rejoinder denying that there was any medical negligence or deficiency in service. It was stated that he had performed the surgery on the Patient free of cost at a camp organized for this purpose by an NGO called the Help Disabled Organisation Hyderabad in OP-2/Hospital. The surgery was

performed after taking the written consent and informing the Complainant about the risks involved. Instructions for post-operative care were also given, including the instruction to the Complainant to contact the family physician in case the Patient had any problem post-surgery. Specific instructions were also given to get the plaster removed in case of severe pain and swelling but these instructions were not followed by

Complainant. It was denied that there was any damage to the blood vessel of the leg during the surgery conducted using the Soutter & Yount’s procedure, which is a worldwide accepted surgical procedure. Appellant-Doctor also contended that it was he who diagnosed the development of gangrene, which was unrelated to the surgery. If there had been any damage as alleged to the popliteal artery, which is located near the knee and away from the site of the surgery, then the entire leg from the knee downwards would have been affected which was not the case. Thus, the cause of the gangrene was a blood clot (arterial thrombosis) which was not attributable to the surgery and was caused because of negligence in post-operative care by Complainant.

4. OP-2/Hospital contended that the entire camp was organized by an NGO. They had only rented out the operation theatre and general ward of the hospital and, therefore, neither had they any connection/knowledge about the surgery conducted on the Patient nor had they received any money from the Complainant. Thus, no service was provided to the Patient/Complainant.

5. The State Commission on the basis of submissions made before it and the evidence on record, allowed the complaint by observing as follows:

“12. On record there is only a single prescription of Dr. Bhandari. After performing the surgery, the doctor discharged the patient. His prescription only advises some antibiotics, painkillers and a cryptic noting “deformity completely corrected – review on 9 th Feb”. There is no mention anywhere if any plaster was put. There are no operation notes filed. We do not know what happened in the Operation theatre, and whether there was any damage to the Popliteal artery during the surgery. No x-ray has been advised after the surgery, nor has any x-ray report been filed. We do not know on what basis the doctor said that the deformity was completely corrected. The Colour Doppler report of 13.3.01 states

– “findings suggest the possibility of resistance to flow in left popliteal artery”. Obviously, the blood flow in the popliteal artery was not proper, resulting in the development of gangrene. The doctor has not explained why this happened. It is not his case that gangrene is a complication of the

Soutters and Yount procedure. A prima facie case against the respondent has been made out by the complainant. It is for the respondent to rebut the prima facie case, which he has not been able to do.

13. Dr. Bhandari states that when the complainant contacted him, he told him to cut the plaster and put the leg in the preoperative stage. Had he actually said this, we see no reason why the complainant would not have done so. Apparently, the plaster was too tight. Along with the damage to the popliteal artery it led to the development of gangrene.

14. When a doctor undertakes to perform a surgery, he also undertakes to provide due care after the surgery. He is not expected to disappear immediately after the operation, without any backup doctor, who can be contacted by the patient in case of any problem. There is no record as to how long the doctor kept the patient and provided postoperative care. According to the complainant, Ku. Pooja was discharged the next day. This has not been denied by the respondent doctor. There is no noting as to what her condition was at the time of discharge. Who was to give the post-operative care and regular checkup necessary after the surgery? The respondent lured handicapped patients with promises of a better life after surgery, and after receiving the money and performing the surgery he left the down, with no consideration of the patient. In fact, if he had no support systems and backups to continue with the treatment and care once he left, he should not have performed the surgery at all.”

The State Commission held only Appellant-Doctor guilty of deficiency in service and absolved OP-2/Hospital since it had only given the operation theatre and general ward on rent to the camp organizers. It, therefore, directed Appellant-Doctor to pay the

Complainant a sum of Rs.2.00 Lakhs as compensation since after amputation the

Patient would require prosthesis and further treatment. This amount was directed to be paid within one month of the date of receipt of the order, failing which it was to carry interest @ 9% per annum from the date of order till payment. Rs.1000/- were awarded as cost.

6. Being aggrieved by the order of the State Commission, the present first appeal has been filed.

7. Learned Counsels for both parties made oral submissions.

8. Learned Counsel for the Appellant-Doctor contended that the State Commission erred in holding him guilty of medical negligence and deficiency in service. It was contended that a surgical procedure had been conducted on the Patient through the

Soutter & Yount’s procedure, which is a universally accepted procedure and it was never assured that the deformity would be completely eliminated because the Patient’s lower limb was totally dysfunctional. However, the surgery was necessary to correct the deformity to the extent so as to enable the Patient to walk with the help of aids such as calipers. The surgery was successfully conducted by the Appellant-Doctor, who is a

highly qualified orthopedic surgeon and he had given a prescription for post-operative care and advised follow-up visit a few days later. The surgical procedure, it was pointed out, did not involve any touching or incision in the area of the popliteal artery blood vessel which is located near the knee and not at the level of the ankle where the surgery was conducted. Thus, the gangrene that had set in at the level of the ankle and which was detected by the Appellant-Doctor during the follow up visit could not under any circumstances be attributed to the surgery. It probably occurred because of formation of a blood clot in the artery which is not linked to the surgery. It was further contended that this could be because of negligence on the part of Complainant in the post-surgery care of the Patient. Counsel for the Appellant-Doctor also pointed out that the State Commission had sent the case papers to a medical expert i.e. Dr. H.K.T.

Raza, Professor and Head of Department, Department of Orthopedics, Medical College,

Jabalpur, who had opined that the procedure done on the Patient i.e. Soutter & Yount’s procedure was a correct one. The onus to prove that there was any medical negligence or deficiency in service was on the Complainant, who has failed to do so.

9. Counsel for the Complainant on the other hand reiterated that the gangrene was caused because of neurovascular damage during the surgery when undue pressure was put on the knee in a bid to straighten it and after which a tight plaster was cast by the Appellant-Doctor causing a tear in the popliteal artery and ultimately resulting in gangrene. Further, no post-operative care was provided since the Appellant-Doctor went away to Hyderabad after performing the surgery in Jabalpur. In his post-operative directions, the only advice given was that in case of pain the Patient may be given antibiotics and painkillers and that the deformity was completely corrected. In fact no xray or any other diagnostic procedure was carried out to confirm that the deformity had been corrected. On the other hand, Patient continued to experience excruciating pain and discomfort and the Colour Doppler test dated 13.03.2001 confirmed that there was a possibility of resistance to blood flow in the left popliteal artery. This occurred soon after the surgery and the Appellant-Doctor did not give any plausible explanation to support his statement that the surgery was successful and that the gangrene that set in was not caused as a consequence of the surgery and lack of post-operative care. The

State Commission in its detailed order has dealt with these issues and rightly concluded that the Appellant-Doctor was guilty of medical negligence in the medical treatment of the Patient, including post-operative care. Further, the AppellantDoctor’s contention that the medical expert to whom the papers were referred had stated that he had conducted the correct procedure did not, however, absolve him of medical negligence since the medical expert had categorically stated that in the absence of all the necessary medical documents, he could not give any specific finding in this respect.

The fact that the Patient’s leg had to be amputated for the gangrene in another hospital in Jabalpur is adequate proof of the medical negligence on the part of the Appellant-

Doctor.

10. We have heard learned Counsels for the parties and have also gone through the evidence on record. Patient’s surgery by Appellant-Doctor to rectify the deformity caused because of Post-Polio Residual Paralysis (PPRP) at OP-2/Hospital is not in dispute. It is further a fact that after conducting the surgery, the Appellant-Doctor went back to Hyderabad where he is based. From the evidence on record we note that postsurgery he had advised only some antibiotics and painkillers and made a noting that

“deformity completely corrected – review on 9 th Feb.”.

However, we note that no detailed operation notes were filed and nor was there any diagnostic test on the basis of which the Appellant-Doctor had concluded that the deformity had been completely corrected. There is no evidence of any other advice written or otherwise as to what the

Patient or Complainant should do and which doctor they could contact in Jabalpur in case of any complication.

It is not disputed that the Patient post-surgery had excruciating pain with slight blue colouring of the leg and in fact Appellant-Doctor during the review visit on

09.02.2001 had himself detected the gangrene. However, we note that no treatment was advised or undertaken on how to deal with the onset of gangrene and plaster was merely put back. It was only at the Medical College, Jabalpur where the Patient was taken when there was further blackening of the operated leg that the leg had to be amputated as a result of the gangrene. From the narration of the above facts, we find force in the contention of the Complainant that due post-operative care was not

provided by the Appellant-Doctor, particularly since no medical records or notes of surgery were produced by the Appellant-Doctor before the State Commission to counter the prima facie case of negligence made out against him by the

Complainant. AppellantDoctor’s contention that the medical expert Dr. Raza to whom the papers were sent had ruled out medical negligence is not factually correct since a perusal of the opinion clearly indicates that he had refrained from giving any opinion regarding medical negligence since the documents sent to him were incomplete. In the instant case, following the surgery gangrene had set in which the Appellant-Doctor has not been able to satisfactorily explain except to state that the popliteal artery could not have been damaged during the actual surgery which was away from the site of this artery. On the other hand, there is evidence based on the Colour Doppler test conducted little over a month after the surgery that confirms that there was resistance of blood flow in the left popliteal artery. Complainant has contended that the situation was aggravated because the plaster had been very tightly put and no advice was given to remove it in case of pain etc. The State Commission, we note, had gone into all these facts and vide its well-reasoned order, which has been cited in para-5, concluded that

Appellant-Doctor was guilty of medical negligence and deficiency in service by failing to provide due care to the Patient, particularly post-surgery care. We are in agreement with this finding of the State Commission. In all surgeries, particularly in orthopedic surgeries, post-operative care is very important to ensure full recovery and rehabilitation. In the instant case, the Appellant-Doctor by not being available to the

Patient post-surgery and not giving the required written instructions of what is to be done in case of any complications or untoward developments was undoubtedly guilty of medical negligence by not providing reasonable care and caution which was required of him as a good medical professional. We are of the view that for the reasons stated above the Appellant-Doctor was guilty of medical negligence and deficiency in service by failing to provide the required post-operative care to the Patient, the unfortunate result of which was the amputation of her leg causing life long disability apart from mental agony and heavy financial expenditure on her subsequent treatment. The State

Commission taking into account all these facts had awarded a sum of Rs.2.00 Lakhs to

be paid by the Appellant-Doctor. We are of the view that under the circumstances this compensation is reasonable and justified.

11. To sum up, we agree with the finding of the State Commission that Appellant-

Doctor is guilty of medical negligence and deficiency in service. The present first appeal is dismissed and Appellant-Doctor is directed to pay a sum of Rs.2.00 Lakh to the Complainant within a period of one month, failing which it will carry interest @ 9% per annum from the date of the order till payment, alongwith Rs.1000/- as costs.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh


REVISION PETITION NO. 2182 OF 2012 with

I.A. No.01 of 2012 ( For Stay)


of the State Commission, Chandigarh UT)

M/s. Destiny Overseas Pvt. Ltd. 2 nd Floor, Kamadhenu Complex, Somagiguda,

Hyderbad Andhra Pradesh. Through its Director Mrs. Chaya Devi

....Petitioner

Versus

1. Davender Prashad Singh S/o Shri Dwarika Prashad, Resident of House No.10-11,

New Sainik Vihar Jandli Model Town, Ambala City (Haryana)

…Respondent no.1

2. Satinder Singh Soni Oztina Education Consultant 21-E, Estate, Near Dyal Nagh

Gurudwara Ambala Cantt

– 133001.

..Respondent no.2

BEFORE:



For the Petitioner : Mr. A.D.N. Rao, Advocate with

Mr. Abhishek Agarwal, Advocate


ORDER


Present revision petition has been filed under Section 21(b) of Consumer

Protection Act, 1986 (for short, ‘Act’) by the petitioner/O.P. No.1 challenging impugned order dated 18.1.2012, passed by the State Consumer Disputes Redressal

Commission, Chandigarh UT (for short, ‘State Commission’), dismissing First Appeal

No.361 of 2011 and confirming order dated 14.11.2011, passed by District Consumer

Disputes Redressal Forum-

II, Chandigarh UT (for short, ‘District Forum’) in Consumer

Complaint No.98 of 2011.

2. The facts in brief are that respondent no.1/complainant was persuaded by respondent no.2/opposite party no.2, an authorized representative of petitioner and was offered immigration to Australia. Respondent no.1 was convinced that petitioner would arrange a suitable employer from Australia, to facilitate respondent no.1 and his

family for Australian Immigration, without the requirement of passing ILETS. In consideration of the said services, Australian Dollars 10,000 as service charges and

Rs.15,000/- for assessment fee alongwith Australian Dollars 300, in favour of

“Recognition Australian” were also demanded by respondent no.2 for finding a suitable nomination/sponsor in Australia, for respondent no.1. After receipt of a sum of

Rs.15,000/-, petitioner and respondent no.2, issued receipt No.0179 dated 9.8.2006.

Australian Dollars to the extent of 300 were paid by respondent no.1, through demand draft, dated 30.10.2006, and receipt was issued. Respondent no.1 also deposited

Rs.3,50,000/-, with respondent No.2, under acknowledgement dated

19.12.2006. Further, respondent no.1 furnished all the requisite documents. Thereafter, respondent no.1 made repeated visits to the petitioner and respondent no.2, to know the status of his case. In the meanwhile, for the purpose of visa processing, a medical report was demanded by petitioner and respondent no.2 which he submitted vide receipt Nos.2270 and 2910 dated 11.12.2008. It was further stated that respondent no.1 had to incur approximately Rs.3,500/- for the said test. However, ultimately respondent

No.2, left the service of petitioner and started his own concern under the name and style of “ONTINA EDUCATION CONSULTANT”, 21E, ESTATE at Ambala Cantt.

Haryana. When no response was given by petitioner and respondent no.2 with regard to the status of the immigration of respondent no.1, left with no other alternative, a legal notice dated 13.12.2010 was served by the respondent no.1, upon them. But no reply to the same was received by him. It was further stated that the aforesaid acts of the petitioner and respondent no.2, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the respondent no.1, was not redressed, left with no alternative, a complaint under Section 12 of the Act for refund of Rs.3,78,300/- alongwith interest @15% per annum; Rs.50,000/-, on account of mental agony and physical harassment; and Rs.20,000/- against miscellaneous expenses, was filed.

3. Petitioner was duly served, but none put in appearance, on its behalf. As a result whereof it was proceeded against ex parte, vide order dated 26.4.2011.

4. Respondent no.2 put in appearance and filed its written version, wherein, he stated that he was an employee of petitioner at the relevant time. It was further stated that Dr. V. Mattu was the Managing Director of petitioner, at the relevant time. It was admitted that respondent No.2, obtained the amount referred to in the complaint, from the respondent no.1. It was further stated that the same was deposited, in the account of petitioner. It was further stated that crucial document i.e. IELTS, which was the condition precedent, for getting sponsorship of an employer from Australia, was not submitted by respondent no.1 and the remaining documents submitted by respondent no.1, were of no use. It was further stated that respondent no.2, was no longer an

employee of petitioner. It was denied that respondent No.2, was in any way, deficient in rendering service, or indulged into unfair trade practice.

5. Later on, none appeared even on behalf of respondent No.2.

6. After hearing the Counsel for respondent no.1 and on going through the evidence, and record of the case, District Forum, accepted the complaint.

7. Being aggrieved, petitioner filed an appeal before the State Commission which was dismissed at the preliminary stage itself.

8. Hence, this revision.


10. It has been contended by learned counsel for the petitioner that petitioner did not receive any notice from the District Forum with regard to the complaint and as such

District Forum has wrongly decided the complaint ex parte against the petitioner.

Further, it is contended that there is nothing on record to show that respondent no.2 was an employee of the petitioner company or he ever paid the amount to the petitioner, received by him from respondent no.1. In fact, it is respondent no.2 who has cheated the petitioner by using the name of petitioner company.

11. District Forum while allowing the complaint in its order held;

“2. On being properly served, O.P. No.1 failed to make an appearance and hence, was proceeded against ex parte vide

Order dated 26.4.2011. Whereas, O.P. No.2 has contested the claim of the C.C. and has filed its version wherein has raised a preliminary objection to the fact that he only being the employee of

O.P. No.1 and O.P. No.1 being a shareholder in the accompany and one of the Board of Directors as well as the Managing Director of O.P. No.1 a registered company established under Companies

Act, 1956. Hence, the main grievance of the C.C. being against

O.P. No.1, O.P. No.2 claims the dismissal of the present complaint against himself.

On merits, O.P. No.2 has admitted to the facts of para 1 of the present complaint but however, has denied himself being the authorized representative of O.P. No.1 as of today. However, the fact that O.P. No.2 was the employee of O.P. No.1 is admitted and hence cannot be held vicariously liable for the acts of O.P. No.1.

District Forum further observed;

“ii) The allegations of the C.C. as per his complaint go unrebutted against O.P.-1 who happens to be the principal company with whom the C.C. had deposited the money and had engaged to render services for immigration to Australia. Though

O.P.-2 who has appeared in the present complaint has denied any

deficiency on his own part, but, however, has proved the case of the C.C. by admitting that he had received money from the C.C. on behalf of O.P.-1 and O.P.-2 has claimed that he was an employee of O.P.-1 and all the services demanded by the C.C. were to be provided by O.P.-1 and not O.P.-2 in his personal capacity. It is also mentioned that O.P.-2 is no more in the employment of O.P.-1 and in no manner liable for the claim of the

C.C.

(iii) In the present circumstances we believe that the principal of vicarious liability is unidirectional i.e. the company can be held liable for all the acts of omission & commission of its employees and not vice-versa i.e. to say the employees of the company cannot be held liable in their personal capacity for the acts of the company. In the present circumstances, we feel as the money has been deposited in the account of the O.P.-1 by O.P.-2 and even the certificate (Annexure C-3) wherein it is clearly mentioned that the amount of Rs.3,50,000/- is refundable if the organization is unable to get a suitable employer from Australia to sponsor the

C.C. for Employer Nomination Scheme, proves the bonafides credentials of O.P.-2 who has acted true to his responsibilities.

(iv) As O.P.-2 is no more in the employment of O.P.-1, he is also unable to explain the reason with regard to the qualification of waiver of IELTS examination for the C.C. to qualify for immigration to Australia as of today. This fact can only be proved from the record of O.P.-1, who has failed to appear and contest the claim of the C.C., though properly served. In the light of the above observations, we feel that the main grievance of the C.C. is against

O.P.-1 and it is only O.P.-1 who needs to be held liable for deficiency in service as per the allegations of the C.C.

5. Hence, in the light of above facts, the present complaint is allowed against O.P.-1 and O.P.-1 is directed to refund Rs.3,78,300/- and pay interest @ 9% p.a. from the different dates of deposit of different amounts. O.P.-1 is further saddled with Rs.7,000/- as litigation costs.

6. The above order shall be complied within 30 days of its receipt; thereafter O.P.-1 shall be liable for an interest @ 18% per annum on the aforesaid amount, except for litigation expenses.”

12. The State Commission while dismissing the appeal at the preliminary stage itself, in the impugned order observed;

“11. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. Opposite Party No.2/respondent No.2, in his written version, in clear-cut terms submitted, that he was an employee of the

appellant/Opposite Party No.1 and, in that capacity, he collected the amount, mentioned, in the complaint, by the complainant, for his immigration to Australia. He also admitted, in the written version, that the amount, so collected from the complainant, was deposited, in the account of the appellant/Opposite Party No.1. Alongwith the appeal, an application Annexure A-2, dated 14.08.2008, was filed by the appellant. This application was addressed by Opposite Party

No.1/appellant to the SHO Police Station, Sector 3, U.T., Chandigarh.

Para 3 of this document reads as under:-

“That this job was assigned by the company to

Satinder Singh Soni and he was looking after all the affairs of the Company at Chandigarh office and was collecting money and other papers from the students and all the job for processing all the paper work was done by the accused and the accused has to deposit all the amount in the account of Destiny Overseas Pvt.

Ltd. His benefit will be taken from the company profits and used to get his salary from the income of the company including other company expenditure. Even many times Corporate Office has also sent money for meeting some urgent office expenditure based on the request of the accused, without aware of his scam with company account”.

12. From the afore- extracted para 3, of Annexure A-2, it is proved, that Opposite party No.2, was looking after the affairs of the Company, at Chandigarh Office, and was collecting money, and other papers, from the students. He was also doing the job of processing and other paper work. It is further evident from this document, that he was to deposit the amount, so collected, in the account of the Company. So the submission of the Counsel for the appellant, to the effect, that Opposite Party No.2, was never authorized to collect the money, but was only given the responsibility, to look after the office space, where it wanted to open its office, is belied from document Annexure A-2, referred to above. In case, after collecting the money from the complainant,

Opposite Party No.2 did not allegedly, deposit the same, in the

account of Opposite Party No.1, then this is a dispute, between them, but the third party, i.e. the complainant, could not be made to suffer, for their act and conduct. From Annexure C-3, the certificate, dated 19.12.2006, it is evident that an amount of

Rs.3,50,000/-, equivalent to 10000 Australian dollars, was deposited by the complainant, as the initial deposit for his visa processing under employer nomination scheme. This document was issued by Satinder Singh Soni, Opposite Party

No.2/respondent No.2. When Opposite Party No.1/appellant, was unable to arrange Australian immigration for the complainant and his family members, for, whatever the reason may be, then, it was its duty to refund the entire amount of Rs.3,78,300/-, deposited by the complainant, with Opposite Party No.2, its employee. Opposite Party No.1, did not refund the amount of

Rs.3,78,300/-, which was deposited by the complainant, despite the fact that it did not render the requisite service to him.

Opposite Party No.1, thus, could, certainly be said to be deficient, in rendering service. The complainant, was, thus, entitled to the refund of amount with interest. The District Forum, was right in holding so. The findings of the District Forum, being correct, are affirmed.

13. Case of petitioner in this revision is that, it was not served with any notice regarding the case pending before the District Forum and order was passed by the

District Forum without providing an opportunity. It is also the case of the petitioner that it received the copy of order dated 14.11.2011 passed by the District Forum on

24.11.2011 and thereafter had filed appeal before the State Commission within the period of limitation. Other ground taken by petitioner is that respondent no.2 was not its employee. Simultaneously, petitioner has also taken this plea in the revision, that respondent no.2 has cheated the petitioner by using the name of petitioner company and petitioner has already filed complaint against respondent no.2 in the year 2008 and office of the petitioner was also closed after that. Thus, petitioner company cannot be held liable for anything done by respondent no.2 in an illegal manner without the consent and authority of the petitioner.

14. Thus, this plea of the petitioner that respondent no.2 was never its employee is against its own case. Petitioner itself has placed on record copy of complaint dated

14.8.2008 it made to the S.H.O., Police Station Sector-3, UT Chandigarh (Pages 37 to

42 of the paper book). Para 3 of the complaint is reproduced as under;

“That this job was assigned by the company to Satinder

Singh Soni and he was looking after all the affairs of the company at Chandigarh office and was collecting money and other papers from the students and all the job for processing all the paper work was done by the accused and the accused has to deposit all the amount in the account of Destiny Overseas Pvt. Ltd. His benefit will be taken from the company profits and used to get his salary from the income of the company including other company expenditure. Even many times corporate office has also sent money for meeting some urgent office expenditure based on the request of the accused, without aware of his scam with company acc ount.”

15. Hence, this defence taken by the petitioner, that respondent no.2 was never its employee falls to the ground.

16. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

17. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India

Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“Also, it is to be noted that the revisional powers of the

National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National

Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an

erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section

21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

18. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

19. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the

Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.

20. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent no.1 upto this fora when petitioner had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.

21. 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 cantank erous litigations causing law’s delay and bringing bad name to the judicial system.”

22. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors.

, Civil

Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;

“45. We are clearly of the view that unless we ensure that wrong

–doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.”

23. In our opinion, the present petition is nothing but a gross abuse of process of law and same is totally frivolous and bogus one, which is required to be dismissed with punitive costs.

24. Accordingly, we dismiss the present petition with cost of Rs.25,000/- (Rupees

Twenty Five Thousand only). Out of this cost, Rs.15,000/- (Rupees Fifteen Thousand only) be paid to respondent no.1 by way of demand draft and remaining cost of

Rs.10,000/- (Rupees Ten Thousand only) be deposited by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission. Cost be paid/deposited within eight weeks from today.

25. In case, petitioner fails to pay/deposit the aforesaid costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

26. Pending application stand dismissed.


…..…………………………J

(V.B. GUPTA)


..…………………………

(REKHA GUPTA)

Sg. MEMBER


ORIGINAL PETITION NO. 84 OF 1998

M/s Vee Kay Cotsyn Ltd. 420, Himalaya House, 4 th Floor Palton Road, Fort,

Mumbai, At Pusad, District Yeotmal, Maharashtra Through its Director, Sh.Kamal

Arora

… Complainant

Versus

United India Insurance Company Ltd. 24, Whites House, Chennai Through its

Chairman-cum-Managing Director

… Opp. Party

BEFORE:



For the Complainant : Mr. S.M. Suri, Advocate

For the Opp. Party : Mr. A.K. De, Advocate

Along with Mr.Rajesh Dwivedi &

Ms.Deepa Agarwal,

Advocates

PRONOUNCED ON_28.05.2013

O R D E R


1. The factory and goods belonging to M/s. Vee Kay Cotsyn Ltd, Mumbai, the complainant, were gutted in a huge fire and the complainant has claimed a sum of

Rs.2,57,50,464/- with interest @ 24% p.a. from the date of loss/fire, i.e. on 23.05.1997, till realization. The complainant company is manufacturing cotton, synthetic and blended yarn at Pusad. Raw material used for fabricating the yarn with the help of spindles is cotton and polyster. It is carrying out the spinning activities at Pusad, since 1992 and since then is getting its work insured under various policies issued by United India

Insurance Co.Ltd., OP. The complainant obtained fire policy ‘C’ and paid premium in

the sum of Rs.8,29,640/- for the sum assured to the tune of Rs.23,45,45,000/-. All the insured particulars such as building construction, machinery and assessories, humidity fication, Elect.Install F.F.F., stock of cotton, fibers, semi-finished and finished cotton yarn and others, were mentioned.

2. The insurance company, OP, repudiated the above said claim of the complainant vide letter dated 08.01.1998, which runs as follows:-

“We regret to repudiate our liability to pay your above claim. Pursuant to detailed statutory survey and special investigations into the alleged occurrence following it, we have noticed several irreconcilable inconsistencies and improbabilities in the alleged occurrence, the reported knowledge thereof, duration, effect, unusual conduct and matters relating to inventories and stocks held, etc. All these individually as well as collectively, lead us to irresistibly conclude that condition 8 of the policy has been willfully and knowingly breached, resulting in forfeiture of the benefits under the concerned policy. Lapses noticed, inconsistencies and improbabilities observed, inter alia, are :i) The precise cause of alleged fire could not be established.

ii) The documents submitted, show inconsistencies as to the duration of fire and knowledge thereof.

iii) The surveyors have conclusively established that at the time of the alleged fire, the godown did not contain any fully pressed cotton bales for which claim was lodged.

iv) The salvage/debris left-over, after the alleged huge fire was not available for inspection of the surveyors.

v) The relevant records pertaining to the period preceeding the alleged occurrence, viz, godown records, gate (inward) records were very sketchy and records for incoming storage and issues for consumption were not produced to substantiate the claim.

vi) Physical evidence observed for surveyor also and not support the alleged occurrence of huge fire.

Thus, by all counts the claim lodged by you is not found tenable within the meaning of condition No.8 of the policy and here your claim is therefore repudiated.

We request you to please bear with this decision.

Thanking you,

Sd/-

(G.N.MAHAKALKAR)

DIVISIONAL

MANAGER”.

It is alleged that the repudiation of the claim by the insurance company is not only malafide, wrongful, arbitrary, unilateral, etc., but the claim has been repudiated, without any application of mind.

3. The fire took place in the factory, on 23.05.1997, at about 5.00PM, after the first shift was over. About 1200 workers were earning their livelihood by working there. The complainant called for Fire Brigade immediately. Even though the complainant is well equipped with fire hydrants, the OP was apprised of this fact vide telegram dated 23.05.1997 itself. The complainant company reported the matter to the

State Bank of India, the Factory Inspector and the General Manager of the State

Financial Institution, Sicom Limited, Central Excise Authorities. Request was also made to depute a Surveyor to carry out survey observations on the spot who should be able to assess the loss. All the documents have been placed on record along with complaint.

4. Sh.Ghanshyam S.Bhattad, Surveyor along with Sh.G.N. Mahakalkar,

Divisional Manager visited the spot on 24.05.1997 at about 3.00PM. He made the following observations :-

“Finding :

The Fire found broken out in Godown Nos. 2, 3, 1-A & 1-B. In all four Godowns, the stock found yet smoldering the blaze seen in

Godown No.2, to both the sides of Entrance and in 1-B to both sides of entrance.

In Godown No. 1-A, the stock was to East side of entrance and

West side of entrance was empty.

In Godown 1-B to East of entrance there was a stock of bales and to West of entrance, the stock was of polyester staple Fiber in small

Gunny Bozzas.

The entrance to Gdn No.3 was closed and the fire was smoldering and Blaze seen in Gdn. No.2 it was not possible to enter to Gdn

No.3 for inspection through Gdn No.2. However, I tried to inspect the same by climbing on roof of Gdn No.3 from its back side and found that stock was fully converted in ash, so also in Godown

No.1-A. In Nos.1-B and 2, most of the stock found gutted in fire all around and fire was yet smoldering with few blazes. The band strips of bales seen laying in Godown No.2, 1-A & 1-B where the bales were stacked.

The Fire Fighting units had left the factory as the further attempt to control the fire were possible by factory Hydrants.

The Stock:

On the date of Fire the stock position before the Fire been noted from the records to 553281 kgs. This includes the stocks of 569 kgs of Poly Staple fiber. Of this 36225 of Cotton lint (in bales) saved from Gdn.No.4 and 517056 kgs., of stock is being reported as gutted in this fire.

The loss is claimed @ of Rs.44/- p kg., and worked out to

Rs.2,27,50,464/-.

The asbestos sheets of the roof found broken for the purpose throwing water to extinguishing fire. The damages to building could not be inspected, if any, due to smoldering fire.

There found no any Electrical fittings in any of the Godown.

The attributed cause of fire is reported by the Insured as the negligence of any worker in throwing bales lighten cigarette or the friction between the band strips of the bales while handling.

The more details will be given in detailed further with snapped photos soon”.

