Pronounced on : 12th February, 2013

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3619 OF 2012

(From the order dated 24.07.2012 in First Appeal No.1485 of 2009 of the State

Commission, Punjab)

New India Insurance Co. Ltd. Regional office, S.C.O. No. 36-37, Sector 17-A,

Chandigarh, Through its Manager, Regional office No.1, Level-V, Tower-II,

124, Jeewan Bharti Building, Connaught Circus, New Delhi- 110001

…Petitioner

Versus

Jagtar Singh S/o Sukhdev Singh Resident of Village Daska Tehsil Sunam,

District Sangrur, Punjab

…Respondent

BEFORE:

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

PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. A.K. Raina, Advocate

PRONOUNCED ON: 01.02.2013

ORDER

PER MR. VINAY KUMAR, MEMBER

New India Insurance Company Ltd, has filed this revision petition challenging the order of Punjab State Consumer Disputes Redressal Commission in First Appeal

No.1485 of 2009. The State Commission has upheld the order of the District Consumer

Forum, Sangrur, which had allowed the complaint of the respondent/Complainant Jagtar Singh.

2. The dispute pertains to a harvesting combine, which was reported missing since

6.5.2008. An FIR was lodged and later the police reported it as ‘untraced’. But, the claim of the Complainant was repudiated by the OP/RP Insurance Company. The letter of 16.7.2009 from the RP/OP the following reasons for non-acceptance of the claim were given:-

1.

“As per the findings of the investigator one key of the Combine

Ignition was lying in the Tool Box of the Combine whereas the cabin of the Combine is absolutely open and they are of the considered opinion that if the insured had not kept the ignition key in the tool box of the open cabin of the combine than the thief might not have succeeded in taking away the combine which reflects the absolute negligence on the part of the insured.

2.

As per the condition No.5 of Standard form for commercial vehicles package policy, the insured shall take all the reasonable steps to safe guard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle inured or any part thereof.

3.

During the visit of our investigating team Mr. Jagtar Singh

S/O Sukhdev Singh in his written statement admitted and confessed which was given to the investigator clearly state that the Key of the Combine was kept by him in the Tool Box which shows and confirm the negligence on your part.”

3. Thus, the only substantive claim of the Insurance Co. was that one key of the combine was allegedly left in its tool box while the cabin was open and unlocked. From this an assumption of lack of reasonable care to protect the vehicle, was drawn by the

OP/RP. The District Forum rejected the contention of the Insurance Company holding that “we have not been able to lay our hands on any document of verifiable nature to show that said exclusion clause forms part of the contract of insurance or even it was read down or conveyed to the CC. Surprisingly enough the opposite parties have failed to place on record such a exclusion clause except insurance policy Ex R-8 which nowhere has a reference of the same in the absence of which, we find that the repudiation of the claim on the abovesaid ground is not justified as the opposite parties can not take benefit of an uncommunicated exclusion clause.”

4. In the impugned order the State Commission has given a specific finding that as per the rejoinder of the Complainant/respondent before the District Forum, no terms and conditions of the policy had been supplied. This contention of the Complainant had remained unchallenged in the reply as well as the affidavit of the OP/Insurance

Company before the District Forum. Therefore, the Commission has held that the claim of the complainant under the policy could not have been repudiated on the basis of a condition/clause, which was not even communicated to the insured.

5. In this behalf, the State Commission has relied upon the decision of Hon’ble Supreme Court of India in M/s. Modern Insulators Ltd. Vs. Oriental

Insurance Co. Ltd.

, AIR, 2000 SC 1014 in which the law on the subject has categorically been laid down. It has been held that:-

“8. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally.

9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent cannot claim the benefit of the said exclusion clause......”

6. Mr. A.K. Raina, learned counsel for the revision petitioner strongly defended the decision of repudiation, in arguments before us. However, he could not point to any specific evidence led before the fora below, which could show that the condition on which the repudiation was based, had actually been communicated to the insured at any point of time.

7. Coming to the claim of the investigator of the Insurance Company, learned counsel for the revision petitioner was asked to show if there was any statement of the respondent/Complainant recorded by the insurance investigator. Shri A.K.Raina , drew our attention to affidavit of the investigator, Shri H.S.Bedi filed before the District

Forum. This brief affidavit merely states:-

“That I was deputed by the Divisional Office, New India Assurance

Company Limited to investigate the matter pertaining to theft of combine bearing No.PB-13S-7520 and I visited insured and contacted the driver and insured and submitted my report alongwith statements ofMalkiat Singh and Harnek Singh and my report is true according to actual facts.

Investigation report dated 02-06-2008 is true and correct and may kindly be read as part of this affidavit. During investigation, it revealed that there was negligency on the part of insured as the vehicle was parked in open space and having its one key in the took box.”

8. From the above, it is abundantly clear that the finding of the investigator was in the nature of his own assessment and not based on any statement of the

Complainant. Therefore, we come to the conclusion that the decision of the State

Commission has remained unassailed on this ground also.

9. In the net analysis, we find that the revision petition and the arguments advanced on behalf of the revision petitioner have completely failed to make out any case against the impugned order. Accordingly, the revision petition is held to be devoid of merit and is dismissed as such.

.……………Sd/-……………

(J. M. MALIK, J.)


…………Sd/-……………….

(VINAY KUMAR)

MEMBER

S./-


ORIGINAL PETITION NO. 198 OF 2001

1. Mr. Sanjay Mutha

2. Mrs. Rupa Mutha W/o Sanjay Mutha Through her Husband and

Guardian Mr. Sanjay Mutha

3. Miss Sonal D/o Sanjay Mutha Through her Father and Guardian Mr. Sanjay Mutha

All residing at 3-6-283, Hyderguda, Hyderabad, Andhra Pradesh

….Complainants

Versus

1. Dr. Jayashree Desai W/o not know Desai Maternity and Nursing Home Opp. Old MLA

Quarters Himayathnagar, Beside Hyderabad Stock Exchange, Hyderabad – 500 029

Andhra Pradesh

2. Dr. Sampath Kumar S/o Not known Anesthetist Laxmi Clinic Desai Maternity and

Nursing Home, Opp. Old MLA Quarters Himayathnagar, Beside Hyderabad Stock

Exchange, Hyderabad – 500 029 Andhra Pradesh

3. Laxmi Clinic Desai Maternity and Nursing Home, Old MLA Quarters Himayathnagar,

Beside Hyderabad Stock Exchange, Hyderabad – 500 029, Andhra Pradesh

.....Opposite parties

BEFORE

HON’BLE MR. JUSTICE J. M. MALIK,



For the Complainants : Mr. Rajshekhar Rao, Advocate with

Mr. K. Harshavardhan Reddy, Advocate

For Complainant No.3

Complainant No.1 in person

For the Opposite party No.1 : Mr. Tulsi Raj Gokul, Advocate and

Mr. Yoginder Handoo, Advocate

For the Opposite party No.2 : In person

For the Opposite party No.3 : NEMO


ORDER

PER MR.VINAY KUMAR, MEMBER

Shri Sanjay Mutha, together with his wife Smt. Rupa Mutha and daughter Sonal, has filed this Consumer Complaint in July, 2001. The matter arose out of the

developments at OP-3/Laxmi Clinic on 19.7.1999. Complainant No.2/ Rupa Mutha had undergone a Fallopin Tube Test (hereinafter referred to as FTT) performed by OP-

1/ Dr. Jayashree Desai assisted by the anaesthetist, Dr. Sampath Kumar/OP-2. This was in the background of the fact that the first child of the couple was born in

March1988 and they were hoping to have a second child.

CASE OF THE COMPLAINANTS

2. As per the complaint petition, the procedure was performed in the morning of

19.7.1999 at OP-3. While she was still in the operation theatre, her husband/Complainant No.1 was informed that Mrs Rupa had developed cardiac arrest. At about 11:30 A.M. she was shifted to Care Hospital Hyderabad, accompanied by OP-2/Dr. Sampth Kumar. Allegedly, she arrived at Care Hospital in comatose condition. She remained under treatment there till she was shifted to Chennai on

16.8.1999 for further treatment.

3. Now, Rupa Mutha, as per the Complaint Petition, lives in a vegetative state, unable to talk, move or think and is like a ‘living corpse’. It is alleged that her present condition is on account of brain damage suffered due to hypoxia

(inadequate supply of oxygen to the brain), which happened at OP-3 during the course of the Fallopian Tube Test performed by OP-1 and OP-2.

4. The Complaint Petition seeks a total compensation of Rs.687.60 lakhs, which includes the incurred and projected expense of treatment as well as loss of professional earnings by the patient, who was a practising Chartered Accountant, before her medical misfortune.

5. During the course of the proceedings before this Commission, interrogatories were served by both parties and their respective replies have been brought on record.

The OPs were also permitted to produce the record of treatment at Care Hospital,

Hyderabad. The case of the complainants has been argued byMr. K. Harshavardhan Reddy, Advocate. The OPs were represented by Mr. Yoginder Handu and Tulsi Raj Gokul, Advocates. Both counsels have been heard extensively in October 2012 and the records submitted by the two sides perused carefully.

6. The reason for consultation with OP-1 is explained in the affidavit evidence of

Complainant No.1/Sanjay Mutha.

The couple had a daughter born in 1988. They were also concerned about the condition of alopecia (premature baldness), which had afflicted their first child. Yet, they wanted to have a second child at the earliest. The advice to go in for Tube Patency Test was due to the gap between the birth of the first child and plan for the second pregnancy.

7. The case of the Complainant, as detailed in his affidavit evidence, is that Care

Hospital had certified that the patient was brought to them after she had suffered from Hypoxic Encephalopathy.

Before that the discharge summary of OP-3/Clinic has recorded that she was having myclonic jerks of her fingers, which, as per medical literature (Harrisons Principles of Internal Medicines) indicate severe brain damage. The discharge summary also records that Rupahad bradycardia before cardiac arrest. It is alleged that bradycardia is secondary to Hypoxia, which could show that the patient was suffering from lack of oxygen prior to cardiac arrest. The affidavit evidence also seeks to counter the claim of the OPs that the patient was taken from

OP3/Nursing Home under sedation. It is contended that the sedative injection

(Diazepam 10 mg.) was given150 minutes before shifting her to Care Hospital. Had this been the truth, the patient would have regained conciseness and would not have been received in Care Hospital in comatose condition.

8. The Complainant has questioned the correctness of the decision to the conduct the procedure (Rubin Test) under general anaesthetia. The affidavit evidence also challenges the claim of the OPs that general anaesthesia was given on the request of the patient.

Complainant’s main contention is that the patient was not anaesthetised for the entire duration of the test as the medicine given for this purpose would have had effect for only five to eight minutes. It is alleged that she was anaesthetised only with 330mg pentothal and 0.6 mg atropine. No analgesic was given. Also that thereafter the OPs have not maintained any clear record of the condition of the patient when she was sinking into cardiac arrest.

RESPONSE AND EVIDENCE OF THE OPPOSITE PARTIES

9. Per contra, the case of the opposite parties has been made out in a very detailed response, denying the allegation of negligence in the treatment of

Smt.Rupa Mutha. Fallopin Tube Test is explained to be decided upon as the

Complainant wanted to have a successful pregnancy and a healthy baby. The patient

was not new to the OPs and had been under treatment of OP-1 for several years. Rupa was an intelligent educated person and had given her consent for the procedure as well as for general anaesthesia. Her husband had not accompanied her to the clinic therefore, did not directly know what had transpired between the patient and

OP-1 in this matter.

10. As per the written response, OP-3/Hospital was equipped with

Pulse Oxymeter and Defibribillator, which contained a cardiac monitor as well. This was also seen by Dr. Raghu, Cardiologist and Dr. Shridhar, Neurologist, who were permitted to join the OPs in the operation theatre on the request of the second Complainant. No change was suggested by these two doctors in the treatment being provided by the OPs to the patient.

11. The patient suffered cardiac arrest before she was shifted to Care Hospital.

In para 8 the written response states that:-

“It is necessary to notice that immediately after the Tube Testing was over, N20 was cut off and 100% Oxygen was given to the patient with face mask who was spontaneously breathing. All of a sudden the patient, who is the 2 nd complainant herein, developed gasping with jerky irregular laboured breathing and Oxygen saturation started falling while the patient still held with mask with 100% Oxygen and Cardiac arrest occurred rapidly. Immediately on such noticing the patient’s head end was lowered and endotracheal intubation was done IPPV with 100% oxygen was given and Cardio-Pulmonary

Resuscitation was started.”

12. However, the very next para of the written response states that at about 11.30 a.m. the patient was shifted to Care Hospital and there is no evidence or reliable material to support the allegation of the Complainants that the patient suffered from

Hypoxia, even before commencement of the transit to Care Hospital. The written response claims “there was no scope for Hypoxia while the patient was in the Operation

Theatre of the opposite parties. Both the notes of the Anaesthetist, who is the

2 nd opposite party herein, and the Discharge Summary of the 1 st opposite party do not indicate any such occurrence while the patient was in the Operation Theatre.” The OPs have denied that any brain damage to the patient had occurred in the course of conduct of the Rubin Test and claimed that the cardiac arrest had no relationship with the procedure performed on the patient. A question would arise here, that if there was no hypoxia what else could have caused the sudden deterioration in the condition of the patient, leading to her transfer to Care Hospital in reportedly

comatose condition. As per the written response, no expert medical opinion has been specifically relied upon by the Complainants, which can hold the OPs responsible for the present condition of the patient. The OPs, it is claimed have taken all reasonable care and have made all efforts.

13. The written response also contends that on the question of treatment or management of the patient, there can be difference of opinion on procedure. More than one right way of managing, must however be accepted in practice by the medical profession. No opinion given by one set of experts can be said to be conclusive proof of the applicable practice. There can be more than one type of management practice, which can be followed.

14.

Accordingly, the claim of the Complainant that the Rubin’s Test is neither reliable nor preferable, has been challenged by the OPs. It is stated that the Complainant has partially quote from the book by name “The Principles of Gynaecology” by Senior

Norman Jeffcoate. The same book, while dealing with the assessment of female fertility, deals with Tubal Patency Test states that it should be carried out during the seven days following the ends of menstrual period as there is practically no risk of disturbing the fertilised ovum, at that time.

15. The OPs have also challenged the contention of the Complainants that, instead of following an old practice of Rubin’s Test, the more contemporary procedure of Hysterosalpingography should have been conducted. According to the OPs both the procedures are available at the option of the medicalpractioner. It cannot be contended that one is obsolete and abandoned. It is contended that both Rubin’s Test as well as Hysterosalpingography are available at the option of the medical practitioner and it is wrong to allege that the Rubin’s Test has become obsolete and abandoned, is unsustainable.

16. The OPs have also challenged the contention of the Complainants that the discharge summary is silent about the time consumed in performing the procedure on the patient, the time when she started gasping and when she went into the cardiac arrest. It is contended that from a combined reading of the

Anaesthetist’s Notes prepared by OP-2 and the Operation Notes, it becomes

clear that the Rubin’s Test procedure started around 8.30 AM and around 8.55 AM when the procedure of Tube Test was over, patient developed acute breathing difficulty, gasping and cardio pulmonary arrest.

17.

Similarly, the allegation that irregular performance of Rubin’s Test has resulted in cardiac arrest, is strongly denied. In this behalf, the allegation of the Complainants that the failure of the OPs to deeply anaesthetise the patient had led to vagal cervical reflex, is rejected by the OPs as baseless. It is claimed that

‘Rubin’s Test is a simple, minor and short diagnostic procedure that can be done as out-patient procedure unless the patient insists for general anaesthesia due to ap prehension etc.’

18. According to the OPs, general anaesthesia was given on the request of the patient herself. However, the written response of the OPs simultaneously admits that:-

“As already submitted that in case of performing the Rubin’s Test it can be performed even as an out patient procedure without administering anesthesia and analgesic. In fact several authorities clearly published that in various cases the Rubin’s Test was performed on patients without analgesic. But yet to prevent the possible surgical stimulation in connection with the dilatation of cervix as an abundant caution the opposite parties have chosen to administer general anaesthesia to the patient for which the consent was obtained from the 2 nd complainantpatient.”