5. The complainant gave full co-operation to the OP. The media also published this news in the newspaper. The polic e prepared the ‘Spot Panchnama’ on 24.05.1997 at the instance of OP. The police observed that fire also spread and cotton bales were still burning. It is the case of the complainant that the smoke continuously came out till 28.05.1997. The bank authorities visited the ‘spot’ and found that the Stock Statements were correct. The complainant purchased raw material from Government Houses and Bills of Purchase have been appended with the complaint and the Stock Statements have been filed with the Central Excise

Authorities. Copies of statements were also sent to the Ops. The complainant company also annexed Extracts from Form-IV maintained under Rule 173-G of the Accounts of raw material and consumption only duly verified by the Excise Authorities. Panchanama was also prepared by the Tahsildar

on 30.05.1997. Same has also been placed on record. The loss sustained by the complainant was also certified by the Tahsildar.

6. The adjoining works of complainant’s company is situated in a Ginning Mill of the State of Maharashtra and their huge stocks of cotton are lying there. The

Government authorities directed the complainant to segregate the burnt material immediately and without further delay, so the fire does not spread out any further and the same will be helpful in avoiding loss to the godowns of the State of

Maharashtra, because any flame or splinter may reach the loose cotton lying outside and to the adjacent grounds of State of Maharashtra. Consequently, the complainant company dumped the burnt stock in a well situated in the factory which is very near to the godown where the incident of the fire took place. The OP also vide their letter dated 24.05.1997 had requested the complainant company to segregate the burnt stock.

7. There was internal and malafide delay in the process of claim. The insurance company appointed one M/s.Sunil J.Vohra and Associates as well as M/s.

Mehta & Padamse Pvt. Ltd., who kept on asking for more and more details which were supplied by the complainant company without any murmur. All the information was provided vide Annexures 29 to 39 and 40 to 65, showing the correspondence between the parties. It is averred that the claim has been rejected on a ‘tailor-made’ words, by making impressive sentences, which are totally hollow and have no basis and the same are not based on facts. The mere fact that no cause of alleged fire could be established is no ground for repudiation of the claim. The police authorities and the revenue authorities have duly certified that the fire was in existence till 27.05.1997. The independent surveyor of the OP has also certified that there was fire on 24.05.1997 at about 3.00PM when he visited the spot and fire was still smoldering and the blazes were coming from the godown. The conclusion drawn by the Surveyor that there were no cotton bales is totally incorrect and against the record. The salvage/ debris left over after the alleged fire was due to that burnt cotton

was segregated at the earliest possible opportunity. To avoid further spread of fire, the complainant company had acted on the advice of the OP. The

Government agencies were also insisting that the burnt cotton must be segregated at the earliest. The allegation of the Surveyor that the relevant records pertaining to the alleged occurrence, viz, godwon records, gate (inward) records were very sketchy and records for incoming storage and issues for consumption were not produced to substantiate the claim, is incorrect. The complainant had submitted stock statements, duly certified by the Excise Authorities and the Stock Statements tally for the last more than five years. State Bank of India also fortified the stock statement of the complainant company. Ultimately, the present consumer complaint was filed before this

Commission on 06.03.1998.

DEFENCES :

8. The main defences of OP are enumerated as hereunder. The bales of cotton were not stored. The photographs taken at the spot also depict that no bales of cotton were burnt. The claim of the complainant was repudiated within one month. The complainant company had defaulted the payments since 1994 and had received the notice from the Official Liquidator in November, 1997. It is, therefore, clear that the complainant was under a severe financial crunch which ended on 31.03.1997 and prior to the fire on 23.05.1997. A company, earlier known as, ‘Yeotmal Zila Sahkari

Soot and Kapad Gi rni Ltd.’, was declared as a Sick Unit and was taken over by the complainant, in the year 1992. The claim of the complainant was repudiated under condition No.8 of the policy which deals with fraudulent claim being vitiated. The claim was repudiated after taking into account the preliminary Survey Report of

Mr.G.S.Bhattad dated 31.05.1997, the survey report of M/s. Mehta & Padmase and

M/s. Sunil J. Vohra & Assoicates, dated 13.06.1997, the further report of Mr .

G.S.Bhattad, dated 17.07.1997, Investigation report of M/s. Vasu

Associates dated 18.10.1997, respectively. All the documents were considered. M/s.Mehta & Padamse Pvt. Ltd., and M/s. Sunil J. Vohra, Surveyors, in their final report dated 02.12.1997 revealed that the tree tops were not affected or

scorched, which would have been, if the fire had raged to that level. This was a fraudulent claim and lacked authenticity. The reports given by the Surveyors are correct. The police had recorded the statements of concerned employees, namely, Mr.Rama Rao D.Harne and Mr.Papamal Lalchand, who, in their separate statements, stated before the police that the fire was extinguished, soon after the occurrence, on 23.05.1997, itself.

9. Both the parties have led evidence by way of affidavits.

10. We have heard the counsel for the parties. The counsel for the complainant vehemently argued that the complainant has bolstered its case with oral as well as documentary evidence. The complainant has submitted stock statements, duly certified by Central Excise Authorities with quarterly figure-to-figure for the last five years and were duly submitted to OP. The said statements are collectively marked as

Ex.CW-1/1 to 1/18. Extract from Form IV maintained under Rule 173 G of the

Accounts of raw material and consumption duly verified by the Excise Authorities were placed on record as Ex.CW1/19. The authenticated bills issued by the

Government Bodies/Houses were also produced. The company itself is well equipped with the hydrants. The fire brigade was immediately informed vide Ex.CW1/16 as well as the insurance company vide

Ex.CW1/5. The matter was reported to Factory Inspector, Bankers, Industrial Safety &

Health, Central Excise, etc., and also to police authorities vide Ex.CW1/6 & 7,

Panchanama, Ex.CW1/8 was prepared and the correspondence with Tehsildar,

Exs.CW1/9 to CW1/12, were placed on record. The fire incident was covered by various newspapers, such as, Ex.CW1/15, the complainant was asked to segregate the burnt stocks vide Ex.CW1/14, Tehsildar also directed the complainant to arrange for completely extinguishing the fire to avoid further damages, vide

Ex.CW1/12. The burnt stock was dumped vide CW1/12 to CW1/14.

11. It was argued that even the reports of the Surveyors clearly go to show that there was a fire and loss. Sh.Ghanshyam S.Bhattad, Surveyor & Loss Assessor declared this fact in the report which is already mentioned above. It was argued that it was difficult to fathom as to why M/s.Mehta & Padamsey Pvt. Ltd. and M/s. Sunil J.Vora, Surveyors did not make any assessment and contended that they were making preliminary survey report dated 26.05.1997. Even in their interim report, submitted on 15.07.1997, they did not make assessment. On 02.09.1997, Investigation report of Loss Prevention Association of India was made. On 18.10.1997, consolidated investigation report of M/s.Vasu

Associates was filed. Final survey report of M/s.Mehta & Padamsey Pvt.Ltd., and M/s.

Sunil J.Vohra, Surveyors was made, but there was no assessment made on quantum. However, the Surveyors under 14.2 ‘Insured’s claim on building’, observed that the insured consequently refused their estimates downwards to

Rs.6,79,200/-. The final loss assessment report regarding stock was made by M/s.N.Veeraraghavan, Surveyors, after 13 years of the fire incident, on

02.02.2011, where it was opined that the stock will be of 80,826 kgs., of waste in borahs valued around Rs.5,65,782/- and 10 bales of cotton stock valued around

Rs.72,600/-. The total stock loss was around Rs.6,38,382/-.

12. The Bankers also certified and furnished to the insurance company, stock statement showing month-wise stock position, which was also verified and found to be correct, vide Ex.CW1/17. Photographs, CW1/41 clearly reveal that the fire had gutted cotton bales and other articles. Copies of the Daily Raw Material record were also furnished. The police investigation report Ex.CW1/39, mentions as under :-

“ With reference to above cited reference, your Labour Officer,

Sh.S.P./Pole. As per his written complaint dated 23.05.1997 regarding Fire to godown, visited on spot on dated 24.05.1997 and prepared spot panchanama from time 8.00 to 9.30 morning.

At the time of preparing spot panchanama, the fire was of huge intensity. The bales were burning at the time of panchanama

and there was smoke in godown. The fire was not extinguished completed upto 28.05.1997, there wa s smoke coming out”.

13. Again, the claim of the complainant was illegally repudiated. The police authorities declared that the loss was at Rs.2,60,19,000/- , Panchanama prepared by

Tehsildar assessed the loss at Rs.2,67,21,000/-. The verification certificate issued by

State Bank of India, Stock Statement of cotton bales, photocopies of Form RT5, varietywise cotton stock, etc., copies of which have been included and placed at Ex.CW1/ 1 to CW1/LXVI. Audit accounts have also been filed on record. Photocopies of ledger book were also filed. The complainant has filed statement showing loss of cotton due to fire, which copies show that the loss amount comes to Rs. 2,27,50,464/-.

FINDINGS :

14. The allegations and documentary evidence filed by the complainant appears to be attractive but loses its sheen when tested on the touchstone of the evidence, facts and circumstances of the case. To top it all, there is no concrete evidence which may go to show that the bales were burnt in a large number. On the contrary, the reports of the Surveyor appears to be correct to this extent. We have seen the photographs placed before us. It does not appear from the remnants that the bales were burnt in a large number. If the bales were burnt, they would have remained in a standing position.

15. Secondly, only one fire brigade was in a position to extinguish the fire. The receipt given to the fire brigade goes to show that only a sum of Rs.930/- were incurred for the services rendered by the fire brigade. It clearly goes to show the magnitude of fire which occurred there. A veil of suspicion covers the reports given by the police and Tehsildar. The fire cannot continue till

28.05.1997. There is diffe rence between the ‘fire’ and ‘smoke’.

16. The story that the labourers doused the fire and segregated the burnt articles appears to have been made out of whole cloth. No photographs of well in which the

burnt articles were dumped, were ever taken. No request was made to the Surveyor to take the photographs of the well, as well. Nothing was recovered from the well. There is not even an iota of evidence which may go to reveal that the request was made by the complainant to visit the well and take its photograph(s). This story does not just stack up. 3000 bales cannot be burnt in a jiffy. It will take enough time. The departure of Fire Brigade immediately, clears everything about this incident. The complainant has not approached this Commission, with clean hands. Mr.G.S. Bhattad, merely mentioned that in the godown, one way to East of Entrance, there was stock of bales and rest of the Entrance, the stock was of polyster fiber, in small gunny bosas. Had there been around 3000 gunny bags, there would have been a big fire.

17. In its preliminary survey report, M/s.Mehta & Padamse Pvt. Ltd., and M/s. Sunil

J.Vohra, Surveyors, mentioned the following facts. The fire was brought under control by about 20.30 hours on 23.05.1997. The complainant, however, reported that watering and cooling operations were reportedly continued till

25.05.1997. Cause of fire could not be established. There was no electricity in the building. The affected godowns were locked at the time of fire. There had been no access to the godown compartment after 3.00PM. According to their enquiries, it transpired that the compound area where the godown building is located is also under security watch, cigarette/ beedi smoking at the mills is also prohibited. At the time of their visit, the affected compartments were godown Nos. 1A, 1B and 2, had been clear of all debris and salvage. Consequently, the Surveyors could not inspect the debris. The Complainant had removed 207 bales which were not affected. They also explained that “insurers may note that clearing out of debris/salvage and physical evidence from the affected godown appears prior to our inspection has hampered our inspection and assessment. It is not understood why the Surveyors were not taken towards the well. Vide their report dated 13.06.1997, they also explained that they have done continuous detailed verification because there were various inconsistencies which they have observed during the course of

survey. They filed Interim Survey Report on 15.07.1997. In para

15.0, they came to the following conclusion, which is reproduced, as under:-

“1) Evidence of the fire having been thrown away before our visit.

2) Insured not producing basic stock records.

3) Threats perceived by the surveyors who were “gheraoed” by the Union apparently under instigation by the insured.

We find ourselves unable to proceed further in the matter unless there is a positive change, in the insured’s attitude”.

18. There is Investigator’s report dated 02.09.1997, which reads, as under :

“It is worth noting in this context that the preliminary survey

(conducted on 24.05.1997) report mentions that the amount of ash found in godown No.2A and 1B was found to be very less, contradictory to the quantity of cotton in bales from stored over there. Further, it also states that no iron hoops (straps of the bales) were noticed in godown No.2B which appeared to have been most badly affected in fire. However, as per the insured,

F.P.bales (total 640 Nos.) were reportedly stored in godown

No.2B. Hence, the actual stock position in all the godowns may be verified from the daily stock register for incoming issue, closing stock maintained by the mill, any despatches of bales made by the mill to other parties from the delivery challans maintained in the factory and at the security, statements submitted to the bank, etc., in order to ascertain the exact quantity of cotton that would have been burnt in the fire. In this context, it may also be kept in mind that the iron hoops (being this metal strips) are likely to melt totally or become brittle and get totally destroyed leaving no residue behind if very high heat condition prevails at the time of f ire”.

19. There is a Consolidated Final Investigation Report, merging 314 & 391 of date

7 th September & 12 th October, respectively, submitted by M/s.Vasu Associates, dated

18.10.1997, the relevant para of which is very important and the same is reproduced hereunder:-

“As we were travelling to Pusad on 2 nd September,

1997, we initiated a casual talk with a fellow-passenger by

name, Mahalkar, who happened to be one of Cotton

Growers of Pusad Area. Earlier, he was working as Public

Prosecutor at Nagpur. He is also practicing at Nagpur on the

Criminal Side, after retirement. He told us that he travels to

Pusad once every 10 days to monitor the farm he has near

Pusad. When we asked him whether he came to know of any major fire in Pusad, in the last 5 months and heard in the negative. He also told us that it was the 1 st time he was hearing of fire in Pusad area and that too, of such a big magnitude. When we asked him whether it could be possible that 2985 bales would have been brought to ashes in

2½ hours’ time, he said it is not only possible but improbable too. With that information, we landed in Pusad

”.

It was further reported that :

“The fire could not have occurred because, there is no light, smoking is prohibited, hoops were not there for it to create friction because on that day there were no bales available in the mill godown. Even by the rarest of the rare chances it could be proved that bales were there, the godown was shut around 3’O clock on that day but the fire claimed to have occurred at well past 4.30 in the evening.

Conclusion:- From the exhaustive enquiries we made, we have come to the feeling that Insured was making a fraud claim on us. This is supported by the stock statement documents given by the

Insured to the bankers that, they had no bales but only loose stocks. If there were only loose stocks there could not have been fire because, there were no hoops to create a spark igniting the cotton. Therefore, the claim is terminological inexactitude and merits no consideration for reimbursement”.

The surveyor also found that there were loose stocks but there were no bales.

20. Lastly, there is Final Loss Adjustment Report by M/s.N.Veeraraghavan, dated

02.02.2011. The following extracts are relevant, and the same are being reproduced, as under :-

“9.1.1 The analysis of the details of the final survey report, its photographs, correspondence from Police

Panchnama, Fire Service Report, etc., clearly raises questions regarding the extent of fire damage as claimed by insured and also questions regarding any FP Bales damaged. The Physical evidence of the damage to the building as could be seen from the photographs in the survey report did not show presence and damage to heavy stock of cotton bales as claimed by insured, such stock of cotton bales, if present in the Fire affected godown, it would have left clear trail of bale marks on the walls and on the floor. Also the presence of such stock of bales would have led to collapse of the stacking after fire and available in both fully burnt and semi-burnt stacks. No such evidence was available in the photos. Seen from the ground evidence as available from the various photographs in the Survey Reports, as well from the Photo Album collected from Insured (Exhibit 1) on

13.08.2010 while at Delhi, it could be confirmed that there was no stock of bales in the fire affected godown. The photos pages 195-200 of Exhibit 1 only show probable presence of borah stock burning. Presence of cotton bales as claimed by insured would have left clear collapse of bales both burnt and semi-burnt. This could be inferred and confirmed from photos of Exhibit 2. The photos of Exhibit 2 are from fire damage to godown having

3000 and 4000 bales. The photos of Exhibit

2 clearly show bale marks on the walls and also collapsed bales stocks present after the fire accident. These photos are from 2 independent fire accidents and the fire having been put off after more than 24 hours of firefighting”.

9.1.10. If the fire were to have been involved with the quantum of stock of about 2954 bales weighing about

4,87,000 kgs of cotton and claimed by insured, as having been completely damaged and burnt to ash, would have led to release of huge heat loads”.

9.1.11 Considering such heat load factor, and the claim of damage of stock around 4,87,000 kgs, of cotton would have

led to the severe damage to the godown structure. The damage to the godown with only one Section roof damage and shutters established that there was no such storage of huge stock as claimed by insured”.

9.1.13 The comparison of the photos of the insured’s site and the photos of fire at other units in (Exhibit 1 &

2), clearly establish that the insured’s godown at the time of fire did not have any substantial bale stocks. This is inferred from the absence of bale marks on the walls and floor of the insured’s godown. The evidence of heavy stack of bales in other units is clearly seen from clear bale stock marks on the walls and floor. Also the photos enclosed as Exhibits C.H.1/41 (Exhibit 1), are clearly seen as different from the fire damaged photo at other locations in Exhibit 2. This is particularly so that the collapse of bales stock in the fire was clear and evident in the Exhibit 2 of other unit’s fire while absence of such evidence at the insured’s godowns show that the stock of bales in Insured’s godown was only very minimal at the time of fire”.

9.1.14 Hence, taking into account all these factors of absence of appropriate records for stock and purchases, and also considering all the available ground evidence (as seen from photos, narration of survey reports, and the comparative photos of fire from similar godown fire), the stock loss assessment has to be done based on the physical evidence only”.

9.1.27 Hence, the loss assessment to stock will be of

80,826 kgs of waste in borahs valued around Rs.5,65,782/- and 10 bales of cotton stock valued around Rs.72,600/-

. Adding both the stock loss assessed is around

Rs.6,38,382/“.

21. The Hon’ble Apex court in United India Insurance Co.Ltd. Vs. Roshanlal Oil

Mills & Ors., (2000) 10 SCC 19 was pleased to observe, as under :-

“7. The appellant had appointed joint surveyors in terms of Section 64-UM (2) of the Insurance Act,

1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable.

This is an important document which was placed before the

Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of joint survey report, the Commission was not justified in awarding the insurance amount ot the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing”.

22. Again, in D.N.Badoni Vs. Oriental Insurance Co.Ltd, 1 (2012) CPJ 272 (NC) , it was held that “it is well settled law that a Surveyor’s report has significant evidentiary value, unless it is proved otherwise, which the complainant has failed to do so, in the instant case”.

23. Similar view was taken in other cases, such as Ashu Textiles Vs. New India

Assurance Co.Ltd. & Anr.,III 2009 CPJ 272 (NC) and New India Assurance Co.Ltd.,

Vs. Febama Agencies, I (2013) CPJ 133 (NC).

24. The complainant has not produced solid and unflappable evidence to support his case. It has made a vain attempt to make bricks without straw. It’s namby pamby pleas lead us nowhere. We are left with no option but to place reliance upon the report of

Surveyors, even after it was prepared in the year 2011, on the basis of other

Surveyors’ reports, prepared in 1997-1998.

25. In the result, we accept the reports given by the Surveyors and direct the OP to pay an amount of Rs.6,79,200/- plus Rs.6,38,382/-, total being Rs.13,17,582/-, with interest @ 9% p.a. from the date of incident, i.e. 23.05.1997, till its realization. The process in settling the claim was taken up in a lackadaisical manner. The incident took place in the year 1997, and the final report of the Surveyor is dated 02.02.2011. There is long gap. The law does not require that this much delay should be taken. We, therefore, impose compensation in the sum of Rs.3,00,000/-, towards harassment, mental agony, litigation expenses, etc., payable by the OP to the complainant, within a period of 60 days, otherwise, it will carry interest @ 9% p.a., till its realization.

..

..…………………………..



.…..………………………..


MEMBER dd/



(From the order dated 08.02.2008 in Appeal No.2268 of 2005 of the M.P. State


1. The Oriental Insurance Co. Ltd. Regd. Office: Oriental House, Post Box No.7037 A-

25/27, Asaf Ali Road, New Delhi – 110002

2. The Oriental Insurance Co. Ltd. Savitri Sadan Free Ganj, Ujjain (M.P.) Through: The

Chief Manager; The Oriental Insurance Co. Ltd. Head Office A-25/27, Asaf Ali Road,

New Delhi

– 110002


Versus

Smt. Shobha Mukhia W/o Shri Devendra Prasad Mukhia C/o Mukhia Nursing Home

Free Ganj, Ujjain (M.P.)


BEFORE



For the Petitioners : Mr. S.M. Tripathi, Advocate

For the Respondent : Mr. R.D. Makheeja, Advocate


O R D E R


This revision petition has been filed by the Petitioners/OP against the impugned order dated 8.2.2008 passed by the M.P. State Consumer

Disputes Redressal Commission, Bhopal (in short, ‘the State Commission’) in Appeal

No. 2268 of 2005 – Smt. Shobha Mukhia Vs. The Oriental Insurance Co. Ltd. by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2.

Brief facts of the case are that Complainant’s/Respondent’s husband obtained Medi-claim policy for himself and complainant for Rs.1,00,000/- and for his son for Rs.50,000/- for a period commencing from 12.10.1999 to 11.10.2000 and further renewed it from 18.10.2000 to 17.10.2001. Later on, on the request of complainant, coverage of complainant was enhanced to Rs.3,00,000/- from Rs.1,00,000/- on the request of complainant by letter dated 22.11.2000. It was further alleged that complainant was admitted in the hospital first time on 3.8.2000 and later on was admitted in hospital from time to time and incurred expenses of Rs.4,13,992/- in the treatment. Complainant sent intimation by post to OP/petitioner regarding hospitalisation on 10.8.2000 and on subsequent dates. By letter dated 18.12.2001, complainant submitted claim, but claim was repudiated by OP vide letter dated

17.1.2002 on flimsy grounds. Complainant alleging deficiency on the part of OP filed complaint before District Forum. OP/petitioner resisted claim, filed written statement and submitted that complainant has violated terms and conditions of the insurance policy and no intimation was given regarding hospitalization within prescribed period and claim was also not preferred within 30 days of discharge. It was further alleged that complainant suppressed material facts regarding previous disease and treatment and gave untrue answers; hence, complaint be dismissed. Learned District Forum after hearing both the parties dismissed complaint. Appeal filed by the complainant was allowed by learned State Commission vide impugned order and petitioner was directed to pay Rs.2,00,000/- to the respondent against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that respondent has suppressed disease in the proposal form while obtaining first policy and has not revealed previous hospitalization, disease and treatment while obtaining second policy and further violated conditions of policy and learned District Forum has rightly dismissed complaint, even though, learned State Commission has committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand,

learned Counsel for the respondent submitted that no conditions have been violated by respondent and there was no suppression of previous disease and in such circumstances, 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 proposal form for the first policy was submitted and previous treatment, disease, etc. were denied by the complainant. Learned State

Commission has rightly observed that no evidence was adduced by OP to show that on the date when complainant obtained first policy on 12.10.2009, she was having any such renal ailment or even symptoms so as to make her to believe that she was required to receive treatment for the said ailment. Learned State Commission further rightly observed that on 13.9.1999, hypertension was detected in the complainant and mere existence of hypertension is not sufficient to infer that complainant was also having renal ailment. Learned State Commission rightly disbelieved report of

Investigator Mr. Pradeep Chhajed who is a Chartered Accountant having no expertise in the field of medical science and in such circumstances, we do not find any evidence regarding previous disease suffered by complainant. Thus, there was no suppression of previous treatment as well as disease and in such circumstances, learned State

Commission rightly held that on this ground claim should not have been repudiated by

OP.

6. It is admitted case on the side of complainant that complainant was hospitalized from 3.8.2000 to 9.8.2000, from 3.9.2000 to 5.9.2000, from 12.10.2000 to 9.11.2000, from 1.1.2001 to 8.1.2001. Period of first policy was from 12.10.1999 to 11.10.2000. In such circumstances, whatever the expenses incurred by the complainant in her treatment while hospitalized in this period, she is entitled to get reimbursement upto the limit of her policy.

7. As far as second policy for the period from 18.10.2000 to 17.10.2001 which was issued after a lapse of first policy, it cannot be treated as renewal of first policy because renewal has to be made before lapse of policy. Learned Counsel for the respondent

submitted that this policy was issued with a cumulative bonus meaning thereby, no claim bonus was given which can be given only if policy is renewed without claim. For the sake of arguments, even if it is presumed that second policy was in pursuance to renewal of first policy, there was clear cut suppression of previous hospitalization and treatment. Though, no fresh proposal form was taken by the OP from complainant, but it was obligatory on the part of complainant to disclose previous treatment and hospitalization before applying for renewal/grant of next policy. Learned State

Commission has committed error in not considering this aspect and as there was suppression of previous treatment, hospitalization and treatment of disease, in second policy for 18.10.2000 to 17.10.2001, complainant is not entitled to get any reimbursement under the second policy and OP/petitioner has not committed any error in repudiating claim under the second policy and learned State Commission has committed error in allowing reimbursement under second policy.

8. As per terms and conditions of policies, complainant was under obligation to give intimation to the OP within 7 days from hospitalization. Learned Counsel for the respondent has drawn our attention towards intimation sent Under Postal Certificate

(UPC), but they cannot be believed because treatment was continuing in Nadiyal(Gujarat) whereas, these intimations under UPC have been sent from Ujjain.

Not only this, had these intimations been given by the complainant to OP on those dates, next policy would not have been issued by OP in favour of petitioner that too after granting no claim bonus. In such circumstances, it can be inferred that there is violation of Condition No. 5.3 regarding intimation by the complainant to OP within 7 days from hospitalization.

9. As per Condition No. 5.4, claim was to be filed within 30 days from date of discharge from the hospital. Complainant admittedly filed claim on 18.12.2001. Under the first policy, complainant remained under hospitalization upto 5.9.2000 and remained under hospitalization under second policy upto 8.1.2001 and further was seen in the

OPD of hospital on 12.10.2002. Apparently, there is violation of this condition, as claim should have been filed within 30 days from discharge from the hospital, but claim has

been filed after 11 months of discharge from the hospital on 8.1.2001. Note has been appended below, Condition No. 5.4 and in extreme cases of hardships this condition can be waived by insurance company. In the present case, as complainant remained hospitalized on number of times for different period for renal ailment and kidney transplantation, we deem it proper to waive condition of intimation of hospitalisation within 7 days and filing claim within a period of 30 days and we deem it also proper to allow reimbursement of medical expenses incurred during subsistence of first policy upto the extent of coverage of Rs.1,00,000/-.

10. Consequently, revision petition filed by the petitioner against the respondent is partly allowed and impugned order dated 8.2.2008 passed by learned State

Commission in Appeal No. 2268 of 2005 – Smt. Shobha Mukhia Vs. The Oriental Ins.

Co. Ltd. is partly set aside and petitioner is directed to reimburse Rs.1,00,000/- incurred as expenditure on hospitalization and treatment under the first policy within 30 days from today, failing which, it shall carry interest @ 9% p.a. from 8.2.2008, the date on which, order was passed by learned State Commission till realization.

..………………Sd/-……………



..…………Sd/-…………………


MEMBER k



(From the order dated 25.05.2012 in Appeal No.275 of 2011 of the Haryana State

Consumer Disputes Redressal Commission, Panchkula)

Mahavir Singh S/o Ram Bhagat Singh R/o Village Mandothi Tehsil Bahadurgarh District

Jhajjar, Haryana


Versus

United India Insurance Co. Ltd. Regional Office, SCO No.123-124, Sector 17-B,

Chandigarh Through its Deputy Manager


BEFORE



For the Petitioner : Mr. Shashindra Tripathi, Advocate

For the Respondent : Ms. Suman Bagga, Advocate


O R D E R


This revision petition has been filed by the Petitioner/Complainant against the impugned order dated 25.5.2012 passed by the Haryana State Consumer Disputes

Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 275 of 2011 – United India Insurance Co. Ltd. Vs. Mahavir Singh 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 got his truck No. HR 63A

1524 insured with OP/respondent for a period commencing from 12.4.2006 to

11.4.2007. Vehicle was stolen on 12-13/5/2006 and FIR was lodged on 2.6.2006 and intimation was also given to OP. Complainant submitted all the documents to OP for processing claim, but claim was not disbursed. Complainant alleging deficiency on the

part of OP, filed complaint before District Forum. OP filed written statement and submitted that complainant intimated OP very late, which was in violation of terms and conditions of the policy and further alleged that complainant did not comply with the directions given in many letters; so claim of the complainant was closed as ‘no claim’ and intimation was given to the complainant vide letter dated 29.8.2007; hence, there was no deficiency and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.11,40,000/- to the complainant along with 9% p.a. interest and Rs.2500/- as litigation cost. Appeal filed by

OP/respondent was allowed by learned State Commission by impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that delay in filing complaint had already been condoned by learned District Forum, even then, learned State

Commission has committed error in dismissing complaint on the ground of barred by limitation; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned

State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. Perusal of record reveals that complainant filed application for condonation of delay along with complaint before the District Forum and learned District Forum vide order dated 3.12.2009 i.e date of filing complaint, allowed the application for condonation of delay and notice was issued to OP. Thus, it becomes clear that delay in filing complaint was condoned by learned District Forum, though, without hearing OP, which should not have been done. Perusal of reply filed by OP further reveals that claim was not repudiated by letter dated 29.8.2007, but file was closed as complainant did not comply with the directions given in the letters. Learned Counsel for the petitioner submitted that claim has not been repudiated till today.

6. As learned State Commission has allowed appeal and dismissed complaint on the ground of complaint barred by limitation, but delay in filing complaint had already been condoned by District Forum, which was not brought to the notice of the State

Commission, we deem it proper to set aside the impugned order and remand the matter back to the learned State Commission to decide it afresh on the ground of limitation as well as on merits.

7. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 25.5.2012 in Appeal No. 275 of 2011- United India Insurance Co. Ltd. Vs.

Mahavir Singh is set aside and matter is remanded back to the Ld. State Commission to decide it afresh after hearing both the parties, in the light of the observations made above.

8. Parties are directed to appear before the State Commission on 5 th July, 2013.

There shall be no order as to cost.

..………………Sd/-……………



..……………Sd/-………………


MEMBER

K



(From the order dated 18.2.2008 in Appeal No. 1634/2006 of M.P. State


Rajaswa Karmchari Grih Nirman Cooperative Society Ltd. Basant Vihar Colony,

Udhyan Parisar, A.B. Road, Indore (M.P.)


Versus

Prakash Chand Gangwal S/o Sagarmalji Gangwal, R/o 2172, Sudama Nagar, D-

Sector, Sudama Nagar, Indore (M.P.)