Thus admittedly, the decision to do the procedure under general anaesthesia was not at the instance of the patient. It was professional decision of the OPs.

19.

As per the OPs, the patient was alright till the end of the Rubin Test procedure. She developed sudden gasping and cardiac arrest, only thereafter. The

OPs claimed that the patient developed difficulty in breathing only during recovery from anaesthesia and not during dilatation of the cervix. It is claimed by the OPs that within three minutes, the cardiac rhythm of the patient was restored and she was handed over to Care Hospital with adequate supply of oxygen. This claim loses all its veracity in the face of the report of Care Hospital, filed in the course of these proceedings.

20. The net outcome in this case is that the life of Complainant No.2/ Rupa Mutha has nearly got destroyed at the end of a medical procedure which, in the opinion of the OPs, was a minor one and could even have been performed as an out-patient and without

general anaesthesia. We have therefore considered the records submitted by both parties very carefully and heard their respective counsels at length.

ARGUMENTS OF THE COUNSELS

21. Learned counsel for the Complainants Mr. K. Harshvardhan Reddy, sought to make out a case of medical negligence on the following grounds:-

1)

Rubin’s Test was an outdated procedure and should not have been resorted to in the year 1999. Medical literature filed by the OPs themselves shows that “ as false results are frequent in this test it is not commonly used practice.”

(Clinical Gynecology (Fourt Edition) by K Bhaskar Rao and

N N Roy Chowdhury, page 151).

2) Continuous supply of the oxygen was not given to the patient. Due to this the patient suffered from Hypoxia, leading to Hypoxic Encephalopathy.

He referred to the evidence in the Discharge Summary of OP-3, depositions and medical literature and argued that -- a.

Hypoxia (falling oxygen level in the body) was followed by bradycardia (slowing down of beating of the heart). Brain damage occurred due to prolonged hypoxia and bradycardia. Discharge Summary of OP-3 mentions that bradicardia had ensued, though it is denied by OP-1.

b. The discharge summary also refers to ‘myoclonic jerks of forefingers’ which has also been mentioned in the testimony of Dr Sridhar, Neuro Physician who had admittedly seen the patient at OP-3 hospital, after cardiac arrest. As per medical texts, this is indicative of brain injury. (Harrison’s Principles of Internal Medicine,

Twelfth Edition, Vol I)

22. De hors, learned counsel for the OPs argued that gasping was a sudden and unexpected development. He argued that the record of treatment would also show that endo-tracheal intubation was done when the patient suddenly started gasping.

Cardiopulmonary Resuscitation (CPR) was done and the patient was revived. Before shifting to Care Hospital, availability of ventilator was ensured. OP-2 accompanied the patient to Care Hospital. Drs Raghu and Sridhar were allowed inside the operation theatre, on the request of Complainant-1. All that could be done was done.

23. OP-1/Dr Jayshree Desai has said in her affidavit that

“All my concern at that time was to carry out the test as quickly as possible to ensure that general anaesthesia would be as short as possible.” In a subsequent para, OP-1 also says that “ By the time when the patient suffered the cardiac arrest at 8.55 AM, the procedure of tube testing was complete. Therefore, it cannot be said because of the pains she suffered she had suffered the cardiac arrest.” Thus, while the declared intention was to keep it a short spell of general anaesthesia, the procedure admittedly took about 25 minutes. According to the complainants, given the quantity of anaesthetic agents administered, the patient could have been anaesthetised for about 5 minutes only.

EVALUATION OF EVIDENCE

24. OP-2/ Dr Sampath Kumar, has in his affidavit evidence, strongly averred that hypoxia did not occur during or after the FTT procedure at OP-3 or even during transit to Care Hospital. This assertion is in direct conflict with the certificate of Care

Hospital which showed that the patient was brought at 11.30AM in comatose condition and was diagnosed with post operative, post resuscitation state

Hypoxic encephalopathy. She was kept on ventilator till 28 th July 1999 and MRI of brain showed mid brain altered signal suggestive of hypoxic changes. This certificate comes from a hospital that treated the patient from 19 th July to 16 th August

1999. Therefore, in our view the attempt of OP-2 brush it aside in his affidavit, as a

“fraudulently obtained” certificate, cannot be accepted.

More so, as the OPs have not led any evidence to counter it and the affidavit of OP-2 also admits that in the emergency caused by the cardiac arrest suffered by the patient, he had “failed to

attend to the preparation of anaesthesia notes simultaneously.” The affidavit also says that the patient’s parameters “such as

PR, RR, O2, saturation etc. are routine observations. Though they are observed and monitored the same might not have been reflected in the anaesthesia notes, in the circumstances of the case.”

25. Dr. Shyam Sundar of Care Hospital has, in response to the interrogatories, stated that “The patient was examined besides me by a neurophysician and a cardiologist.

Laboratory investigations were conducted to rule out other causes of encephalopathy and we as a team arrived to the conclusion that she had suffered hypoxic encephalopathy i e brain damage because of lack of oxygen for more than 10 minutes”. He has also stated that occurrence ofbradycardia and gasping before cardiac arrest are signs of hypoxia leading to cardiac arrest. No expert opinion or medical

authority has been produced by the OPs to show any error in the above opinion given by Dr Shyam Sundar.

26. In reply to the interrogatories, OP-2 denied that bradicardia was the cause for cardiac arrest which the patient had, admittedly suffered. As per Anaesthesia Notes prepared by him, the patient had suffered from gasping which was followed by cardiac arrest. But, he accepts, in the same response, that atropine – which is a drug of choice for treating bradicardia – was given to Rupa Mutha. He also concedes that

“existence of bradicardiamay be a case of manifestation of occurrence of hypoxia as per the authorities.”

However, he qualifies it by claiming that she was given atropine to prevent and not control bradicardia. It is also claimed that atropine was used while administering anaesthesia to prevent and depress vagal stimulation. But admittedly, no analgesic was used.

27. While answering the interrogatory on this point OPs-1and 2 have asserted that general anaesthesia given to Rupa Mutha was good enough and deep enough to prevent vagal reflex. But, while denying the allegation of inadequacy of anaesthesia, the OPs have claimed that anaesthesia was not given at 8.30 AM but at about 8.40 AM and the entire FTT procedure was completed before 8.55 AM, when the cardiac arrest occurred. OP-1 has made a tentative claim that at 8.55

AM

“the patient must have been still under anaesthesia effect”.

This is contrary to their records and pleadings.

28. OP-2 is equally vague in his reply to the interrogatory on this point.

He does not deny that the anaesthesia given would have had effect only for eight minutes.

But, says that the allegation that there was no anaesthesia effect by 8.55 AM when cardiac arrest took place cannot be said to be correct. Significantly, during the course of hearing before us, OP -2 was asked the same question. He conceded that the anaesthesia given by him to RupaMutha was meant to keep her anaesthetised for 8 minutes only.

29. In the written arguments submitted on behalf of the OPs, we find yet another shift.

It is claimed that 8.30 AM was only the scheduled time. The preparatory steps took 10 to 12 minutes and the duration of the FTT procedure was from 8.47 to 8.55

AM.

“Therefore, though the effect of Pentothal lasts only around 8 minutes approximately, i t covers the entire duration of the test.” By implication, the anaesthesia was given not at 8.30 AM, not even at 8.40 AM (as claimed earlier) but at 8.47 AM. In the background of admitted lapse in recording details in the

Anaesthesia Notes, this can be viewed only as a transparent attempt to mislead.

We deprecate and reject it.

FINDINGS

30. From the details examined above it is evident that the OPs have denied any suggestions as to what may have happened. At the same time, they have failed to explain what would or could have triggered the onset of cardiac arrest. Nevertheless, a careful scrutiny of the evidence brought on record makes the following clear — a. Evidence led by the OPs themselves shows that the FTT procedure started at 8.30

AM and breathing problem started at 8.55 AM, when the procedure was over. This would strongly indicate that the trigger for the breathing problem lay in the conduct of the FTT procedure. b. OPs own records go against their claim that general anaesthesia was given on p atient’s own request. Admittedly, it was their professional decision. c. Despite denials in depositions, the discharge summary of OP-3 clearly shows that “During recovery from anaesthesia the patient developed difficulty in breathing.

She was intubated immediately by the anaesthetist, placed in head low position. Bradicardia ensued and despite Inj Atropine she developed cardiac asystole.” It is therefore clear that bradicardia occurred before cardiac arrest. d. It is admitted by OP-2 that atropine

– which is standard treatment for bradicardia – was given to the patient. It is also admitted that medically, bradicardia can occur due to hypoxia. e. Myoclonic jerks are mentioned in the Discharge Summary. As per medical texts, this is indicative of brain i njury. (Harrison’s Principles of Internal Medicine, Twelfth

Edition, Vol I). The OPs have failed to explain it in any other manner. f. A few hours after the FTT procedure at OP-3, when Rupa Mutha was brought to

Care Hospital, she “was diagnosed as post operative, post resuscitation state with Hypoxic encephalopathy ”. Black’s Medical Dictionary defines Encephalopathy as a condition in which there are signs of cerebral irritation without any localised lesion to account for them. It also defines Hypoxia as shortage of oxygen in the body tissues. It may be caused, among others, by low concentration

of oxygen or abnormal breathing pattern. Evidently, she had suffered hypoxia during the FTT procedure, because she was fit enough to have come to OP-3 hospital the same morning, on her own and unaccompanied by her husband. g. Intubation and use of oxygen mask for control of breathlessness has been indicated in the records. It is also claimed that OP-3 had necessary equipment including Oxymeter. But, no record of pulse oxymetry (for monitoring the oxygen level in the blood) was maintained which could have helped in reaching a finding whether hypoxia had occurred or not. In this behalf, Op-2/the Anaesthetist has admitted the deficiency in maintenance of full record. h. Admittedly, no analgesic was given to prevent any possibility of vagal reflex during dilatation of cervix. OPs have claimed that the type of general anaesthesia given to the patient was adequate to prevent vagal reflex. But, in the process of justifying their claim, they contradict their own records as to the time when the FTT procedure was started. It is also claimed that atropine was used while administering anaesthesia to prevent and depress vagal stimulation. But admittedly, no analgesic was used. While answering the interrogatory on this point OPs-1and 2 have asserted that general anaesthesia given to Rupa Muthawas good enough and deep enough to prevent vagal reflex. But, while denying the allegation of inadequacy of anaesthesia, the OPs have repeatedly contradicted themselves on the time when anaesthesia was actually given. But, what remains uncontroverted is that the FTT procedure started at 8.30 AM; the anaesthesia given to Rupa was meant to be effective for eight minutes only and by 8.55 AM the breathing problem had cataclysmically started.

i. While occurrence of vagal reflex comes out as a strong possibility, suffering undergone by the patient during intubation is an admitted fact, as per the evidence of OPs, themselves. Discharge Summary shows that the patient was fighting intubation and reaching for the tube. But it does not show whether any muscle relaxant was given, which is a standard medical practice in endotracheal intubation.

31. In the course of the present proceedings, the complainants were permitted to bring on record the judgments of the Metropolitan Magistrate, Hyderabad and Hon’ble High Court of Andhra Pradesh in the criminal prosecution launched against the OPs. We however, deem it appropriate to clarify that the findings above have been reached independently of those records.

32. The question before us is whether the findings listed above would amount to

‘deficiency of service’ within the meaning of Section 2(1)(g) of the Consumer Protection

Act, 1986. In terms of this provision —

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

33. In the context of ‘medical negligence’ Hon’ble Supreme Court of India has laid down the law in the following landmark decisions. In Jacob Mathew Vs. State of

Punjab, (2005) 6 SCC 1, The Apex Court has summed it up in eight conclusions. Of them, the following conclusions will directly apply to the matter now before us :-

“1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

4. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in

India.”

34. In Martin F D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for determination of negligence by a medical practitioner were reaffirmed by

Hon’ble Apex

Court. It was observed that:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”

5. The jurisprudential concept of negligence differs in civil and criminal law. What may be begligence in civil law my not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly.’

7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge o f criminal negligence.”

35. In V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (2010) 5 SCC

513, the question of expert evidence came up for consideration.

Hon’bleSupreme Court held that :-

“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.”

In the present proceedings, eleven years after filing of the complaint and after both sides had led evidence, a request was received from the OPs on 26.9.2012 to constitute a medical board. The request was neither pressed nor was constitution of a medical board considered necessary, given the fact of the case.

36. The first allegation is that, for determination of fertility, the OPs should have followed the more contemporary procedure of Hysterosalpingography instead of the

Fallopian Tube Test. According to the OPs, both procedures are in vogue and therefore available at the option of the medical practitioner. The law on this point is well established.

Hon’ble Supreme Court has held in several decision that if there are more than one way of treating the problem, the medical professional cannot be held to be negligent merely because he chose to adopt one in preference over the other.

Therefore, we hold that the decision of the OPs to choose the FTT procedure and to perform it under general anaesthesia does not, in itself, amount to deficiency.

37. In the background of the detailed consideration of the evidence on record, the findings reached by us and in the light of the applicable law discussed above, we have no hesitation in holding that that the OPs have committed serious deficiency of service in the treatment of Mrs Rupa Mutha. Therefore, the complaint must succeed. The OPs need to compensate her for her medical condition resulting directly from her treatment by them.

38. While we may not agree with the quantum of compensation as claimed by the

Complainants, the need would still remain to arrive at an amount, which is just and reasonable in the facts and circumstances of the present case. While considering such a situation in State of Haryana Vs. Jasbir Kaur, (2003) 7 SCC 484,

Hon’ble Supreme

Court has observed that:-

“It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be

‘just’ and it cannot be a bonanza’ not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just.

What would be ‘just’ compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered

in the background of ‘just’ compensation which is the pivotal

consideration.”

39. We therefore, award the following amounts as just and reasonable compensation in this case:-

1.) Expenses incurred on her treatment till 28.6.2001. Rs. 6 lakhs

2.) Expenses on her maintenance for the

same period. Rs.14.4 lakhs

3.) Compensation for physical and mental

sufferings of herself and her family. Rs.18 lakhs

Total: Rs.38.4 lakhs

The amount of Rs.38.4 lakhs shall carry interest at 9% per year, with effect from the date of filing of the complaint in this Commission. The entire sum, inclusive of interest so calculated, shall be paid within a period of three months from the date of this order. Delay, if any, shall carry additional interest at 2% per year for the period of delay.

.…………Sd/-………………

(J. M. MALIK, J.)


………Sd/-………………….

(VINAY KUMAR)

MEMBER s./



(Against the order dated 12.06.2012 in First Appeal No.1713 of 2010 of the State

Commission, Haryana)

Jai Prakash Verma S/o Rameshwar Dass Verma Resident of Village Garhi Brahmnan,

Tehsil & Distt. Sonepat

……….Petitioner

Versus

1. J.K. Lakshmi Cement Limited Through its Managing Director Nehru House,

4, Bahadur Shah Zafar Marg, New Delhi

2. Prop. Master Cement Store, Near Store 23, Water Tank, Mehlana Road, Sonepat

.........Respondents

BEFORE




For the Petitioner : Mr. R.P. Sharma, Advocate


ORDER


The matter arises out of purchase of 275 bags of cement by the Complainant worth Rs.67100/- in 2009. It was manufactured by OP-2 and sold by OP-1. The complaint before the District Forum was that due to the bad quality of cement plaster had started pealing and lintel had started chipping within four months of construction of the house. The District Forum allowed the complaint directing OP-1 to pay compensation of Rs.1.25 lakhs and OP-2, the manufacturer of the cement to pay

Rs.3.75 lakhs.

2. In the appeal filed by the OPs, the State Commission allowed the appeal of the

OPs holding that the onus was primarily on the Complainant to prove that the material sold to him was of sub-standard quality. The State Commission also observed in this behalf that:-

“The plea of the complainant was that he was sold sub standard 275 bags by OP NO.1. The plea of OP was that the cement was of good quality and the complainant has not complied the provisions of 13 (1) (c) of C.P. Act. It is admitted case of the complainant that he had not got tested cement 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 moved any application before the concerned authorities for getting the cement of same batch number tested from any laboratory. There was no evidence in the shape of report from appropriate laboratory regarding cement to be sub standard. The procedure 13(1)(c) w as not adopted.”