BEFORE



For the Petitioner : Mr. Deepesh Joshi, Advocate

For the Respondent : B.S. Banthia, Advocate


O R D E R


In R.P. No. 2339 of 2008

– Rajaswa Karmchari Grih Nirman Cooperative

Society Ltd. Vs. Mr. Prakash Chand Gangwal, arguments were heard on 2.5.2013 by our Bench. Judgement was dictated by

Hon’ble Presiding Member and sent for approval to

Hon’ble Dr. B.C. Gupta, Member. Hon’ble Dr. B.C. Gupta sent descending judgment. As Members of the Bench differ in their opinion, the matter may be placed before

Hon’ble President, NCDRC under Section 20(i)(iii) of the

C.P. Act for appropriate directions.

…………………Sd/-………….

(K.S. Chaudhari, J.)

Presiding Member



(From order dated 22.09.2011 in Appeal No. 316 of 2004 of Orissa State Consumer Disputes

Redresdsal Commission, Cuttack )

Rukma Devi W/o Radhey Shyam Khemka R/o Sudpada, Bolangir town, P.O./P.S. and

Dist. Bolangir, Orissa.

………Petitioner

Versus

The Branch Manager, Sahara India Ltd. Bolangir Branch, at P.O./P.S. Distt. Bolangir,

Orissa.

…… Respondent

BEFORE:



For the Petitioner : NEMO

For the Respondent : NEMO


ORDER


Petitioner/Complainant addressed a letter dated 09.12.2011 to President of this

Commission and same has been treated as revision petition. Following averments have been made in it ;

“ Sir, I had appealed against the case no.183/03 of Cuttack State

Consumer Disputes Redressal Commission, Orissa, Cuttack on

24.4.2004. Sir, I had gone to the Consumer Forum 3-4 times at

Cuttack but there the officer told that why you come again and again.

Whenever there is hearing of your case, we will inform you before.

But at the time of hearing, they did not inform us anything; only judgment was sent through post. On going there and asking in the

Court, the officer said that they had forgotten to inform about the hearing. Now, nothing can happen here. You appeal in the National

Consumer Court.

Therefore, I am sending photo copy of all the records and order of the State Consumer Court so that I get justice.

Now, Manager of Sahara Parivar States that you did not give what we wanted. No, wherever you lodge the case, you cannot win.

So, please arrange to get me proper compensation and give us justifiable help

”.

2. Brief facts as emerges from record are that, one Radhey Shyam Khemka, his wife-Rukma Devi(Petitioner herein) and Tara Chand Khemka filed a complaint before

District Consumer Disputes Redressal Forum, Bolangir (for short, ‘District Forum’) alleging that they deposited amount under “Golden-7 Scheme” formulated by the

Respondent/O.P. Tara Chand Khemka deposited Rs.42,000/- @ Rs.6,000/- yearly for 7 years vide A/c No. 18435001300 and his wife Rukma Devi deposited Rs.39,000/- @

Rs. 500/- per month for 6 ½ years vide A/c. No. 1843500803. As per pass-book chart,

T.C. Khemka would get Rs.79,018/- but respondent has paid Rs.73,216/- i.e.

Rs.5,802/- less and Smt. Rukma Devi has got Rs. 63,872/- in place of Rs.72,473.65 P i.e. Rs.5,606.65P less. It is further alleged that not only that, respondent has not made entry of Rs.500/- in the monthly deposit of Smt. Rukma Devi. Complainants brought these facts to the knowledge of the respondent and requested him to pay the full maturity amount but respondent did not care to pay the same. Hence, this case.

4. Respondent in its objection stated that no doubt Rs.500/- has not been entered in the account of Rukma Devi due to clerical error and when the said fact came to his knowledge he immediately contacted his higher authority and on their directions, made entry in the account of the Petitioner of Rs.1,043/- for Rs.500/-. Both the policy holders have received their amount without any objection. Policy holders are entitled to receive full maturity amount if they make the payment of the premium on or before the due date.

In case of default there will be reduction in the payment of interest and ultimately the maturity amount will be less. Both the policy holders defaulted from the beginning to deposit the premium within due date as per policy condition for which less maturity amount was given to them rightly. There is no deficiency in service of the respondent.

Hence, the case may be dismissed with cost.

5. District Forum, vide its order dated 18.3.2004, partly allowed the complaint .

6. Being aggrieved by the order of District Forum, Smt. Rukma Devi, one of the petitioners filed an appeal before the State Commission.

7. Before the State Commission when the matter was called for hearing, none appeared on behalf of the petitioner while counsel for respondent was present. Vide impugned order dated 22.09.2011, appeal of the Petitioner was dismissed.

8. Hence, this petition.

9 On 30.3.2012, after hearing the husband of the petitioner, notice was issued to respondent for 27.7.2012. On 27.7.2012, none was present on behalf of the petitioner, hence revision petition was dismissed in default and for non-prosecution.

10. Later on, petitioner filed an application for restoration which was allowed in the absence of the petitioner, vide order dated 4.12.2012 and matter was listed on

14.2.2013.

11. Thereafter, on 14.2.2013 at the time of admission hearing again petitioner did not appear. However, she has sent an application stating that due to her poor financial condition she is not able to undertake the journey to this Commission and the decision taken by this Commission shall be acceptable to her. As some of the documents filed alongwith revision petition were in Hindi, Registry was directed to get the same translated into English and the same has been done.

12. We have perused the record.

13. District Forum, in its order has held ;

“On scrutinizing the pass books filed by the complainants with are marked as Ext. A and B and also the ledger folio filed by the O. P. marked as Ext. C and D, found that complainant have not deposited some of their premium within due date i.e. in the first week of every month as enumerated in the terms and condition of

Golden-7 Scheme in para 3(b). Complainants have submitted that they have paid the premium amount to the agent of the O.P. within due date and he must have not deposited the same with the O. P. in due time, for which complainants are not responsible. The said contentions is not acceptable, because as per terms and conditions of the Scheme mentioned in para-3(a) i.e. Mode of Payment- “ All payments to the company shall be made either by way of cheques, draft or cash against receipt countersigned by its authorized signatory. Payment by any other mode or media other than mentioned above shall be at the Account Holder’s own risk”. Policy holders are entitled to receive the full maturity amount if they would have make payment of the premium on or before the due date which complainants have failed to do so and ultimately the maturity amount will be less.

O. P. has admitted the fact of non entry of Rs. 500/- in the

Account Ledger of Smt.R. Devi for which O.P. is agreed to pay

Rs.1,043/- including interest over Rs. 500/- as per payment advice(Ext. E).

Hence, ordered:

“Complainant Rukma Devi is entitled to get Rs.1,043/- with interest @. 9% P.A. since 20.09.2003 till payment with cost of Rs.

200/”.

14. The State Commission, concurred with the decision of the District Forum and consequently dismissed the appeal observing as under ;

“ When the matter was called for hearing nobody appears for the appellant nor there is any mention made on behalf of the appellant.

Heard Mr. S. Nanda on behalf of Mr. L. K. Kanungo, learned counsel appearing for the sole respondent.

Perused the record, impugned judgment and order as well as the

LCR. In the course of hearing, learned counsel for the respondent submits Xerox copy of Maturity/Stage Withdrawal showing the net payable amount of Rs.1,043/- to be paid to the appellant.

In view of the above submission made by the learned counsel for the respondent, we are of the opinion that the Forum below has rightly passed the order in favour of the appellant and therefore, the impugned order needs no interference.

Hence the impugned order is upheld being just, fair and legal ”.

15. Under section 21 (b) of the Consumer Protection Act, 1986 this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

16.

Hon’ble Supreme Court in

Mrs. Rubi (Chandra) Dutta Vs. M/s United India

Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“ Also, it is to be noted that the revisional powers of the National

Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the

National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21

(b) of the Act has been transgressed. It was not a case where such

a view could have been taken by setting aside the concurrent findings of two fora.”

17. It is apparent form the record that, after filing the appeal none appeared for the petitioner before the State Commission. However, State Commission after carefully scrutinizing the record has categorically observed ;

“In the course of hearing, learned counsel for respondent submits Xerox copy of Maturity/Stage Withdrawal showing the net payable amount of Rs.1,043/- to be paid to the appellant”.

18. It clearly shows that sum of Rs.1,043/- due to the petitioner has been duly paid.

19. In view of the concurrent findings of facts given by the two fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.

20. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasonings.

21.

Thus, present revision petition having no merits and the same being without any legal basis, is hereby dismissed.


……..……………………J

(V.B. GUPTA)

SSB


…………………………

(REKHA GUPTA)

MEMBER



(Against the order dated 07.03.2008 in Complaint Case No. 100/2000 (Hry.)/RBT/18/07 of the State Consumer Disputes Redressal Commission, UT Chandigarh)

Mohit Bindal S/o Shri Harish Bindal R/o H.No. 946/545, Kath Mandi Hisar

… Appellant

Versus

1. Haryana Urban Development Authority Through its Chief Administrator Panchkula,

Haryana

2. Administrator, HUDA Gurgaon

3. Estate Officer, HUDA Gurgaon

… Respondents

BEFORE:



For the Appellant

For the Respondents


: Mr. Vivek Srivastava, Adv.

: Mr. Suhaas Joshi, Advocate

ORDER


1. This appeal has been filed by Mohit Bindal, Original Complainant before the State

Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as the State Commission) and Appellant herein challenging the order of that Commission which had dismissed his complaint of deficiency in service against Haryana Urban

Development Authority (HUDA), Opposite Party before the State Commission and

Respondent herein.

2. FACTS :

In the complaint filed by the Appellant (through his father since he was a minor), it was stated that he was initially allotted plot no. 279 in Sector-55, measuring 450 square meters at Gurgaon by the Respondent (HUDA) and subsequently this allotment was changed and he was allotted another plot i.e. plot no. 272 in the same sector vide allotment memo no.11154 dated 17.08.1999, of which he is now the owner. Appellant-

Complainant had paid the entire amount of Rs.4,81,140/- towards the cost of the aforesaid plot and Rs.9549/- as interest on delayed payment. Later the price of the plot

was enhanced by Rs.3,45,993/- vide letter dated 24.09.1997 and Appellant-

Complainant deposited a sum of Rs.3,11,393.70 as principal amount and Rs.88,322.40 as interest, thus totaling Rs.3,99,716.10. In this way, he paid total sum of Rs.8,90,403/- i.e. Rs.7,92,533.70 as principal amount and a sum of Rs.97,869.40 as interest. Since

Respondent had received the entire amount of payment from the Appellant-

Complainant, including interest, and had failed to hand over the possession of the plot for over 8 years because of which Appellant-Complainant could not construct his house and Respondent had probably used this amount for their commercial purpose,

Appellant-Complainant filed a complaint before the State Commission on grounds of deficiency in service and requested that the Respondent be directed to (i) immediately deliver the possession of the plot no. 272, Sector-55 at Gurgaon; (ii) pay interest @

18% per annum from the date of deposit of the amount including interest till the filing of this complaint @ Rs.6,02,087.81 and thereafter to pay interest @ 24% till the date of possession of the plot; and (iii) waive interest of Rs.97,869.40 already paid and adjust the same towards the enhanced cost of the land. Damages on account of harassment and litigation costs were also sought.

3. Respondent on being served filed a written reply contesting the complaint and denied the allegation that the plot was not fully developed. In fact, Appellant-

Complainant had taken possession of the plot on 10.10.2001 vide letter dated

3288. The enhanced amount was sought by the Respondent from Appellant-

Complainant because a case was filed by the land owners against the Respondent seeking more compensation before the

Hon’ble Supreme Court, which is presently pending. It was also stated that the Appellant-Complainant was not entitled to approach the State Commission directly and he should have availed of the arbitration proceedings as provided under the HUDA Act, 1977.

4. The State Commission after hearing the parties and on the basis of evidence produced before it partly allowed the complaint by observing as follows:

“12. A perusal of detailed statement of payment annexure-3 and annexure-5 shows that the complainant had paid the original principal amount as well as enhanced amount upto 9.5.2000 i.e. before the delivery of the possession on 10.10.2001. The complainant had also paid

Rs.97869.40 as interest. This amount was not recoverable from the complainant in view of clause-6 of the terms and conditions of the

allotment letter as possession had not been handed over for a period of more than 9 years. It is true that out of the enhanced amount of

Rs.345993/- vide letter dated 24.9.97, complainant had paid

Rs.311393.70 and in this way Rs.34599.30 were paid as less but he had paid Rs.97869.40 as interest in excess which he was not liable to pay. Therefore, complainant is entitled to refund of the amount of

Rs.63270.40 after deducting a sum of Rs.34599/-

.”

The State Commission, therefore, disposed of the complaint in the following manner :

“Hence, complaint is partly accepted with costs of Rs.10,000/- and respondents are directed to refund the amount of

Rs.63,270.40 alongwith interest @ 12% p.a. from the date of deposit till payment. However, if the SLP filed by land owners is dismissed then respondents would be bound to refund excess amount charged to the complainant on account of enhancement of compensation.”

5. Being aggrieved by the order of the State Commission, which had declined

Appellant-

Complainant’s request to grant 18% interest on the entire amount of

Rs.8,90,403/- from the date of deposit till the filing of the complaint and thereafter 24% from the date of the complaint till delivery of possession of the plot as also compensation for the mental agony and harassment, the present first appeal has been filed.

6. Learned Counsel for both parties made oral submissions.

7. Learned Counsel for the Appellant-Complainant contended that the State

Commission erred in not granting interest @ 18% and also compensation whereas admittedly there was inordinate delay in handing over possession of the plot even though the Appellant-Complainant had paid the entire amount and interest, including on the enhanced amount. The State Commission ought to have taken note of the fact that no reasons were given for the delay in handing over possession of the plot by the

Respondent except for its bald statement that the delay occurred due to development of the land. Under the circumstances, the State Commission should have granted both interest and compensation. In support Counsel for the Appellant-Complainant cited a judgment of the Hon’ble Supreme Court in Bangalore Development Authority Vs.

Syndicate Bank [(2007) 6 SCC 741], wherein the Hon’ble Apex Court had ruled as follows :

“(d) Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts (which does not recognize mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering,

by applying the principle of Administrative Law, where the seller being a statutory authority ac ts negligently, arbitrarily or capriciously.”

Further, in HUDA Vs. Darsh Kumar [(2005) 9 SCC 449] the Hon’ble Supreme

Court had ruled as follows :

“In this case, considering the very long period during which no possession was given, on an ad hoc basis, we direct that for mental agony/harassment and for increase in costs of construction, compensation at the rate of 12% from the date of deposit till date of possession be awarded.”

In the instant case, both the above rulings are very much applicable since there was inordinate and unjustified delay in handing over possession of the plot which resulted in significant increase in the cost of construction, and also a case for compensation by applying the principle of administrative law as ruled by the

Hon’bleSupreme Court in

Bangalore Development Authority (supra) since the statutory authority here i.e. HUDA had acted negligently, arbitrarily and capriciously in delaying the handing over of possession of the plot despite having received the entire payment for the same.

8. Counsel for the Respondent on the other hand pointed out that there was no breach of any provisions of the agreement or malafide on the part of the Respondent because no time limit was stipulated within which the possession of the allotted plot had to be handed over. While it is a fact that the allotment letter was issued in 1994 and possession of land was handed over in 2001, this delay occurred because of the time taken in the development of the area. Further, Appellant-Complainant did not seek to rescind the contract during this period and also accepted the offer made to take over the possession, after 8 years. Under these circumstances, Appellant-Complainant cannot now claim both interest and compensation for the amount paid to the

Respondent. Counsel for the Respondent also cited the judgment in Bangalore

Development Authority (supra) , wherein the Hon’ble Supreme Court had held that where the delay in delivering possession of the allotted plot is for justifiable reasons, the allottee will not be entitled to interest. In the instant case, the delay was for justifiable reasons i.e. because of the time taken in the development of the area and, therefore, no interest or compensation was warranted.

9. We have heard learned counsel for both parties and have carefully gone through the evidence on record. The undisputed facts are that the Appellant-Complainant was allotted a plot for which he made a payment of Rs.4,81,140/- in December,

1994. Following the change of allotment of his plot and on Respondent’s demand for an enhanced amount, Appellant-Complainant paid the additional amount of Rs.3,45,993/- in the year 1997. These two amounts alongwith interest comes to Rs.8,90,403/- and despite having taken this entire amount, admittedly Respondent did not hand over the plot till October, 2001. Even though no time per se may have been stipulated for handing over the possession of the plot by the Respondent, there is no doubt that a delay of over 8 years in handing over the same after taking the entire money from

Appellant-Complainant alongwith interest is totally unreasonable and unjustified. We had specifically asked Counsel for the Respondent if there were any genuine and insurmountable reasons beyond their control for the delay in development of the area e.g. pending litigation etc., to which Counsel for the Respondent confirmed that the delay was only because of the time taken in development in the area and no other reason. This, in our view, is not justified or reasonable explanation for the inordinate delay in handing over possession of the plot to the Appellant-Complainant. It is expected that all development agencies, particularly those which are a part of the

Government, would make allotments after developing the area so that possession can be handed over to an allottee within a reasonable period which is usually within 2 years or at the most 3 years. Under the circumstances, we are unable to accept the

Respondent’s explanation regarding delay of over 8 years in handing over possession of the plot to Appellant-Complainant and on the other hand directing him to pay not only the cost of the plot, including the enhanced cost, but also interest on the same. Respondent has cited a judgment of the Hon’ble Supreme Court in Bangalore

Development Authority (supra) in support of its case, wherein the

Hon’ble Apex Court had ruled that an allottee will not be entitled to any interest or compensation if there are justifiable reasons for the inordinate delay in handing over possession of the plot. In the instant case, as stated above, there was no justifiable reason for the inordinate delay in handing over possession of the plot and, therefore, the above ruling of the

Hon’ble Apex

Court is not applicable in this case and some interest is justified in the instant case. We are, however, of the view that interest @ 18% per annum requested for by Appellant-

Complainant is too high and interest @ 9% per annum would be fair and reasonable. Appellant-Complainant is, therefore, entitled to interest @ 9% per annum on the amount of Rs.4,81,140/- paid by him in 1994 upto 10 th of October, 2001 when he took over possession of the plot. Regarding the compensation sought by the Appellant-

Complainant, since the plot has been given to him at the old rates and interest has also been awarded for late delivery of the plot, no separate compensation as requested is warranted.

10. To sum up, the present first appeal is partly allowed and the order of the State

Commission is modified to the extent that Respondent is directed to pay interest @ 9% per annum on the sum of Rs.4,81,140/- deposited by the Appellant-Complainant in respect of the plot allotted to him on 1 st of December, 1994 till 10 th of October, 2001 when Appellant-Complainant was handed over the possession of the plot by the

Respondent. Rest of the order of the State Commission is upheld pertaining to the refund of Rs.63270/- with interest @ 12% per annum from the date of deposit till payment as also litigation costs of Rs.10,000. Further, if the SLP filed by the land owners is dismissed by the

Hon’ble Supreme Court, then the Respondent would be bound to refund the excess amount charged to the Appellant-Complainant on account of enhancement of compensation.

11. The present first appeal stands disposed of on the above terms.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



(From the order dated 17.11.2011 in Appeal No.1419/2009

of the State Commission, Mumbai, Maharashtra)

1. a) M/s. Foresquare Developers,

Kantilal House, 14 Mama Paramanand Marg,

Mumbai 400 004.

b) Smt. Nalini Himmatlal

c) Mukesh Himmatlal

d) Smt. Hiral Rajesh

e) Wonder Estate Developers Pvt. Ltd.

Kantilal House, 14 Mama Parmanand Marg,

Mumbai 400 004

…Petitioners

Versus

1. Dahisar Saraswati Co-operative Housing Society Ltd.

C.S.T. Road No. 4,

Dahisar (West), Mumbai- 400 068

Through Member/Secretary Shri. Dixit P. Mehta

2. a) Keshav Arjun Raut

(Dahisar Wale), At & Post Waliv,

Taluka Vasai (East), Dist. Thane

b) Mayur Keshav Raut

c) Smt. Malati Keshav Raut

d) Smt. Prema Arjun Mhatre

e) Bharat Keshav Raut

f) Miss Hema Keshav Raut

g) Smt. Sushila Jagannath Raut h) Padmakar Jagannath Raut

i) Miss. Devayani Jagannath Raut

j) Miss Hira Jagannath Raut

k) Parshuram Arjun Raut

l) Jayendra Parsuram Raut

m) Miss Manda Parshuram Raut

n) Miss Nandini Parshuram Raut

o) Vijay Parshuram Raut

p) Smt. Anusaya Parshuram Raut

q) Smt. Thumabai Atmaram Dhumal

r) Hiraji Atmaram Dhumal

s) Miss. Hansa Atmaram Dhumal

t) Jayashri Bhalchandra Sutar

u) Miss. Suman Atmaram Dhumal

v) Smt. Anandi Gajanan Bhoir

Dahisar Gaothan, Ramchandra Pawaskar Road,

Raut Galli, Dahisar (West),

Mumbai 400 058

...........Respondent(s)

BEFORE:



For the Petitioners : Mr. S.B. Prabhavalkar, Advocate


ORDER


In this revision petition there is challenge to order dated 17.11.2011 passed by

State Consumer Disputes Redressal Commission, Mumbai, Maharashtra (for short,

‘State Commission’).

2. Brief facts are that Complainant/respondent no.1 is a Co-operative Housing

Society. Petitioners/opponent no.1 are developer and respondent no.2/opponent no.2 are original Landlord. Petitioners had taken development rights of Survey

No.340 Hissa No.4, City Survey No.1515 admeasuring 8166.8 sq.mtrs. of which an area admeasuring 539.25 sq.mtrs.was situated in No Development Zone and remaining area admeasuring 7627.55 sq.mtrs. was situated in a Residential Zone and accordingly, the

Corporation has sanctioned a plan taking into consideration an area in Residential

Zone. Hence, petitioner has constructed 160 flats as per the sanctioned plan. Further, petitioner executed tripartite agreement with intending flat purchasers. The construction was completed in the year 1994. The petitioner registered the Housing Society of the flat purchasers on 08/09/2000. Despite registration of Society, petitioner has not conveyed the land and building in the name of Housing Society and has not handed over the accounts to the Society. Therefore, respondent no.1-Co-operative Society filed consumer complaint praying for following reliefs :-

“a) To hold and declare both the opposite parties for the guilty of deficiency in service as per provisions of said Act.

b) The opposite parties, their servants, agents, assignees, representatives and all the persons claiming through them, jointly

and severally be ordered and directed to convey the said land (as specified at Exhibit ‘A’) and the building/structure standing thereupon in favour of the complainant-Society by completing all necessary/requisite formalities on their own and also to do all such acts, deeds and things as are necessary for effectually conveying and vesting the said property (land and building) in favour of the complainant-Society, without demanding any remuneration from the complainant no.1for the same.

c) In failure to comply with the prayer (b) above, the opposite parties be directed to pay penalty jointly and severally to the complainant for each day of delay from the date of passing of the order by this Hon’ble Forum.

OR

Some fit and proper person be appointed by this Hon’ble Forum to execute the deed of conveyance and complete all the formalities on behalf of the opposite parties.

d) Opposite Party No.1 be directed to transfer Rs.4.00,000/-

( Rupees Four lakhs only) in favour of the complainant-Society which it has collected towards deposit of water meter, electric meter, etc.

e) Opposite Party No.1 be directed to render true, complete and faithful accounts of Rs.10,000/- collected by them from each members of the complainant-Society as an interest free deposit and refund the balance amount along with interest if there is any.

f) Opposite Party No.1 be directed to give the account of

Rs.10,000/- collected in cash from each of the members of the complainant-Society towards the payment of the development charges and also produce the receipt of such payment, if made.

g) Opposite Parties be directed to demolish/remove all illegal and unauthorized structures constructed after receiving the building completion certificate and restore the premises to the original plan approved by BMC and shown to various purchasers of the complainant-Society.

h) Opposite Parties be directed jointly and severally to pay to the complainant compensation towards cost, expenses and professional charges towards filing of this complaint.

i) For such other and further reliefs this Hon’ble Forum may deem fit and proper in the nature and circumstances of the case.”

3. Petitioner contested the complaint by filing its written version. It is stated that complaint is not maintainable as respondent no.1 had filed a civil suit as well as dispute before the Co-operative Court for the similar and identical cause of action. Hence, complaint is barred by the doctrine of res judicata. It is further stated that complaint filed is frivolous and vexatious, as respondent no.1 has failed to prove the cause of action. Further, respondent no.1 admits that construction commenced in the year 1991 and building was completed in the year 1994. The flat purchasers agreed to pay an amount of Rs.10,000/- to be paid to BMC towards the Development Charges.

4. It is further stated that in the meeting called on 23/04/1995, the accounts for the deposits/payments made were handed over to the Society. The first General Body meeting of the society was held on 03/12/2000 and accounts were placed before the

General Body which accepted the accounts vide Resolution No.7.

5. It is further stated that there were two plots i.e. 1515 and 1516 and both plots were amalgamated. However, some area was declared as No Development Zone, by the

BMC, as per the orders of the Hon’ble Supreme Court under the Coastal Regulation

Zone. Hence, petitioner has done construction of existing building by using available

Floor Space Index (FSI). Thereafter, petitioner had converted stilt portion of the building into 8 residential flats, two under each wing of the building and said construction has been approved by respondent no.1, vide letter dated 20/09/1999. Thus, complainant-

Society is estopped from opposing the said construction.

6. It is further stated that since the CRZ and the surrounding mangroves, came under the scrutiny of the Environmentalist and the Committee appointed by the Hon’ble Supreme Court, the BMC has raised an objection about the compliance of the DC rules on the issue of the height of the flat, in the said stilt portion and therefore, not granted Occupancy Certificate to the said 8 new flats. Further, matter is being contested with regard to applicability and interpretation of the scope of DC Rules and appeal is pending before Government of Maharashtra under the Regional and Town

Planning Act, Maharashtra Region. Therefore, until such time there would remain a statutory bar to the conveyance.

7. Further, in its written version petitioner admits that land has been transferred in its name by respondent no.2. It is further stated that as per clause No.14 of the Agreement date 17/12/1990, it is made clear that conveyance inter-alia will be executed by respondent no.2. Petitioner has relied upon clause 36 of the Agreement made between the parties stating that this clause has to be read and conjured with the undertaking cum-declaration executed by each individual purchaser with regard to the permission given for the development and construction on the balance FSI or by TDR. Said undertaking has been taken separately because it was well and sufficiently understood and agreed to by the purchasers that the construction project was not complete and hence purchasers cannot demand the conveyance. Further, original documents cannot be handed over until the disposal of the civil suit pending before City Civil Court against the BMC. It is further contended that unless respondent no.1 pays the consideration for getting conveyance of the flats, they cannot be said to be consumers.

8. On the other hand, respondent no.2 in its written statement has stated that petitioner has cheated them by giving less amount than agreed and they are not directly connected with the complainants. They have only entered into agreement with petitioner. Therefore, conveyance can be made only in favour of petitioner as per contract. Further, it is an obligation and liability of petitioner to transfer their rights in favour of the Complainant-Society.

9. District Consumer Disputes Redressal Forum, Mumbai Suburban (for short, ‘District

Forum’) partly allowed the complaint, directing petitioner to transfer the land and building in the name of complainant-Society by executing proper conveyance within a period of six months failing which, petitioner will have to pay Rs.50/- per day. The petitioner shall hand over the receipts of the payments of Rs.10,000/- collected from each member of the complainant-Society.

10. Being aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission which dismissed the same and order of the District Forum was affirmed.

11. Hence, the present petition.

12. We have heard learned counsel for the petitioner and gone through the record.

13. It has been contended by learned counsel for the petitioners that there was no privity of contract between the petitioners and respondent no.1, in as much as

respondent no.1 had not engaged or availed the services of the petitioner for any consideration. Further, respondent no.1-Society was formed on 8.9.2000 and as per

Rule 9 of Maharashtra Ownership Flats (Regulations of the Promotion of Construction,

Sale, Management and Transfer) Rules, 1964, the conveyance was to be executed within the period of four months from the date of formation of the society. Thus, cause of action for seeking conveyance accrued in favour of respondent no.1 on 7.7.2001 and as such the complaint ought to have been filed before 7.1.2003. However, the complaint was filed on 30.4.2004 and that too without filing any application seeking condonation of delay of more than 600 days. Other contention made by learned counsel for the petitioner is that, as per terms and conditions of the Flat Purchaser

Agreement, it was the duty of the flat purchaser to contribute towards the stamp duty and registration charges for the execution of conveyance. However, both fora below have overlooked this aspect.

14. District Forum in its order has held;

“As stated in the complaint application, the registration of

Society had been made on 8/9/2000 and in terms of section 11 of the MOFA, it was legal obligation on the part of opposite party to convey the plot/land on which Society building is situated, in the name of Complainant Society. This duty/obligation having not been discharged by the opposite party. It go to establish that there is a deficiency of service on part of the opposite party. Hence, it was a bounden duty of the opposite party no.1 to convey the said land to the Complainant Society within the period of 4 months of registration of the Society which duty had not been discharged by the said opposite party. This act on part of the opposite party is unlawful.

District Forum further held;

7) The Opposite party No.1 had collected a sum of Rs.10,000/- each from the members of Society towards development of the building of Society. Receipts in lieu of the said amount having not been issued to the members of Complainant Society. In the written statement, the Opposite party has stated that the sum of

Rs.10,000/- collected from each member, had been utilized for the development of the Society building. Its written details of account had been submitted to the Managing Committee Meeting of the

Society, held on 23/4/95 which had been accepted. The said written details had also been placed before the General Body

Meeting of the Society. In brief, it is admitted position that the

Opposite party no.1 had accepted that the said amount having been deposited. However, the prayer of the complainant is that the receipt of said amount having not been given which act on part of

said Opposite party is wrong. Hence, it will be proper on part of the

Opposite party n o.1 to issue receipt of the same.”

15. The State Commission while affirming the order of District Forum observed;

“22. The case has chequered history. This matter is a best example how the process of law can be abused. The construction of building started in the year 1988 and the possession of the flats were handed over in the year 1994. The land admeasures 8166.80 sq.mtrs. However, at the relevant time, land admeasuring 7627.55 sq.mtrs. was in residential zone and remaining land of 539.25 sq.mtrs. was in no development zone. Hence, the Development Authority sanctioned the building plan on 7627.55 sq.mtrs and as per the sanctioned plan, four wings i.e. A, B, C & D consisting of six floors were constructed. Subsequently, the area under no development zone was converted into residential zone. The structure of the building was not in a position to bear the load of additional flats and hence, the appellants submitted a plan to the BMC for converting the stilt parking area into flats. However, BMC had not sanctioned the plan. The appellants at Page-4 Para 3g of the written version, had admitted that since the CRZ and the surrounding mangroves came under the scrutiny of the environmentalist and the committee appointed by

Hon’ble Supreme Court, the BMC has raised an objection about the compliance of the DC rules, on the issue of height of the flat in the said stilt portion and therefore, not granted occupancy to the said eights new flats. For this unauthorized construction, Learned Counsel tried to argue that the appellants had taken undertaking from the members of the respondent/Society and the Society had given permission for this unauthorized construction. The Learned Counsel for the appellants relied on letter dated 20/09/1999 at page-174 on the letterhead of the Society. The letter reads as under:-

“This has reference to your letter Ref. No………dt……… we have no objection for construction of the flats in the stilt area of wing A,B,C&D ofSaraswati Apartment bearing flat No.CTS 1515 of

Village Dahisar, Talukar Borivali, Mumbai Suburban District as per

BMC Rules & Procedures.” Reference No. and date is blank.