3. We have carefully considered the records submitted by the revision petitioner and heard Mr. R.P. Sharma, Advocate on his behalf. Learned counsel was asked, with reference to the above mentioned observation of the State Commission, as to why did the Complainant not get the material tested as per the requirement of Section 13 (1) (c) of the Consumer Protection Act, 1986. His reply was that this provision is not applicable to the present case as the cost of testing was over Rs. 1 lakh. This is an argument, which is neither sustainable under the law nor was it even a part of the pleadings before the District Forum. We therefore reject it.

4. The revision petitioner has sought to rely upon the decision of this Commission in N.S.C. Ltd. Vs. Guruswamy and Anr., decided on 3.08.2001. The case cited by the petitioner had arisen in the context of the practice of farmers in sowing the entire seed. Again, similar view was taken by this Commission in National Seeds

Corporation Limited Vs. P.V. Krishna Reddy and Others, CTJ 522 (CP)

(NCDRC). It was held that it was not necessary for agriculturist to send a sample of the seed for laboratory analysis/tests as an agriculturist is not expected to conserve a portion of the seed for such eventuality.

Facts in thepresent case are very different. Therefore, we do not think the petitioner can draw any support from it.

5. We also reject the contention of the petitioner that the onus to prove the quality of cement lay at the door of the OPs. In our view, the State Commission has rightly held that the burden of proof lies with the petitioner/Complainant and that he has failed to discharge it.

6. We therefore, find no substance in this revision petition. The same is dismissed for want of merit. No order as to costs.

.……………Sd/-……………

(J. M. MALIK, J.)


…………Sd/-……………….

(VINAY KUMAR)

MEMBER s./-



(From order dated 25.10.2010 in Appeal No. 2201 of 2009 of the State Consumer

Disputes Redressal Commission, Madhya Pradesh )

Amar Singh Mandelia, S/o Shri Bowad Singh, R/o Village Janarpura, Post- Bijauli,

District Gwalior (M. P.)

…Petitioner

Versus

1. ICICI Lombard General Insurance Company Ltd., Manager, Bank, First Floor,

Hotel Shelter Building, Shastri Chowk, Padav, Lakshar, Gwalior (M. P.)

2. Samadhiya Finance Services Pvt. Ltd. Through Manager, Regd. Office, Naka

Chandrabadani, Jhansi Road, Gwalior.

……Respondents

BEFORE:

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

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

For the Petitioner : Mr. Prashant Shukla, Advocate

For the Respondent No. 1 : Mr. Nikita Parmar, proxy counsel

Mr. Anuj Chauhan, Advocate.

For the Respondent No. 2 : Ex parte

Pronounced on: 1 st February, 2013

ORDER

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

Brief facts are that a vehicle (tractor) was purchased by

Petitioner/Complainant from respondent No. 2/O.P.No. 1. It was registered in his name on 1.9.2007 and was insured for the period from 25.6.2007 to 24.6.2008.

However, the policy was issued in the name of respondent no.2. In the meanwhile, the tractor was stolen on 7.10.2007.

2. Consumer Disputes Redressal Forum, Gwalior (for short, ‘District Forum’) vide order dated 27.08.2009, allowed the complaint of the petitioner.

3. Aggrieved by the order of District Forum, Respondent No. 1/ O.P. No. 2 filed an appeal before the State Consumer Disputes Redressal Commission, Bhopal(for short, ‘ State Commission’) which vide impugned order dated 25.10.2010, allowed the appeal and set aside the order of District Forum. State Commission also held that so far the claim of respondent No. 2 is concerned, the same shall remain unaffected by its order.

4. Hence, this revision.

5. It is argued by learned counsel for the petitioner that respondent no. 2 was never the owner of the vehicle and issuance of insurance policy in its name by the insurance company is an act of the unfair trade practice. Petitioner has paid

Rs.4,566/- to the respondent no. 2 towards insurance of the vehicle. Under these circumstances, respondent no.1 could not have issued the policy in the name of respondent no. 2.

6. On the other hand, learned counsel for respondent no.1 argued that petitioner himself has stated that insurance of the tractor is not in his name. As such in the absence of any insurance in the name of petitioner, he has no locus-standi to file the complaint.

7. The question that arises for consideration is as to whether petitioner could have laid a claim against respondent no. 1-the Insurance Co, as insurance on the date of the theft was not in the name of petitioner but respondent no.2.

8. State Commission while allowing the appeal observed ;

“As we see the position that emerges on 7.10.2007 when the vehicle was stolen was that the insurance policy was in the name of respondent no. 2 and it was respondent no. 2 who could have laid a claim for the amount of insurance on account of theft of the vehicle.

Respondent No. 1 did not have any insurable interest subsisting on

7.10.2007 and therefore, could not have made any claim from the

Insurance Co. on account of theft of the tractor

”.

9. Petitioner in its entire complaint has made no averment against respondent no. 1 that he has paid any amount to respondent no. 1 for the purpose of insurance of the vehicle or any insurance policy was issued in his name. Thus, admittedly there is no privity of contract between petitioner and respondent no. 1.

10. Present revision petition has been filed under Section 21(b) of the Consumer

Protection Act, 1986(for short, ‘Act’). It is well settled that the powers of this

Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. 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. Present petition being without any legal basis is hereby dismissed.

12. No order as to cost.

……..……………………J

(V.B. GUPTA)

( PRESIDING MEMBER)

…….………………………J

(K.S. CHAUDHARI)

MEMBER

SSB/



(Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the

Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Shri Harwinder Singh Randhawa S/o Shri Sohan Singh R/o E/293, Ranjit Avenue

Amritsar (Punjab)

... Petitioner

Versus

1. Avalon Resorts (P) Ltd. Empire Estate, Mehrauli-Gurgaon Road Sultanpur, New

Delhi-110030

2. Holiday Solutions, GH-14/34, Ist Floor, Pashchim Vihar New Delhi-110063

... Respondents

---


(Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the Punjab

State Consumer Disputes Redressal Commission, Chandigarh)

Avlon Resorts (P) Ltd. Empire Estate, Sultanpur Mehrauli- Gurgaon Road, Sultanpur,

New Delhi-110060

... Petitioner

Versus

Shri Harwinder Singh Randhawa R/o E/293, Ranjit Avenue Amritsar (Punjab)

… Respondent

BEFORE:

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


For the Petitioner : Mr. Sumit Sharma, Advocate

For the Respondent : Mr. M. K. Shah, Advocate with

Mr. Nimmi Sharma, Advocate

Pronounced on : 1 st February, 2013

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. This order shall decide the above said two revision petitions which arise out of the same order dated 31.8.2012 rendered by the State Commission.

2. Mr. Harvinder Singh Randhawa, the complainant met the representative of Avalon

Resorts (P) Ltd., opposite party No. 1 at its local office at Ritz Plaza, 45, The Mall,

Amritsar. They represented that the complainant would be made member of the respondent-Avalon Resorts (P) Ltd. and Holiday Solutions, petitioners No. 1 and 2, respectively. The complainant was informed that he would get the best facilities for a continuous period of 33 years and occupation of one bedroom apartment during summer vacation every year under the category of ‘Red’. Orally, he was also informed that in case, he did not avail the facility during summer vacation, he would get the rent for one week. On 16.9.2000, the complainant became the member of petitioners. He was informed that he will have to cuff out Rs.1,62,000/-. The complainant deposited the initial amount of Rs.74,000/- and the balance amount of Rs.88,000/- was paid through cheque on 17.9.2000, which was duly encashed by opposite party No. 1. It is alleged that respondent No. 1 closed its office at Amritsar secretly and silently. The complainant could not contact any official at Amritsar. The grouse of the complainant is that since 2001, no facility of reservation of the apartment was granted in his favour and whenever, he approached the official of respondent No. 1, the respondent No. 1 displayed their inability to provide their reservation during summer season.

3. In June, 2005, and again in June, 2006, the complainant approached opposite party No. 1 at Delhi and requested him to give reservation for the last week of June,

2006 but the respondent No. 1 was unable to provide accommodation and informed the complainant to wait till the month of July, 2006. The opposite party No. 1 could not do the needful till the month of July, 2006. This is an admitted fact that the complainant

paid the maintenance charges without availing the facility for first two years. The respondent No. 1 wrote letters dated 29.11.2004, 14.3.2005, 10.5.2005 and sent the final reminder dated 25.11.2005 for the payment of due annual maintenance charges and threaten to terminate the membership on account of non-payment of annual maintenance contract. Even after termination of the tenancy, the respondent No. 1 again issued letter dated 13.5.2006 and demanded Rs.21,635/-.

4. In May, 2003, the complainant again met respondent No. 1 and made the request that the company was not giving reservation during summer, nor the rent was being paid. An official of respondent No. 1 told the complainant to become a member of its concern, namely, Holiday Solutions, respondent No. 2. The respondent No. 2 asked the complainant to pay a sum of Rs.5500/- in lump sum and the respondent No. 1 shall provide the facility in the shape of giving on rent their apartment every year to third person and the rent will be paid to the complainant. The complainant paid Rs.5500/- to respondent No. 2 against receipt No. 1500 dated 24.05.2003. Despite the payment, the respondent did not give facilities to him.

5. Thereafter, the complainant lodged a complaint under Section 12 of the Consumer

Protection Act, with the prayer that the respondents be directed to return Rs.1,62,000,

Rs.7320/- and Rs.5500/- and Rs.1500/- alongwith interest @18% from the date of deposit till payment because the appellant is not interested to continue as a member of the respondents and pay a sum of Rs.1 lakh as compensation and Rs.17,000/- as costs of litigation.

6. The respondent No. 1 set up the following defences. The respondent No. 1 did not open any office at Red Plaza and only part time business was carried out in Ritz

Hotel for enrolling new numbers. The complainant was explained full terms and conditions. The petitioner entered into an agreement. The agreement entered into between the parties is placed on record. The relevant portion of the agreement is reproduced as follows

B) MEMBERSHIP CERTIFICATE: The Owner shall issue to the

Purchaser(s) a Holiday Certificate specifying the details of Timeshare ownership and such Certificate shall be conclusive evidence of legal right for the specified week of occupation. Such certificate shall be issued by the Owner within 90 days of the Purchaser(s) paying the total amount of

Ownership

C) GUARANTED OCCUPANY : In the event of Apartment Occupancy not being available on the occupancy date (Time being the essence) for the entitled week. The Owner will make available an equivalent or larger apartment at the Resort for the week owned for his right of occupancy without any extra charges.”

Both parties can enforce their authority:

A) In the event of Purchaser(s) failing to make payment due thereunder on the specified date (time being of the essence) the Company shall be entitled to serve Notice requiring such payment to be made within seven days. If the Purchaser(s) fails to make such payment, the

Company at its option shall forfeit the amount paid by the Purchaser(s) and resell the week to any person.”

7. The opposite party No. 1 has also placed on record membership certificate annexure R-5, which goes to show that 33 rd weekly period was earmarked for the complainant. The relevant portion is reproduced as follows:-

“2. APARTMENT :ONE BEDROOM APARTMENT No. 3A

Max. occupany :4(four) No. of Weeks :01

3. WEEKLY PERIOD(S) SEASON :RED

Commencement & Termination day : Saturday

4. MEMBERSHIP PERIOD(S) :2001-2033 (33 YEARS)

5. DATE OF CERTIFICATE : JANUARY 2, 2001”

8.

Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15 th week of the year and continues till 33 rd week of every year. It was stated that as the petitioner has opted for Red, therefore, he was granted the Red category. The opposite party No.

2 did not contest the case and was proceeded ex parte against the District Forum.

9. We have heard the learned counsel for the parties. The District Forum dismissed the complaint but the State Commission accepted the appeal as well as the complaint and directed that amount of Rs.88,000/-, Rs.74,000/-, Rs.7350/- and Rs.5500/- be paid by the opposite party.

10. Learned counsel for the opposite parties argued that their case is fully covered by the documentary evidence. The complainant did not avail the above said facility on

33 rd week of every year. It was for the complainant to apply for the said facility but he did not take any direction in this context. He contended that his membership was terminated as he did not pay the maintenance allowance.

11. It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility. One is supposed to pay the allowance when the thing is utilized by him. The termination of the notice on this ground is illegal. 33 rd week will come to an end in the year 2033. The complainant has signed the document with open eyes. He should have opted for the availment of such facility. This is not the duty of the opposite parties to send the notice to avail the facility. 33 rd week is earmarked for him. He cannot wriggle out of the contract at this stage. The contract entered into between the parties is binding one. None of the parties is authorized to cancel it for invalid reasons.

12. For the years which have elapsed, the opposite parties must have utilized it and earned profits. No record saw the light of the day. It was bounden duty of the opposite parties to approach the Commission with clean hands. They must show to the

Commission to whom and for what amount the room was given. They have suppressed the record to the detriment of the complainant. The opposite parties are entitled to get the rent @10000/- per year from 2001 to 2012. The total comes to Rs.1,10,000/-. It is made clear that the complainant can avail the facility for the next 21 years from today. Before availing the opportunity, he can inform the opposite parties. The complainant is also entitled to rent out the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance. The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance. We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/- with interest at the rate of 9% from the date of filing of this complaint till its realization. The complainant can avail the facility for the next 21 years.

Accordingly, both the revision petitions are disposed of.

………………Sd/-…..………..

(J. M. MALIK, J)


………………Sd/-.……………

(VINAY KUMAR)

Naresh/

MEMBER



(From order dated 18.6.2012 in First Appeal No. A/12/113 of the Maharashtra State

Consumer Disputes Redressal Commission, Mumbai)

Balkrishna Ramchandra Tavse R/o Ramchandra Bunglow, Sawat Plot,

South Shivaji Nagar, Sangli

… Petitioner (s)

Versus

1. Liquidator The Ichalkaranji Urban Co-op Bank Ltd. 7/129, Rajwada Road, Ichalkaranji

2. Mahavir Annaso Alse Manager, The Ichalkaranji Urban Co-op Bank Ltd.

7.129 Rajwada Road, Ichalkaranji

3. General Manager, Deposit Insurance Credit Guarantee Head Office Reserve Bank of

India Bldg. 2 nd Floor, Mumbai Central Post Office, P. Box. 4571, Mumbai

… Respondent (s)

BEFORE:

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


For the Petitioner (s) : Mr. Pramod Kumar Singh, Advocate

Pronounced on : 1 St February, 2013

O R D E R

1. Shri Balkrishna Ramchandra Tavse, complainant/petitioner was the Managing

Director of Ichalkaranji Urban Co-op Bank Ltd.. He resigned from the said post on

24.4.2006. The petitioner deposited various amounts with the Ichalkaranji Urban Co-op

Bank Ltd. while he was in service. Those amounts were deposited from 24.4.2007 to

1.2.2008 in intervals. The total amount deposited by the petitioner came to Rs.11,52,000/-

. All those amounts were deposited in Fixed account with different rate of interest.

2. On the day he resigned from the bank i.e. on 16.4.2008 itself, the complainant raised a loan against the said deposits amounting to Rs.10 Lakh. As per the rules, the loan against the Fixed Deposits was permissible upto the limit of 75% and in exception circumstances, upto the limit of 90% of the loan. The petitioner also moved an application to the bank with the request to adjust the loan amount against his Fixed

Deposits. Thereafter, the bank went into liquidation and the liquidator was appointed.

3. The petitioner filed a complaint before the District Forum with the following prayers:-

“a) the present Revision Petition may kindly be allowed;

b) the order passed in consumer Appeal No. A/12/113 of 2012 passed by the Learned Maharashtra State Consumer

Disputes RedressalCommission, Mumbai, may kindly be quashed and set aside and allow the present Revision Petition of the Petitioner by quashing and set aside the Judgment and order passed in the

Consumer Complaint Application No. 328 of 2011 on 12.12.2011l;

c) the Respondent Bank be directed to adjust the amount of Fixed

Deposit Receipts on the dates as and when they matured and correct the loan account of the Petitioner and submit the revised claim to the

DICGCI for sanction.

d) the DICGCI be directed to sanction the revised claim of the Petitioner after adjusting the amount of Fixed Deposit Receipts on the dates as and when they matured.

e) the cost of this petition of Rs.50,000/- be provided to the Petitioner.

f) the Respondent Bank be directed to pay Rs.50,000/- towards compensation for mental psychological harassment to the Petitioner.

g) Pass any other order and/or directions as this Hon’ble Commission may deem fit and proper .”

4.

The District Forum dismissed the complaint. Aggrieved by the order of the District

Forum, the complainant approached the State Commission, which, too, dismissed the appeal.

5. We have heard the learned counsel for the petitioner. First of all, he failed to show that the petitioner was empowered to sanction the loan of 90% tohimself. The petitioner could not cite any such rule. He, however, submits that the General Manager was authorized to sanction the loan but it is apparent that he is not empowered to grant and sanction in his own favour and that is to be sanctioned by some other authority.

6. Secondly, the fact that he had resigned from the Bank on the same day casts a flim of doubt over his bona fides and there is no evidence to show that there was a meeting of

Managing Committee so as to sanction the loan as against the said Fixed Deposits.

7. Furthermore, 90% loan was permissible under exceptional circumstances. There is nothing on record to demonstrate as to what were the exceptional circumstances for the complainant to raise loan beyond 75%.

8. It is apparent that being the Managing Director, he was aware that the bank was about to go in liquidation. He tried to save his own skin and left the public in lurch. He cannot be given special status than the other creditors of the bank. He will get the amount

according to is proportionate share. If the complaint made by the complainant is permitted, it would prejudice the interest of other creditors irretrievably.

9. Again, no permission under Section 107 of the Maharashtra Cooperative Societies

Act, 1960 was granted in favour of the complainant/petitioner. The State Commission rightly held “It is well established principle of law that whenever bank is under liquidation, liquidator is supposed to liquidate the assets of the said corporate body and, thereafter, he has to distribute those assets on pro rate basis so that every creditor should get due share from the assets of the society. If this is not done and if some of the creditors like the complainant herein are preferred and they are paid without following the procedure of liquidation, other creditors’ interest will be pre-judiciously affected and that will be contrary to the spirit of law. Complainant, thus, as appears, is interested in carrying out illegal process of liquidating his assets. This is not permissible under the law. In fact for such a complaint there is no permission granted of the Co-operative Societies Registrar. Under

Section 107 of the Maharashtra Co-operative Societies Act, 1960 permission is very specific. In the present complaint such provision has been overlooked by the complainant. What we find that very approach of the complainant is fraudulent in prosecuting the matter. Co-operative Societies Act cannot be by-passed to the deteriment and to the prejudice of all other creditors like the complainant. Therefore on careful reading of the letter dated 05.10.2011, we are of the opinion that the Registrar has not granted permission to file legal proceeding as against liquidator in any court of law and much more so before the Consumer Forum. In view of this complaint is not tenable and it has been rightly dismissed by the District Consumer Disputes Redressal Forum. Appeal is also without any merits. It is hereby rejected.”

10. It is thus clear that the complainant has made vein attempt to pull the wool over the eyes of law.

11.

The revision petition is therefore dismissed.

.…..…………Sd/-………………

(J. M. MALIK,J.)


.…..………Sd/-…………………

(VINAY KUMAR)

MEMBER

Naresh/reserved

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI


(Against the order dated 19.09.2012 in First Appeal No. 284 of 2009 of the Haryana

State Consumer Disputes Redressal Commission, Panchkula)

Jai Kishan Trading Co. Delhi Road, Kharkhoda, District Sonepat, Haryana Through its

Proprietor

... Petitioner

Versus

1. Godrej Agrovet Ltd. Regd. Office Pirojshanagar, Eastern Express Highway,

Vikroli (East) Mumbai-400 079

2. The Regional Manager, Godrej Agrovet Limited 362/363, First Floor, Sector-34A,

Chandigarh

3. Shri Rajender Singh Son of Shri Rishal Singh R/o V.P.O. Jahajgarh

District Jhajjar

... Respondents


(Against the order dated 19.09.2012 in First Appeal No. 284 of 2009 of the Haryana


Shri Rajender Singh Son of Shri Rishal Singh R/o V.P.O. Jahajgarh District Jhajjar

... Petitioner

Versus

1. Jai Kishan Trading Co. Delhi Road, Kharkhoda, District Sonepat, Haryana Through its Proprietor

2. Godrej Agrovet Ltd. Regd. Office Pirojshanagar, Eastern Express Highway,

Vikroli (East) Mumbai-400 079

3. The Regional Manager, Godrej Agrovet Limited 362/363, First Floor, Sector-34A,

Chandigarh

... Respondents

BEFORE:



For Rajinder Singh : Mr. Anupam Gupta, Advocate

For Jai Kishan Trading Co. : Mr. Hari Kishan, Advocate

For Godrej Agrovet Ltd. : Ms. Surekha Raman, Advocate


ORDER


1. This order shall decide the above mentioned two revision petitions, one filed by the complainant and the second filed by the opposite party. 2. Shri Rajinder Singh, the complainant, is a farmer. In the year 2008, the complainant cultivated cucumber

(Kheera) crops in his fields. The complainant was advised by Jai Kishan Trading Co., petitioner/opposite party to spray the Godrej Vipul Booster on the cucumber (Kheera) crops in order to increase the production of cucumber crops. It may be mentioned here that the petitioner is the agent of Godrej Vipul Booster. Consequently, the complainant purchased five litres of Godrej Vipul Booster @220/- per liter on 4.4.2008 vide invoice

No. 3106 dated 4.4.2008 from Godrej Agrovet Limited, opposite party No. 1. The complainant alleged that after the use of said product, the growth of his crops gradually weakened stopped and died.

3. The complainant approached the petitioner, Jai Kishan Trading Co. with the abovesaid complaint but it did not produce the desired result. Thereafter, the complainant contacted D.D.A. Jhajjar and District Horticulture Officer, Jhajjar, who got inspected the field of the complainant by Horticulture Development Officer, Beri, who submitted his report to the effect that there is an adverse effect of the spray of

Godrej Vipul Booster and due to this reason, the cucumber crop of the complainant stood damaged.

4. Thereafter, the complainant filed a complaint on 13.5.2008 before the Consumer

Forum at Jhajjar. The complainant stated that he had spent Rs.34,500/- for seeds of cucumber crops, Rs.35,000/- for ploughing and sowing the seeds and Rs.21,000/- for labour charges for clearing the weed manually, Rs.10,850/- for irrigating the fields and Rs.1100/- for Godrej Vipul Booster, Rs.1400/- for spray of Godrej Vipul Booster to labour and Rs.10,000/- as cost of fertilizers etc..

5. Jai Kishan Trading Co.-opposite party contested this case. The opposite parties 2 and 3 were proceeded against ex parte. The District Forum vide its order dated 13.1.2009 accepted the complaint. They directed the respondents 2 and 3 to pay Rs. 6 lakh to the complainant as compensatioin on account of loss suffered by him.

6. Aggrieved by that order, an appeal was preferred before the State

Commission. The State Commission modified the order to some extent. It was held that Jai Kishan Trading Co. (retailer), opposite party No. 1, instead of respondents No. 2 and 3, is liable for payment of Rs. 6 lakh to the complainant as compensation.

7. Now this revision petition has been filed by the opposite party No. 1. Second revision petition has been filed by the complainant for enhancement of the compensation.

8. It may be also mentioned here that previously the first appeal filed by the opposite parties 2 and 3 was disposed of by the State Commission vide its order dated

4.11.2009. Aggrieved by that order, the revision petition was filed before the National

Commission. The National Commission remanded the case back to the State

Commission.

9. We have heard the learned counsel for the parties. We have also perused the complaint and written statement filed by the Jai Kishan Trading Co. The written statement mentioned that

‘para 1 needs no reply.’ It is thus clear that the admission of this fact comes out from the horse’s mouth itself. He did not pick up a conflict with the fact that he had advised him to spray Godrej Vipul Booster. Furthermore, the State

Commission in his order observed:-

“The perusal of the printed instructions issued by the company reveals that Godrej Vipul Booster is not made for spray on cucumber crops. Thus,

it was the sole duty of the opposite party No. 1 to confirm the effect of the

Godrej Vipul Booster on the cucumber crop before its selling to the complainant, but he has failed to do so. Thus, the deficiency in service is duly on behalf of the opposite party No. 1 and learned District Forum has failed to appreciate the legal position on record and fell into grave error while fixing the responsibility of appellants-opposite parties. As such the impugned order passed by the learned District Forum is not sustainable in the eyes of law and impugned order required some modification.”

10.

We find no flaw in this order. Respondent No. 1 has committed a mistake and he must suffer for the same. It is thus clear that a gullible person was led up the garden path so that the petitioner No. 1 can sell the products to the complainant legally or illegally by hook or by crook to make profits from the sale. The destruction of crop is a national loss. The respondent No.1 has seen his own benefit and did not care for detriment of the other party. The respondent No. 1 is given time to pay the said amount within one month failing which he will be liable to pay costs @9% p.a. from the date of the order of the State Commission dated 19.11.2011.

11. We have heard the arguments of second revision petition i.e. revision petition No.

1611 of 2012 regarding enhancement of the amount. We have considered and passed orders in revision petition No. 1365 of 2012, otherwise, there is no force in that prayer and the same (revision petition No. 1611 of 2012) is, therefore, dismissed.

12. The revision petition No. 1365 of 2012 is partly allowed.

………………Sd/-…..………..

(J. M. MALIK, J)


……………….Sd/-……………

(VINAY KUMAR)

MEMBER

Naresh/



(From order dated 14.02.2012 in First Appeal No. 751 of 2010 of the Punjab State

Consumer Disputes Redressal Commission, Chandigarh)

State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager

… Petitioner (s)

Versus

Earlier Meena Walia W/o Satish Walia residents of Mohalla Shorian

Near Madir Janki Dass Present R/o 12 Karol Bagh, Jalandhar Road Kapurthala

… Respondent (s)





… Petitioner (s)

Dr. Jagtar Singh S/o Garib Dass 1183, Urban Estate Kapurthala

… Respondent (s)

Versus





… Petitioner (s)

Versus

1. Ramesh Chander S/o Vishwa Mitter Kumar 11, Karol Bagh Jalandhar

Road, Kapurthala

2. Sheetal Rattan W/o Sh. Ramesh Chander 11, Karol Bagh, Jalandhar Road,

Kapurthala

… Respondent (s)





… Petitioner (s)

Versus

1. Deepak Rattan S/o Sh. Satpal 8, Link Road, Kapurthala

2. Monica Rattan W/o Sh. Deepak Rattan 8, Link Road, Kapurthala

… Respondent (s)





… Petitioner (s)

Versus

Munish Rattan, S/o Sh. Satpal Previously residing at 8, Link Road Now residing at 42

Urban Estate Kapurthala

… Respondent (s)

BEFORE:



For the Petitioner (s) : Mr. Rajiv Kapur, Advocate

For the Respondent(s) : Mr. R. K. Kapoor, Advocate

Pronounced on : 1 St February, 2013

O R D E R


1. This order shall decide the above detailed five revision petitions, which entatil similar facts and questions of law.

2. The complainants, namely, Meena Walia, Dr. Jagtar Singh,

Ramesh Chander and Sheetal, Deepak Rattan and Monica Rattan, Munish Rattan obtained separate house loans in the year 2004-05 from the State Bank of India through its Chief

Manager, Railway Road, Kapurthala. The opposite party/petitioner/bank had given two options to the respondents-complainants for the repayment of the loan amount, firstly, the loan was to carry floating rate of interest which could vary from time to time as per the instructions of the Government and R.B.I. and the second was to opt for fixed rate of interest, which was 1% more than the prevalent rate on house loan interest at that time. The complainants opted for the second option. All the complainants paid the instalments regularly. The grievance of the complainants was that the opposite party had illegally changed the rate of interest from 8% per annum to 8.5%, 8.75%,

9.25%, 9.75% and to 14.5% without any intimation to the complainants. The complainants had made an application in the year 2007 before the Bank for not changing the fixed rate of interest as agreed between the parties. A protest note was also sent to the opposite party-

Bank. The grievance of the complainants is that excess rate of interest was charged from them.

3. On the other hand, the bank submitted that they are authorized to charge the enhanced rate of rent as per memorandum of term loan of agreement. Relevant part of which is Clause 2(b) and Clause 2(o). It was also submitted that vide letter dated

15.5.2009, the bank had intimated the complainants that it shall reset fixed rate of interest in the end of every two years.

4. Separate complaints were filed before the District Forum, which allowed the complaints. Vide order dated 6.4.2010, the District Forum directed the bank to charge

Fixed deposits rate of interest as mutually agreed between the parties and adjust the amount of excess interest already charged by Bank.

5. Aggrieved by that order, the Bank filed 5 different appeals before the State

Commission. The State Commission vide its order dated 14.2.2012 dismissed the appeal. Paras 26 and 27 of the impugned order are reproduced hereunder:

“26. In view of the above discussion, we are of the view that the orders under appeals are legal and valid and there is no infirmity in the

same. There is no ground to interfere in the impugned orders and the same are affirmed and upheld. The appeals of the appellant are dismissed with costs of Rs.10,000/- each, which was paid to the each respondent within one month from the receipt of the copy of the order.

27. The said amount of Rs.10,000/- in each appeal be recovered from the official of the appellant, who tried his best to obtain the signatures of the respondent/consumer on the blank documents to cheat the respondent/consumer. The act of the official was also against the ethics of the policies of the R.B.I.”

6. Thereafter, they filed the above detailed revision petitions.

7. We have heard the learned counsel for the parties at length. Relevant portion of the order dated 4.7.2012 of this Commission is reproduced hereunder:-

“The counsel for the petitioner is further directed to file an affidavit of authorized officer as to how the rate of interest stood increased from

8% to 14.5% with certain intervals along with circulation issued by RBI.”

More than 6 months have elapsed but the learned counsel for the petitioner did not file the affidavit and the circulars issued by R.B.I.

8. Both the parties were heard. This is an undisputable fact that in the year 2004-05, the parties entered into an agreement. The complainants selected the second option for payment of interest. Consequently, the petitioner is entitled to charge 8% plus 1%. Both the counsel agreed to that proposal. It may be also mentioned here that State Bank of

India could not produce any agreement wherein it was stated that after the lapse of two years, the rate of interest would change or it would be taken as per R.B.I. guidelines. The bank cannot change it unilaterally. The consent of the other party is required. It should be given an opportunity to ponder over the new rates. The bank cannot enhance it arbitrarily. Furthermore, no circular form R.B.I. saw the light of the day. No affidavit was filed by the petitioner in support of his case. Consequently, we hold that the petitioner is entitled to get the interest @8% plus 1%, meaning thereby the total rate of interest is @ 9% from the date of paying of the loan till its realization.

9. Now, we advert to the second question raised by the parties which pertains to para No. 26 and 27 of the order passed by the State Commission. The costs imposed by the State Commission are upheld but the same would not be recovered from the officers of the petitioner. Generally, it is seen that the public on its own accord signs the blank

documents. They have no time to go through the entire documents. They repose faith in the bankers. On the contrary, it is the duty of the customer to read over all the documents and thereafter it should fix the signatures. Nobody can compel any person to sign a blank paper without reading it. One is supposed to have sign the papers with open eyes and at his own peril. Consequently, para 27 only is set aside. The amount be recovered from

Bank itself but not from their officers.

10. All the five revision petitions stand disposed of. The bank is further directed to deduct

9% of the interest and return the money as well as costs to the complainants within 45 days as ordered by the lower court otherwise it will carry interest @12% till its realization. No costs.