23. The Society was not registered on 20/09/1999. It is the contention of the Learned Counsel for the respondent that one of

the appellants was a promoter. Thereafter, the BMC had issued a notice under Section 354A of the BMC Act. The appellants filed a

Civil Suit bearing No.5964 of 1999 for declaration of notice under

Section 354A as illegal and bad in law. When the BMC noticed that the appellants had already converted the stilt area into flats, they have issued a notice under Section 488 of the BMC

Act. Hence, the appellants had withdrawn Civil Suit No.5964 of

1999 and filed a Suit No.7004 of 2000. Subsequently, the appellants filed appeal under Section 47 of MRTP Act, 1966 before the Minister of State for Urban Development, Government of

Maharashtra, Mantralaya and filed a Notice of Motion

No.5859/2000 and the Learned Judge of City Civil Court observed that

– “It appears clearly that Appeal is pending with the

Government and in such a situation, it is not correct to take action.” Since the regularization is still pending and no order is passed by the Urban Development Minister, it would be too early to say that the structure is unauthorized and deserves to be demolished and therefore, Notice of Motion was made absolute. In fact, there is no stay given by the Minister in the appeal filed by the appellants and the matter is still pending.

24. Again, it is interesting to note that the respondent filed

Criminal Complaint C.C. No.429/SS/2004 for issuing a process under Section 4, 5, 6 & 11 read with Section 13 & 14 of

Maharashtra Ownership Flats (Regulations of the Promotion of

Construction, Sale, Management and Transfer) Act, 1963 in the

Metropolitan Magistrate, 26th Court, Borivali, wherein the Learned

Magistrate Court passed issue process order dated

16/12/2004. Against this order, the appellants had filed Revision

Application No.484 of 2005 in the Sessions Court, Greater

Mumbai. Learned Sessions Court dismissed the Revision

Application vide order dated 28/03/2006. Against the said order, the appellants filed Writ Petition No.982/2006 in the High Court,

Bombay and the same is also dismissed. Thus, this matter is best example of abuse of process of law.

25. The Learned Counsel had argued that as per the agreement clause 14, the conveyance is to be executed by the org. opponent

No.2 and present respondent No.2. However, District Consumer

Disputes Redressal Forum had ordered that appellants should execute conveyance. In the written version, there is a specific

admission by the appellants that property is transferred in the name of appellant No.1 and now appellants being the land owners and developers, it is their legal responsibility to convey the land and building in the name of respondent-Society. We do not find any substance in the appeal filed by the appellants. Looking to the facts and circumstances of the case and the conduct of the appellants, we hold that the order passed by the District Consumer

Disputes Redressal Forum is just and proper. Hence, we pass the following order:-

-: ORDER :-

1. Appeal is dismissed.

2. The order passed by the District Consumer Disputes

Redressal Forum is hereby confirmed.

3. Appellants to pay Rs.25,000/- as costs to respondent

No.1/Society and to bea r their own costs.”

16. The first point which arise for consideration is as to whether the complaint filed by respondent no.1 was barred by limitation or not. Clause (4) of the Model Agreement prescribed under the Maharashtra Ownership Flats (Regulations of the Promotion of

Construction, Sale, Management and Transfer) Act, 1963 and rules made thereunder incorporates the statutory obligation and the promoter is required to declare to the flat takers the FSI available in respect of the land in square metres and the FSI which the promoter has utilized. In case the promoter has utilized FSI of any other land or property as floating FSI, he is required to disclose the same to the flat takers. Thus, conveyance is a statutory obligation of the builder-developer and cause of action is a continuous one. Therefore, the complaint filed by respondent no.1-Society is within the period of limitation.

17. Secondly, there is specific admission made by the petitioner in its written version that the property has been transferred in its name and now they are the land owner and developers. Being the land owner and developer, it is the legal responsibility of the petitioner to convey the land and building in the name of respondent no.1. We fully concur with the findings and reasoning given by the State Commission that petitioner has not performed its statutory obligation.

18. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

19. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India

Insurance Co. Ltd . 2011 (3) Scale 654 has observed ;

“Also, it is to be noted that the revisional powers of the

National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National

Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisionalpowers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section

21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of twofora .”

20. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

21. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in differentforas. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like petitioner who after taking entire costs of the building do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this

Commission is not helpless in such type of matters.

22. 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.”

23. Now the question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging the respondents upto this forawhen petitioners had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.

24. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors.

, Civil

Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;

“45. We are clearly of the view that unless we ensure that wrong

–doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.”

25. Thus, in our opinion, present revision petition is nothing but a gross abuse of process of law and the same is totally meritless and having no legal force is required to be dismissed with punitive costs.

26. Accordingly, we dismiss the present petition with cost of Rs.25,000/- (Rupees

Twenty Five Thousand only). Cost be directly remitted to respondent no.1 by way of demand draft by the petitioner, within eight weeks from today, failing which petitioner shall be liable to pay interest @ 9% per annum, till realization.


.…..………………………J

(V.B. GUPTA)


…...…………………………

(REKHA GUPTA)

MEMBER

Sg/



(From order dated 24.08.2012 in First Appeal No. 317/2011 of the State Consumer

Disputes Redressal Commission, West Bengal)

1. Swapan Kumar Ghosh, S/o Lt. Mainlal Ghosh

2. Smt.Swarnalata Ghosh, W/o Swapan Kumar Ghosh Both R/o 79, Shambhu Babu

Lane, 1 st floor, Back Side P.O. & P.S. Entally, Kolkatta

… Petitioners

Versus

1. Anjali Ghosh, W/o Late Samir Ghosh

2. Sri Amarta Ghosh, S/o Late Samir Ghosh

3. Smt.Gayatri Ghosh, W/o late Susanta Ghosh

4. Sri Samit Ghosh, S/o Late Susanta Ghosh All R/o 37/C, Monilal Saha Lane P.O.

Dharmatala, P.S.New Market, Kolkatta

5. Smt.Sarbani Ghosh, W/o Biswanath Ghosh R/o 1/A, Scott Lane, P.O. Amherst Street

P.S. MUchipara, Kolkata

… Respondents

6. Sri Pradip Dutta, alias Sri Pradip Kumar Dutta S/o Late Chittaranjan Dutta Both R/o 79,

Shambhu Babu Lane, 1 st floor, Back Side P.O. & P.S. Entally, Kolkatta

7. Mrs.Mala Ghosh, W/o Sri Dulal Ghosh 49/L/1/B, Dr.Lal Mohon Bhattacharya Road P.O.

& P.S. Entally, Kolkata

… Proforma Respondents

BEFORE:



For the Petitioner : Mr. Prabir Kumar Samanta &

Mr. Sanjay Kumar Ghosh, Advocates

For Respondents 1 to 5 : NEMO

For Proforma Respondent No. 6 : Mr. Prasanta Banerjee, Advocate

For Proforma Respondent No. 7 : Mr. Subrata Dass, Advocate

Pronounced on_29 th May, 2013

O R D E R


1. One Swapan Kumar Ghosh, inherited exclusively, premises No.79, Sambhu Babu

Lane, Entally, Kolkata. He died, leaving behind his widow, Smt. Swarnalata Ghosh, one daughter, Sarbani Ghosh and two sons, namely, Samir Ghosh and Susanta

Ghosh. Sushanta died intestate, leaving behind his widow, Gayatri Ghosh and his son

Samit. Thus Samir had 1/4 th share in the said premises.

2. On 15.02.1999, Samir Ghosh, since deceased, husband of Smt.Anjali Ghosh,

OP1, one of the Co-sharers of premises No.79 started developing the said premises as a Promoter and Developer and entered into an Agreement with the complainants

Sh.Swapan Kumar Ghosh and Smt. Swarnalata Ghosh, for the sale of a flat. On

02.02.2000, said Samir Ghosh further agreed, in writing, on the reverse side of the

1 st page of the agreement, to sell the garage space in the Ground Floor, measuring 200 sq.ft.

3. In the meantime, Smt. Sarbani Ghosh, sister of Samir Ghosh and

Co-sharer, filed a Title Suit before the Civil Judge, Sealdah, for declaration of her share in the property and for revocation of Power of Attorney that was executed by her in favour of said Samir Ghosh. The parties entered into the compromise and one of the terms of the compromise was that Samir Ghosh would pay a sum of Rs.2,60,000/.- only to said Smt.Sarbani Ghosh towards her 1/4 th share of entitlement in the sale proceeds of two flats and one garage space, being owners allocation, out of total 12 flats and three garage spaces, as constructed upon development of the said premises.

4. It was also agreed that upon such demand made to Smt.Sarbani Ghosh, the

Deed of Conveyance, shall be executed and signed by all the co-sharers of the said property, including Smt.Sarbani Ghosh, without any objection and further claims, whatsoever.

5. In the meantime, the complainants came to learn that said Samir, for some unknown reasons, had created a Gift Deed for the garage space in favour of Pradip

Kumar Dutta, proforma OP, Successor of Interest of Lt.Chittaranjan Dutta, one of the tenants of the said premises. Other two garage spaces were sold to Alok Kumar Sur and Prabir Kumar Majumdar, on 17.01.2001 and 17.08.2001, respectively, by registered sale deeds.

6. It is alleged that OPs have failed to execute and register the Conveyance Deed for the space for garage in spite of repeated requests. Ultimately, a complaint was filed with the District Forum. Pradip Dutta did not contest the case. District Fourm partly allowed the complaint and directed them to execute and register the flat in question in favour of the complainants, within one month, from the date of receipt of the certified copy of the said order. However, the District Forum did not grant the relief of execution and registration of said garage space in favour of the complainants and held that the complainants may seek relief from Civil court.

7. Thereafter, appeal was preferred before the State Commission regarding refusal of order/directions upon the respondents to execute and register the Sale Deed in respect of garage space in favour of the complainants. The State Commission vide its order dated 24.08.2012 observed:-

“It is true that the subsequent agreed dated 02.02.2000 as written in the backside of page 1 of the original agreement is the continuation of the earlier one. But it appears that the

Proforma OP, Sri Pradip Dutta got the garage by virtue of a deed of gift dated 07.08.01 executed by the owners and subsequently he sold the property to another person on

16.12.2004. Although the agreement in favour of the appellants dated 02.02.2000 is earlier than the deed of gift, it is well settled that an agreement does not convey title in favour of another and in view of the successive deeds of transfer in respect of the garage, we are of the considered view that the appellants/complainants are not entitled to get

an order for execution and registration of deed of conveyance in respect of the garage. But in view of the receipt being annexure ‘D’ at page 41 it is clear that the owners received Rs.40,000/- from the purchaser for the sale of the garage. Under the circumstances aforesaid, we find it expedient in the interest of justice that appellants

/complainants should get refund of the sum of Rs.40,000/- from the owners/respondents herein.

The appeal is allowed. In addition to the reliefs granted by the Learned District Forum, it is ordered that the owners/respondents herein will refund the sum of

Rs.40,000/- in respect of the consideration money of the garage and pay litigation cost of Rs.5,000/- to the appellants/ complainants within 45 days from the date of passing this order failing which the said amount of

Rs.45,000/- will carry interest @ 9% per annum till realization. The impugned judgment stands modified to the extent above”.

8. On behalf of the respondent, it was argued that the garage space was gifted to

OP-6. He has sold the property to another person. This Commission cannot decide the question of title. The complainants had paid a sum of Rs.40,000/- to the land owners and they should get back the said amount.

9. All these arguments carry no conviction. The order passed by the State

Commission is neither just nor reasonable. It is also interesting to note that the State

Commission has granted Rs.40,000/-, plus, Rs.5,000/- as litigation charges, without granting any interest to the complainants. The above said gift deed was created in order to pull the wool in the eyes of law. The agreement to sell, though does not give any title in favour of the purchaser, yet it is well know that, that can be made effective by filing a suit for Specific Performance. The subsequent gift deed/executed for ulterior motive cannot demolish the agreement to sell. The agreement to Sell was executed, first of all, and in order to remove the effect of that agreement to Sell, a gift deed was created. It is, therefore, clear that the Seller and the Receiver of gift were working in cahoots with each other. The third-party to whom the flat was sold, received that space at his

own peril. Pradip Dutta had no power to sell it to anybody. His own title was defective. The purchaser of that garage is bound to return that space to the complainants. complainants are the real owners of that space.

10. Learned counsel for the petitioners pointed out that the market value of that piece of land, i.e., parking space, is nowadays, is Rs.5,05,440/-. He has produced a document under the caption “Government of West Bengal, Office of the D.S.R.-III South, 24-

Paraganas”. Its market value is stated to be of Rs.5,05,440/-. It is surprising to note that the State Commission did not take this fact into its notice. It did not even grant interest. The State Commission further stated that the owners/respondents will refund Rs.40,000/- to the complainants, which is nothing but a drop in the bucket. For all these reasons, we hereby accept the revision petition. The respondents are directed to execute the parking space in favour of the complainants. Pradip Dutta and purchaser of the said house, Mrs.Mala Ghosh have no right/title to that space. It is well known that a person cannot pass a better title than that he himself has. The objection raised by them are puerile and baseless. The Revision

Petition stands accepted. Respondents are directed to execute the title deeds within 60 days otherwise they will pay the penalty of Rs.25,000/- per month till the needful is done. Litigation charges and compensation is directed to be paid in the sum of

Rs.1,00,000/- within 60 days, otherwise it will carry interest @ 9% p.a.

.……………………………



.…..…………………………


MEMBER

dd/4



Sanjay Goyal S/o Shri S.P. Goyal R/o 104-A, Hamilton Court, DLF, Phase-IV, Gurgaon-

122002 ……Complainant (s)

Versus

1. Unitech Ltd. Registered office at: 6, Community Centre, Saket, New Delhi-110017

2. Pioneer Urban Land and Infrastructure Ltd. Registered office at: A-22, 3 rd Floor,

Green Park, Aurobindo Marg, New Delhi-110016 Through Its Managing

Director/Authorized signatory

3. Shri Ramesh Chandra, Executive Chairman Unitech Limited Registered office at: 6,

Community Centre, Saket, New Delhi-110017

4. Shri Sanjay Chandra, Managing Director, Unitech Limited, Registered office at: 6,


5. Ajay Chandra, Managing Director, Unitech Limited, Registered office at: 6,


…….Opp. Party (ies)

BEFORE:



For the Complainant (s) : Mr. Sushil Kaushik, Advocate

For the Opp. Party (ies) : Mr. Rohit K. Aggarwal, Advocate with

Mr. Rajeev Bhatia, A.R. for OP-1

PRONOUNCED ON :29 th MAY 2013

ORDER


1. Unitech Limited, OP1 launched a new project i.e. “Harmony” at “Nirvana

Country” Residential Township in Sector 50, Gurgaon. It was mentioned that the project would be completed by July 31, 2009. Mr. Sanjay Goyal, the complainant booked an apartment No. 1801, 17 th Floor, Tower-4, having a super area of approx. 309.27 sq.mtrs. (approx. 3329.00 sq.ft.) and terrace area of 0 sq.mtrs. Approx. in the said complex. He paid a sum of Rs. 1,44,33,148/- under the Down Payment Plan. The complainant also paid a sum of Rs. 55,000/- as Club Membership Registration charges, which were also included in the terms and conditions of the aforesaid Down Payment

Plan. The complainant thus paid a sum of Rs. 13,43,157/- on 06.09.2007. The agreement was executed between the complainant and the OPs as per the Down

Payment Plan. The Complainant further paid a sum of Rs.1,24,45,912/- as per clause 4

(a) (i) of the Buyers Agreement dated 06.09.2007, the O.P.s were to hand over the possession of the apartment to the complainant within 36 months of the execution of the

Buyers Agreement, i.e. by 05.09.2010.

2. A New Development took place. The complainant was forced to accept an apartment No. 1902 on 18 th Floor Tower-8 of the same complex in lieu of previous allotted apartment. The OPs undertook to give the possession of apartment No. 1902 by 5 th September 2010.

3. Present case was filed before this Commission on 21.12.2012. Till then the possession was not given to the complainant. The Complainant has made the following prayers:-

“I) Direct the O.P.s to handover the possession of the aforesaid Apartment complete in all respects to the complainant immediately and execute all the necessary and required documents in respect of the said apartment in favour of the complainant; ii) Direct the O.P.s severally and jointly to pay interest @ 18% per annum compounded quarterly on the Rs. 1,37,89,069/- (Rupees one crore thirty seven lacs eighty nine thousand and sixty nine, only) being the amount deposited by the complainant with the O.P.s from the respective date of payments made by the complainant till the actual date

of handover of possession of the apartment complete in all respects by the O.P.s to the complainant.

iii) Direct the O.P.s severally and jointly to pay a sum of Rs. 50,000/-

(Rupees fifty thousand, only) per month to the complainant towards rental damages from 05.09.2010 onwards (being the committed date of delivery of the apartment by the O.P.s to the complainant) till the actual date of handing over the possession of the apartment complete in all respects by the O.P.s to the complainant.

iv) Direct to the O.P.s severally and jointly to pay a sum of Rs.

25,00,000/- (Rupees twenty five lacs, only) towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the complainant and the complainant’s family as a result of the above acts of omissions on the part of the O.P.s; v) Direct the O.P.s severally and jointly to pay a sum of Rs. 2,00,000/-

(Rupees two lacs only) to the complainant towards the cost of litigation; and vi) Any other order(s) as may be deemed fit and appropriate may also kindly be passed.”

4. The written version which was to be filed within 30 days + 15 days from the date of service under section 13 of the Consumer Protection Act could not be filed. The right of the OPs to file the written version was forfeited in view of Hon’ble Apex Court authority by three judges Bench reported in the case of “ Dr. J.J. Merchant & Ors. Vs. Srinath

Chaturvedi –III (2002) CPJ 8 (SC) ”.

5. Complainant had filed this complaint on affidavit and documents. We have heard the counsel for the parties on merits. Article 4 (a) provides for delivery of the possession. It runs as follows:-

“i) That the possession of the Apartment is proposed to be delivered by the Developers to the Purchaser(s) within 36 months of execution of the

present agreement subject to Force Majeure circumstances, and upon registration of Sale Deed provided all amounts due and payable by the

Purchaser(s) under this Agreement have been paid to the Developers within the stipulated period. It is, however, understood between the Parties that the possession of various Towers comprised in the Complex shall be ready and completed in phases and handed over accordingly.

ii) It is agreed that the Developers shall also be entitled to reasonable extension in delivery of possession of the Apartment on account of any default or negligence attributable of the Purchaser(s)’s fulfillment of conditions of the Agreement.”

6. There is also a provision that if the OPs failed to hand over the possession within the prescribed time, they would be liable to pay the penalty under Clause 4 (c) clause (i) & (ii), which runs as follows:-

“i) That if the Purchaser(s) fails or neglects to take possession of the

Apartment within 30 days from the date of notice of Possession issued by the Developers, the Purchaser(s) shall be liable to pay holding charges @ Rs. 5/- per sq. ft. per month of super area, for the period the Purchaser(s) does not take actual physical possession of the Apartment. The holding charges shall be in addition to the amount payable by the Purchaser(s) as their share of the Govt. or

Municipal taxes, maintenance or other administrative charges, on a proportionate basis, as determined by the Developers or the

Maintenance Agency, until the Purchaser(s)(s) has taken actual physical possession.

ii) That the Developers will be liable to pay charges @ Rs. 5/- per sq. ft., per month of the Super Area for the period of delay in offering the Possession of the said Apartment beyond the period indicated in clause 4 a.i, save and except for reasons beyond the reasonable control of the Developers. These Charges shall be adjusted at the time of Final Notice of Possession.”

7. Counsel for the OPs admitted that the possession has not yet been delivered. He contended that it will take one year more to construct the house. He also tried to settle the matter but both the parties did not agree. On the

Contradictory counsel for the complainant vehemently argued that the complainant does not agree to any of the proposals given by the OPs. He is interested to have the above said apartment. He contended that the Complainant is paying Rs.

50,000/- per month as house rent for the last about 3 years. He argued that he should be compensated and he should be given the rent. The complainant has placed on record the agreement entered into between him and one Sandeep Pal,

Director & Head-Operations, HI & O. Previously the rate of rent was Rs. 42,500/- per month. Subsequently, it was enhanced to Rs. 50,000/- w.e.f. 31.08.2010.

8. It is thus clear that the OPs want to have benefit of both the worlds. They have received the entire price of the apartment at the time of execution of the

Agreement. Even after the elapse of six years, the flats are not ready. The OPs have offered peanuts for delaying the construction of work. The OPs have to honour their commitment. The change of flat without the consent of the complainant is clearly indicative of their arbitrariness. The naked truth is always better than the best-dressed lie.

9. Keeping in view all the facts and circumstances, the entire case hinges upon various agreements. Although, counsel for the OPs offered to pay charges @ Rs. 7.50 per sq. ft instead of Rs. 5/- per sq. ft. and also desired to pay the entire money with interest @ 15% instead of 10%, yet there was no compromise on these lines. Therefore, we hereby direct that the OPs will hand over the premises in dispute within a period of 6 months from today. If they fail to do so, extra penalty of Rs.

25,000/- per month will be payable by them to the complainant. Secondly, they will also pay the rent of the residence to the Complainant, which the complainant has taken on lease from Ericsson India Pvt. Ltd. @ Rs. 42,500/- per month from 01.10.2010 to

31.08.2012 and Rs. 50,000/- per month w.e.f. 01.09.2012 till the possession is handed

over to the complainant in addition to above said penalty. The OPs need not to pay Rs.

5/- or Rs. 7.50 per sq. ft. per month of the super area as per the agreement. They are also not required to pay interest on the paid amount because these factors stand covered in the payment of rent to the complainant. The compensation and litigation charges in the sum of Rs. 50,000/- are also granted in favour of the Complainant and against the OPs. The arrears of rent and compensation be paid to the complainant within 60 days or else it will carry interest @ 9% p.a.

10. The Complaint stands disposed of.

.…..…………………………



.…..…………………………


MEMBER

Jr/11



(Against the order dated 24.01.2013 in First Appeal No. 433 of 2012 of the State

Commission, Andhra Pradesh)

1. Janachaitanya Housing Ltd., Rep. by its Chairman and Managing Director Office at

Dwarakanagar 5 th line, Visakhapatnam- 16

2. Janachaitanya Housing Ltd., Rep. by its Regional Vice President Office at

Dwarakanagar 5 th line, Visakhapatnam- 16

3. Janachaitanya Housing Ltd., Rep. by its Branch Manager Office at Dwarakanagar

5 th line, Visakhapatnam- 16

……….Petitioners

Versus

Sri Rajesh Sony S/o J.N. Sony Residing at MIG-23 Madhavadhaara Vuda Layout,

Visakhapatnam-18

.........Respondent

BEFORE




For the Petitioners : Mr. G.V.R. Choudary Advocate


ORDER

PER MR.VINAY KUMAR, MEMBER

Revision petitioners (OPs before the District Forum) have challenged the order of

A.P. State Consumer Disputes Redressal Commission in FA No.433/2012 in which the order of the District Forum, Visakhapatnam has been confirmed, with reduction in the quantum of compensation awarded. Both have directed the OP/RP to either register the plot in favour of the complainant or to refund the price with interest and compensation.

2. The matter in the consumer dispute pertains to booking of a plot by the father of the Complainant in a residential venture of the OPs. The registration for the same was made on 18.3.1998 with initial payment of Rs.1000/-. This was followed by payment of

Rs.68,200/- towards cost of the site and Rs.5800/- towards registration charge on

7.7.2002. Complainant’s father died in 2004 leaving the Complainant as a sole legal representative. It was alleged that despite repeated demands and payment of full price as above, the plot was not registered in the name of the purchaser. On the other hand, a further demand towards development charge was made on 23.7.2009.

3. We have considered the records and heard Mr. G.V.R. Choudary, counsel for the petitioners.

4. The case of the OPs was that they were forced by the concerned statutory authorities to pay additional development charges in 2007 and 2008. Payments received from the complainant were only tentative and subject to revision of development charges.

5. On this issue, the District Forum has held that —

“No doubt condition No.11 of the Passbook to some extent shows that the prospective purchasers of the plot should bear additional development charges. Except pleading that in all the Opposite party paid

Rs.44,79,800/- in two installments towards conversion to the Statutory authorities, there is no material placed by the Opposite party to make a demand for Rs.1,450/- per sq. yd, where the original development charges fixed were only Rs.65/-. The total payment made by the complainant was by 2002 itself and the scheme itself was started in 1998. One cannot understand the inordinate delay of nearly 10 years in developing the layout and obtaining the approval from competent authorities. That itself would indicate lapses on the part of the Opposite party, in making prompt development of the layout and paying necessary charges as and when demanded. Though the pricing of the plot cannot be treated as a Consumer dispute, being an established principle of law, the Opposite party cannot be permitted to levy the penalty upon the consumer for its own lapses and laxity in pursuing the approval of layout. Thus in our view, there is absolutely no justification for the Opposite party to demand Rs.1450/- as development charges while the original demand was only for Rs.65/- per sq.yd.”

6. The State Commission, as already noted, agreed with the view taken above. It has observed that —

“In the result this appeal is allowed in part and the order of the

District Forum is modified only with respect to reducing the amount of compensation awarded from Rs.3,00,000/- to Rs.2,50,000/- If the second alternative of refunding the amount is chosen while confirming the rest of the order of the District Forum.”

7. One of the grounds raised in the revision petition is that the complainant was only a ‘prospective allottee’ and therefore not a ‘consumer’. This is a strange argument.

Records show that the relationship between the two sides did not stop at acceptance of the initial deposit of Rs 1000. It went further to demand by RP/OP of sital value as well as registration charge and acceptance of the same from the complainant. Therefore this argument is rejected at the threshold itself.

8. The contentions raised in the consumer complaint were not disputed by the

OPs. Their written response before the District Form merely calls them ‘not entirely true’ but without any attempt to explain why and to what extent the claim should be treated as untrue. The District Forum has categorically observed that the Ops did not file any documents. Further, there is no explanation why the booking was accepted and payments towards cost of the plot and the house, even including the registration charges, were accepted years before the layout was approved by the concerned authorities.

9. It is also contended by the RP/OP that the fora below have ignored the fact that under the agreement between the parties, the respondent/complainant had an obligation to pay. However, it does not show what evidence was placed before the

District Forum in this behalf. On the contrary, the District Forum has categorically observed in para 3 of its order that “The Opposite party did not choose to file any documents including the copy of the approved plan.”

10. We therefore find no merit in this revision petition. It is held to be devoid of any merit and is dismissed as such.

.……………Sd/-……………

(J. M. MALIK, J.)


…………Sd/-……………….

(VINAY KUMAR)

MEMBER s./-



(From order dated 13.09.2011 in First Appeal No. 39 of 2009 of the State

Consumer Disputes Redressal Commission,Jharkhand, Ranchi)

Dr. Mrs. Nargis Paul W/o Sh. C.H. Madhai St. Paul Healthways, Sector-IV Bokaro Steel

City, District Bokaro … Petitioner

Versus

Smt. Mamta Kumari W/o Sri Pawan Kumar Or. No. D-116, D.V.C. Colony, At+

P.O.,+P.S.-Chandrapura, District-Bokaro (Jharkhand)

… Respondent

BEFORE:



For the Petitioner : Ms.Binita Shahi, Advocate

For the Respondent : Nemo


ORDER


1. This Revision Petition has been filed by the petitioner Dr. Mrs. Nargis Paul assailing orders passed by the Hon’ble State Commission on 13.09.2011 in the First

Appeal 39/2009.

2. Facts in brief of this Case are:

From 24.10.2006 Smt. Mamta Kumari, the Respondent/complainant (OP) for her first pregnancy was followed Antenatal care (ANC) under Dr. Nargis Paul who is the

Petitioner herein. On 4/2/2007 she was admitted with labour pain in St.Paul

Healthways, Ranchi. The petitioner performed Caesarean Section (LSCS) operation and delivered a healthy baby .She remained in hospital up to 12/2/2007. As per complainant she felt continuously febrile (fever) by negligence of Petitioner. It was also alleged that she had to shift to Bangalore and was under treatment up to

5 th March 2007.According to the complainant Dr.Paul hastily conducted LSCS and left her without completing the process to proceed on picnic. It was also asserted that fever was kept subsided with injection to cover-up her deficiencies and faults in treatment. For which complainant filed as complaint in District Consumer Disputes

Redressal Commission (in short “District Forum”) for compensation of Rs.

5,00,000/- as monetary loss, 1,00,000/- for physical and mental agony with cost of litigation Rs.10000/- against the Respondent/Appellant.

Dr.Paul appeared before

District forum and denied any deficiency and negligence in treatment and LSCS was performed with utmost care and caution. The compliant was discharged on

12.02.2007 after complete recovery. It was contended that any pelvic infection detected at Bangalore on 22/02/2007 may be due to unhygienic condition of Smt

Mamata.

The District Forum held the petitioner for negligence observing as follows:

7. While going through the entire case records and documents it is observed that the decision of OP-Doctor to go for LSCS operation of the

Complainant. In case of breech presentation found was not an act of negligence and deficiency in service on part of Complainant. But an appreciation of the treatment reports in connection with the Complainant’s treatment at Manipal Hospital at Bangalore during the period from

22.02.2007 to 21.03.2007 has led us to conclude that the symptoms of

UTI. Bilateral gluteal antibioma and pelvic infection developed to the

Complainant after her caesarean operation by the OP doctor were on account of her negligence and deficiency in service provided to the

Complainant during the caesarean operation and also posts operatively. In view of the above we, therefore, hold OP liable to pay compensation to the

Complainant.

3. Thereafter two appeals were filed in State Commission as the complainant filed appeal No.63/2009 for enhancement of compensation a while the petitioner Dr.Paul filed First appeal No. 39/2009 for dismissal of order. The State Commission after hearing the parties and evidence on record uphold the order of District Forum and dismissed the FA 39/2009 and also dismissed FA 63/2009 for enhancement of award of compensation.

5. We have heard the learned counsel for petitioner who asserted that there was no negligence and also brought our notice that the State Commission has not found any negligence or deficiency on part of petitioner; but confirmed the said order passed by

District Forum and awarded compensation of Rs.50000/-.