.…..……………Sd/-……………



.…..…………Sd/-………………

(VINAY KUMAR)

MEMBER

Naresh/reserved

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI

CONSUMER COMPLAINT NO. 74 OF 2012

Shiv Shankar Lal Gupta S/o Shri Bhagwan Lal Gupta R/o Flat No. 804,

“Umrao Kamal

Raj” Apartment 8, Sardar Patel Marg, C-Scheme, Jaipur

… Complainant

Versus

1. Kotak Mahindra Bank Ltd. Through its Managing Director Registered office 36-38A,

Nariman Bhawan, 227, Nariman Point, Mumbai- 400021

2. National Head, (Saral Auto Loan Jaipur) Kotak Mahindra Bank Ltd. First Floor,

Krishna Tower, 57, Sardar Patel Marg, C-Scheme, Jaipur

3.Kotak Mahindra Bank Ltd. Through its Associate Vice President & Authorised Officer,

First Floor, 6, Vaishali Enclave, Adjoining to Gulab Rewari Sweets, Peetampura, New

Delhi

– 110034

… Opposite Parties

BEFORE:



For the Complainant : Mr. Rajendra K. Salecha, Advocate


ORDER


1. We have heard the learned counsel for the complainant at a considerable length. To our mind, at least two questions have to be answered at the stage of admission of this case.

First of all, whether the petitioner is a ‘consumer’? Lastly, in view of the Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002, whether this Commission has jurisdiction to try this case?

2. The facts of the case are these. Shiv Shankar Lal Gupta, the complainant in this case is a promoter of Clarity Gold Mint Ltd., a unit falling under SME Sector for the purpose of setting up of its project of mint of gold and silver coins and manufacturing of semi precious and precious stones studded jewellery. The complainant on account of his requirement approached the Kotak Mahindra Bank, opposite party in this case, at its

Jaipur Branch for grant of loan interalia against the collateral security of immovable property situated at plot No. 4 Sardar Patel Marg, C-Scheme, Jaipur.

3. The opposite party-bank vide its letter dated 25.9.2008 conveyed the sanction of term loan of Rs.500 lakh to the complainant carrying rate of interest i.e. flat rate of

9.18% which was to be repaid within a period of 60 months. The complainant had to mortgage his property in favour of opposite party bank. The petitioner spent Rs. 5 lakh and registration charges in the sum of Rs.25,000/-. The opposite party paid back

Rs.16.40 lakh per month during the period from 1.12.2008 to 23.1.2010 i.e. in aggregate

Rs.196.80 lakh. He further paid Rs.87 lakh during the period from 24.1.2010 to

28.7.2010. The amount of Rs.283.80 lakh stood deposited. The disbursement of

Rs.500 lakh took place on 24.10.2008.

4. In the meantime, the complainant received communication dated 8.9.2010 christened as notice under Section 13(2) of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002 from opposite party No.

3. In the meantime, credit facility from State Bank of Indore which stands mortgaged into State Bank of India were obtained and second charge of the same property was extended or which the opposite party, bank having the first charge. The

State Bank of India opposite party eluded to be straight about issuing No Objection

Letter for sale of the immovable property. The complainant filed a writ petition before the High Court.

5. The complainant being 80 years old wants to get out of the debts and liability owed by the complainant and other institutions by disposal of the said property. The opposite parties have charged more interest than it was agreed between the parties. The complainant had made payment of Rs.4,16,81,775/- to the opposite party. After the said payment, further payment of Rs.11,03,531/- was also to be made. It also came to the notice of the complainant that the exorbitant charge in the name of pre closure charges being Rs.16,14,361.44 was levied which the opposite party bank made the demand under Section 13(2) of the SARFAESI Act, 2002 intending to seek payment before end of the tenure of the loan i.e. 60 months which was to expire only in September, 2014. It is stated that statement of account filed by the petitioner is not correct. The petitioner sent a notice dated 16.8.2011 through its counsel where it was stated that there was over charge of interest being 41.96 lakh and the bank is under an obligation to refund the said amount alonwith interest @15% per annum from

4.11.2011. The opposite party bank replied that the statement of account was correct. A notice was sent again and similar kind of reply was received. It is contended that the judgment of the Bombay High Court in respect of this case is not applicable.

6. The present compliant was filed with the following prayers.

“(a) award principal amount of Rs.1,77,91,718/- (Rupees One

Crore Seventy Lac Ninety One Thousand Seven Hundred

Eighteen) towards the loss and damages suffered by the complainant on various counts as mentioned herein above.

(b) award interest in favour of the complainant and against the

Respondents the rate of 15% per annum on the aforesaid principal amount of Rs.1,77,91,718/- (Rupees One Crore

Seventy Seven Lac Ninety One Thousand Seven Hundred

Eighteen) from the date of filing of this complaint upto the date of actual and final payments by the Respondents and realization thereof by the complainant.

(c) award a sum of Rs.2.50 lac towards the fees of the Advocate for contesting the present complaint.

(d) award other litigation expenses as may be deemed just and expedient in the facts and circumstances of the present case.

(e) award any other relief/s, as may be deemed just and expedient in the facts and circumstances of the present case so as to give full relief to the complaints.”

7. We have heard learned counsel for the complainant. He has reiterated the above said pleadings. He argued that the house of the petitioner had been mortgaged and this fact brings the complainant in the category of consumer as the question of house will bring the case under the term earning his livelihood by means of self employment.

8. We are unable to clap any significance to these arguments. All his assumptions are all wet. The definition of consumer clearly specifically and unequivocally makes it clear that it does not include a person who avails of such services for any commercial purpose. The facts of the complainant itself speaks for themselves. By no stretch of imagination, it can be held that the above said loan was obtained by the complainant exclusively for the purpose of earning his livelihood by means of self-employment. One even with half an eye can see that this is a commercial transaction/loan simplicitor. The property which has been mortgaged for obtaining the loan for commercial purpose has got no connection with this aspect.

9. This is an indisputable fact that against the petitioner a case is pending under the

SARFAESI Act, 2002.n The law puts a crimp in invoking the jurisdiction of Consumer

Commission.

10. Section 34 of the Secuiritisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 reads as under:-

“ 34. Civil Court not to have jurisdiction.No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any

Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the

Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

11. The civil court mentioned here also includes Tribunals and Commissions dealing with civil matters. There lies a rub and we cannot entertain this complaint.

12. The complaint is therefore, dismissed. It has become necessary to discourage the institution of such like frivolous complaints. These entail too much precious time of

National Commission. We, therefore, impose costs in the sum of Rs.10,000/- to be deposited with the Consumer Welfare Fund established by the Central Government under Section 12(3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the

Central Excise Act, 1944 within three months from today, failing which it will carry interest @9% per annum till its realization. Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act, 1986.

..………………Sd/-…..………

(J.M. MALIK, J.)


……………….…Sd/-…………

(VINAY KUMAR)

MEMBER

Naresh/



(From the order dated 13.06.2012 in Appeal No.450/08 of the Maharashtra State


Bhudargad Taluka Co-Op. Credit Society Ltd., Mumbai. Now known as Ashtabhuja

Nagari Sahakari Path Sanstha Maryadit, Mumbai Through its Chairman

Mr. Shripatrao R. Divekar 212, Mahamadi Building, Dr. Ambedkar Road, Lalbaug,

Mumbai

– 400012 Maharashtra

… Petitioner/OP

Versus

Shri Rajaram Bandu Khedekar Power of Attorney Holder of

Mr. Bandu Khedekar and Prakash Khedeka 108, Parel Sahayadri CHS Ltd., Kasturba

Gandhi Nagar Maharashtra … Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,


For the Petitioner: Mr. D.A. Taur & Mr. Amol V. Deshmukh, Advocates

PRONOUNCED ON 1 st February, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, MEMBER

This revision petition has been filed by the petitioner against the impugned order dated 13.6.2012 passed by the Maharashtra State Consumer

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

No. 450/08

– Rajaram Bandu Khedekar & Anr. Vs. Bhudargad Taluka Co-op. Credit

Society Ltd. by which while allowing appeal of the complainant, partly upheld order of

District Forum and modified it pertaining to rate of interest.

2. Brief facts of the case are that complainant/respondent filed complaint before the

District Forum for refund of fixed deposit amounts kept by OP/petitioner who denied to return money after maturity. OP contested complaint and learned District Forum while allowing complaint directed OP to return amount at Sr. Nos. 1 to 12 with interest at the rate of 6% p.a. and further directed complainant to return excess amount of interest received by him and further directed OP to return Rs.1,00,000/- against Item Nos. 13 &

14 along with 6% p.a. interest. Complainant filed appeal against the order of District

Forum and learned State Commission vide impugned order modified rate of interest and directed OP to refund amount of FDRs at Sr. Nos. 1 to 12 together with interest @ 17% p.a. for first year and 12% p.a. on renewal till realising and further directed to return

Rs.1,00,000/- against FDRs at Sr. Nos. 13 & 14 with interest @ 12% p.a. from

20.7.2006.

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

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in awarding 17% and 12% interest p.a. against the rules as deposits were not renewed by the Board of Directors, hence, petition may be admitted.

5. Perusal of record reveals that complainant deposited amount from 1999 to 2001 with the OP and amount of FDR from Sr.No. 1 to 12 was to be returned after one year and amount of FDR at Sr. Nos. 13 & 14 was to be returned after 5 years. It appears that amount was not returned on the maturity due to financial crunch and FDRs were renewed from time to time by management.

6. Admittedly, deposits were made @ 17% p.a. for the first year. As per F1.13 of the model bye-laws of the Society, after the expiry of period of fixed deposit if the Board of Directors do not accept the deposits for further renewed period, interest was payable at the rate applicable to saving account. Admittedly, Manager of the OP renewed the

FDRs for many years on account of financial crunch and in such circumstances it cannot be believed that deposits were not renewed by Board of Directors. Learned

Counsel for the petitioner could not place any letter issued by Board of Directors to the complainant depicting non-acceptance of deposits and direction to receive money. In such circumstances, only because some action has been taken against the Manager of

the Petitioner, it cannot be inferred that FDRs were renewed in connivance with the

Manager against bye-laws but it appears that FDRs were renewed on account of financial crunch and in such circumstances, complainant was entitled to receive higher rate of interest than the rate of interest applicable to saving account. Learned State

Commission has not committed any error in allowing higher rate of interest. I do not find any infirmity, illegality, material irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

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

..……………Sd/-………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER k


NEW DELHI


(From the order dated 23.08.2012 in Appeal No. A/11/735 of the Maharashtra State


1. Mr. Ashok Laxmanrao Jadhav

2. Mr. Shivaji Laxmanrao Jadhav

3. Mr. Dilip Maruti Jadhav

4. Mr. Shrikant Maruti Jadhav

5. Mr. Vishwanath Maruti Jadhav

6. Mr. Ramesh Maruti Jadhav

7. Mrs. Sunita (alias Vatsala) Shivaji More

8. Mrs. Sunita (alias Susheela) Anant Ghorpade

Petitioners No. 1 to 8 through their Power of Attorney Mr. Babasaheb Pandurang

Patil R/o at Shinganapur, Taluka Karveer, Kolhapur, Maharashtra

9. Mrs. Suneeta Rajendra Patil R/o Flat No. 12, Old More Colony, Near S.T. Stand,

Sambhaji Nagar, Kolhapur, Maharashtra

… Petitioners/OPs

Versus

1. Sh. Sadashiv Yeshwantrao Mohite

R/o at 1413, “B” Ward, Mangalwar Peth, Sanagar

Galli, Kolhapur, Maharashtra

… Respondent/Complainant

BEFORE



For the Petitioners : Mr. S.K. Sharma & Mr. U.B. Wavikar, Advocates

PRONOUNCED ON 1 st February , 2013

O R D E R


This revision petition has been filed by the petitioners against the impugned order dated 23.08.2012 passed by the Maharashtra State Consumer Disputes Redressal

Commission, Mumbai (in short, ‘the State Commission’) in Appeal No. A/11/735 – Mr.

Ashok Laxmanrao Jadhav Vs. Shri Sadashiv Yeshwantrao Mohite by which application for adjournment was rejected.

2. Petitioner moved application before learned State Commission and submitted that copy of Civil Suit, certain documents in the custody of bank, certain documents of

District Forum not on record are to be filed by the appellant, hen ce, 4 weeks’ time may be granted and matter may be adjourned. Learned State Commission vide impugned order observed that application requesting adjournment since not substantiated with any valid ground needs to be dismissed and accordingly application was dismissed.


4. Learned Counsel for the petitioner submitted that petitioner could not produce documents before District Forum, hence, he moved application for placing additional documents before the State Commission as well certain other documents which were filed before the District Forum, but not placed before the State Commission, but learned

State Commission dismissed application without any cogent reason, hence, appeal may be admitted.

5. Perusal of application reveals that petitioner simply sought adjournment of 4 weeks for placing certain documents on record. Learned State Commission has not observed in its order that additional documents or documents filed before District Forum and not placed before State Commission cannot be taken on record. State Commission simply rejected prayer for adjournment on this ground and it appears that State

Commission has not committed any error in rejecting the application for adjournment.

6. As far filing additional evidence, etc., before the State Commission, petitioner is free to move application for this purpose and State Commission will decide such application if filed in accordance with law. Petitioner has filed unnecessary revision against the order denying judgment which deserves to be dismissed with cost.

7. Consequently, revision petition filed by the petitioners is dismissed at admission stage with cost of Rs.2,000/- to be deposited by the petitioners with the Legal Aid

Account of this Commission.

..………………Sd/-……………


MEMBER k


NEW DELHI

FIRST APPEAL NO. 383 OF 2011

(From the order dated 20.4.2011 in CC No.CC/09/18 of the Maharashtra State


Poonam Chambers “B” Commercial Premises Co-op. Society Ltd. Plot No. “G” of

Shivsagar Estate Bearing C.S. No. 1/3 – Worli Division, Mumbai – 400018, Maharashtra

… Appellant/Complainant

Versus

1. M/s. Aluplex India Pvt. Ltd. R-602, (Office Block), TTC, MIDC, Rabale, Navi Mumbai,

Maharashtra

2. Mr. Navin Keswani, Managing Director, M/s. Aluplex India Pvt. Ltd. R-602, (Office

Block), TTC, MIDC, Rabale, Navi Mumbai, Maharashtra

… Respondents/OPs

BEFORE

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

For the Appellant : Mr. Vinay Navare, Advocate

For the Respondents: Mr. Madhurendra Kumar, Advocate

PRONOUNCED ON 1 st February, 2013

O R D E R


This appeal has been filed by the appellant against the impugned order dated 20.4.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai

(in short, ‘the State Commission’) in Complaint No. CC/09/18 – Poonam Chambers “B”

Commercial Premises Cooperative Society Ltd. Vs. M/s. Aluplex India Pvt. Ltd. & Anr. by which complaint was rejected at admission stage.

2. Brief facts of the case are that Complainant/appellant filed complaint for recovery of damages for the work left unfinished by OP/Respondent which was got completed through other agencies by the complainant. Learned State Commission vide impugned order dismissed complaint at admission stage on the ground that contract was terminated by the complainant earlier to filing of complaint, hence, no relationship of consumer and service provider subsisted between the parties and there is no consumer dispute under Consumer Protection Act. It was further observed that complainant may pursue the matter according to law in Civil Court.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the appellant submitted that learned State Commission has committed error in dismissing complaint at admission stage on the ground of termination of working contract because even after termination of contract, complainant was entitled to get relief from Consumer Fora, hence, appeal may be accepted and impugned order be set aside and matter may be remanded to learned State Commission for deciding it on merits. 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 complainant obtained services for commercial purposes, complaint was not maintainable, hence, appeal may be dismissed.

5. As per averments of the complaint, OP was provided work contract and as OP left work without completing it, complainant terminated contract and got it completed from other agencies and filed complaint for recovery of amount due to deficiency of service.

Learned State Commission dismissed complaint at admission stage on the ground that work contract has already been terminated on 23.2.2007, hence, relationship of consumers and service provider not subsisted at the time of filing complaint.

6. Once parties entered into a contract and OP agreed to provide service to the complainant and if OP stopped work, complainant is entitled to file claim on account of deficiency of service even after termination of contract and State Commission has committed error in dismissing complaint at admission stage on the ground of termination of working contract. Merely by termination of working contract it cannot be inferred that there was no relationship of consumer and service provider between the parties. This

can be explained by an example - if first party agrees to sell flat and second party makes the payment but does not get possession and first party terminates agreement even then second party will be entitled to file complaint against the first party under

Consumer Protection Act. In such circumstances, learned State Commission has committed error in dismissing complaint at admission stage.

7. Learned Counsel for the respondent further submitted that as appellant is a commercial premises and supply of material was for commercial purpose for earning profits, complaint was not maintainable. In support of his argument, he has drawn my attention towards name of the appellant which incorporates word ‘Commercial’ in the name.

Merely because word ‘Commercial’ exists in the name of complainant, it cannot be inferred that work contract was given for commercial purposes. Learned Counsel for the appellant has filed bye-laws and in Object Clause, it has nowhere been mentioned that this Society was formed for commercial activities. In such circumstances, prima facie, complaint cannot be dismissed at admission stage on this ground that services were availed for commercial purposes. Respondent may raise objection in written statement before the State Commission and State Commission will decide any such objection after hearing both the parties.

7. Consequently, appeal is accepted and impugned order dated 20.4.2011 is set aside and learned State Commission is directed to proceed with the complaint and decide it on merits after taking written statement, evidence, etc., of the parties.

8. Parties are directed to appear before the State Commission on 4 th April, 2013. A copy of this order be sent to the State Commission.

..………………Sd/-……………


PRESIDING MEMBER k



(Against the order dated 13.02.2006 in Complaint Case No. C-336/94 of the Delhi State

Consumer Disputes Redressal Commission)

1. Saroj Diksha W/o Late Dr. Prashant Kumar Vedalankar

2. Virat Divya Kirti S/o Late Dr. Prashant Kumar Vedalankar

3. Miss Arushi Divya Kirti D/o Late Dr. Prashant Kumar Vedalankar

All residents of 7/2, Roop Nagar Delhi-110007

… Appellants

Versus

1. International Airport Authority of India Through Chairman Gurgaon Road, Airport

Complex New Delhi

2. Air India Limited Through its Chairman and Managing Director

3. Union of India Through its Secretary Ministry of Civil Aviation New Delhi

4. General Insurance Corporation of India Aviation Department

“Suraksha”, 3 rd Floor

170, J. Tata Road Mumbai-400029 Also at L-41, Connaught Circus New Delhi

… Respondents

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

For Appellants : Ms. Aruna Mehta, Advocate with

Mr. Sanjeev Mehta, Advocate

For Respondents : Mr. Natwar Rai, Advocate for

Mr. Digvijay Rai, Advocate for R-1

Mr. Jarnail Singh, Advocate for R-2

NEMO (R-3)

Mr. Shiv Kr. Suri, Advocate for R-4

Pronounced on 1 st February, 2013

ORDER

PER VINEETA RAI, MEMBER

1. This first appeal has been filed by Smt. Saroj Diksha (Appellant No.1), widow of

Late Dr. Prashant Kumar Vedalankar (hereinafter referred to as the Patient) and their children (Appellants No.2 and 3) and 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 dismissed their complaint of deficiency in service against International Airports Authority of India and others (Respondents herein).

2. In her complaint before the State Commission, Appellant No.1 contended that her late husband alongwith a group of about 100 persons was to travel by Air India Flight

No. AI-112 on 01.12.1993 to participate in the Fourth World Hindi Conference at

Mauritius between 2 nd to 4 th of December, 1993. Appellant No.1 accompanied her husband alongwith some relatives to see him off at the Airport. After checking in and near the immigration counter, the Patient fell down on the floor gasping for breath and a doctor arrived after 15 minutes and after examining the Patient administered two injections and also directed for an ambulance and stretcher to take him for further treatment to the All India Institute of Medical Sciences (AIIMS), New Delhi. Appellant

No.1 and some relatives accompanied the Patient in the ambulance alongwith a

Medical Assistant. However, when the attendant in the ambulance wanted to administer oxygen to the Patient, he could not do so because there was no oxygen in the cylinder. The attendant, therefore, tried to give him oral resuscitation, which was not effective. On arrival at the AIIMS, the Patient was examined by doctor and after 15 minutes he was declared dead.

According to Appellant No.1, her husband’s premature death occurred because of the negligence on the part of Respondents, who did not ensure that the required medical facilities are available to the passengers and visitors. Therefore, alleging that the Respondents were jointly and severally liable for the death of the Patient due to their negligence and deficiency in service, Appellants filed a complaint before the State Commission and requested that she be given a compensation of Rs.13,10,000/- with interest @ 18% per annum from the date of filing the complaint as also cost and damages of Rs.50,000/-. It was specifically stated that her husband was drawing a consolidated salary of Rs.10,902/- as also other perquisites, as indicated in the salary certificate placed before the State Commission.

3. The allegations of the Appellants were denied by the Respondents. It was contended that on receipt of information that a passenger had fallen on the ground, the

Medical Officer on duty alongwith a Medical Assistant fully equipped with a first aid kid rushed to the site within 2 to 3 minutes and on examination of the Patient it was noted

that neither his blood pressure nor pulse was recordable. Cardio Pulmonary

Resuscitation, which was already being given to the Patient by co-passengers, was continued by the Medical Officer with the help of a Medical Assistant for about 15 minutes. In between, two life-saving injections were also administered and though the

Patient was clinically dead, on the insistence of the Patient’s relatives, it was decided to shift him to AIIMS. An ambulance was immediately summoned by the Respondent

(Airports Authority of India) and the Patient was taken to AIIMS in the ambulance accompanied by a qualified Medical Assistant. It is not correct that the oxygen cylinder was empty and even in the ambulance all efforts were made through oral resuscitation to revive the Patient. The Patient was declared dead at AIIMS although, as stated earlier, he was clinically dead by the time the Medical Officer had attended to him within minutes of his having fallen down near the immigration counter. In view of the above facts, there was no negligence or deficiency in service on the part of Respondents.

4. The State Commission after hearing the parties and on the basis of evidence produced before it held only Respondent No.1 i.e. International Airport Authority of India deficient in service on administrative grounds and not for any medical negligence and directed that Respondent No.1 should pay Appellant No.1 compensation of Rs.25,000/- for deficiency in service alongwith Rs.10,000/- as litigation cost within two weeks. The relevant part of the order of State Commission is reproduced here.

“29. In our view the IAAI was deficient in service in not maintaining the requisite standard and nature of performance of their duty unto the consumers but at the same time we cannot be oblivious to the fact that OP No.1 had provided available medical aid immediately. The Doctor gave facilities available at the

Airport and though they may be sufficient for attending to minor ailments or minor suffering of the consumers but are not at all commensurate with the medical requirement of consumers like the deceased.

30. High sounding name of OP No.1/IAAI is not upto the mark of services which it should provide. We hope that the Airport Authorities will wake up and come upto the expectations of the consumers and be ready with the medical facilities that are required to attend patients, particularly the patients requiring emergent treatment who may suffer heart attack or some such other disease which may prove fatal with delayed treatment or delayed during the transit from

Airport to the Hospital. OP No.1/IAAI has been enjoined with the duty to provide at the airports such services and facilities as are necessary or desirable for the operation of Air Transport Services Thereat. In discharge of these obligatory functions and duty, the Authority arranges and manages, inter-alia, provisions of all services, facilities and conveniences as may be normally required to meet the reasonable needs of the travelling public including medical need. They are hereby directed to upgrade the medical centre/dispensary immediately in order to cater to the needs of the passengers particularly for treatment of emergency case of heart-attack or a stroke that is likely to prove fatal for want of timely treatment.

31. In the given facts and circumstances of the case we only hold OP No.1 liable for deficiency in service on administrative side, which in terms of Section

2(1)(g) means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

5. Aggrieved by the lesser compensation awarded by the State Commission,

Appellants have filed the present first appeal.

6. Counsel for both parties made oral submissions.

7. Counsel for the Appellants stated that when the Patient first fell on the ground, it took about 15 minutes for the doctor to arrive and after giving Cardio Pulmonary

Resuscitation and two injections, the Patient had in fact revived. Thus, Respondents’ contention that he was already clinically dead is not correct and it was under these circumstances that a decision was taken to shift him to AIIMS by an ambulance. The

Medical Doctor who should have accompanied the Patient did not do so and only an attendant was sent alongwith the relatives. Even in the ambulance, the required oxygen, which is necessary and life-saving in such cases, was not given to the Patient since the oxygen cylinder was empty. Had oxygen been given, the Patient in all likelihood would have survived. Instead admittedly only oral resuscitation was given, which under the circumstances was not adequate in the instant case. Counsel for the

Appellants further contended that for the deficiency in service, the Respondents were solely responsible because it was their contractual obligation having charged fees, rent etc. to ensure that proper amenities were made available to the passengers and visitors at the airport and related areas. Counsel for the Appellants cited a judgment of this

Commission in Geeta Jethani & Ors. V. Airport Authority of India & Ors. rendered in

O.P. No. 81 of 2001 decided on 5 th of August, 2001 in support.

8. Counsel for Respondent No.1 on the other hand contended that the State

Commission erred in holding it guilty of administrative deficiency. It was reiterated that all possible medical and administrative care was taken in the treatment and care of the

Patient, who suffered a fatal heart attack. It was specifically contended that it is not in dispute that the Patient was attended to by a doctor from the Respondent’s organization, who administered life-saving injections and also continued Cardio

Pulmonary Resuscitation with the help of a medical attendant. Since there was only one doctor on duty at that time, it was not possible for him to have accompanied the

Patient to AIIMS and, therefore, a qualified para-medical assistant accompanied him in the ambulance. It was denied that the oxygen cylinder in the ambulance was empty. In fact the Patient was clinically dead but still oral resuscitation measures continued to be given in the ambulance and till such time that the Patient reched AIIMS. Patient was declared dead on arrival despite all efforts having been made promptly to treat him for a very serious ailment. It needs to be appreciated that the airport is not a hospital and, therefore, highly specialized medical services and in ICU to treat very serious cases are

not expected to be made available at the airport. Under the circumstances, the first appeal does not have any merit and may be dismissed.

9. We have considered the submissions of both learned Counsel and have also gone through the evidence on record. The fact that the Patient suffered a serious heart attack near the immigration counter prior to his boarding the Air India flight to Mauritius to attend a conference is not in dispute. It is also a fact that a doctor who was available on duty had attended to the Patient within minutes and after due examination administered two injections and tried to revive him through Cardio Pulmonary

Resuscitation, which is a standard procedure, particularly when Intensive Care Unit

(ICU) facilities are not available. We further note that within minutes an ambulance was arranged to take the Patient to AIIMS where he was examined and within minutes declared dead. This lends credence to the contention of the Respondents that the

Patient was already clinically dead at the airport but was shifted to AIIMS at the insistence of his relatives. Appellants have sought to prove negligence by stating that medical facilities at the airport were not adequate to treat patients suffering from medical incidents whereas the Respondents were contractually bound to do so since fees are charged for making available services to both passengers and visitors at the airport, which would also include specialized medical services at the airport. On a perusal of the evidence, we note that admittedly a doctor had attended to the Patient within minutes and administered him life-saving injections. Airports are not expected to have ICU facilities, which is what is required in cases of serious heart attacks. In the instant case, we note, that the Respondents exercised whatever reasonable care was possible at that time in attending to the Patient and also in arranging an ambulance to immediately take him without delay to a specialized referral facility i.e. AIIMS. The State

Commission being a court of fact has concluded that though there was no medical negligence because the Patient was given immediate medical aid, yet there were some administrative deficiencies since the required medical facilities to treat serious cases were not available at the airport, including the presence of more than one doctor on duty. No doubt, the presence of more than one doctor and somewhat more upgraded facilities beyond First Aid at the medical centres and dispensaries has now become

necessary in view of the increasing use of air travel by a very large number of passengers. The State Commission taking cognizance of the above administrative deficiency on the part of Respondents has awarded an amount of Rs.35,000/- as compensation and costs. We feel that this is adequate keeping in view the circumstances of this case where there was no delay in providing the best possible medical assistance available at that time at the airport.

10. We, therefore, uphold the order of the State Commission and dismiss the present first appeal for enhanced compensation. No costs.

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh

NTAIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1142 OF 2010

Alongwith M. A. for Stay

(From order dated 09.03.2009 in Appeal No. 551 of 2006

of the State Consumer Disputes Redressal Commission, Haryana)

Smt. Pushpa Singhal, W/o Sh. Girdhar Gopal Singhal, Resident of H. No. 1001, Sector-

2, Scheme No. 7, Shanti Mnagar, Meerut, Uttar Pradesh Through G. P. A. Holder Sh.

Bishnu Kumar Son of Late Shri Ram Narayan Resident of House No. 1693, Sector-7-E,

Faridabad.

..…Petitioner

Versus

1. Haryana Urban Development Authority, Sector-6, Panchkula Through its Chief

Administrator

2. Estate Officer, Haryana Urban Development Authority, Sector- 12, Fardiabad

……Respondents

BEFORE:

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

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

For the Petitioner : Mr. Madhurendra Kumar, Advocate

For the Respondents : Mr. R. S. Badhran, Advocate

Pronounced on: 4 th February, 2013

ORDER

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

By way of present petition, petitioner/complainant has challenged order dated

9.3.2009, passed by State Consumer Disputes Redressal Commission, Panchkula

(for short, ‘State Commission’).

2. Petitioner was allotted residential plot no. 331, measuring 350.8 Sq. yards in

Sector-64, HUDA, Faridabad, vide allotment letter dated 8.1.2001. Petitioner surrendered the plot in question to the respondent and got refund after deduction of

10% of the tentative price, vide cheuqe No.587862 dated 28.06.2003, as per respondents/o.p. policy which was accepted by her without any protest. Case of petitioner is that she had surrendered the plot under compelled circumstances because the development works in the area were not completed and for that reason she could not raise construction over the plot. In the complaint filed before the

District Consumer Disputes Redressal Forum, Faridabad (for short, ‘District Forum’) petitioner has prayed that an alternative plot be allotted to her; the deducted 10% amount be adjusted and she be paid 18% per annum interest on the total deposited amount; not to charge interest on the installments amount and delayed interest; not to charge extension fee and to pay Rs.50,000/-on account of mental agony and harassment caused to her and Rs.11,000/- as litigation expenses.

4. Respondent in its written statement justified the refund 10% of the tentative price of the plot as petitioner had surrendered the plot of her sweet will. It is also stated that the development works in the area were in progress and possession was to be delivered very soon. However, petitioner had surrendered the plot in question for some personal reasons and had accepted the refund without any protest. Thus, the complaint merit dismissal.

5. District Forum, while accepting the complaint, vide order dated 16.1.2006, granted the following reliefs ;

“I) The respondent are ordered to allot an alternative plot in some developed sector of Fardabad at the basic price of the sector to the complainant in lieu of Plot No. 331, Sector-64,

Faridabad.

ii) It is further ordered if the area of the alternate plot is found excess then difference of amount be also charged on the basic floating rate of the sector.

iii) The respondents are further ordered to adjust the deducted amount alongwith interest @ 13% p.a. payable w.e.f.its deduction till its adjustment towards the price of the plot now to be allotted as per aforesaid order.

iv) The respondents are also ordered not to charge any kind of interest, penal interest, compound interest, penalty and extension fee up till the period of delivery of the physical possession of the plot now ordered to be allotted.

v) The respondents are also ordered to pay interest on the deposited amount of the complainant w.e.f. its deposit till refund.

vi) The respondents are also ordered to pay Rs.25,000/- on account of mental tension, unnecessary harassment caused to the complainant at the hands of the respondents.

vii) The respondents are also ordered to pay Rs. 5,000/- as litigation charges.

The complainant herself or through her G. P.A. can get comply with the order of the Forum. The respondents are ordered to comply with the order of the

Forum within 30 days after receiving the copy of the present order ”.

6. Aggrieved by the order of District Forum, respondents filed an appeal before the State Commission and the same was allowed by the impugned order.