4. Aggrieved by the order of State Commission the petitioner preferred this revision petition.

6. We have examined the entire material on record and relied upon several medical texts, literature and decisions of Hon’ble Supreme Court and this commission.

7. The case sheet record of St Paul’s Healthways perused from the date of admission as 4.2.2007 to date of discharge on 12.2.2007 which narrated entire treatment aspect, operative details, TPR (temperature, pulse records) etc; accordingly

It’s clear that the patient (complainant) was comfortable and temperature records were ranging from 96 to 98F which is within normal range. Even on the date of discharge complainant was Afebrile (No fever) and she was in good health. She was discharged with an advice to take proper rest and some medication as per discharge summary.

Further, she was advised to come for review after a month or earlier if any problem occurs. This is correct and as per standards of medical practice; hence we do not find any deficiency or negligence in medical services by petitioner.

8. It is contended that father of complainant took her to petitioner for c/o fever who flatly denied treating her. Therefore, her condition deteriorated day by day, she went to

Bangalore by air then on 22.02.2007 taken treatment at Manipal Hospital, Bangalore.

Suffering from fever is not critical issue and not an emergency. It is the fault on the part of complainant and her father that instead of traveling thousands of kilometers, a long distance to Bangalore, she should have taken to other major hospitals nearby (Bakaro

General Hospital) who deals with such critical patients. Therefore, such built up story and false submission of complainant is unacceptable.

9. We have perused the documents of Manipal Hospital, Bangalore like then

Discharge Summery and various tests reports. Our observations reveal that complainant was admitted in Manipal Hospital from 22/2/2007 to 5/3/2007. The final diagnosis mentioned as “URINARY TRACT INFECTION. BILATERAL ANTIBIOMA,

PELVIC INFECTION.” After proper treatment she was discharged on 05.03.2007; but the OP again got admitted on 10.03.2007 in Manipal Hospital, Bangalore with pain and fever over surgical wound at anterior abdominal wall which was treated and discharged on 21.03.2007. There was no reference or any mention about the cause of fever was due to previous LSCS in the records of Manipal Hospital. We have referred several medical literatures which did not reveal the LSCS is one of the direct cause of antibioma or Urinary Tract Infection/Pelvic Infection. Such infections are common due to unhygienic condition of patient and other several causes and health condition of patient.

Manipal Hospital did not mention at the time of admission the patient’s condition was critical; hence the complainant’s say is absolutely false one.

10. On the point of law the State Commission in its order duly observed and acknowledged that the Complainant/OP has not brought any evidence in support of the negligence by the Petitioner nor to prove that she left the OP with open surgical wound and went for a picnic. It is also observed that the OP has not brought on record any evidence to show that the treatment provided by the Petitioner to the OP during her one week stay (412.2.2007) at St Paul’s Healthways was not in accordance with established practices of an ordinary skilled doctor.

11. It is explained that petitioner is a reputed Obstetrician and Gynecologist working as In charge of St Paul’s Health ways, a hospital for women by women since 1991 and awarded for her best services and charity. In this case we would like to rely upon Hon’ble Supreme Court’s judgment which laid down certain principles in Jacob

Mathew’s Case Vs State of Punjab (2005) 6 SSC 1 and in another case Kusum

Sharma & ors Vs Batra Hospital and Medical Research & ors (2010) 3 SCC 480;

Hon’ble Justice Dalveer Bhandari discussed the issue of medical negligence and protection of medical professionals the relevant text from the judgment as:

“

The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors could never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.”

12. Therefore, we apply well-settled principles enumerated in the preceding paragraphs in dealing with cases of medical negligence, the conclusion becomes irresistible that petitioner’s act was not a medical negligence. The impugned orders of the District

Forum and State Commission have miserably failed to appreciate the facts on record which indicates that they have not based their findings on any cogent or convincing reasons. The conduct of complainant is evidently deplorable and should not have escaped the attention of State Commission.

13. Based on the above discussion, it is very clear that the Complainant/OP is not entitled for any compensation. Even if she has suffered by her ill health which has no nexus with previous LSCS operation. The material placed on record makes very clear that there was every intention on the part of complainant to mislead the consumer Fora and harass the doctor. Therefore, we allow this Revision Petition and set aside the order of State Commission. However, there shall be no order as to cost.

..…………………..………

(J.M. MALIK J.)


……………….……………

(S.M. KANTIKAR)

MEMBER

Mss



(From the order dated 10.07.2012 in First Appeal No. 196 of 2011 of the

State Consumer Disputes Redressal Commission, Delhi)

Delhi Development Authority Through its Vice Chairman Vikas Sadan, I.N.A. Market,

New Delhi-110023

… Petitioner

Versus

Shri Surinder Singh, S/o Late Shri Prem Singh, R/o WZ-14/2, Gali No.17, Sant garh,

Tilak Nagar, New Delhi

… Respondent

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER


For the Petitioner : Ms. Arti Bansal, Advocate

Mr. Vishal Tyagi, Advocate

For the Respondent : Mr. M.S. Bakshi, Advocate

Pronounced on…… May, 2013

ORDER


1. This Revision Petition challenges the order passed by State Consumer Dispute

Redressal Commission, Delhi (in short “State Commission”) in an appeal FA No.

196 of 2011 on 10/07/2012 dismissed the appeal on the ground of deficiency in service by the petitioner.

2. BRIEF FACTS in this case:

The respondent/complainant registered DDA –LIG flat under higher purchase scheme, the New Pattern Registration Scheme NPRS -1979 floated by DDA.

That on 31.7.2002 draw held and the turn of the priority number, the complainant was allotted a LIG Flat No. 157, Sector 17, Pocket-2, Block-C, Ground Floor at

Rohini, Delhi and the demand cum allotment letter was sent to the complainant by post in the Block period of 26.09.02 and 01.10.02. The complainant on

1.2.2003 sent a letter to OP requesting for the change of allotment to other place on medical ground and requested for change of address for correspondence, that the Petitioner had considered a request of the complainant and informed the complainant that the request for the change of flat was turned down. Accordingly sent a letter dated 13.03.2003 at his changed address i.e. WZ-14/2 Gali No. 17

Sant Garh, Tilak Nagar, New Delhi-18. In the same letter petitioner requested the complainant to pay the demanded amount and submit the required document as per the demand letter. However the complainant failed to do so, but complainant sent many reminders to DDA on 30.11.2003, 3.1.2004, 12.12.2005 & 2.2.2006.

The DDA informed the Complainant On 24.04.2006 that this request for the change of flat was turned down. The complainant further asked to furnish the documents for refund of registration amount deposited by him with the OP. The

Complainant also approached the Joint Director of the DDA who assured him that due change of the site would be provided to him, but the DDA has not informed him about the developments. However, the DDA has cancelled the allotment without sending any show cause notice, which is illegal, unlawful and arbitrary act of the DDA. Hence, a complaint No. 249/2007 was filed before The

Consumer Disputes Redressal Forum II, Government of NCT of Delhi (in short as

“District Forum”). The District Forum allowed the complaint. Hence, against the said order the petitioner preferred First Appeal No.196/2011 in State

Commission.

3. The State Commission heard the counsels of both parties and perused the records and evidence on file .The learned counsel for the appellant has argued that since the amount has not been deposited, therefore, there is no question for the allotment of another flat to the complainant/respondent and has placed the reliance on Skyline Directors Pvt. Ltd & Anr. Vs. State of U.P. (2008) 8 SC page

26 5. In this case, it has been held by Hon’ble Supreme Court that since the amount has not been deposited by the allottee of the flat allotted by the NOIDA authority, the flat cannot be allotted. But the State Commission held that the facts

of this case are quite different as the controversy is that the allotment-cumdemand letter has not reached the complainant so as to deposit the amount mentioned in allotment-cum-demand letter. The counsel for the appellant has also placed reliance on another case Poonam Verma and others Vs. Delhi

Development Authority (2007) 13, Supreme Court cases page 154. In this case it has been held that if the scheme is closed, there is no question of any allotment.

But State Commission observed that in the case before us there is no averment on the part of the OP/appellant that the scheme under which the allotment of the flat is made to the complainant/respondent is closed. In this connection no evidence has been filed.

Therefore, the State Commission dismissed the appeal and upheld the order of

District forum as to allot a LIG flat to the complainant in same area, if lying vacant, or in area nearby, at its old rate of prices. OP is also directed to pay a sum of Rs.50000/- for causing mental agony and harassment to complainant since 2003 to till date and Rs.5000/- more as litigation charges to the complainant.

4. Aggrieved by the order of State Commission this Revision Petition was filed in this commission. We heard the both counsels who argued vehemently and perused the entire documents and evidence on record.

5. We have noticed the submissions of the appellant that Complainant vide its letter dated 01.02.2003 had requested for change of the allotment but his plea was turned down and a regular letter was sent on 13.3.2003 to the new address of complainant. The contents of same letter as follows:

“Sir,

Kindly refer to your letter dated 26/2/03 on the subject cited above. In this connection, I am directed to request for change of flat has been examined in detail but the same cannot acceded to as per existing Policy of

DDA and requested to pay the demand amount and submit the required documents as per demand letter.”

Therefore, a show cause notice was sent to him on 28.07.2003 with request to furnish the bank challans towards the deposited amount within 15 days from the date of issue of this notice failing which allotment would be cancelled and

thereafter, he was liable to apply for refund by furnishing the requisite documents. However, the Complainant failed to deposit the demanded amount.

Therefore, the allotment was cancelled vide letter dated 09.10.2003.

6. As per the complainant’s submission it is noted that both the letters cited above dated 28.07.2003 and 9.10.2003 were sent to the old address of complainant which have never been received. But, no doubt Complainant himself was being a retired MCD (Municipal Corporation Delhi) worker and appears to be a prudent one. Hence he should have complied with the demands as per allotment letter and made payment of installments as per schedule in time to the

DDA. It is pertinent to note that the complainant never bothered to remit the installment amount as per demand letter. Instead of paying a single installment he kept sending many reminders to DDA on 30.11.2003, 3.1.2004, 12.12.2005 &

2.2.2006. This is negligence of complainant himself.

7. The petitioner on 25.04.2006 sent a reply for the last representation of the

Complaint dated 2.2.2006; that the matter was duly examined in detail by the competent authority but the request of the complainant could not be acceded to.

And made a request to apply for refund of deposited amount by furnishing the original documents.

8. The case of the Complainant was examined in detail but could not be acceded to as he failed to deposit the cost of the flat within the stipulated period and despite issue of show cause notice.

9. Therefore in our opinion that State commission grossly erred in observing that the allotment cum demand letter was sent to the Respondent/Complainant at his old address and the same amounts to deficiency of service. Therefore, the question of the deposit of the amount mentioned in allotment-cum-demand letter does not arise in as much as the allotment-cum-demand letter has not reached the Complainant/ Respondent. On the contrary the respondent himself has filed the demand cum allotment letter along with the Complaint which was issued on

26.09.2002-01.10.2002. As per demand letter the flat No. 157, Sector 17, Block

LIG Flat was allotted to the Respondent.

10. On perusal of the clause 28 of the brochure of the Petitioner the terms and conditions of the brochure is as under:-

“ In case a registered person gets a flat in any locality once or the flat is surrendered/cancelled due to non-compliance of the requirements

DDA’s obligation to allot the flat to him will be deemed to have been discharged.”

As per the clause the Respondent was aware that due to non-payment of the installment resulted the cancellation of flat. The Respondent did not deposit the monthly stipulated installment even after the deferred dates.

11. Therefore, the Respondent is not entitled to any relief. The Apex Court in the

Judgment Sky Line Contractor Private Limited Vs. State of UP reported in

2008(8)SCC 264 wherein the Hon’ble Supreme Court of India held that nondeposit of amount in stipulated period or unilateral deposit of demanded amount the Respondent was not entitled for allotment of the possession.

12. As the Complainant contented that at time of booking he was 35 years old and now at the time of allotment he is more than 60 years and not in a good health.

To substantiate his contention he has not produce any health certificate or any evidence for the same. As such the brochure of petitioner did not show any such special p rovisions under which complainant’s request to be considered.

13. Therefore, considering the entire evidence and foregoing discussion we did not find the Petitioner has acted in an illegal manner therefore, we allow this Revision

Petition by setting aside the order of the State Commission. With No costs.

..…………………..………J

(J.M. MALIK)


……………….……………

(S.M. KANTIKAR)

MEMBER

Mss



(From the order dated 20.09.2011 in Complt. Case No.CC/02/401 of the Maharashtra

State Consumer Disputes Redressal Commission, Mumbai)

M/s. Tejas Associates A Partnership Firm duly registered under the Provisions of Indian

Partnership Act, 1932, Having its office at Shop No.5, Ground

Floor, Kandivali Shopping Centre, Bajaj Cross Lane, Kandivali (W), Mumbai 400067, through its Partner viz. Arun Sakpal

… Petitioner/OP-3

Versus

1. Keshav Nidhi Co-operative Housing Society Ltd., Moolji Nagar, Saibaba Mandir Road, Off S.V. Road, Borivali (W), Mumbai 400092

… Respondent No.1/Complainant

2. M/s. Moolji Lukhmidas, a firm, Having its office at Al Sabah Court 71-

73, Netaji Subhash Road, Mumbai 400020

… Respondent No.2/OP-1

3. M/s. Vibhushan Estate Pvt. Ltd. Through its Director, Mr. Deepak Ratansingh,

9/10, Al Sabah Court, 73, Marine Drive, Mumbai 400020


4. The Executive Engineer

Building Proposals (WS) “R” South Municipal

Corporation of Greater Mumbai, Kandivali (E) Mumbai


BEFORE



For the Petitioners : Mr. S.B. Prabhavalkar, Advocate

For the Respondents : Mr. Udai B. Wavikar, Advocate with

Mr. S.K. Sharma, Advocate


O R D E R


This revision petition has been filed by the Petitioner against the impugned order dated 20.9.2011 passed by the Maharashtra State Consumer

DisputesRedressal Commission, Mumbai (in short, ‘the State Commission’) in CC No.

CC/02/401

– Keshav Nidhi Co-op. Hsg.

Soc.

Ltd. Vs. Mr. Mooljee Lukmidas & Ors. bywhich, application for impleadment of parties was allowed.

2. Brief facts of the case are that Respondent No.1/Complainant filed complaint before the learned State Commission against OP / M/s. Moolji Lukhmidas with a prayer to direct OP to complete the title to the property and pay Rs.19.95 lakhs towards additional payment of stamp duty, registration charges, etc. Later on, complainant moved application for amendment of the complaint with a prayer to permit him to implead OP Nos. 2, 3 & 4 and insert paragraphs 9A and 9B in thecomplaint with the consequential amendment in the prayer clause. Learned State Commission after hearing both the parties, allowed aforesaid application vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that learned State Commission had no power to allow application for amendment and further submitted that OP No. 2, OP

No.3/Petitioner and OP No.4 are not necessary parties, even then, learned State

Commission has committed error in allowing amendment application and impleading

OPs in the complaint; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondents/complainants submitted that learned State Commission had power to allow amendment application and rightly impleaded OP Nos. 2,3 & 4 to avoid multiplicity of proceedings and order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. The core question to be decided in this revision petition is whether; the State

Commission has power to allow application for amendment. Learned Counsel for the petitioner submitted that learned State Commission has no power in the light of the judgment passed by Hon’ble Apex Court in IV (2011) CPJ 35 (SC) –

RajeevHitendra Pathak & Ors . Vs. Achyut Kashinath Karekar & Anr . In the

aforesaid judgment,

Hon’ble Apex Court held that District Fora/State Commissions have not been given any power to set aside the ex-parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised. Section 22-A of the Consumer Protection Act, which was inserted on

15.3.2003 has vested power of review or recall the orders, only to the National

Commission and it appears that, as this power has been restricted only to the National

Commission, Hon’ble Apex Court in the aforesaid judgment held that District Fora/State

Commissions cannot exercise this power. In the aforesaid judgment, it has nowhere been mentioned that power to amend the complaint or implead parties (interim order) cannot be passed by District Forum or the State Commission. Section 13 (3B) of the

Consumer Protection Act runs as under:

“(3B) Where during the pendency of any proceeding before the

District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case”.

Perusal of this provision clearly indicates that District Fora and the State Commissions have also been enabled to pass interim orders, as is just and proper in the facts and circumstances of the case. Application for amendment of the pleadings as well as impleadment of parties is an interim order and if it is just and proper to avoid multiplicity of litigation and for proper adjudication of the case, such orders can be passed by District Fora/State Commissions. This Commission in R.P. No.2696 of 2011

–

M/s. Shyam Developers Vs. Girishikhar

Building ‘A’ Co-op. Hsg.

& Ors . has upheld order of impleadment of another party by learned State Commission to avoid multiplicity of the proceedings. Learned Counsel for the respondent has also placed reliance on AIR 2004 Mad 446

–

Manimalan Vs. K. Subrayan in which, it was observed that there is no impediment in entertaining an application for the amendment, even though, there is no specific provision for amendment under Consumer Protection

Act. He further placed reliance on State of Karnataka Vs. Vishwabharathi House

Building Coop. Society & Ors . in which it was observed as under:

“60 It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the

Tribunal all powers in order to make its order effective”.

6. Thus, it becomes clear that in the light of aforesaid judgements District Fora,

State Commission and National Commission are competent to entertain application for

amendment and impleadment of the parties, as there is also no bar in entertaining such applications, though, there is no specific provision. Thus, learned State Commission has not committed any error in entertaining and allowing application for amendment and impleadment of the petitioner and others as OP Nos. 2, 3 & 4.

7. As far as merits of the case are concerned, learned State Commission has observed as under:

“It is an admitted position before us that the original Opponent has transferred the rights in respect of the property in question to the proposed Opponent No. 2. Said power has been given by an agreement. Contention of the other side is that it was initially given to M/s. Karnataka Traders and from M/s. Karnataka Traders they have purchased the property in an auction. We need not go into this aspect at this stage. The fact remains that the proposed Opponent

No. 2 stands in the shoes of the original Opponent No.1. Whatever may be the circumstances namely – that it is an auction purchase, auction purchase is also subject to rights of the persons whose property has been put to auction, namely the Opponent No.1.

Therefore, viewed from any angle, as we are concerned with execution of conveyance of the property in favour of the

Complainant Society, inclusion of the proposed Opponents is very much necessary”.

To avoid multiplicity of proceedings, petitioner is apparently a necessary party and learned State Commission has not committed any error in impleading him as OP in the complaint. We do not find any illegality, irregularity or jurisdictional error in the impugned order, which calls for any interference and revision petition is liable to be dismissed. Petitioner is free to take all objections before the State Commission in its written statement.


..……………Sd/-………………



..…………Sd/-…………………


MEMBER k



(From order dated 04.12.2012 in Appeal No. 764 of 2007 of Maharashtra State Consumer Disputes

Redresdsal Commission, Circuit Bench at Nagpur)

1. Mrs. Kiran w/o Yugal Kishore Bhattad,

2. Naval Kishore s/o Mohanlal Bhattad, Both r/o Tekadi road, Sitabuldi, Nagpur

………Petitioners

Versus

1. M/s Shrinivas Agrotech India Limited, 49, Nadodaya Apartments, Hill Road,

Gokulpeth, Nagpur-10.

2. Shri Jaiwant Madhavrao Ingle, Director of M/s. Shriniwas Agrotech India Ltd, R/o

18, Hill Top Road, Ambazari, Nagpur

…… Respondents

BEFORE:



For the Petitioners : NEMO


ORDER


Being aggrieved by order dated 04.12.2012, passed by State Consumer

Disputes Redressal Commission, Maharashtra Circuit Bench at Nagpur (for short, ‘State

Commission’) petitioners/complainants have filed this revision petition under Section

21 (b) of the Consumer Protection Act, 1986 (for short, ‘Act’).

2. Brief facts are that petitioners filed a complaint before District Consumer Disputes

Redressal Forum, Nagpur (for short,‘District Forum’) on the ground that Respondent no.2/O.P.No.2 approached them in the year 1999 for making investment in the tree plantation. Accordingly, petitioners invested sum of Rs.58,000/- and Rs.50,000/- respectively, in the scheme floated by the respondent. Thereafter, further sum was paid by them but no tree plantation was done nor respondents followed the terms and conditions of the agreement.

3. The complaint was contested by the respondents.

4. District Forum, vide order dated 6.11.2003, partly allowed the complaint and passed the following order ;

“2. The opposite parties shall not allot the another plots to the complainants in the same area admeasuring same sq. ft. They shall execute the sale deed of these plots and shall bear the cost of execution. OR.

(i) The opposite parties shall refund back the amount of

Rs.40,000/-to each complainant along with 12% interest,

(ii) The interest shall carry from the receipt of the payment till its realization ”.

5. Thereafter, petitioners filed a Misc. application No.168 of 2013 under Section

25 read with Section 27 of the Act for taking action against the respondent. Notice of this application was duly served upon the respondents. On their behalf one advocate also appeared and filed his Vakalatnama and moved an application for adjournment.

Later on, respondent did not appear. District Forum, vide order dated 01.07.2007, partly allowed the petitioners’ application and Recovery Certificate under Section 25 of the Act was ordered to be issued, besides this petitioners were awarded damages as well as cost for non compliance of the order of the District Forum.

6. Not satisfied with the order passed by the District Forum, petitioners filed an appeal before the State Commission against order dated 01.07.2007 of the District

Forum.

7. On 4.12.201

2, when petitioners’ appeal came up for hearing before the State

Commission, they were not present and as such their appeal was dismissed in default.

8. Now petitioners have filed the present revision petition against the impugned order of the State Commission.

9. Later on, petitioners have sent application dated 2.3.2013 by post stating that they are unable to engage a counsel and are not in a position to argue the matter and their presence may be exempted and matter may be decided in accordance with law.

10. On 3.5.2013 after perusing the record, we have reserved the order.

11.

Impugned order under challenge was passed by the State Commission, in the execution proceedings. As per Section 27 of the Act, only appeal lies against any order passed in the execution proceedings. However, petitioners have filed revision petition against the impugned order, which on the face of it is not maintainable .

12. Section 27A of the Act reads as under ;

“ Appeal against order passed under section 27.

(1) Notwithstanding anything contained in the Code of Criminal

Procedure 1973(2 of 1974), an appeal under section 27, both on facts and on law, shall lie from---

(a) the order made by the District Forum to the

State Commission

(b) the order made by the State Commission to the

National Commission; and

( c ) the order made by the National Commission to the

Supreme Court .

(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National

Commission.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State

Commission or, as the case may be, the National Commission:

Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.)

”.

13. Since, specific remedy by way of an appeal under Section 27-A of the Act has been provided, present revision petition under Section 21(b) of the Act is not maintainable. Accordingly, this revision petition stand dismissed.

14. However, petitioners can seek appropriate relief before the appropriate forum, if so desire.

……..……………………J

(V.B. GUPTA)


…………………………

(REKHA GUPTA)

MEMBER

SSB/



(From the order dated 01.03.2012 in First Appeal No. 59 of 2012 of the State Consumer

Disputes Redressal Commission, U.T. Chandigarh)

HCMI Education Through HR Manager, HCMI Philippines Inc Unit 1103 One Blvd

Ortigass Center, Pasing City-1605 Philippines

… Petitioner

Versus

Narendra Pal Singh S/o Sh. Jaswant Singh R/o 2585, Sec-19-C, Chandigarh

Chandigarh

… Respondent

BEFORE:



For the Petitioner : Mr. Awanish Kumar, Advocate

For the Respondent : Mr. Deepak Aggarwal, Advocate


ORDER


1. This Revision Petition is preferred against the order dated 01.03.2012 in

Appeal No. 59/2012 passed by State Consumer Disputes Redressal Commission, U.T.

Chandigarh (hereinafter “State Commission”)

2. The facts, in brief, are that the Petitioner/Opposite Party No.1 (OP1) made assessment of Complainant/respondent’s educational qualification for eligibility to get admission for MBBS Course, in Opposite Party No.2 College. Accordingly, on

25.08.2007 complainant paid Rs.5,000/- charges to OP-1 towards processing fees.

Subsequently, the OP 2 after considering his educational qualifications, -certificates and evaluation thereof, issued a letter (C-14) dated 31.08.2007 to the Complainant.

OP-2 asked him to submit the original certificates, along with a sum of US$ 3500, in favour of Opposite Party No.1 towards tuition fee, and US$7500 towards foreign student fee., as per Annexure C-15. In pursuance of the letter C-14, deposited the aforesaid amount, with Opposite Party No.1, against two receipts issued as

Annexure C-16 and C-17, besides US$1000, as registration fee, vide receipt

Annexure C-18. It was stated that, on the basis letter Annexure C-14, the Opposite

Parties, arranged valid visa of Philippines for the Complainant. Thereafter, the

Complainant enrolled himself in MBBS, with Opposite Party No.2 College and successfully completed the 1 st semester. While the complainant was appearing, in the last examination of the 2 nd Semester i.e. Biochemistry, held on 24.10.2008,

Resolution No. 491 of 2008 Annexure C-23 was circulated to the students, issued by the Commission on Higher Education (CHED), Republic of Philippines, in which, it was stated that the OPs had offered MBBS Program, inspite of absence of CHED memorandum order prescribing curriculum, of such program. Thereafter, the

Complainant raised protest with the OPs, on various grounds but the OPs gave only false assurances and did nothing in the matter. The Commission of Higher

Education vide the above resolution, resolved the abolition of MBBS (Bachelor of

Medicine, Bachelor of Surgery) Program, from the year 2008-2009. It was stated that the OPs, thus, misled the Complainant, as initially, when he visited the office of OP

No.1, it had supplied the brochure to him, clearly mentioning the offer of MBBS program in India, to the eligible students. It was further stated that, as per Resolution

No.491 of 2008, the Complainant could not do 2 nd year MBBS without first doing

B.Sc. (Biology) Program (not less than 3 semesters and one summer). It was further stated that B.Sc (Biology) program was neither a part of MBBS curriculum, nor of the contract between the Complainant and the Opposite Parties. It was further stated that a protest was raised by the Complainant, in respect of the aforesaid circular, on the ground, that he had to spend additional amount of Rs.3 lakhs for doing 1 ½ -2 years of his bright career; that after successfully doing B.Sc.(Biology) degree, he will have to appear in a validating examination, for becoming eligible to sit in the 2 nd year

MBBS Program; that he was being downgraded to a lower course i.e. from professional to academic, and that he was kept in dark in all aspects. It was further stated that the aforesaid acts, on the part of the OPs, amounted to unfair trade practice, which represented falsely to the Complainant about their services. It was further stated that even the OPs, were deficient, in rendering service, as there was clear cut shortcoming and inadequacy in the quality, nature and manner of performance. The OPs were, many a time, asked to refund the fee, paid by the

Complainant, but OPs turned deaf ear to it. Therefore, complainant filed a complaint

No. 336/2010 on 20/5/2010 before District Consumer Disputes Redressal Forum-I,

U.T. Chandigarh (in short District Forum) for total claim of Rs.16,94,700/ under various heads. The Petitioner / OP-1 in its version submitted that the role of OP-1 which is Global Health Care Management Institution was only that of facilitator which helped students to access quality medical education by providing information, guidance and counseling regarding various courses in Philippines. Therefore, the

role of the Petitioner was over after Complainant’s admission in the college. The complainant was admitted in the College and successfully completed 1 st semester in

April 2008. He appeared in 2 nd semester exams in October 2008. OP 1 also contented that at the time of admission the college was recognized by CHED. In the meantime, numerous medical colleges mushroomed in Philippines which were not following the prescribed course by CHED. Being unable to weed out such medical schools, vide resolution no. 491 of 2008 CHED scrapped the MBBS course in entire

Philippines. Realizing the predicament faced by the students, vide letter dated

20.10.2008, CHED issued instructions for strict compliance for affected students.

The instructions sought to accommodate all such students in the changed course structure. Therefore, Complainant returned India instead of continuing the education, and filed a consumer complaint on the ground of alleged deficiency in service and unfair trade practices. The OP-1 also stated that main contention of the Complainant was that since the college was not following the prescribed course structure, CHED took back its recognition; due to which he had to pursue arts now.

3. The District Forum allowed the complaint and directed the OP as under: - The

OPs are, jointly & Severally, directed to refund the amount paid to them by the

Complainant (US$ 3500 as Tuition Fee, US$ 7500 towards Foreign Student Fee and

US$1000 as Registration Fee paid vide Annexure C-16 to C-18) i.e. net 12000

(Twelve Thousand) U.S. Dollars besides paying a sum of Rs. 50,000/- to the

Complainant by way of compensation for the physical harassment and mental agony suffered by him at their hands. They are also directed to pay litigation cost of

Rs.25,000/-.

4. Aggrieved by the order of District Forum the OP-1 filed an Appeal before State

Commission as FA 59/2012 on 16.02.2012.The State Commission dismissed the appeal.

5. Hence, filed this Revision Petition contending that n the State Commission had dismissed the Appeal by ignoring the principles laid down by Hon’ble Supreme Court with regard to the maintainability of Consumer Complaint against an educational institution. And also the impugned order ignored the facts that the Courts of India do not have territorial jurisdiction as the cause of action have actually arisen in

Philippines and the Petitioner was neither has an agent nor a branch office in

Chandigarh in India.

6. The counsel for both parties vehemently argued the matter and reiterated the submissions made before the State Commission.

7. The OP counsel for contended that the Courts in India doesn’t have jurisdiction to entertain the complaint as the caus e of action or a part of it hasn’t arisen in India and the complainant was studying in Philippines. OP’s further contention was that it is a settled law about the policy decision of the State can’t be a subject matter of consumer dispute; therefore the Pet itioner can’t be held liable for scrapping of MBBS course by the Government as it is a matter of policy decision; OP 1 made reliance on a case N.C.A. Group Vs. Housing Commissioner Punjab Housing Development

Board III (1997) CPJ 88(NC).

8. The Counsel for the Appellant submitted that, OP No.1 was only a facilitator, in getting admission of the complainant to the MBBS Course in the college of OP No.2.

It was further contended that fees which was deposited by the complainant, with OP

No.1, was sent to OP No.2. It was further submitted that, at time of admission the

MBBS Course was recognized, in the College of OP No.2 and the first semester of the program was cleared by the complainant. The Counsel for OP asserted that OP

No.1 should not be blamed, if the Government of Philippines took decision to abolish

MBBS Program, for the year 2008-09, hence under these circumstances, there was neither any deficiency, in rendering service, on the part of OP No.1, nor it indulged into unfair trade practice.