8. We have heard the learned counsel for the parties and have perused the record.

9. It is contended by learned counsel for the petitioner that respondent had failed to develop the plot in question and that is why it never offered possession of the same to the petitioner. Thus, respondents have violated the terms of letter of allotment. Moreover, petitioner had sought the refund of the deposited amount, under compelling circumstances which had been created solely by the respondents.

10. On the other hand, it is contended by learned counsel for the respondent that since petitioner has withdrawn the amount deposited by her, she cease to be a consumer and as such consumer complaint itself is not maintainable.

11. State Commission in its impugned order has observed ;

“ Admittedly, the plot No. 331 located in Sector-64, HUDA, Faridabad was allotted to the complainant and possession of the same was to be delivered after completion of the development works. However, the complainant vide his letter dated 22.4.2003 submitted to the opposite parties had requested for refund mentioning in the letter that he was not in a position to deposit further installments due to personal reason and cheque No. 587862 dated 28.6.2003 was accepted by him without any protest and after about one year and eight months, the complaint was filed by him. It cannot be ignored that as per Clause 6 of the letter of allotment, the complainant was provided facility that no interest would be charged till the offer of possession on the instalments amount.

Therefore, the clause 6 of the allotment letter falsify the version of the complainant itself.

Taking into account the totality of the facts and circumstances of the case and the rising price of the landed property, we are of the opinion that the complainant wanted to take benefit of higher price of the plot by filing present complaint on false averments in the complaint. Once he voluntarily surrendered the plot and accepted the refund without any protest, then filing of complaint after about one

year and eight months cannot reopen his case. After surrender of the plot, he cannot be said a consumer of the opposite parties.

In view of the foregoing discussion, we feel that the complainant is not entitled for any relief. The District Forum has not considered the factual position on record and as such the impugned order cannot be sustained

”.

12. The letter vide which petitioner surrendered the plot in question reads as under;

“ To

The Estate Officer

HUDA, Faridabad

Sub: Surrender of Plot No.331 in

Sector-64, Fardibad

Sir,

With due respect I am to state that I have been allotted the plot no. 331 in Sector-64, Faridabad. The possession of above said plot has not been offered to me till date. Due to two enhancement and_________ of enhancement in lumpsum, I am not in a position to pay any amount of enhancement/any amount to the above said plot in future being salaried person. It is therefore, request you to kindly refund the amount to me at any early date. Original allotment letter is lost by me and other original receipt of money deposited are enclosed for your further necessary action & early payment.

Thanking you,

Yours sincerely,

Sd/-

(Smt. Pushpa Singhal)

W/o G. G. Singhal

Q.No. 1, Govt. Qtrs.,Type-III,

Dated 22.04.2003 Probyn Road, Delhi- 34

”.

13. As per the surrender letter, petitioner herself has sought refund of the amount, since she was not in a position to pay the enhanced amount.

14. As per Clause 7 & 9 of the Allotment Letter, possession of the site was to be offered on completion of development works in the area and the price mentioned in the allotment letter was only tentative and any enhancement in the cost of land awarded by the competent authority/court under the land Acquisition Act, was to be payable proportionately by the allottees. Thus, the petitioner herself has withdrawn amount deposited by her and has tried to shift blame upon the respondents which cannot be permitted under the law. Admittedly, petitioner had already withdrawn the amount deposited by her and once she had taken the refund amount and as such

on the date of filing of the complaint before the District Forum on 12.4.2005, petitioner was not a ‘Consumer’ as per Section 2 (i) (d) of the Consumer Protection

Act, 1986 (for shor t, ‘Act’). Under these circumstances, State Commission rightly dismissed the complaint of the petitioner. We fully concur with the observations made by the State Commission, that District Forum has ignored the factual position on record and committed a great error in accepting the complaint. Since, order passed by the State Commission is well reasoned, objective, fair, just and legal it needs absolutely no interference in this revision.

15. The present petition is nothing but gross abuse of the process of law and has been filed just to waste the time of this Commission. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for courts to provide easy and speedy justice to the genuine litigants. A strong message is required to be sent to those litigant who are in the habit of challenging the order of the fora below even it the same is based on sound reasoning. No one should be allowed to indulge in false and frivolous litigation. Action of the petitioner has resulted in wasting the time of fora below as well as of this Commission. Under these circumstances, present revision petition is liable to be dismissed with cost. Accordingly, we dismiss this revision petition 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 four weeks from today.

17. In case, petitioner fails to deposit the cost within prescribed period, then she shall be liable to pay interest @ 9% p.a. till its realization.

18. List on 08.03.2013 for compliance.

……………………………….J

(V.B. GUPTA)

( PRESIDING MEMBER)

…………………………J

(K.S. CHAUDHARI)

SSB/

MEMBER


(1) REVISION PETITION NO. 3092 OF 2012

(From order dated 29.02.2011 in Appeal No. 125 & 126 of 2010 of the State Consumer Disputes Redressal Commission, Tamil Nadu)

S. Girija Selvaraj 29/132-C, Nei Mandi Arunachalam Street, Gugai, Salem-636006

…Petitioner

Vs.

The Proprietor, Sri Swarnambigai All India Travel Co, 124/1- Town Railway Station

Road, Salem- 636001

……Respondent


(From order dated 29.02.2011 in Appeal No. 125 & 126 of 2010 of the State Consumer Disputes Redressal Commission, Tamil Nadu)

S.Prabhu Vignesh Kumar (minor) Rep. by his father N/F V. Selvaraj, 29/132-C, Nei

Mandi Arunachalam Street Gugai, Salem-636006

…Petitioner

Vs.

The Proprietor, Sri Swarnambigai All India Travel Co, 124/1- Town Railway Station

Road, Salem- 636001

.

……Respondent

BEFORE:



For the Petitioner : NEMO

Pronounced on: 4 th February, 2013

ORDER


. S.Girija Selvaraj-Petitioner/Complainant (In RP No.3092 of 2012) and S.Prabhu

Vignesh Kumar (minor) represented by his father N/F V. Selvaraj (in RP No. 3093 of

2012) filed Complaint Cases (Nos. 34 and 33 of 2009)respectively, before Consumer

Disputes Redressal Forum, Salem(for short, ‘ District Forum’) alleging deficiency of service on the part of Respondent/O.P.

2. District Forum, vide separate orders dated, 21.12.2009, dismissed the complaints holding, that there is no deficiency in service on the part of the respondent.

3. Aggrieved by the order of District Forum, Petitioner-S.Girija Selvaraj filed

(F.A.No.125 of 2010) and Petitioner- S.Prabhu Vignesh Kumar(minor) filed (F.A.No.126 of 2010) before Tamilnadu State Consumer Disputes Redressal Commission, Chennai

(for short, ‘State Commission’). The State Commission dismissed both appeals with cost of Rs.2,000/- each, invoking Section 26 of the Consumer Protection Act, 1986(for short, ‘Act’) vide impugned order, dated 29.2.2011.

4. Aggrieved by the impugned order, petitioners have filed these petitions.

5. Brief facts are that petitioners alongwith six other tourists joined a tour programme org anized by respondent’s travel company which had issued a Pamphlet with details of tour programme of various places. It is alleged that respondent did not honour its commitment of showing all the places as mentioned in the Pamphlet and had collected Rs.2,500/- in excess and had also given bad food on many occasions contrary to the offer of high class vegetarian food. Thus, there is deficiency on the part of the respondent.

6. In its written version, respondent explained the reasons for collecting extra amount of Rs.2,500/- per tourist. It attributed the increase in detention charges for the special carriage, increase in service charges and also collection of empty haulage charges by the Railway Department. Subsequent hike in bus fares in the course of tour programme also compelled it to collect Rs.2,500/- per head.

Respondent had informed all the tourists three to four months prior to the date of journey by way of printed pamphlets during November 2006. All tourists including petitioners had paid the excess amount much before the date of journey. If petitioners were not willing to pay the extra amount, they would

have opted to take back the amount paid initially. Respondent denied the petitioners’ allegations as false.

7. Petitioners did not appear before this Commission inspite of service. However, they have sent written arguments pleading that these petitions may be decided on merits.

8. We have perused the written arguments as well as record of these cases.

9. District Forum after considering the facts in detail and after due appreciation of the evidence, held;

“ There is no deficiency of service on the part of the opposite party in not showing the Krishna Bhagavan Temple and inside the Agra Fort and

Jandar Mandir and the guide has acted as per the desire of the majority of the tour participants. So, the opposite party need not pay any compensation to the complainant towards deficiency of serviced and the complainant deserves to be dismissed and this point is answered accordingly ”.

10. State Commission, while dismissing the appeals, observed ;

“ The learned counsel for Respondent submitted that the complainant’s husband had already filed a consumer dispute C. C. No.

96/2007 in which the District Forum allowed the complaint. In the said

C.C. the complainant prayed to refund the excess amount of Rs. 2,500/- to each person totally 7 persons.

The District Forum allowed the complaint partly and the appellant/opposite parties preferred an appeal against the order by

F.A.No.500/2008.The State Commission also confirmed the order of the

District Forum. But here the complainant in F.A. No. 125/2010 who is none other than the wife of the complainant suppressed the above suit and the order. The complainant in F.A. No. 126/22010 in C.C. No. 33/209 is a minor represented by his father who had already filed a consumer disputes on behalf of his family. The complainant/father has suppressed all the details in both the cases.

In the result, both the appeals are dismissed with costs of Rs.

2,000/- in eacg, invoking Section 26 of the Consumer Protection Act, confirming the orders of the District Forum, Salem in C.C.34 & 33/2009 dated 21.12.2009

”.

11. It is an admitted fact that Sh.V.Selvaraj, husband of petitioner (in RP No. 3092 of

2012) and father of petitioner (in RP No. 3093 of 2012) had earlier filed a complaint case (No. 96 of 2007) for himself and six others. The complaint of V. Selvaraj was allowed but claim of other six was not considered as that complaint was not filed on representation basis. Present petitioners have concealed the material facts about the

earlier complaint filed on their behalf. State Commission, under these circumstances rightly dismissed their appeals on the ground of suppression of material facts.

12. It is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands and should not conceal the material facts. Hon’ble

Supreme Court in Faquir Chand Gulati Vs. M/s Uppal Agencies P. Ltd. & Anr.

Special Leave Petition (c) No. 18225-18226 of 2011 dated 14.08.2011 observed ;

“ From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be heard on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court in Dalip Singh Vs. State of

U.P.(2010) 2 SCC 114, the first two paragraphs of which are extracted below ;

“ 1.

For many centuries Indian Society cherished two basic values of life i.e. “satya” (truth) and “Ahinsa” (non-violence) Mahavir,

Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences.

However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings.

2.

In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final ”.

13. Since, petitioners concealed the material facts in their complaints, the State

Commission, rightly dismissed their appeals. We find no infirmity or ambiguity in the impugned order. Present petitions under these circumstances are not maintainable and same are dismissed.


……………………………….J

(V.B. GUPTA)


…………………………J


MEMBER

SSB/



(Against the order dated 10.05.2012 in First Appeal No. 1558 of 2007 of the State

Commission, Punjab)

Ashok Kumar Jain S/o Shri Munshi Ram Jain R/o 671-B Surya Enclave, G.T. Road by pass opposite IOC Terminal Jalandhar City- 144009


Versus

Municipal Corporation Jalandhar Through its Commissioner

Respondent

BEFORE




For the Petitioner : Mr. Manuj Aggarwal, Advocate

PRONOUNCED ON: 04.02.2013.

ORDER


In this revision petition the order of Punjab State Consumer Disputes Redressal

Commission in FA NO.1558 of 2007 has been challenged. The State Commission has set aside the award of the District Consumer Disputes Redressal Forum, Jalandhar and held that:-

“The cause of action arose to the respondent on 07.05.2003 itself, when the objections were raised and the site plan was not sanctioned, whereas the present complaint was filed on 28.11.2005 i.e. after more than two and a half years of the cause of action. Mere writing letters/reminders

Ex.C-3 to Ex.C10 does not extend the limitation in any manner. It is settled that once the limitation starts running, then no correspondence, letters, notices can stop it. The District Forum has taken into consideration these letters to calculate the period of limitation and that is not the correct view. Similarly, there was no provision to refund the fee paid for the site plan and the order of the District Forum is not sustainable in the eyes of law.”

2. We have carefully perused the records and heard the counsel of the revision petitioner. The petitioner has challenged the impugned order on the ground that the cause of action in this case would arise only with the communication of rejection of the proposed building plan by the respondent/ Municipal Corporation. The respondent has not at any stage communicated rejection to the petitioner. This contention is in direct conflict with the revision petitioner’s own stand in the complaint petition that the building plan was submitted for approval on 10.4.2003 together with the prescribed fee

Rs.327430/- and in the notice of 7.5.2003, twelve objections were raised by the

Corporation. This notice was received on 21.5.2003 and

—

“That the complainant on the thorough study and discussion with the architect of the complainant, the complainant found that it is not possible to remove the objections by changing the plan of construction/structural change and the complainant on 17-07-2003 vide application dated 16-07-

2003 requested to refund the said MAP Fee of Rs.3,27,430/- as the complainant back off the plan to construct the proposed building. The true

Photostat copy of the said letter dated 16-07-2003 is Annexure C3.”

3. Thus, in a case where the proposed construction plan itself is withdrawn by the

Complainant, there would be no occasion for the respondent Municipal Corporation to either approve or rejected it. We therefore, find this contention of the revision petitioner absurd and reject it.

4. Another ground for challenge to the impugned order is that the amount deposited was for sanction of the plan and the Corporation had merely raised objection instead of sanctioning it. Therefore, it is contented that it had no right to retain the said amount.

This again amounts to a misrepresentation of facts. It is not the case of the revision petitioner that the respondent/Corporation received the plan with the fee and took no further action. Admittedly, the plan was scrutinised and considered. Only thereafter, the twelve objections, mentioned by the petitioner himself in the complaint before the

District Forum, were raised by Municipal Corporation, Jalandhar. It is not the case of the revision petitioner that under the law or rules applicable to the case, the Corporation can retain the charge/fee only if the plan is sanctioned without any modifications.

5. We therefore find ourselves in full agreement with the view taken by the State

Commission in the impugned order. The revision petition is devoid of merit and is dismissed as such. We also hold that it also amounts to wasting the time of this

Commission in a frivolous petition. Section 26 of the Consumer Protection Act, 1986, seeks to discourage and disallow such proceedings. The revision petition is therefore, dismissed with fine of Rs.25,000/-, which shall be paid by the petitioner into the

Consumer Welfare Fund of the Central Government, in terms of the provision of Rule 10

A of the Consumer Protection Rules, 1987, within a period of three months from this order. Delay if any, shall carry interest at 10%.

.……………Sd/-……………

(J. M. MALIK, J.)


……………Sd/-…………….

(VINAY KUMAR)

MEMBER

S./-



(Against the order dated 28.5.2012 in First Appeal No. 4438 of 2010 of the State

Commission, Karnataka)

Mr. Anand Prabhakar Son of Ramachandra Shetty, R/o Archana Nilaya Sheriff Street,

Chickmagalur


Versus

T.N. Ramachandra Shetty Son of Late T.S. Nagappa Shetty, Major, r/o Poojari Nilaya,

Vijaypur, Chickmagalur

.........Respondent

BEFORE




For the Petitioner : Mr. Raja Venkatappa Naik, Advocate


ORDER


Revision petitioner Mr. Anand Prabhakar was the opposite party in Complaint

No.CC. 64 of 2010, filed by Mr. T.N. Ramachandra Shetty before District Consumer

Disputes Redressal Forum Chikamagalur. The complaint was allowed by the District

Forum and the appeal filed by the petitioner was dismissed by Karnataka State

Consumer Disputes Redressal Commission in FA No.4438/2010. Thus, the revision petition is filed against concurrent orders of the District Forum and the State

Commission.