9. It is not disputed that, the OP-1 did assessment and confirmed the eligibility of complainant for MBBS course in college of OP-2; thereafter the complainant deposited fees. But it is pertinent to note that the OP-2 College was not following the curriculum issued by Commission of Higher education, Govt of Philippines which was issued at the time of admission. The Annexure OP-1/4 is the Resolution No.491 of 2008 was submitted by OP-No 1.The relevant portion reproduced as below:

“WHEREAS, a number of medical schools in the Philippines have offered the MBBS Program in spite of the absence of a CHED

Memorandum Order prescribing the curriculum of such program;

WHEREAS, the offering of such degree without the corresponding

CHED-approved curriculum has led to concern and confusion regarding the capability to practice medicine in the Philippines and abroad

WHEREFORE, upon motion duly made, seconded, and unanimously carried, the Commission EN Banc adopted to resolve as follows:

RESOLVE, AS IT IS HEREBY RESOLVED, that the

Commission approves the abolition of Bachelor of Medicine,

Bachelor of Surgery (MBBS) Program effective S.Y. 20082009.”

10.

Therefore, it is evident that the approved curriculum of ‘CHED’ was not being adopted by OP No.2 College. It was, under these circumstances, that the MBBS

Course, in which the Complainant took admission, through OP No.1, in the College of OP No.2 was abolished. Thereafter, those admitted MBBS students of OP-2

College were compelled to join B.Sc (Biology). This course was for a period more than three semesters and one summer or a minimum total of 92 units. Annexure A1 is the document supplied to the complainant, relating to the MBBS Course being run by OP No.2.It shows the heading ‘accreditations’, it was mentioned as “It is granted full accreditation by the Commission on Higher Education (CHED). It is also fully recognized and listed by both the World Health Organization (WHO) and the Educational Council for Foreign Medical Graduates (ECFMG), USA.”

11. But in reality and fact, OP-2 was not following the approved curriculum of CHED for running the MBBS Program. Knowing those facts OP obtained fee from him, for facilitating admission in such Course. It becomes crystal clear that the petitioner /

(OPs) intention was to mint money. As a res ult of which, complainant’s career was spoiled OP No.1 cannot wriggle out of the predicament, created by it, by saying that it was only a facilitator. Therefore, OP-1 produced misleading information; it was not only deficient in rendering service, but also indulged into unfair trade practice. Under these circumstances, both the OPs were rightly jointly and severally held liable to refund the fee, deposited by the Complainant. We rely upon the Judgment of this commission in the First Appeal 199/2009 Ashirwad Health & Education Trust & ors

Vs. Mr. SLM Ahmed decided on 1/3/2013. Similar facts were dealt in the said judgment and Hon’ble Justice J.M. Malik (one of us) stated in strong words “that the appellant has definitely tried to mint money by leading the gullible people up the garden path and held petitioner responsible for huge deficiency in service which has resulted in playing with the careers of young children”.

12. Under these circumstances and reasons recorded we do not find any illegality in the order of District Forum and State Commission. Hence, this revision petition has no merit which deserved to be dismissed with no order as to cost.

..…………………………

(J. M. MALIK, J.)


……………….……………


MEMBER

Mss



(From the order dated 27.07.2011 of the State Consumer

Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad in First Appeal nos. 223 and 1356 of 2008)

1. Sandeep Suresh Yeolekar

2. Suresh son on Bhaskar Yeolekar Both resident of Sonya Maruti Mandir Near

Railway Station Dhule – 424001 (Maharashtra State)

Petitioners

Versus

1. Sow Snehalata Wife of Sudhir Deshpande

2. Sudhir Son of Chintaman Deshpande Both Resident of C/o Shivajirao Marathe

62 Shivshakti Colony Chitod Road Dhule

– 424001 (Maharashtra)

Respondents

BEFORE:



For the Petitioner Mr R K Nanda, Advocate


REKHA GUPTA

ORDER

Revision petition no. 4359 of 2012 has been filed against the order of the State

Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad (the

‘State Commission’) in First Appeal no. 223 of 2008 and First Appeal no. 1356 of 2008, decided under a common judgment and order dated 27 th July 2011, in complaint case no. 76 of 2006 by respondent nos. 1 and 2 who were complainants no. 1 and 2.

District Consumer Disputes Redressal Forum, Dhule (the ‘District Forum’) vide its order dated 31 st January 2008 gave the following order:

(i)

“The application filed by the applicant is against non-applicant nos. 1 and 2 and is partially allowed.

(ii) Within sixty days from the date of this order, the non-applicant nos. 1 and 2 shall complete the work of construction over plot no. 7 and shall deliver the possession and execute the sale deed.

(iii) It is after receipt of the possession as shown in column no. 2 of the order and after execution of the sale deed, the applicants shall pay an amount of

Rs.1,20,000/- to the non-applicant nos. 1 and 2 towards the balance price consideration as per agreement.

(iv) As referred to above in column no. 2 of the order, if the non-applicant nos. 1 and 2 shall fail to deliver the possession within sixty days and shall not execute the sale deed then, the non-applicant nos. 1 and 2 shall refund the amount of Rs.1,70,000/- to the applicants jointly and severally within 30 days thereof. And by way of monetary losses, over this amount, they shall pay the penal interest at the rate of 15% per annum right from 18.07.2006, the date of filing of complaint, till its realisation.

(v) Within sixty days from today, the non-applicant nos. 1 and 2 shall jointly and severally do pay an amount of Rs.15,000/- to the applicants by way of mental torture.

(vi) The non-applicants shall pay jointly and severally an amount of Rs.1,000/- to the applicant within sixty days from today by way of cost of the application”.

Aggrieved by the order of the District Forum, two appeals were filed before the

State Commission. Appeal no. 223 of 2008 was filed by the original complainants and appeal no. 1356 of 2008 was filed by the respondents. As per the State Commission’s order:

“ Aggrieved by the said judgment and order the complainants came in appeal with the prayer to set aside the order of the District Forum on the ground that they had never prayer for the relief of possession of the said house and the execution of the sale deed.

In fact they had demanded the refund of Rs.1,70,000/- as the said plot is illegal and there was no building permission taken from the local planning authority. Whereas the respondents came in appeal with the request to quash and set aside the impugned judgment and order on the ground that the District Forum having made observations that the constructions was being done after the building permission obtained from

Municipal Council the order was made against them ”.

The State Commission came to the following conclusions and ordered as under:

“

On the other hand, the appeal of the original opponents bearing no. 1356 of

2008 carries no merit, however, since the rate of interest awarded as on

Rs.1,70,000/- and also the amount of mental agony awarded by the District

Forum appears to be on higher side. We are of the view to allow the said appeal partly by modifying the Forum’s order, according. Hence, the following order:

(i) Appeal no. 223 of 2008 is allowed.

(ii) Appeal no. 1356 of 2008 is partly allowed.

(iii) The impugned judgment and order passed by the District Forum is hereby quashed and set aside and the respondents individually and severally directed to refund Rs.1,70,000/- to the complainants with the interest @ 9% per annum instead of 15% from the date of filing the complaint i.e.,

18.07.2006 till the realisation of the amount, within a period of 30 days.

(iv) The respondents are also directed to pay to the complainants Rs.10,000/- instead of Rs.15,000/- towards mental agony and Rs.2,000/- towards cost of the complaint within a period of 30 days, failing which the interest @ 9% will have to be paid till realisation of the amount” .



- The courts below ought to have considered that the legal notice was issued by the complainants only in respect of specific performance of contract. The petitioner builders too had agreed to hand over the physical possession of the row house informing that almost 90% of the construction work is over and minor finishing is remaining for want of certain items agreed to be supplied by the complainants towards fixtures etc. The demand was also raised for balance consideration. At the other hand, the consumer complaint was filed for simplictor refund of the earnest amount together with penal interest, which was not permissible under law. The claim raised in complaint and the legal notice of demand thus, varied for. This is the gross illegality and injustice caused to the builders affecting their good will and reputation in the local market at Dhule. To overcome this difficulty, the builders showed their willingness to perform the agreement, which in ordinary course other builders may be accepted open heartedly. Yet, the present petitioners remain firm stating that they will accept the balance payment and will execute final sale deed in favour of the complainant no. 1, it rather shows their bonafides and good will .

- The claim for simplictor refund of money before fora is neither permissible nor legal. The basic grievance raised was about illegal and unauthorised construction raised by the builder. The copy of the judgment and order passed in regular Civil Suit no. 405 of 2004 was the certificate issued stating that the alleged construction and site intended to be sold out to the complainant is legal and proper and the complainants cannot refuse to purchase it under any pretext. Merely saying that the alleged construction is not as per Municipal permission is not sufficient to maintain a consumer complaint. The complainant have not proved and established this charge. At the other hand, the civil court judgment filed on record shows that it is a legal and proper construction. Yet, the forum was swayed away with such a half-hearted pleadings and the scanty evidence filed on record. The act of filing of civil suit by the builder does not mean and suggest that it is unauthorised construction work.

- The penal interest awarded by the Forum was reduced from 15% to 9%. However, the fact that the agreement to sale has been executed for, the builder intimated to take possession of the site in question, yet, the complainants failed to pay the balance consideration. It has caused much financial loss to the builder. As per the request made by the complainants, many more changes and alterations were made in the house structure. Further, the complainants have caused much mouth publicity. In the local market, therefore, the builder has lost his good will and reputation in the entire city and for that purposes only, they have insisted and asked for specific performance of contract. They are ready to hand over the house and to execute final deed. In this back

ground of the matter, the petitioners were justified in claiming that the plea of illegal construction is wrong and even civil court has given a finding in favour of the builder and therefore, the complainants be forced/ compelled to pay the balance consideration with delayed payment charges and to get the sale deed duly executed in their favour. Fora awarded 15% interest to complainants. At the other hand it was denied in case of the builder who claimed 18% penal interest from the complainant towards the balance amount to be received from the complainants for specific performance of contract.

- Along with the revision petition, there is an application for condonation of delay. In the application, nowhere are the number of days to be condoned mentioned. As per the office report, there is a delay of 317 days. The reasons given in the application for condonation of delay are as follows:

- Revision petitioners have filed a revision petition arising out of the judgment and order passed by the State Commission, Mumbai, Circuit Bench at Aurangabad. The judgment and order has been passed on 27.02.2011. Almost after a period of lapse of one month the copy was ready for delivery. The same was delivered to the counsel for the revision petitioners by hand. However, as the petitioner no.

2 Shri Suresh Bhaskar Yeolekar who is aged about 72 years at this juncture was seriously ill and there was no other elderly male member in the family except the petitioner no. 1, Sandeep to take care of the ailing father. The petitioner no. 2 is suffering from Paralysis and Parkinsons for last more than 15 years and therefore, even otherwise in normal course he requires due care and attention. In the last week of

August 2011 he further suffered from High Blood Pressure and was advised to take complete bed rest. Naturally, for more than a period of two months, the petitioner no. 2 could not move out.

- In the meantime, it is only after receipt of the notice, in execution proceedings the revision petitioner no. 1 could make up his mind to move to this Commission on and after 05.11.2011. Thereafter, the necessary papers were collected and it was decided to file this revision petition. There was delay of hardly 10 to 15 days in moving the revision petition from the date of original order passed by State Commission. Along with an application for delay condonation, the matter was drafted, settled and forwarded to the

National Commission, New Delhi, on and after 05.12.2011. The affidavits duly sworned before the Notary Public, its Xerox copies are filed herewith for the perusal of this

Hon’bleCommission to establish the fact that by 05.12.2011 the revision petition was otherwise ready.

- The judgment and order was passed on 27.07.2011. The order was ready for dispatch by the registry/ office of the Circuit Bench, Aurangabad by 26.08.2011. While the outward entry was taken by the outward department clerk vide outward no. 1046 dated 26.09.2011 on which day, the order was about to be dispatched by post. In fact, it remained to be forwarded by post for one or the other unknown reasons. It is thereafter, the above said judgment and order along with two different covering envelopes and personally handed over to the advocate for appellant nos. 1 and 2 separately on 04.10.2011 in the office of the Commission/ Circuit Bench, Aurangabad.

And there after the revision petition was prepared and forwarded by Speed Post to this

Commission in between 06.12.2011 to 15.12.2011 at its old address of Janpath Bhavan, Old Indian OilBhavan, New Delhi. The petitioner submits that the office of National Commission was under shifting and therefore, the service report of the post department could not be received by petitioners in time.

- On couple of occasions during pendency of the complaint and even in the first appeals, attempts were made to settle the matter out of court, which fact can be established from the court proceedings. Relief of specific performance was granted by the Forum, to which, respondent builder was ready to comply with and the first appeal was restricted to the point of penal interest, which was refused to be awarded to the builder in case of execution of the final sale deed on their part. At the other hand, complainants were interested only in refund of money and nothing more than that.

- The execution proceedings went on. The petitioners and their advocate expected that the notice will emerge from the Commission about date of hearing. Almost six to eight months they waited for the letter from this Commission. Lastly on 05.11.2012 with the help of a local advocate from New Delhi the registers were extensively searched and it was noticed that tapal has not been received by this Commission or that, it has not been duly registered for one or the other technical problems. The District Forum has now fixed the matter on 26.11.2012 and has already served the bailable warrants upon these petitioners and thus, it had become just and expedient for them to move this

Commission forthwith.

- The revision petitioners submit that upon perusal of the entire documents and affidavits duly annexed with this petition, it will reflect that drafting and typing job was over by 05.12.2011 and the petitioners have forwarded the documents by post within a week or so. As such by 15.12.2011 or there about, the documents should have been delivered at the old address of this Commission. To the misfortune of the revision petitioners, the original postal receipt was misplaced and could not be traced out in spite of much efforts on their part. The petitioners undertake to file the copy of the postal receipt on recorder as and when traced out. The delay therefore, caused in submitting

this duplicate paper book of entire compilation of revision petition on the fact of its record deserved to be condoned for.

We have heard the learned counsel for the petitioner and have carefully gone through the records.

In the application for condonation of delay it is nowhere mentioned as to when the impugned order was received by the petitioner. It has also been stated by the petitioner that the petitioner no.2 has been suffering from Paralysis and Parkinsons for more than

15 years. Counsel for the petitioner on an enquiry has stated that petitioner no. 1 is a builder and has many people working for him. However, he could not explain why then the petitioner no. 1 could not file the application in time.

Petitioner no. 1 has also stated in paragraph 2 of the application that it was only after the receipt of the notice in execution proceedings, petitioner no 1 could make up his mind to move and file the revision petition on and after 05.11.2011. Nowhere in the application he has mentioned about the specific dates.

In paragraph 3 of the application he has stated that the impugned order was ready for dispatch by registry/office of the Circuit Bench, Aurangabad on 26.08.2011.

While the outward entry was taken by the outward department clerk vide outward no.

1046 dated 26.09.2011 on which date the order was about to be dispatched by post. In fact it remained to be forwarded by post for one or the other unknown reasons. It is thereafter, the above said judgment and order along with two different covering envelopes were personally handed over to the Advocate for the petitioners separately on 04.10.2011 in the office of the Commission/ Circuit Bench, Aurangabad. The counsel for the petitioner could not explain how these facts came to his notice.

The petitioner has also stated that the revision petition was prepared and forwarded by Speed Post to the National Commission in between 06.12.2011 to

15.12.2011 at the old address at Janpath Bhavan, New Delhi. Petitioner submits that the office of the National Commission was under shifting and therefore, the service report of the postal department could not be received in time by the petitioners.

Nowhere in the application, has it been stated by the petitioner when the revision petition was sent by speed post. It is pertinent to mention here that the Speed post articles can be tracked on line also. It may be further pointed out that the office of the

National Commission has already been shifted in August 2011 and as such there was no question of its being shifted in November 2011.

It would appear that petitioners have been wilfully not carrying out the orders of the Fora below, and they have also taken no timely action on the revision petition filed

against the said orders. It was taken up only when the execution proceedings were initiated by the District Forum and bailable warrants were issued. It is only then that the petitioners decided to file the revision petition and they have made a vain attempt to justify the delay in filing the revision petition on medical grounds of one of the petitioners. However, petitioners have not only failed to do so but they have also not thought it fit to mention the number of days of delay in filing the present revision petition sought to be condoned. In brief the petitioners have failed to explain the inordinate delay of 317 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 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 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 call ed for”.



it was held:


Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of

317 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable.

Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/-. (Rupees ten thousand only).

Petitioner is directed to pay Rs.5,000/- to the respondent directly by way of demand draft and the balance amount of Rs.5,000/- be deposited by way of demand draft in the name of “ Consumer Legal Aid Account ” of this Commission within eight weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 2 nd August 2013 for compliance.

Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the order dated 17.7.2012 in Appeal No.3763 of 2011 of the Karnataka State


M/s. Skoda Auto India Pvt. Ltd. A-1/1, Five Star Industrial Area Shendra, MIDC

Aurangabad, Maharashtra Also at : 5 th Floor, Orchid Business Park Sohna Road, Sector

48 Gurgaon – 122 001, Haryana

… Petitioner/Opp.Party (OP)

Versus

1. Raghvendra H.S. S/o Sri Satyanarayana Setty R/o Flat/House No.80, Cross,

Kirloskar Layout, Basaveshwara Nagar Bangalore 560079

2. Vinayak Cars P. Ltd. Railway Approach Road Near Hotel Swathi, Sheshadripuram

Bangalore 560020


BEFORE



For the Petitioner : Mr. Vipin Singhania, Advocate

Mr. S. Singhania, Advocate

For the Res. No. 1 : Mr. Anand Sanjay M. Nuli, Advocate

Mr. Lave Kumar Sharma, Advocate

For the Res. No. 2 : Ex-parte.


O R D E R


This revision petition has been filed by the Petitioner against the impugned order dated 17.7.2012 passed by the Karnataka State Consumer Disputes Redressal

Commission, Bangalore (in short, ‘the State Commission’) in Appeal No.3763 of 2011 –

Skoda Auto India (P) Ltd. Vs. Raghvendra H.S. & Anr. by which, while dismissing appeal, order of District Forum passed under Section 27 of the Consumer Protection

Act was upheld.

2. Brief facts of the case are that complainant No. 1/respondent No.1 purchased

Skoda – Fabia vehicle bearing No. KA 51 Z 2956 manufactured by OP No.1/Petitioner from through its dealer, OP No. 2/Respondent No.2. On 2.10.2009, when complainant along with his friends went for outing in this vehicle, it suddenly stopped on the road. Complainant immediately contacted OPs and it was towed back to Bangalore by incurring expenditure of Rs.14,400/-. On examination of engine, it was noticed that water was logged in it. On account of manufacturing defect in the said engine, complainant was unable to reap the fruits of his investment. Complainant requested OP to replace the car which was refused by OP. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP contested complaint, filed written statement and submitted that complainant took the vehicle in stormy raining water and on account of his carelessness, water entered into engine for which OP cannot be blamed. It was further submitted that there was no manufacturing defect in the said engine and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint. Appeal filed by the petitioner was dismissed by learned State Commission vide order dated 4.8.2011. Complainant filed Execution

Petition before the learned District Forum. OP moved application under Section 151

CPC for dismissal of Execution Petition, which was dismissed by learned District Forum vide its order dated 19.10.2011. By order dated 3.11.2011, District Forum took cognizance for offence under Section 27 of the Consumer Protection Act and sworn statement of the complainant was recorded and non-bailable warrant was issued against the accused. Petitioner filed appeal against this order which were dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that order of trial court merges in the order of Appellate Court and after dismissal of appeal, petitioner asked complainant to bring his vehicle to the workshop within the prescribed period given by District Forum,

even then, learned District Forum committed error in dismissing petitioner’s application and issuing non-bailable warrant and learned State Commission further committed error in dismissing appeal, hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, as learned State

Commission by its previous order confirmed order of District Forum allowing complaint.

Period of 60 days of compliance had already elapsed and in such circumstances, order passed by learned State Commission does not call for any interference; hence, revision petition be dismissed.

5. The core question which is to be decided in this revision petition is whether; order of District forum merges into the order of State Commission, though, State Commission dismissed appeal and whether; period of compliance will be reckoned from the date of dismissal of appeal or from the date of order of District Forum. Learned District Forum in its order dated 19.10.2011 observed as under:

“The merging means if the order of the trial court is modified/reserved then the appellant order has to be followed and not of the Trial Court. But in this case the order of this Forum is fully confirmed. Hence the question of starting date for compliance of the order is from the date of the dismissal of the appeal does not arise”.

6. After dismissing application under Section 151 filed by the petitioner, learned

District Forum vide its order dated 3.11.2011 took cognizance under Section 27 of the

C.P. Act against petitioner and issued non-bailable warrants against him and this order was affirmed by learned State Commission vide impugned order.

7. Admittedly, District Forum allowed complaint vide order dated 22.7.2010 and learned State Commission vide its detailed order dated 4.8.2011 dismissed appeal of the petitioner and order of District Forum was confirmed. Learned Counsel for the petitioner submitted that as per principle of merger, order of lower court merges in the order of Appellate Court, though, appeal is dismissed and order of lower court is confirmed, and compliance is to be made of Appellate Court. In support of his

contention, he has placed reliance on AIR 1958 SC 868

–

Commissioner of Income-

Tax, Bombay Vs. M/s. Amritlal Bhogilal and Co

. in which Hon’ble Apex Court observed as under:

“10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income-tax Officer's order granting reg istration to the respondent”.

He further placed reliance on (1974) 2 SCC 453

–

Gojer Bros. (Pvt.) Ltd . Vs. Shri

Ratan Lal Singh in which Hon’ble Apex Court in para 19 observed as under:

“19. The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate court is that in such cases the decree of the trial court is merged in the decree of the appellate court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a, continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasijudicial and executive authorities”.

He further placed reliance on AIR 1990 SC 10 – S.S. Rathore Vs. State of Madhya

Pradesh in which Hon’ble Apex Court in para 12 observed as under:

“12. The next Constitution Bench decision of this Court is that of

Collector of Customs, Calcutta v. East India Commercial Co. Ltd.,

[1963] 2 SCR 563 where this Court observed:

"The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that

on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification."

He further placed reliance on (2000) 6 SCC 359 – Kunhayammed & Ors . Vs. State of

Kerala & Anr . in which Hon’ble Apex Court in paragraphs 7 & 8 observed as under:

“7.The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.

8. In Commissioner of Income-tax, Bombay Vs. M/s Amritlal

Bhogilal and Co. AIR 1958 SC 868 this Court held :

There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement”.

He further placed reliance on (2010) 11 SCC 374 – M.R.F. Ltd. Vs. Manohar Parrikar and Ors. in which Hon’ble Apex Court in paragraph 27 observed as under:

“27. In our view, the principle of merger essentially refers to the merging of the orders passed by the superior courts with that of the orders passed by a subordinate court. This Court in the case of

Shankar Ramachandra Abhyankar Vs. Krishnaji Dattatreya Bapat

(AIR 1970 SC 1) has laid down the condition as to when there can be a merger of the orders of the superior court with that of the orders passed by the lower court. This Court stated, that, if any judgment pronounced by the superior court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties, then it would replace the judgment of the lower court. Thus, constituting the judgment of the superior court the only final judgment to be executed in accordance with law by the Court below. The merger is essentially of the operative part of the order and the principle of merger of the order of the subordinate Court with the order of the superior Court cannot be applied when there is no order made by the superior

Court on merits and the controversy between the parties has not been looked into by the superior Court”.

8. In the light of aforesaid judgements, it becomes clear that, even though, appeal has been dismissed, the order of the Appellate Authority is to be complied with and in such circumstances, period of sixty days given by the District Forum will start from the date of pronouncement of judgment by learned State Commission. Learned State

Commission vide its order dated 4.8.2011 dismissed appeal and within period of 60 days on 26.9.2011 petitioner asked complainant to bring the vehicle at the workshop of their dealer for compliance of the order for replacement of the engine of the car with their brand new defect less engine and also to carry out the repairs, etc. Learned

District Forum wrongly observed that petitioner has not written to complainant within 60 days of its intention to repair, whereas it becomes clear that after dismissal of appeal by the State Commission, petitioner asked complainant within 60 days of period to bring car for necessary compliance of the order of District Forum. Learned District Forum further committed error in issuing non-bailable warrants against the petitioner after dismissal of application under Section 151 of CPC submitted by petitioner. Learned

State Commission has committed error in upholding order of District Forum and in such circumstances, order of State Commission is liable to be set aside.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 17.7.2012 passed by learned State Commission is set aside and consequently order of District Forum dated 3.11.2011 is set aside. Parties to bear their own cost.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 14.06.2012 in First Appeal No. 269/2011 of Karnataka State


New India Assurance Co. Level-5, Tower-II, Jeevan Bharati Building Connaught Circus,

New Delhi

– 110001 Represented by its Manager

... Petitioner

Versus

M/s. Penta Care Ayurpharma, 71/21/1, 3 rd Main, Gandhi Gram, Maruthi Extension, S.R.

Puram, Bangalore

– 560021 Represented by its Partner Dr. Niranjana Murthy

…. Respondent(s)

BEFORE







Mr. R.S. Rana, Advocate

NEMO


O R D E R



Protection Act, 1986 against the impugned order dated 14.06.2012 passed by the

Karnataka State Consumer Disputes Redressal Comm ission (for short ‘the State

Commission’) in FA No. 269/2011, ‘New India Assurance Co. versus M/s. Penta Care

Ayurpharma’, vide which, while dismissing the appeal of the petitioner/OP, the order dated 22.12.2010 passed by the District Forum, Bangalore in consumer complaint no.

896/2010, allowing the said complaint, was upheld.

2. Brief facts of the case are that the respondent/complainant, M/s. Penta Care

Ayurpharma, who is carrying on the activity of manufacturing ayurvedic medicines, had obtained an insurance policy from the petitioner/OP, known as the ‘Fire and Special

Peril Policy’, which was in force from 5.6.2007 to 4.6.2008. The sum assured under the said Policy was Rs.17 lakh. It has been stated that on 26.4.2008, there was a fire on the premises of the complainant and bulk of furnished products and extracts stored in the store room were completely burnt, resulting in loss to the tune of Rs.2,55,335/-, as stated by the complainant. The complainant informed the petitioner/OP about the incident who, in turn, appointed a surveyor for the assessment of damage to the goods. The case of the petitioner/OP is that two out of three pulverising machines being used at the premises, were out of order and hence, one single machine was used continuously for a long time which resulted in excessive heat being generated during the process. The heat was trapped inside the bags placed in the store room and this resulted in slow burning of the stocks in question, resulting in loss. The petitioner/OP maintained that the cause of the loss is a peril which is excluded under the terms and conditions of the insurance policy in question, and hence they were not liable to pay the claim. The complainant/respondent filed a complaint no. 896/2010 before the District

Forum, which allowed the same and directed the petitioner/OP to pay a sum of

Rs.2,55,335/- to the complainant with interest @12% p.a. from the date of repudiation, i.e., 25.09.2008 until actual payment. The petitioner/OP was also asked to pay a sum of

Rs.5,000/- to the complainant as cost of the proceedings. An appeal filed before the

State Commission against this order was dismissed by the State Commission vide impugned order and the order of the District Forum was confirmed. It is against this order that the present revision petition has been filed.

3. After hearing the learned counsel for the petitioner on 28.09.2012, it was decided to send notice to the respondent and the date of hearing was fixed as 18.03.2013. In response to the notice, complainant/respondent sent a written reply which is on record. The respondent requested that the said petition be dismissed. However, he did not appear personally to plead his case.

4. While arguing the case, the learned counsel for the petitioner/OP has drawn our attention to a copy of the ‘Standard Fire and Special Peril Policy (material damage)’, in which it has been stated as follows:-

“Fire

Excluding destruction or damage caused to the property insured by

(a) (i) its own fermentation, natural heating or spontaneous combustion.

(ii) its undergoing any heating or drying process.

(b) burning of property insured by order of any Public

Authority.”

5. Learned counsel further invited our attention to the surve yor’s report dated

4.09.2008 in which it has been stated as follows:-

“ We convert the fully dried herbs in to micro-fine form for different formulations. On 26.04.2008, since two of the three pulvarisers were on repairs, single machine was used continuously used to meet our month end supply targets and to prepare new of medicines wanted to be launched in the first week of May. For the first time more than 150 kg. of fine powder was made in the evening and in order to protect the same from rodents, all bags were kept inside the store and closed. Due to overuse of single machine, the excess heat generated during pulverisation was trapped inside the bags and slowly ignited. As the rooms were closed as usual and the air entry was largely restricted, the fine powers are burnt slowly, engulfing the entire stock in the room, emitting large amount of smoke and heat.

”

6. The learned counsel argued that during the process of pulverisation, excess heat had been generated due to over-use of the single machine as the other two machines were out of order. This heat was trapped inside the bags and had led to slow ignition and burning of material placed inside the store room. It was clear from the wording of the policy as stated above that this case was covered under the exclusion clause, and hence the petitioner was not liable to pay the claim. Learned counsel for the petitioner also stated that the petitioner had obtained an expert opinion from M/s. Basker

Associates, insurance surveyor and loss assessor who stated in their report dated

18.09.2008 that the standard policy excludes fires such as spontaneous combustion, heating due to its own fermentation etc. from its scope. The fire in ayurvedic pharma material undergoing spontaneous combustion is possible and is excluded under the scope of the policy.

7. On the other hand, the respondent in its written version has stated that the District

Forum had rightly dismissed the unscientific and far-fetched argument by petitioner that natural products undergoing biodegradation, leading to exothermic microbial reaction, resulting in special kind of heat generation is capable of burning material into ashes with heat and smoke without flame. Even if the goods were burnt due to excessive heat generated during pulverisation, it should be held as accident loss by fire. The respondent has argued that once the policy was issued after collecting huge amounts of

premium for special peril policy, it was the bound duty of the petitioner to indemnify the loss caused to the complainant/respondent. The respondent pleaded that the said petition should be dismissed.

8. We have given thoughtful consideration to the arguments advanced by the parties and examined the entire material on record. The facts of the case make it quite clear and it has not been denied by the OP that loss has been caused to the complainant due to the burning of the Ayurveda pharma material placed inside the store. The main issue to be decided in the case is whether such loss is covered, for making payment of insurance claim, under the terms and conditions of the policy in question.

9. The District Forum observed in their order that the Insurance Policy in question, was issued for the purpose of indemnifying the insured in case of fire and special peril. Hence, when the goods of the complainant were burnt due to excess heat generated during pulverisation, it can be held as an accidental loss by fire. Hence, prima facie, such loss is covered under the policy which is issued for covering fire risk. It is further observed by the District Forum that the conditions of the policy were not enclosed with the policy and till that day, the opposite party had not furnished the conditions which were attached to the policy. The District Forum held that for nonproduction of such document containing exclusion clause, they reached the conclusion that the opposite party had failed to substantiate its contention that the fire accident was excluded under the terms of the policy. The State Commission also observed that it was a special type of policy, covering the pulverisation plant and stored materials for preparation of ayurvedic medicines and since the policy was subsisting on the date of the incident, the OP was liable to make good the loos sustained by the complainant. We do not find any reason to disagree with the findings of the State

Commission and the District Forum because it is an established fact that loss has been caused to the complainant due to the burning of stocks in the godown. It is clearly a case of accidental fire. Fire was not caused under any heating or drying process as at the time of Fire, pulverisation was not under operation. Record also does not reveal that fire was on account of own fermentation or natural heating or spontaneous combustion and in such circumstances exclusion clause is not applicable.

10. In the light of these observations, we do not find any irregularity, illegality or jurisdictional error in the orders passed by the State Commission and the District

Forum. The revision petition is, therefore, ordered to be dismissed and the orders passed by the State Commission and the District Forum upheld with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 16.10.2012 in First Appeal No. FA/12/243 of Maharashtra State


Shri Prakash s/o Govindrao Mandore r/o Plot No. 8, Rushikesh, Rohini Nagar,

Behind Nawab Apartment, Sahakar Nagar, Aurangabad Maharashtra

... Petitioner

Versus

Shrikant s/o Ramesh Pande, r/o H. No. 5-7-24, Bhimpura Osmanapura Aurangabad

Maharashtra State

…. Respondent(s)

BEFORE





For the Petitioner(s) Mr. Vivek C. Solshe, Advocate

For the Respondent(s) Mr. Pradeep Adkine, Advocate


O R D E R




Maharashtra State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FA

No. 1776/1999, “Shrikand Ramesh Pande versus Shri Prakash Govindrao Mandore” vide which, while allowing appeal, order passed by District Forum, Aurangabad dated

15.5.2012 was set aside and the case was remanded to the District Forum with direction to hear the complaint afresh by giving proper opportunity to both the parties to adduce their evidence.

2. Brief facts of the case are that as per the complainant Shrikant Ramesh Pande, he and his wife were intending to purchase a shop, so that the wife of the complainant

could start a boutique and earn her livelihood. As per the complainant, he decided to purchase shop No. CR-7, measuring 201 sq. ft. on the first floor in Deep Apartments at Bheempura, Aurangabad, being developed by the petitioner/OP. The complainant had negotiations with the petitioner and he decided to buy the said shop at a cost of

Rs.4,42,000/- and also got executed the agreement to sell on 12.12.2008 with the petitioner and paid him an amount of Rs.2,42,200/- in cash. The said agreement mentions boundaries of the said shop and it was agreed that the balance amount of

Rs.2 lakh shall be paid at the time of delivery of possession. It is also stated that the petitioner agreed to deliver the possession within a period of 6 months from the agreement. However, the petitioner failed to handover the possession of the shop and consequently the sale deed was not executed. The complainant, alleging deficiency in service and unfair trade practice, filed a consumer complaint against the petitioner/OP. The District Forum dismissed the complaint saying that the said agreement was not registered and since the other party had denied the said agreement, the issue could be decided by the Civil Court only and hence, the District Forum could not entertain the matter. An appeal was filed by the OP before the State

Commission. Vide impugned order, the State Commission allowed the appeal, set aside the order of the District Forum and remanded the case to District Forum with direction to hear the complaint afresh by giving opportunities to both the parties to adduce evidence. It is against this order that the present revision petition has been filed.

3. Heard the learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner/OP argued that no such agreement had been executed between the parties and the complainant’s brother had indeed fabricated the agreement. He stated that the brother of the complainant/respondent is an Advocate, namely, Sh. S.R.Pande, who was engaged by the petitioner in some matter relating to

District Court, Revenue Authority etc. and he paid him Rs.2.5 lakh as professional fee. However, the said Advocate demanded a sum of Rs.5 lakh as professional fee and hence, the petitioner/OP had dispute with the Advocate. The Advocate misused the signatures made by the petitioner on some blank papers and prepared the agreement in question. The petitioner has taken this plea in their reply to the complaint before the

District Forum. Further, the learned counsel for the petitioner has invited our attention

to the grounds of the present revision petition saying that the following issues arise in the present case:-

“i) Whether the alleged agreement to sale dated 12.12.2008 had been executed by the present petitioner?

ii) Whether the petitioner had engaged the brother of respondent in various civil litigations?

iii) whether signatures of the petitioner were obtained on blank papers?

iv) Whether the alleged agreement to sale ought to have been a registered document in view of provision of section 25 of the Bombay Stamp Act?

v) Whether the respondent was ready and willing to perform his part of contract?

vi) Whether the respondent had paid the amount of

Rs.2,00,000/- to the petitioner?

vii) Whether the respondent had the capacity to pay the alleged amount?

viii) Whether a Single Room can be carved out from the flat as per the allege d agreement?”

5. The petitioner has also stated in the revision petition that the alleged agreement could be referred to an hand-writing expert under section 45 of the Indian Evidence Act to know the truth. Learned counsel pleaded that the order passed by District Forum was in accordance with law and should be upheld.

6. The learned counsel for the respondent/complainant further stated that the agreement dated 12.12.2008 has been validly executed between the parties, but the petitioner had developed second thoughts about the handing over the shop to them after the execution of the agreement. He pleaded that if the petitioner felt that the agreement was fabricated by his Advocate brother, they could have taken action against him in accordance with law, but nothing like this had been done by them, so far. The order passed by State Commission, therefore, reflects a correct appreciation of the facts and circumstances on record and the consumer fora have the powers to take decision in the matter after taking into account the evidence of the parties.

7. A careful examination of the facts of the case and the oral arguments before us reveals that in this case, the execution of the agreement as alleged by the complainant has been denied by the OP. In most of other matters coming-up before the consumer courts, the agreement itself is not denied, but the failure to act according to the terms

and conditions of said agreement may lead to deficiency in service or unfair trade practice, for which the consumer fora may grant appropriate compensation, looking at the facts and circumstances of the case. However, in the case in question, if the existence of agreement is denied, it becomes a case for filing civil suit for specific performance between the parties. The said agreement is not a registered document and moreover the money supposed to have been given by the complainant to the other party has been stated to be given in cash only. In such a situation, both the parties shall have to lead evidence before a court of competent jurisdiction, which could adjudicate upon the issue whether the agreement is a genuine document or not. We, therefore, agree with the finding of the District Forum that the civil court is the appropriate forum for filing suit for specific performance so that the validity of the agreement in question could be examined. There is no denying the fact that under section 13(4) of the Consumer Protection Act, 1986, the District Forum is armed with the same powers as vested in civil court under the Code of Civil Procedure 1908 but these powers are there for handling specific matters and it is very clear that consumer court cannot take over the functions of the civil courts. In the instant case, we agree with the contention of the petitioner that issues raised in the revision petition as reproduced in this order can be addressed properly by a civil court only.

8. In the light of this discussion, this revision petition is allowed, order passed by the

State Commission is set aside and the order passed by the District Forum upheld, with no order as to costs.

..……………………………



..……………………………


MEMBER

RS/



(From the order dated 20.2.2008 in Appeal No. FA/2008/45 of the State Consumer


Life Insurance Corporation of India Manager, 22/2, Gurudwara Road, Karol Bagh, New

Delhi Through: Assistant Secretary Northern Zonal Office, LIC Jeevan Bharti,

Connaught Circus, New Delhi

…Petitioner/Opp. Party (OP)

Versus

Smt. Gurvinder Kaur W/o Late Kawaljeet Singh 33/3156, Bedanpura, Karol Bagh, New

Delhi

…Respondent/Complainant

BEFORE



For the Petitioners : Mr. Ashok Kashyap, Advocate

For the Respondents : Ms. Gurvinder Kaur in person along with

her sister-in-law Ms. Kiranwant Kaur


O R D E R


This revision petition has been filed by the petitioner/opposite party against the order dated 20.2.2008 passed by the State Consumer Disputes RedressalCommission,

Delhi (in short, ‘the State Commission’) in Appeal No. FA/2008/45 – LIC Vs.

Smt. Gurvinder Kaur by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent’s husband Kanwaljit Singh obtained policy of Rs.1,00,000/- on 12.6.2001 from OP/petitioner. It was further alleged

that in the year 2004, her husband fell ill and some problem was detected in right kidney and he underwent treatment for the same, but expired on 8.8.2004. It was further alleged that OP was explained about the illness of the disease who suffered right renal calculi after September, 2003, but had no other illness since last 8 years. Complainant submitted claim, which was repudiated by the petitioner on flimsy grounds; hence, complainant filed complaint before District Forum. OP filed written statement and resisted claim and submitted that policy issued in favour of deceased lapsed due to non-payment of half yearly premium due on 14.6.2003 and it was again revived on

1.11.2003. At the time of revival, diseased submitted personal statement of his health, which contained false statement in respect of his health. As he was operated on

8.9.2003, but this fact was not disclosed in his statement; hence, claim was repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed petitioner to pay policy amount along with 9% p.a. interest and Rs.5,000/- as compensation and Rs.2,000/- as cost of litigation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. Heard learned Counsel for the petitioner and respondent in person and perused record.

4. Learned Counsel for the petitioner submitted that at the time of revival, the assured suppressed fact of undergoing treatment and also falsely answered the questions in personal statement regarding his health; even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and order of State

Commission be set aside and complaint be dismissed. On the other hand, respondent submitted that at the time of revival, every fact was disclosed to the concerned agent and fact of previous ailment was not suppressed and in such circumstances, order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. Complainant has suppressed fact of lapse and revival of policy in his complaint. Complainant simply mentioned in para 11 of the complaint that petitioner was explained about the true facts regarding the illness that the deceased suffered right renal calculi only after September, 2003. In the complaint it has not been mentionedthat these facts were disclosed by the deceased to petitioner. During course of arguments, respondent submitted that at the time of revival of policy, these facts were disclosed to the agent of the petitioner, but agent has filled wrong answers in the personal statement regarding health. This fact cannot be believed because this declaration dated 1.11.2003 given at the time of revival of the policy has been signed by the deceased and answers to question no. 2 are in negative which runs as under:

Q.No.2 a) Have you suffered from any illness/

Disease requiring treatment for a week

or more? : No

b) Did you ever have any operation,

accident or injury? : No.

c) Did you ever undergo ECG, X-ray

Screening, blood, Urine or stool

Examination? : No

6. Apparently, these answers are wrong in the light of admissions in the complaint itself in which complainant has mentioned that deceased suffered right renal calculi in

September, 2003. Record furnished by petitioner clearly proves that decease was admitted in Jeevan Mala Hospital on 8.9.2003, operated on the same day on account of right non-functioning Kidney secondary to right renal calculi and right ureteric calculi and was discharged on 11.9.2003. As per deceas ed’s previous treatment summary recorded by Sir Ganga Ram Hospital, deceased underwent treatment in September,

2003. Admittedly, this fact does not find place in personal statement regarding health submitted on 1.11.2003 at the time of revival which amounts to suppression of material facts. It was held by me in R.P. No.3848 of 2007

– LIC Vs. Smt. Kempamma decided on

24.1.2013 that at the time of revival of policy, new contract comes into existence and if assured suppresses material fact or gives false declaration regarding his health,

Insurance Company is entitled to repudiate claim.

7. In the present case, admittedly, assured had suppressed material facts regarding his previous treatment and operation and has furnished false answers regarding his health, operation, X-ray, etc. petitioner has not committed any deficiency in repudiating claim and learned District Forum committed error in allowing complaint and learned

State Commission further committed error in dismissing appeal and in such circumstances, revision petition is to be allowed.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 20.2.2008 in Appeal No. FA/2008/45

– LIC Vs. Smt. Gurvinder Kaur is set aside and complaint is dismissed. There shall be no order as to costs.

..………………Sd/-……………



..…………Sd/-…………………


MEMBER k



(From the order dated 25.09.2012 in SC Case No.FA/120/11 of the West Bengal State

Consumer Disputes Redressal Commission, Kolkata

Globsyn Business School Office: Kolkata, Globsyn Crystals X1-11 & 12, Block-EP,

Sector-V, Salt Lake Electronic Complex, Kolkata – 700091

… Petitioner/Opp.Party (OP)

Versus

Mayuri Ghosh D/o Ranjan Ghosh, Residence: 77B, Durga Charan Doctor Road,

P.O.: Entally, Kolkata – 700 014 (West Bengal)


BEFORE



For the Petitioner : Mr. Chandrachur Bhattacharyya, Advocate

For the Respondents : Mr. Rajesh Biswas, Advocate


O R D E R


This revision petition has been filed by the Petitioner against the impugned order dated 25.9.2012 passed by the West Bengal State Consumer

DisputesRedressal Commission, Kolkata (in short, ‘the State Commission’) in S.C. Case

No. FA/120/11 – Globsyn Business School Vs. Mayuri Ghosh by which, while upholding order of District Forum, quantum of refund was modified.

2. Brief facts of the case are that complainant/respondent applied for admission in

P.G.P.M./P.G.P.I.B. programme at the institution of OP/petitioner on 24.2.2009. OP informed complainant about her selection and on 10.3.2009, complainant received offer letter for admission for the session 2009-2011. On 8.4.2009, complainant sent cheque of Rs.35,000/- towards admission fees for P.G.P.M. course. OP also intimated to the complainant that total course fees is Rs.5,35,000/-. On 7.5.2009, the complainant being hard pressed for financial crisis, requested OP to refund Rs.35,000/- deposited as

admission fees and later on also requested to admission coordinator for refund of fees. OP refused to refund fees of the complainant. Alleging deficiency on the part of

OP, filed complaint before the District Forum. OP contested complaint, filed written statement and submitted that admission fees was non-refundable, as per offer letter dated 10.3.2009 and complainant deposited fees after having knowledge of this condition. It was further revealed that out of 180 seats for this session, 165 seats were filled and 15 seats remained vacant. It was further submitted that Rs.1,41,667/- was incurred as expenses by OP per candidate towards admission process and OP has already suffered loss of Rs.21,25,000/-; hence, OP was not in a position to refund

Rs.35,000/- received as admission fees and prayed for dismissal of complaint. Learned

District Forum after hearing both the parties allowed complaint and directed OP to refund Rs.35,000/-. Appeal filed by the petitioner was dismissed by the learned State

Commission vide impugned order, but reduced payment of Rs.35,000/- by Rs.1,000/- and directed petitioner to refund Rs.34,000/- against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that as per offer letter, admission fees was non-refundable, even then, learned State Commission has committed error in dismissing appeal and affirming order of District Forum; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State

Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. It is admitted case of the parties that complainant applied for admission in the institution of OP and OP vide letter dated 10.3.2009 selected complainant for admission and asked complainant to make payment of first term tuition fees in confirmation of admission. It has specifically been mentioned in this offer letter

“The fees once tendered as per the Fee Schedule will not be refunded under any circumstances” . Thus, it becomes clear that as per offer letter, fees deposited by

complainant upto first term tuition fees was non-refundable. Learned Counsel for the petitioner has placed reliance on Vol. CXXXIV-(2003-2) The Punjab Law Reporter

–

Navdeep Singh Vs. I.I.T.T. College of Engineering, Village Pojewal,

District Nawanshahar and Ors . in which it was observed in paragraph 6 as under:

“6. The petitioner has neither controverted the assertion contained in the written statement of respondent No.1 that as per the prospectus issued by the University tuition fee and charges deposited at the time of admission are not refundable nor he has challenged the legality of that provision. Therefore, in the fact of the prohibition contained in the prospectus against the refund of fee deposited at the time of admission, the Court cannot issue a m andamus to the respondents for refund of fee to the petitioner”.

He has also placed reliance on VOLCVII – (1994-2) The Punjab Law Reporter – Raj

Singh Vs. The Maharshi Dayanand University & Ors . in which it was observed in paragraph 10 as under:

“10. Students seeking admission to professional colleges and even otherwise are fairly mature and are supposed to understand the full implications of filling the admission forms and in any case these forms are invariably signed by their parents/guardians and it is so in the present case. The student, therefore, will have to be taken to be bound by the information supplied in the admission form and cannot be allowed to take a stand that may suit him at a given time. For what has been noticed, the view taken in Madhvika

Khurana’s case (supra) cannot stand scrutiny and consequently the same is over-ruled.

He has also placed reliance on W.P. No. 2933 of 2011 –

Amit Sadashiv Vaidya Vs. The Principal, K.C. College of

Engineering, Kopri, Thand and ors .in which

Hon’ble Bombay High Court observed as under:

“2. The rules which have been framed by the Directorate of

Technical Education provide for a refund of tuition fees in certain eventualities. In so far as is material, the rules stipulate that no refund of fees except for the security of deposit can be granted where a request for cancellation of admission is received before or after the start of the academic session and the seat cannot be filled by the institute. In the present case, the First Respondent has filed an affidavit stating that the seat which is allotted to the petitioner could not be filled upon the petitioner vacating the seat. The petitioner, as the facts will show, withdrew from the seat at 3.40 p.m. on the cut-off date which was 15 September 2010. Since the seat has remained vacant, a refund of fees is not envisaged under the rules. The college has in fact stated that during a hearing before the AICTE, when the grievance of the petitioner was taken up, the college offered on humanitarian grounds a refund of 25% fees which the petitioner refused to accept. Be that as it may, having regard to the clear provisions which have been made in the rules, no case for the grant of a refund has been made out. The rules

seek to balance on the one hand the refund of tuition fees to students who obtain more preferential allotments with the rights of managements. In the present case as a result of the withdrawal by the petitioner from the seat allotted, the seat would remain vacant for a period of four years. Hence, no case for interference is made out. The petition is dismissed”.

6. In the light of aforesaid judgements, it becomes clear that admission fees deposited by complainant was not refundable and complainant was not entitled to seek refund only on the ground of severe financial crises, particularly, when seat filled by the complainant remained vacant. As per learned Counsel for the petitioner, out of 180 seats, 165 seats were filled and in such circumstances, complainant was not entitled to get refund of fees and learned District Forum committed error in allowing refund of fees and learned State Commission has committed error in dismissing appeal.

7. Learned Counsel for the respondent simply submitted that on account of financial crises, complainant was compelled to withdraw his candidatures and sought refund of fees, in the light of University Grants Commission (UGC) Circular dated 23.4.2007.

Learned Counsel for the petitioner submitted that as petitioner was not getting any aid from the UGC, this Circular was not applicable in the present case. Learned Counsel for the respondent could not show any document by which, it can be inferred that petitioner was getting aid from UGC and in absence of any aid, Circular issued by UGC was not applicable and petitioner has not committed any deficiency in refusing refund of

Rs.35,000/- received as admission fees.

8. Consequently, revision petition is to be allowed and order passed by learned State

Commission is set aside and complaint filed by the respondent is dismissed with no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k



(From the order dated 21.01.2008 in Appeal No.A-236/05 of the State Consumer


1. St. Stephens Hospital Through C.M.O., Near Tis Hazari Court, Delhi –

110054.

2. Dr. (Mrs.) V. Bhalla, Family Planning Department St. Stephens Hospital Near

Tis Hazari Court, Delhi

– 110054

… Petitioners/Opp.Parties (OP)

Versus

Smt. Shalini W/o Shri Vinold Kumar R/o H.No.994, Alipur, Delhi


BEFORE



For the Petitioner : Mr. Sahil Bhalaik, Proxy Advocate for

Mr. Rajeev Sharma, Advocate

For the Respondent : Mr. P.C. Thakur, Advocate

Mr. Lave Kumar Sharma, Advocate


O R D E R


This revision petition has been filed by the Petitioner against the impugned order dated 21.1.2008 passed by the State Consumer Disputes RedressalCommission,

Delhi (in short, ‘the State Commission’) in Appeal No.A-236/05 – St. Stephens Hospital

& Anr. Vs. Smt. Shalini by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent got herself admitted in

OP/petitioner’s hospital on 25.1.1998 for the purpose of delivery. She delivered a female child on 26.1.1998 and she was advised for abdominal tubectomy operation to become tension free. On 28.1.1998, operation was done and OP assured complainant

and her husband that successful sterilization has been performed and she would not conceive any child in future. In September-October, 2000, complainant felt pregnancy and contacted Hindu Rao Hospital, where pregnancy was confirmed and ultimately, she gave birth to a female child on 27.7.2001. Alleging medical deficiency in sterilization operation on the part of OP, complainant filed complaint for claiming Rs.25,000/- towards general expenses for delivery, etc., and Rs.4,00,000/- for bringing up the unwanted child, her residence, medical attendance, treatment, day-to-day general expenses and her marriage. OPs contested complaint, filed written statement and submitted that sterilization was performed with utmost skill, due care and caution by doctor, who was possessing necessary qualifications and experience for performing the procedures. On opening the abdomen, the right fallopian tube could not be identified due to dense adhesions and right fallopian tube could not be legated. The fact was explained to the respondent and she was warned that there was a possibility of a pregnancy later in view of herunlegated right tube. It was explained to the respondent and her mother that the respondent should adopt other contraceptive methods or her husband should undergo vasectomy. The possibility of failure was recorded in the hospital records and the same were signed by the respondent and her mother affixed her thumb impression thereon. This fact clearly shows that there was no negligence on the part of the OP, as the complainant and her mother were told that due to dense adhesions the right fallopian tube could not be identified and therefore there was a chance of pregnancy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and awarded Rs.1,00,000/- as compensation and Rs.2000/- as cost of litigation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that, as right fallopian tube could not be identified and legated, respondent was advised that her husband should undergo vasectomy and further submitted that sterilization is not 100% safe and secure for

preventing pregnancy, even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that Annexure ‘A’ is a forged document and petitioner assured that operation had been successful and, as even after operation, respondent conceived child, learned State Commission has not committed error in dismissing appeal; hence, revision petition be dismissed.

5. It is admitted case of the parties that respondent delivered a female child in petitioner’s hospital on 26.1.1998 and on 28.1.1998, petitioner-doctor performed abdominal tubectomy operation of respondent. This fact is not denied that respondent gave birth to a child after operation on 27.7.2001. The core question to be decided in this matter is whether; firstly was there any medical negligence in performing operation and secondly, whether; sterilization is 100% safe and secure procedure for not conceiving child in future.

6. As far medical negligence is concerned, learned Counsel for the petitioner has drawn our attention towards Annexure ‘A’ in which it has been mentioned that one tube could not be identified and in such circumstances, her husband should undergo vasectomy. Almost the same thing has been repeated in Annexure ‘A’ in other person’s handwriting, which bears signatures of respondent and thumb impression of respondent’s mother. Learned Counsel for the respondent does not dispute signatures of the respondent on Annexure ‘A’. It is true that Annexure ‘A’ contains same particulars in two different handwritings, but merely because same thing has been repeated in other person’s handwriting, it cannot be inferred that this document is forged one particularly when it bears signatures of respondent. Perusal of Annexure ‘A’ clearly reveals that on account of dense adhesions, right fallopian tube could not be detected and it was clearly mentioned that operation may be unsuccessful and her husband should go for vasectomy. In such circumstances, no medical negligence can be imputed on the part of petitioner and respondent is not entitled to get any compensation. Learned Counsel for the petitioner has also placed reliance on (2005) 7

SCC 1

–

State of Punjab Vs. Shiv Ram and others , which has also been referred by learned State Commission in its judgement in which it was observed as under:

“28. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes.

Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub- section (2) of Section 3 provides :

"Explanation II. ____ Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman."

29. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.

30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed”.

In the light of aforesaid judgment, it becomes clear that sterilization is not 100% safe and secure and after getting knowledge of conception in spite of having undergone the sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child and compensation for maintenance and upbringing of such a child cannot be claimed. Learned State Commission has not given any reasoning for not agreeing with the aforesaid judgment.

7. After confirmation of pregnancy, respondent should have filed complaint immediately, but she waited till delivery and it appears that as female child was delivered, she filed complaint, which is not fair on her part.

8. In the case in hand, after sterilization operation, when respondent felt pregnancy in September-October 2000, if she was not willing to bear the child, she could have terminated it as this is legal and permissible under the Medical Termination of

Pregnancy Act, 1971 and if she opted for bearing the child, she cannot opt for compensation for bringing up of the child and expenses to be incurred on her marriage.

8. In the light of aforesaid discussion, we are of the view that learned District Forum has committed error in allowing complaint and granting compensation and learned State

Commission further committed error in dismissing appeal and revision petition is to be allowed.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 21.1.2008 passed by learned State Commission in Appeal No.A-236/05 –

St. Stephens Hospital & Anr. Vs. Smt. Shalini is set aside and complaint is dismissed. There shall be no order as to costs.

..………………Sd/-……………



..……………Sd/-………………


MEMBER k


ORIGINAL PETITION No. 331 OF 2002

Talaganj Co-operative Group Housing Society Ltd. Plot No. 49, Sector-13, Rohini, Delhi

– 110085 … Complainant

Versus

1. M/s. OTIS Elevators Co. (India) Ltd. (Northern Region), Himalaya House

11 th Floor, 23, K.G. Marg, New Delhi

2. M/s. OTIS Elevators Company (I) Ltd. Through its Managing Director

Gateway Building, Apollo Bundar, Mumbai

… Opposite Parties

BEFORE:


HON’BLE MR.VINAY KUMAR, MEMBER

For the Complainant : Mr. R.S. Tomar, Advocate with

Mr. Pardeep Kumar, President

& Mr. S.P. Chander, Secretary,

of Complainant Society

For the Opposite Parties : Mr. Anurag Chowdhry, Advocate

PRONOUNCED ON_31.05.2013

O R D E R


1. The parties have locked horns over the installation of Twenty-two Passenger

Elevators. The Talaganj Co-operative Group Housing Society Ltd., the complainant Society awarded the work of supply and installation of 22

Passenger Electronic Traction Elevators in the Society in favour of M/s. OTIS

Elevators, OPs, vide contract dated 29.04.1996. Clause 23 of the Agreement runs as follows:-

“23. DELIVERY AND ERECTION:

(a) We can complete the elevator installation in 52 weeks from the date of receipt of order, advance payment, layout approval, and settlement of all technical details, whichever is later.

(b) The above completion period is subject to your handing over to us for uninterrupted use, a clear dry elevator pit, shaft and machine room complete in all respects, as per approved layout drawing along with preparatory work and power supply 24 weeks before the completion date indicated in (a) above.

(c ) If during the inspection of site, we observe that there is a delay in completion of the elevator pit, shaft and machine room or availability of power supply, we may at our option, delay the final assembly of materials and shipment to site as to synchronize with the hoist way and machine room completion date. In such an event, a fresh completion date will be established depending upon the minimum installation time indicated in (b) above”.

2. The cost of 22 Elevators was agreed at Rs.1,73,80,000/-, i.e. Rs.7.90 lakhs per

Elevator. The complainant Society issued a cheque, dated 28.04.1996, in the sum of

Rs.2,00,000/-. The Society further paid a sum of Rs.5,00,000/- vide cheque dated

13.06.1996. Information was sent to M/s. Otis Elevators Co. (I) Ltd., OPs, on

17.09.1996, that all the 11 Blocks were ready in all respect and request was made to deliver the material, at the earliest. However, the OPs did not pay heed to the request made by the complainant. The complainant went on waiting for about 2 years.

3. Thereafter, a meeting was held between the officials of the Ops and the

President and Secretary of the complainant Society on 19.03.1998. A fresh schedule for completion of the installation of lifts and payment of the dues was finalized between the parties, wherein it was agreed that from June-November, 1998, four Elevators each, would be installed, i.e. four lifts every month and six lifts in the month of November, 1998. It was also agreed that the payment would be made as and when it became due. The complainant society also agreed to release the payment of

Rs.19.63 lakhs in the month of March, 1998. The OPs also confirmed the receipt of approximately 30% advance of the contract price. Vide letter dated 26.03.1998, the OP was informed that no discussion was held during the meeting held on 19.03.1998 regarding price escalation cited in point No.1(b) of the Minutes of the Meeting. The complainant Society objected to the amount of Rs.66,835/- which was claimed towards the price escalation of material portion for four lifts. However, the complainant Society sent a cheque dated 26.03.1998 in the sum of Rs.19,23,577/- to the OPs.

4. On 29.04.1998, the OPs submitted Invoice dated 19.04.1998 for a sum of

Rs.20,48,692/-, for settlement of all dues against the contract as of date. In the said letter, it was also mentioned that interest is to be paid @ 21% p.a. in the event of delay in making payment. Complainant sent two cheques of even date 08.5.1998, in the sum of Rs.15,00,000/- and Rs.5,07,718/- to the OPs and thus cleared the amount demanded by the OPs, after deducting TDS @ 2% p.a. OPs were requested to complete the installation of 22 passenger Elevators by November, 1998,

otherwise, the complainants would not pay any price escalation of any kind and in that event, the Ops would be liable to pay the damages towards the inconvenience and loss caused to the members of the society due to non-installation of lifts. This stand was reiterated in the meeting and also vide letter dated 06.03.1998.

5. On 29.06.1998, the OPs were informed that the draw of lot had taken place and the Society would give possession of the flats to the members, by October,

1998. Another letter dated 05.08.1998 was sent to the OPs regarding slow progress of the work, in response to their letter dated 03.08.1998. Till then, the complainants had paid a sum of Rs.1.30 crores. Not a single lift was installed, whereas, it was agreed that 8 lifts would be installed by then. On the other hand, the Ops alleged that delay was being caused by the Society,

Complainant. It is alleged that this act was nothing but to cover-up their lapses and delay. The OPs were told that time was the essence of the contract and the needful should be done within the prescribed period. The complainant has placed few letters in this regard, with the OPs. A detailed letter dated 10.12.1998 was sent to the OPs. It was explained that the complainant Society had already paid 90% of the total cost of the lifts, but the work was not done even up to 25%. It was apparent that the money of the complainant Society was spent somewhere else, therefore, the Society demanded interest @ 21% p.a. on the amount which was paid in excess to the work executed at site, till November, 1998. The work was assessed and calculated at Rs.3,64,991/- and OPs were asked to pay the aforesaid amount. The complainant also demanded compensation which could be computed on the basis of monthly rental which respective flats of the members would have fetched in the market, as on date. The total amount which the complainant would have fetched comes to Rs.21,50,000/-. However, the complainant claims a nominal amount of

Rs.5,00,000/- per month on an average basis towards the aforesaid rental loss caused to its Members on account of delay caused by the OPs.

6. The OPs did not do the needful, despite writing letters dated 23.11.1997,

05.01.1998 and 08.03.1999. The flats were handed over to the Members but till the filing of this complaint, not even a single lift had become functional due to which the complainant Society has faced a great amount of difficulties. The complaint was filed on

11.11.1999 and the following claims were raised :-

“(i) pay to the complainant an amount of Rs.88.50 lakh by way of compensation, the details of which were already specified herein above, along with pendent lite and future interest on the

said amount @ 21% p.a. till its realization, in the interest of justice and equity;

(ii) direct the opposite party for completing the commissioning of all the 22 Elevators and to make it operational/ functional without any further delay;

(iii) restraining the opposite party to claim/demand any price escalation/fees from the complainant;

(iv) this Hon’ble Commission may further be pleased to award the cost of proceedings in favour of complainant and against the respondents, in the interest of justice and equity”.

DEFENCE OF OPS:

7. OPs have contested this case. They have admitted that an Agreement between the parties, for installation of 22 Elevators, was entered into. It is explained that the said contract was a reciprocal works contract and execution of the awarded job by the

OPs was dependent on the various preparatory works, which were to be done by the complainant Society on its cost. The list of the said preparatory works was placed with the reply. Those works were mainly related to providing and furnishing by the complainant Society, hoistway, pit shaft, machine rooms, complete in all respects, adequate power supply, etc. It is alleged the complainant Society failed to do the said works in time which caused hindrance in the execution of jobs by the OPs. The timeframe within which the OPs were to complete the Elevator installation was 52 weeks. The said 52 weeks were to commence from the date of receipt of the order or advance payment, lay out approval and settlement of all technical details, whichever is later. The said period was further subjected to the completion of the various preparatory works by the complainant Society before 24 weeks of the date of the completion. OPs agreed that the payment of the contract price was to be made by the complainant Society pro-rata per elevator, as was enshrined in Clause No.6 of the contract, which reads as follows:-

“ Payment shall be made pro rata per elevator as follows, Rs.2.00 lakh with order, balance to make 10% by 7.6.1996, further 10% advance by 07.08.1996,balance 10% advance by 07.10.1996,

60% on receipt of advice from us that materials are ready for dispatch, and the remaining 10% on completion of our installation work, with the further provision that if we are delayed by any cause beyond our control, the final 10% will be paid to us within

180 days from the date of our advice that materials are ready for

dispatch. Partial supplies when made shall be payable pro rata as above. Any payment not made on the due date shall bear interest from such date at the rate of 21% per annum. We reserve the right to dispose of the equipment or to discontinue our works or to withhold the release of completed elevator(s) at any time until overdue payments, with interest, shall have been made as per the terms and conditions and we have assurance satisfactory to us that subsequent payment will be made as they fall due. We shall resume the work subject to our other manufacturing and/or erection commitments or schedules at that time. Provided that, this will in no way relieve you of your liabilities and obligations under this contract”.

8. It is alleged that the complainant Society failed to pay the contract price as per the agreed schedule. It was agreed that at least 30% of the contract price would be paid by 07.10.1996 but the complainant Society paid the same on or about 04.02.1998, i.e., after delay of almost 16 months. The complainant Society further delayed the payment of other Invoices and the OPs had to send several reminders to the complainant Society. The timely payment of the bills, like other contract, was an important term of the contract having bearing on the execution of the contract. The complainant Society waddled out of the commitments and on the contrary, alleged that the execution of the contract was delayed by the OP. The contract price was based on the cost of the raw material components and the labour cost as on the date of quotation, but it was subject to IEEMA Price Valuation

Adjustment, that is to say, that the Variation in Wholesale Price Index Number for metal products and all India Average Consumer Price Index, as per formula given in the IEEMA Price Valuation clause. The complainant Society objected and disputed the claims of the OPs and delayed the payment of its Bills/Invoices. The rates quoted and agreed between the parties were valid for 78 weeks, from the date of placing the order and, in case the execution of the contract was extended beyond this period, on account of the complainant Society, to fulfill its obligation, the OPs were entitled to re-price the contract. Clause 2 of the contract clarifies this position and is reproduced as follows:-

“ 2. The agreed contract price, which is subject to variation as per

IEEMA price variation clause included in the contract, shall be valid for 78 weeks from the date of your acceptance of this proposal. Should the said period is extended beyond this stipulated time due to (i) failure on your part to effect all payment as per clause 6 below and and/or (ii) failure on your part to provide

data or approve drawings required for the manufacture of the elevator as per clause 5 below and/or (iii) delay in completion of the hoist-way and machine room, we will submit for your acceptance the revised price prevailing on the date of such quotation and on its acceptance by you, we will program the supply and installation of the equipment. In the absence of your acceptance of the revised price and payment of any additional advance that may become due, we may at our option, cancel the order with a cancellation charge as may be determined by us”.

9. The time limit of 78 weeks, expired in October, 1997 and till that time, the complainant Society did not make even the payment of the advance. The outstanding towards the advance was cleared on or about

04.02.1998.

In October, 1997, the right to re-price and cancel the contract, accrued in favour of the Ops. However, they did not exercise their right and agreed and continued to execute the contract on the original price and even though, full advance was not paid, yet on the request of complainant, OPs supplied material for four Elevators between December, 1996 to May, 1997. This was done by the OPs despite the amount was outstanding and the sole objective behind it was to help out the complainant

Society as they wanted to show progress to its members to collect dues from them. However, the conduct of the Society was not very encouraging and it paid only

60% of the total cost of the four elevators, as late as in March, 1998. By March, 1998, the complainant had incurred huge liability on account of the interest on delayed payments of advance and material payment over aforesaid four Elevators. The OPs, however, did not charge any interest. The OPs agreed to fresh schedule of completion of job, in a meeting held on 19.03.1998. The OPs agreed in the meeting for a revised schedule. It agreed to complete the installation of four lifts each at site from June to November, 1998 and two lifts to be completed by November, 1998.

The complainant Society was to pay Rs.19,62,834/- in the month of March,

1998. The complainant Society was to make payments as per the terms of the contract. The Complainant Society was to keep ready and make available to the OPs, the Elevator pit shafts, hositway, machine rooms, along with approved layout and power supply by April, 1998. The Complainant Society unnecessarily disputed the price escalation of Rs.66,835/- , while making payment of the outstanding dues of Rs.19,62,834/- and paid the same under protest, despite having agreed to pay the same, in the meeting held on 19.03.2003. The complainant Society also failed to do

the preparatory civil and electric works which they were obliged to do, under the terms of the contract, which was a pre-requisite for installation and commissioning of the elevators. The complainant failed to provide the pit, hoistway, machine room by April,

1998. Several reminders were sent, but the needful was not done. The

OPs delivered the material for balance 18 elevators, at the site of the complainant

Society from June, 1998 to first week of October, 1998. The work of installation and commissioning of the elevators could not pick up the momentum and was constantly hampered due to failure of the complainant Society in handing over the pit, hoistway, machine room, along with uninterrupted 3-phase supply and due to various other works which were to be completed by the Society and were necessary for installation of the lifts. The 3-phase power supply adequate for testing one lift at a time was made available, only in January, 2000. The voltage supply at the site was also as per the requirements of the Elevators and the range thereof was much below the voltage range of the equipment. Other major difficulties and handicap in commissioning all the elevators were inter-alia in the form of non-availability of architrave and huge gaps between the landing doors and the floor walls, etc. The complainant sent letters/reminders dated 15.07.1998, 27.07.1998 and 19.12.1998, 07.06.2000 and

16.09.2000 and 18.12.2000. The OP with lot of difficulties and loss managed to complete the installation of all the twenty-two elevators during the period June, 1998 to

July, 1999. It could manage 8 elevators in June, 2000 and 3 (three) elevators in

October, 2000. The installation work was examined and approved by the complainant. The complainant did not make the full payment. The complainant did not fulfill its contractual obligations, all the delay is attributed on the part of the complainant. The OPs suffered huge losses, on account of failure of complainant society to fulfill its part of the obligations. The very slow progress of the works to be carried out by the complainant Society forced the man-power of the OPs to sit idle, thereby causing huge loss to the OPs. There were lot of damage caused to the wiring, conduits and fixtures, doors and car top of the elevators by the labour employed by the society for the civil and electric work. Wiring of the many elevators was also found damaged.

10. The OPs have neither supplied any defective goods nor provided any deficient services to the complainant and as such the present complaint is not maintainable. The jurisdiction of this Commission has been called into question. It is explained that the subject matter of this case is of civil nature and hence beyond the jurisdiction of this

Commission. As per clause 23, the work was to be completed within 52 weeks but at the same time, the complainant society was required to fulfill the other enabling conditions within 24 weeks. OPs were to commence the work from the date of receipt of the order or from the date of payment of advance payment, or from the date of layout approval or from the date, when all technical details are settled, whichever is later. The complainant Society was under obligation to pay 10% which comes to Rs.17,38,000/- as part of advance by 07.06.1996 but the complainant society, till 13.06.1996, paid only a sum of Rs.7,00,000/-. The complainant society made a false representation that 11 blocks were ready, in all respects. The OPs were not obliged to proceed further in the matter, by delivering the material at site, without receipt of full advance payment, being 30% of the contract price. The complainant

Society should have paid Rs.52, 14,000/- as advance but it had paid only

Rs.25,38,000/-. The OPs were under no obligation to deliver any material at site, without receipt of full advance payment, being 30% advance of the contract price. The complainant society should have paid the said amount, till

07.10.1996, but the same was paid on 04.02.1998, i.e. after about 16 months. The

OPs supplied material for 4 elevators between December, 1996 to May, 1997 though the Society had not made full advance payment. All the allegations have been denied.

11. We have heard the learned counsel for the parties and gone through their written synopsis. Counsel for the OPs submitted that the written statement filed by him should be taken as written submissions. It was submitted that, on 19.03.1998, a meeting was held between parties. It transpired that only four lifts were delivered at the site and the installation work had just started. On that, a revised schedule was drawn up and it was agreed to that all the 22 elevators would be completed, till November, 1998. The revised schedule visà-vis actual execution is tabulated below:-

Time

June, 1998

July, 1998

August,

1998

September,

Revised

Schedule

4

4

4

4

2

2

Installation as claimed by OTIS

Flat (C )

--

6

Commissioning as per

M/s. OTIS flat (J)

1998

October,

1998

November,

1998

April, 1999

May, 1999

June, 1999

July, 1999

August,

1999

September,

1999 to May,

200

June, 2000

July, 2000

August,

2000

September,

2000

October,

2000

4

2

---

---

---

---

---

----

---

---

---

---

No Work

5

--

3

4

---

--

---

---

No Work

---

----

----

---

8

3

----

22 22 11

12. It was argued that only 11 lifts have been commissioned and that stands confirmed by the report of the Local Commissioner. It was also argued that the OPs did not adhere to the time schedule provided under the Agreement, and disputed the fact that the payments were promptly made, as and when claimed and even payments not due were made on 06.03.1999, i.e. a sum of Rs.1,80,78,271/- was paid. The total amount agreed to be paid was Rs.1,73,80,000/- whereas, by 06.03.1999, the complainant paid a sum of Rs.1,80,78,271/-. The total agreement amount of

Rs.1,76,83,271/- was paid by 01.01.1999, and further increased amount of

Rs.1,80,78,271/-, was paid by 06.03.1999. The remaining lifts, though installed, but were not commissioned. For the 11 uncommissioned lifts, the complai nant’s payment of nearly Rs.90.04 lakh has been blocked, for the last 12 years, which would have become more than double @ the interest rate of 12%.

13. The court had also appointed Local Commissioner vide order dated

30.08.2005. The Local Commissioner, Deputy Registrar of this

Commission submitted his report, on 03.09.2005. He found that most of the lifts were not functional. On 09.10.2006, this Commission directed the OPs to make additional lifts functional, vide additional affidavit dated 01.12.2006. The OPs had explained that two additional lifts were made functional. They further submitted that in case the other lifts were to be made functional, it would entail cost of Rs. 19.00 lakh. It also came to light that said two lifts, claimed to be functional, were not actually operational. It is alleged that the demand made by the complainant is absolutely illegal, arbitrary and unsustainable in law. The complainant has already paid almost the entire amount. It is explained that there are 11 blocks and each block was to have two lifts each. The

OPs have installed only 11 lifts, i.e. 1 lift, per block. The OPs were to complete the lift by November, 1998, instead, they supplied the material in July, 1999, after the delay of

9 months. The installation work was not taken up at all, till June, 2000 and from June,

2000 to September, 2000, the OPs installed the above said only 11 lifts, thereafter, the

OPs abandoned the work despite the fact that full payment was made. 11 lifts are functional for the last 12 years, under the Actual Maintenance Control (AMC) with the

OPs. The extra burden on single lift, in place of two, has resulted in wear and tear of moving parts, leading to frequent break-downs. For example, the lift of block 16 went out of order, for 7 to 8 times (for 3 to 4 days each instance) during past 5 months.

Similar is the situation with the other blocks.

14. Lastly, it was argued that as a result of frequent break downs, the mandatory provisions of lift in multi-storeyed buildings is often not available to the residents putting them to tremendous difficulties and health hazards. Some of the residents have undergone operations like knee replacement, by-pass heart surgery, etc. The residents are suffering from health problems.

15. On the other hand, the counsel for the OPs argued that he does not want to file additional written arguments and his written statement should be considered as written synopses. Their submission is that advance payment, being 30% of the contract price, was to be paid by 07.10.1996 but the complainant paid the same on or about

04.02.1998, i.e. after a delay of about 16 months. He contended that these are the complainants who are responsible for the delay. The learned counsel also submitted that their written statement is their written arguments.

16. In the initial stage, it was a case of contributory negligence.

The complainant could not pay 10% of the initial entire payment. The complainant also could not provide the proper place with the requisite requirements. However, the ball was in the court of the OPs. They could have condoned the delay or cancelled the agreement. Till then the complainant was the defaulter and the OPs were the calling the shots. Their written version itself depicts that the OPs did not exercise their right to cancel the contract and greed to enter into a fresh agreement. The OPs received the money along with escalation charges paid under protest. The receipt of entire amount was not denied. The OPs should have honoured their commitments.

17. During the arguments, a suggestion was given by the Bench that a Local

Commissioner should be appointed to know the true state of affairs. The counsel for the complainant readily agreed to this suggestion. However, the counsel for the opposite parties displayed reluctance. Counsel for the complainant vehemently argued that 11, out of 22 elevators, have been installed in the premises in dispute. Counsel for the opposite parties argued that 13, out of 22 elevators, have been installed. Therefore, the deficiency on the part of the opposite parties, stands proved. Counsel for the opposite parties, however, stated at this stage, that the prices have gone up by leaps and bounds. It will be very difficult for the opposite parties to install the remaining elevators, on the spot. It must be borne in mind that the amount of entire elevators has already been paid to the opposite parties. They are enjoying the amount, for the last more than a decade. The case of the complainant stands fully established.

18. Consequently, we hereby direct the opposite parties to install the remaining elevators and make them in working condition, within 90 days, otherwise they will be liable to pay penal costs of Rs.10,000/- per day. Litigation charges, compensation for harassment and mental agony, is awarded @ Rs. 50,000/- per year, from the date of filing of this complaint before this Commission, i.e. on 12.02.2000, till the needful is done, and it will carry interest @ 9%, per year, from 12.02.2000, till the elevators are installed.

..…………………..………

(J.M. MALIK, J.)


dd/24

……………….……………

(VINAY KUMAR)

MEMBER



(From the order dated 18.04.2007 in First Appeal No. 363 & 612 of 2003 of Rajasthan


Sooraj Automobiles Ltd., through Manager, Ambala Road, Saharanpur (Uttar Pradesh)

... Petitioner

Versus

1. Shri Bhanwar Lal, son of Shri Ghaganlal resident of Gandhi Nagar, Madanganj,

Kishangarh, Distt. Ajmer, Rajasthan

2. M/s. Raj Motors, Ambabadi, Jaipur Presently GDA Building, Bus Stand, Old Bus

Stand, Ghaziabad, Uttar Pradesh

… Respondent(s)

BEFORE





For the Petitioner(s) Mr. S.K. Sharma, Advocate

Mr. S.K. Tewari, Advocate

For the Respondent(s) NEMO


O R D E R




Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter referred to as “State Commission”) in Appeals No. 363/2003, Bhanwar Lal Vs. Raj

Motors & anr. and Appeal No. 612/2003, Raj Motors Vs. Bhanwar Lal & anr. The said appeals had been made before the State Commission against the order dated

03.01.2003 of District Forum, Jaipur, vide which complaint No. 203 of 2000 filed

by Bhanwar Lal, the respondent No.1 was partly accepted. The State Commission in appeals, set aside the order of the District Forum and ordered that the complainant was entitled to receive compensation from the present petitioner

M/s. Sooraj Automobiles Ltd., which was respondent No.2 in both the appeals before the State Commission. It is against this order that the present petition has been made.

2. The facts of the case are that the complainant / respondent

No.1 Bhanwar Lal purchased one Sitara brand diesel Auto from M/s. Raj Motors, who are dealers of the petitioner and impleaded as respondent No.2 in their petition. The said vehicle is stated to have been purchased on 10.09.1995 and it is alleged that it had some manufacturing defect from the beginning itself. The complainant alleged that when he was taking the vehicle to Kishangarh, some sound and wobbling was detected in the left wheel of the vehicle and he took it to the workshop of M/s. Raj

Motors/opposite party No.1, who tried to rectify the defect and handed over the same back to him, saying that in case of any problem, he could bring it to their workshop again. The vehicle again developed problem within a week and it was brought to the opposite party No.1 once again. They got a complaint written from him in the name of opposite party No.2 and stated that they were sending the complaint to the workshop of opposite party No.2 at Saharanpur, so that a person could be deputed by opposite party

No.2 to rectify the defects in the vehicle. Later on, the complainant wrote many letters to the opposite parties, but without any effect. The complainant got a letter dated

03.02.1996 from opposite party No.2, in which it was stated that the period of warranty of three months after the purchase of the vehicle had already lapsed, but even then the complainant could bring his vehicle for repairs, but at the premises of

M/s. Prem Motors,Bharatpur and not at Saharanpur. The complainant filed the consumer complaint in question before the District Forum and the District Forum, vide order dated 03.01.2003 directed respondent No.2/opposite party No.1 to pay a sum of

Rs.1,02,973/- within one month to the complainant and also stated that if the order was not complied with, the complainant will be entitled to receive interest thereon. The petitioner/opposite party No. 2 was also directed to pay a sum of Rs.5,000/- to the complainant within one month failing which interest will be chargeable. Two appeals were filed against the order of the District Forum before the State Commission -- one by the complainant requesting that he must be awarded compensation against the petitioner/opposite party No.2 as well and the second was preferred by the dealer/opposite party No.1 M/s. Raj Motors, saying that there was no deficiency in

service on their part and the compensation should be awarded against the petitioner/opposite party No.2. The learned State Commission, vide impugned order dated 18.04.2007 held that the complainant was entitled to receive the sum of Rs.

1,02,973/- from the present petitioner along with interest on the said amount @ 12% from 03.01.2003 and also Rs. 2,000/- as cost of litigation. It is against this order that the present petition has been made. The complainant / respondent No.1 appeared before this Commission on some hearings and also filed a reply dated 19.08.2008 which is on record. However, the complainant stated on 03.08.2012 that he was unable to meet the expenses of appearing from time to time and requested to decide the matter on merits. The respondent No.2 M/s. Raj Motors did not appear even after publication in the newspapers and was ordered to be proceeded against ex-parte.

3. At the time of hearing before us, the learned counsel for the petitioner stated that the petitioner-M/s. Sooraj Automobiles Ltd. was engaged in manufacturing of the chassis of the vehicles in question and sell the same to the respective dealers, who fabricate the bodies of the vehicles on such chassis and sell them to the consumers. The learned counsel has drawn our attention to the facts of the case, stating that the primary responsibility for removing the defects or for giving compensation was that of the dealer i.e. respondent No.2, M/s. Raj Motors who had not put in appearance purposely, even before the District Forum. On the part of the petitioner, they had made a commitment vide letter dated 03.02.1996 that although, the period of warranty had expired, even then they were prepared to repair the vehicle; provided the same was brought to the premises of M/s. Prem Motors, Bharatpur. The learned counsel further stated that the chassis of the vehicle had been sold for a sum of Rs. 74,993/- on 30.06.1995 to the dealer M/s. Raj Motors. The prototype of these vehicles had been given a certificate of roadworthiness by the Automotive Research

Association of India (ARAI). It was therefore, not proper to say that the petitioner had made any deficiency in service. The learned counsel also invited our attention to an affidavit filed by the petitioner before the District Forum in which it has been stated that there was contradiction in the version of the complainant as stated in the complaint itself. At one place, the complainant had stated that the delivery of the vehicle had been taken on 05.09.1995 and after delivery it was being taken toKishangarh, when it developed trouble. At other place, it has been mentioned that the delivery, was taken on 10.09.1995 for the first time. The learned counsel maintained that no opinion from any expert had been brought on record which could substantiate the allegations of the complainant. He has drawn our attention to the judgment given by the National

Commission in the TATA Engineering & Locomotive Company Limited

& Anr. versus Sunil Bhasin & Anr., as reported in 2008 NCJ 350 (NC). The learned counsel requested that the order of the State Commission should be set aside.

4. The arguments in this case were heard on 30.04.2013 and the order was kept reserved. However, after examination of the file, it was decided to seek clarification on some issues and the case was again heard on 30.05.2013. The learned counsel for the petitioner stated during arguments on 30.05.2013 that there was no evidence of any manufacturing defect in the vehicle and, hence, no liability could be imposed upon the petitioner to provide any compensation etc. However, they were prepared to replace minor parts in the vehicle as a gesture of goodwill, if it was brought to

M/s. Prem Motors, Bharatpur. Learned counsel clarified that since the vehicle had

become very old, it may not be possible to repair the vehicle, but still they were prepared to replace the minor parts, if the vehicle was brought to them.

5. The complainant/respondent no. 1 did not appear before the Commission on subsequent hearings after 03.08.12. However, he has stated in his reply dated

19.08.2008 to the revision petition that he suffered both mentally and economically, because of technical defects in the vehicle and hence, the order passed by the State

Commission deserves to be maintained.

6. We have carefully examined the facts on record and given a thoughtful consideration to the arguments advanced before us. It is quite clear from the factual matrix of the case that the vehicle had been sold to the complainant after fabricating the body by respondent no. 2, M/s. Raj Motors on the chassis supplied to them by the petitioner. The petitioner have stated that the chassis was sold to M/s. Raj Motors for a sum of Rs.74,993/-. They did not put in appearance before this Commission and also before the State Commission and it is being stated that they had closed their business. The petitioner has maintained categorically that no manufacturing defect had been pointed out in the complaint. As stated by the complainant, there was wobbling and sound from the wheel, and it was the duty of the dealer to remove the defects, because the defects had been reported to the dealer within the period of warranty. The petitioner has also stated that they had given an offer vide their letter dated 03.02.1996 that although the period of warranty had expired; even then they were prepared to repair the vehicle, provided the same was brought to the premises of

M/s. Prem Motors, Bharatpur. The petitioner has offered even now that if the vehicle is brought to them, they are prepared to replace the minor parts of the vehicle, but not engine etc. From the entire factual position on record, it is clear that deficiency in service on the part of the petitioner cannot be established in the strict sense. However, looking at the facts and circumstances of the case, it would be appropriate that the complainant brings the vehicle for repair to the premises indicated by the petitioner within two months from the date of order and the petitioner should try to remove the defects in the vehicle by replacement of minor parts, as promised by them. For meeting the expenses for bringing the vehicle to Bharatpur and taking it back, a sum of

Rs.5,000/- may be allowed to the complainant payable by the petitioner. However, if the complainant, in his wisdom, does not want to exercise this option, he may be given compensation to be shared equally by the petitioner and respondent no. 2, M/s. Raj

Motors. The vehicle was purchased in the year 1995 and the natural presumption is that it must have been used by the complainant, because he has not stated otherwise, in his reply to the revision petition or other documents anywhere. Under these circumstances, it shall be appropriate if a sum of Rs.40,000/- in lump-sum is paid to the complainant to be shared equally by the petitioner and the respondent no. 2, M/s. Raj

Motors. It is stated again that it shall be open to the complainant to exercise either of the two options as stated above. The revision petition is, therefore, disposed off accordingly and the order passed by the State Commission is modified as stated above.

..……………………………



.

…………………………


MEMBER

RS/



(From the order dated 03.02.2012 in First Appeal No. 1297/2010 of Haryana State


Canara Bank Palwal Branch Agra Chowk, Palwal District Faridabad, Haryana Through

R.M. Soni, Sr. Manager

... Petitioner

Versus

1. Deep Chand s/o Potu Singh r/o Village Jodhpur Teh. Palwal, District Faridabad,

Haryana

2. Lal Chand, s/o Bahora r/o Village Aurangabad, Tehsil Hodel, District Faridabad,

Haryana

3. The New India Insurance Co. Ltd. Through its Divisional Manager Divisional Office,

Faridabad Haryana

… Respondent(s)

BEFORE





For Petitioner(s) Mr. Vijay Kumar, Advocate

For Respondent1&2 Mr. M. Mohan, Advocate

For Respondent-3

Mr. Ankit Gupta, Advocate

Mr. R.B. Shami, Advocate


O R D E R




Haryana State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FA No. 1297/2010,Canara Bank versus Deep Chand & Ors.” vide which, while dismissing the appeal, the order dated 02.06.2010 passed by District

Consumer Disputes Redressal Forum, allowing the complaint filed by the respondents/complainants, Deep Chand and Lal Chand, was upheld.

2. Brief facts of the case are that both the complainants/respondents nos. 1 & 2 Deep

Chand & Lal Chand applied for a loan for purchase of a tractor in the year 1994 which was sanctioned by petitioner/OP No. 1 Canara Bank for a sum of Rs.1,80,000/-. A hypothecation/hire-purchase agreement was also executed in respect of the said tractor between the complainants and the petitioner/OP No.1. As stated by the complainants, it was agreed between the parties that the tractor would be got insured by the petitioner/OP No.1 from time to time and the amount of premium payable to the insurance company would be debited to the account of the complainants. The tractor was got insured at the time of purchase with respondent no.3/OP No.2 in December

1994. Thereafter, the insurance policy was renewed for another year and was valid upto 4.12.96. The complainants have alleged that the petitioner failed to get the insurance policy renewed for a further period and in the meantime, the tractor met with an accident. At the time of settlement of motor accident claim, an amount of Rs.2.65 lakh had to be paid by the complainants, because the insurance company refused to make payment in the absence of a valid insurance policy. It has also been stated that for further period before December 1996, the insurance was again got made by the petitioner. The complainants then filed consumer complaint before the District Forum alleging deficiency in service on the part of the petitioner and demanding a total sum of

Rs.3 lakh with interest @12% p.a. as damages/compensation. The District Forum vide order dated 02.06.2010 directed the present petitioner to pay a sum of Rs.2.65 lakh along with interest @9% p.a. from the date of complaint till the date of payment. The petitioner was also directed to pay a sum of Rs.2200/- as litigation expenses to the complainants. An appeal filed against this order was dismissed by the State

Commission on grounds of limitation as well as on merits. It is against this order that the present petition has been filed.

3. While arguing the case, the learned counsel for the petitioner Canara Bank has drawn our attention to a document with the title ‘Memorandum of Agreement for agricultural loans’ which was signed on 30.11.94 between the two complainants and the petitioner Bank. It has been stated in para 21 of this document that it was the duty of the borrower to take comprehensive insurance cover in respect of the said tractor. The

learned counsel argued that if the party authorises the Bank to take insurance cover, then it becomes the duty of the Bank to get that cover. In the instant case, there was no deficiency in service on the part of the petitioner as the obligation to take insurance cover was upon the complainants.

4. Learned counsel for the respondents argued that the State Commission had rightly dismissed the appeal of the petitioner on grounds of limitation as well as on merits. There was a delay of 68 days in filing the appeal before the State Commission and it was explained that since the parents of the counsel for the petitioner before the

District Forum were sick, he could not communicate the order of the District Forum to his client. The ground for condonation of delay was not found to be sufficient by the

State Commission. Further, it was clear from the facts of the case that the Bank had obtained the insurance policy in the beginning and got it renewed for one more year. However, the Bank could not renew the policy for the year 1996 – 1997 but in subsequent years, the Bank has been getting the policy renewed and charging the premium to the account of the complainants. There was deficiency on the part of the

Bank and insurance company because they had not intimated to the complainant that insurance policy had not been renewed. Only because of the negligence of the petitioner Bank, the complainants had to pay the amount of motor accident claim of

Rs.2.65 lakh. There was, therefore, no infirmity in the orders passed by the State

Commission and District Forum and the same should be upheld.

5. The learned counsel for the respondent insurance company stated that since there was no insurance policy for the period, in question, the company was not liable to pay any compensation in the matter.

6. In reply, the learned counsel for the petitioner stated that the delay of 68 days in filing the appeal before the State Commission should have been condoned looking at the facts and circumstances of the case. Before the District Forum, the petitioner Bank was represented by Sh. Atul Mangla, Advocate, who was present at the time of pronouncement of order. However, the said Advocate could not convey the order to his client, because he was in great personal difficulty because both of his parents were admitted in the hospital at the same time for serious illness. Shri Mangla has filed an affidavit in this behalf and also stated these facts in his letter dated 21.08.2010 to the petitioner. Regarding the illness of his parents, copies of medical record have been placed on file which indicates that the parents of Shri Mangla had to be taken to

different hospitals for treatment. The State Commission should, therefore, have condoned the delay in filing the appeal before it.

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. In so far as the delay in filing the appeal by the petitioner before the State Commission is concerned, the material on record makes it clear that the parents of the counsel for petitioner Bank before the

District Forum were seriously ill and hence, the reasons explained for delay in communicating the order of the District Forum by the Advocate to his client are convincing. The State Commission should have condoned the delay in filing the appeal before it.

8. The main issue involved in the present case is regarding the obligation for taking the insurance policy for the vehicle in question. It is true that as a matter of practice, the insurance policy was obtained by the Bank and the premium was charged to the account of the complainants. Barring period of one year, i.e., 1996-1997 during which the accident took place, the Bank has been obtaining the policy from the insurance company. The reasons for non-action on the part of the Bank for the year 1996-1997 have not been explained. However, from a strict legal point of view, the picture is clear that the owner of the vehicle is duty bound to take the policy and unless he authorises the bank in writing, the bank is under no obligation to take policy on his behalf. The clause 21 in the hypothecation agreement also makes it clear that it was the duty of the owner to get the insurance policy. We, therefore, find weight in the contention raised by the petitioner that he was not duty bound to take the insurance policy on his behalf and hence, there is no question of deficiency in service on the part of the petitioner.

9. Based on the discussion above, we find that this revision petition deserves to be accepted because the orders passed by the State Commission and the District Forum do not stand the test of legal scrutiny. We, therefore, order accordingly. The revision petition is accepted and the orders passed by the State Commission and the District

Forum set aside, with no order as to costs.

..

……………………………



..……………………………


MEMBER

RS/

PRONOUNCED ON: 7 May 2013

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