2. The facts as seen from the record are that on 21.12.2001 the Complainant had made a fixed deposit of Rs.1lakh at 18% interest per annum with the Archana Financers and Traders of which the petitioner/OP was the Managing Director. As the deposit was not returned with interest, a legal notice was issued to the OP on 5.1.2010, which failed to elicit any response. In response the OP had contended that he was running the business in the name of Archana Financers and Traders and had closed it in

2004. Under the prevailing rules he was required to keep the account for a period of seven years only. However, the claim of deposit made by the Complainant was denied by the OP. It was also contended that even assuming that the deposit was made, it was barred by limitation.

3. The order of the District Forum mentions fixed deposit receipt produced by the

Complainant, in support of his claim of deposit. It also observed that signature of the OP on the FD receipt was not denied by him before the District Forum. Therefore, nonrefund of the deposit as well as the interest was held to be a deficiency of service.

District Forum also held that having claimed that the business of Archana Financers and

Traders was closed down in the year 2004, the RP/OP had withdrawn security deposit in 2009 from the office of Assistant Registrar of Cooperative Societies,

Chikamagalur. Consequently, the District Forum refused to accept the contention of the

OP that the Complainant should have instituted proceedings against Archana

Financiers and Traders and not against the OP.

4. The order of the District Forum has been confirmed by the State Commission with the following observations:-

“9. We have carefully gone through the reasons assigned by the DF on the point No.1 to 4. Since the appellant M/s Archana Financiers and

Trader’s represented by Managing Director Mr. M.R. Anand Prabhakar who is doing business of lending money and also other business and the respondent being the customer deposited the amount of Rs.1,00,000/- with a fond hope that he would get the higher rate of interest that is as agreed by the appellant. Therefore, the DF rightly held that the respondent is a consumer and the appellant is a service provider.

10. As regards the point of limitation is concerned, the C.P. Act 1986 passed by the Parliament with a hope that the interest of the consumers has to be protected that is in order to curb the exploitation from the service providers and the C.P. Act is a special law overrides the general law of limitation. Since the respondent fails to pay the amount covered under the

FDR with interest, after exhausting the oral requests and demands, respondent got issued the legal notice to the appellant but, it failed to answer the same. Therefore, the respondent got the recurring cause of action to prefer a complaint seeking direction to refund the amount with interest.”

5. We have heard Mr. Raja Venkatappa Naik, Advocate on behalf of the revision petitioner at length and have also perused the records produced on behalf of the petitioner. The main ground of challenge to the impunged order is that the complainant did not come forward to enquire about his deposit and therefore, adverse inference should have been drawn against him. We find no such plea in the Written Statement of the RP/OP before the District Forum. Therefore, it is clearly an attempt to introduce a new plea at the stage of revision which cannot be permitted.

6. The other ground raised by the revision petitioner is that in the absence of proof of deposit and the transaction, liability has wrongly been fixed on the revision petitioner, on the basis of presumptions and conjectures. This argument also can find no leg to stand on. The proof of deposit has been considered by the District forum and referred to in its order.

7. In view of the above, we find no merit in this revision petition. The same is dismissed for want of merit.

.……………Sd/-……………

(J. M. MALIK, J.)


……………Sd/-…………….

(VINAY KUMAR)

MEMBER

S./-



(From the order dated 20.09.12 in Appeal No. 1082/12 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

Harish Kumar S/o Sh. Om Prakash R/o Village and Post Office Sahahpur,

District Ambala (Haryana)

… Petitioners/Complainant

Versus

1. M/s. Premier Ltd. 58, Nariman Bhawan 5 th Floor, Nariman Point, Mumbai through its

Managing Director

2. M/s. All Autos, 126-B, Shop No. 4&5, Staff Road, Ambala Cantt. Through its

Manger/Owner Sh.Rajesh Diwan … Respondents/OP

BEFORE



For the Petitioner : Mr. Ashish Sareen, Advocate

PRONOUNCED ON 4 th February , 2013

O R D E R


This revision petition has been filed by the petitioner against the impugned order dated 20.9.2012 passed by the Haryana State Consumer

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

No. 1082/12 – Harish Kumar Vs. M/s. Premier Ltd. & Anr. by which while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner purchased commercial vehicle No.HR 37-B 9084 from OP-2/Respondent 2 for a sum of Rs.3,75,000/-

. Complainant alleged that OP-1/Respondent-1 is the manufacturer of vehicle and further alleged that immediately after purchase of vehicle, it started giving problems.

Vehicle was taken to OP-2 to do the needful and vehicle was kept in its possession of

OP-2 from 11.4.2007 to 3.7.2007, but vehicle could not be repaired as OP-2 closed the agency, hence, complainant filed complaint alleging deficiency. OPs contested complaint and submitted that warranty of the vehicle was only for one year and there was no manufacturing defect in the vehicle and complaint is time barred, hence, complaint be dismissed. Learned District Forum after hearing both the parties dismissed complaint on the ground that complaint was time barred as well as complainant failed to prove manufacturing defects in the vehicle. On appeal, learned

State Commission also upheld the order against which this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that as defects are still continuing, cause of action continues and learned State Commission and District Forum has committed error in dismissing complaint on the ground of limitation and further submitted that as defects were not removed, petition be admitted.

5. It is admitted case of the complainant that he left the vehicle with OP-2 on

11.4.2007 for removal of defects and vehicle remained with OP-2 for a period of 3 months meaning thereby defects came to the knowledge of complainant on 11.4.2007 but complaint was filed on 28.5.2009 meaning thereby after 2 years whereas complaint had to be filed within a period of 2 years u/s 24-A of Consumer Protection Act and learned Counsel for the petitioner could not satisfy how complaint is still within limitation.

6. As far manufacturing defects are concerned, learned District Forum rightly observed that complainant failed to prove any manufacturing defect in the vehicle.

7. Learned State Commission observed in its impugned order as under:

“ 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 in the instant case, it is not disputed by the appellant that defect in his vehicle was brought to the notice of the opposite

parties on 11.4.2007, which could not be rectified by them. Despite this fact, he had instituted the present complaint before the District

Forum on 28.5.2009, on which date his complaint was hit by

Section 24A of the Consumer Protection Act, 1986 wherein limitation period for filing the appeal has been prescribed only two years. As far as the alleged manufacturing defect is concerned, appellant/complainant has miserably failed to prove the same by leading some cogent and convincing evidence in the shape of some expert or automobile engineer. In this view of the matter, we do not find any illegality or ambiguity in the impugned order which does not call for any interference in this appeal”.

8. I do not find any illegality, material irregularity or infirmity in the impugned order passed by learned State Commission and in such circumstances, revision petition is liable to be dismissed.


..……………Sd/-………………


MEMBER k



(From the order dated 19.07.2012 in Appeal No. 2139 of 2008 of the Haryana State

Consumer Disputes Redressal Commission, Panchkula)

Joginder S/o Shri Rajbir Singh R/o Village Loharwala Tehsil Charkhi Dadri Distt.

Bhiwani (Haryana)

… Petitioners/Complainant

Versus

State Bank of India Village Matanhail, Tehsil and Distt. Jhajjr (Haryana)

… Respondent/OP

BEFORE



For the Petitioners : In person


O R D E R


This revision petition has been filed by the petitioner against the impugned order dated 19.7.2012 passed by the Haryana State Consumer


No. 2139/08 – SBI Vs. Joginder by which appeal filed by the OP/respondent was partly allowed and order granting compensation of Rs. 10,000/- by District Forum while allowing complaint was set aside.

2. Brief facts of the case are that Com plainant’s father Shri Rajbir Singh was holding

Current A/c. No. 01050065027 in the OP Bank. Rajbir Singh died on 13.7.2007 and his wife Smt. Santosh requested OP Bank to transfer current account amount in the name of Malik Ram, elder brother of deceased. As respondent did not transfer funds of the current account, complainant alleging deficiency of service filed complaint. OP-

Respondent filed written statement and submitted that for transferring account of deceased, affidavits of all the legal heirs of the deceased were required and as necessary formalities were not completed, account of deceased Rajbir Singh was not transferred. After hearing both the parties, learned District Forum while allowing complaint directed OP to transfer the current account amount of Rajbir Singh into the account of Malik Ram and further directed to pay Rs.10,000/- as compensation. On appeal filed by the OP, learned State Commission vide impugned order modified the order of District Forum and order granting compensation was set aside against which this revision petition has been filed.

3. Heard the petitioner in person and perused record.

4. Petitioner submitted that on account of deficiency learned District Forum rightly awarded Rs.10,000/- as compensation and learned State Commission has committed error in setting aside order of District Forum granting compensation, hence, petition may be admitted.

5. Perusal of records reveals that OP was always willing to transfer deceased’s current account amount in the name of Malik Ram subject to completing all the formalities but as all the formalities were not completed, Bank did not transfer current account amount of deceased in the name of Malik Ram and in such circumstances, learned State Commission has rightly set aside order of granting compensation. Learned State Commission while accepting appeal partly, observed as under:

“From the record it is established that the current account of the deceased Rajbir Singh could not be transferred in the name of

Malik Ram for want of affidavits of the legal heirs of deceased Rajbir Singh in favour of Malik Ram. Since, the

complainant has complied with the requirement of the Bank, District

Consumer Forum has issued direction to the Bank-OP to transfer the current account amount standing in the name of deceased Rajbir Singh into the account of Malik Ram. However, at the same time we feel that the grievance of the complainant has already been redressed by the District Forum and therefore granting of compensation of Rs.10,000/- is unnecessarily on the

Bank. Bank was always willing to transfer the current account subject to completing the formalities of submitting affidavits by the legal heirs of the deceased. But the District Forum has burdened the Bank with a compensation of Rs.10,000/- which was not warranted under the facts and circumstances of the case and therefore, to this extent the impugned order is set aside with respect to granting of compensation”.

6. I do not find any infirmity, illegality, material irregularity in the impugned order and

State Commission has rightly set aside order of granting Rs.10,000/- as compensation and this revision petition is liable to be dismissed at admission stage.


..………………Sd/-……………


MEMBER k



(Against the order dated 29.03.2012 in First Appeal No.1348 of 2008 of the

Punjab State Consumer Disputes Redressal Commission)

The New India Assurance Co. Ltd. Regional Office, SCO 36- 37, Sector 17-A,

Chandigarh, Through its authorized and Constituted attorney, Manager, The New India

Assurance Co. Ltd. Regional Office No.1, Level-V, Tower-II, 124,

Jeewan Bharati Building, Connaught Place New Delhi- 110001


Versus

Jugraj Singh since Deceased by LRS

1. Sukhjit Kaur widow of Jugraj Singh S/o Gurdev Singh

2. Harpreet Singh S/o Jugraj Singh, S/o Gurdev Singh,

3. Harcharan Singh S/o Jugraj Singh S/o Gurdev Singh

All Residents of Village Korewala, Tehsil and District Moga

.........Respondents

BEFORE




For the Petitioner : Mr. A.K. Raina, Advocate


ORDER


M/s. New India Assurance Co. Ltd. has filed this revision petition against the order of Punjab State Consumer Disputes Redressal Commission in First Appeal

No.1348 of 2008. The revision petition has been filed with delay of 90 days. The application filed in explanation of this delay shows that the impugned order of the State

Government, which dismissed the appeal of the RP/OP New India Assurance Co, was made on 29.03.2012. The application seeking itscondonation states:-

“8. That accordingly a review petition was filed by the petitioner before the State Commission which was numbered as the

Revision petition No.58/2012.

9. That the State Commission after hearing the parties dismissed the revision petition vide its order dated 17.09.2012, holding therein that the State Commission has no power to Review its orders.

10. That petitioner feels aggrieved by the order dated

29.3.2012, passed by the State Commission in the First appeal

No.1348 of 2008, and also against the order dated 17.09.2012, passed in the review petition No.58/2012, and challenged by way of the Revision Petition before this Commission.”

2. The only explanation, for seeking the remedy of review before the State

Commission, offered by the petitioner is that it was a bona fide prayer and not a wilful or deliberate one. The law on the subject is well established. Under the scheme of the

Act, the power to review its own orders is specifically given to the National Commission under Section 22. Similarly, the power to set aside its own orders, made ex parte is given under Section 22-A. But, the Act does not make any corresponding provision in relation to the State Commission or the District Forum. Therefore, it becomes a case of seeking a remedy which did not lie. It would not make a difference whether the remedy was sough bona fide or otherwise.

3. In a similar case, on the question of power to recall an ex parte order, the matter came up for detail consideration of

Hon’ble Supreme

Court of India in Rajeev Hiterndra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr, IV (2011)

CPJ 35 (SC). It was held —

“36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The

District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of

Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intension and interpreted the law accordingly.”

Therefore, the revision petition is liable to be dismissed on the ground of limitation alone.

4. On merits, the complaint related to non-settlement of an insurance claim of a vehicle which was allegedly stolen. The District Forum had allowed the complaint with the following direction:-

“The OPs- Insurance Company is directed to issue the cheque of the claimed amount i.e. Rs.474000/- in favour of the complainantalongwith interest @ 9% per annum from the date, they issued the cheque in favour of Kotak Mahindra Bank Ltd till its payment and they shall also pay Rs.5000/- as compensation for mental tension, harassment and cost of litigation to the complainant within one month from the date of receipt of copy of this order.”

5. Appeal against the above order, was dismissed by the State Commission in the impugned order. It confirmed the award of the District Forum and also awarded special cost of Rs.50,000, in favour of the Complainant. While doing so, the State Commission also ordered —

“That the entire amount of compensation be recovered from the official/officials of the appellant Company, who had deliberately paid Rs.4,74,000/- to Kotak Mahindra Bank Ltd. with malafide intention and just to harass the respondent.”

6. A perusal of the revision petition shows that it is this direction which is the main ground of challenge to the impugned order. It is alleged that:-

“The State Commission without giving an opportunity to the officials of the petitioner insurance company ought not to have made such observations in its order. The observations made by the State

Commission are contrary to the principles of natural Justice and such observations in the order passed against the officials of the petitioner insurance Company are unjustified, illegal and uncalled for as such same may be expunged and set aside under the orders of this Hon’ble Commission.”

7. We find this to be a very strange contention, unsupported by the material on record. The order of the State Commission clearly shows that the case of the appellant (revision petitioner in the present proceedings) was argued by Shri Parminder Singh, Advocate. The impugned order was passed after the

State Commission had perused the records of the District Forum and heard the arguments advanced on behalf of the two parties. It is thus clear that the revision petitioner had full opportunity to advance its case before the State

Commission. Therefore, the contention that the insurance officials were not given an opportunity cannot be accepted.

8. The revision petition also raises a fresh ground in justification of payment of the claim to the Kotak Mahindra Bank Ltd. instead of the Complainant. It is contended that the claim of the Complainant/respondent was based on “fraud”. This clearly goes against the pleadings of the petitioner before the District Forum. The ground of “fraud”

was not pleaded before the District Forum, as seen from the written response filed on behalf of the New Assurance Co. Ltd. We therefore cannot allow the petitioner to raise a fresh plea at the stage of revision.

9. In the final analysis, we do not find any ground to interfere with the impugned order. Consequently, the revision petition is dismissed on the grounds of limitation as well as merit. No orders as to costs.

.……………Sd/-……………

(J. M. MALIK, J.)


…………Sd/-……………….

(VINAY KUMAR)

MEMBER s./-



(Against the order dated 12.06.2012 in First Appeal

No.644 of 2010 of the A.P. State Consumer Disputes Redressal Commission)

The Apollo Emergency Hospital Near Old MLA Quarters, Hyderabad, Rep. by its Chief

Executive Officer


Versus

1. Dr. Bommakanti Sai Krishna S/o Jagannadharao Occ: Doctor, Sai Orthopedic And

Maternity Hospital Palakole, West Godavari District Andhra Pradesh

2. United India Insurance Company Rep. by its manager, H. No. 2-4-1/4, M.G.

Road, Secunderabad Andhra Pradesh

.......Respondents



No.862 of 2011 of the A.P. State Consumer Disputes Redressal Commission)

The Apollo Emergency Hospital Near Old MLA Quarters, Hyderabad, Rep. by its Chief

Executive Officer


Versus

1. Dr. Bommakanti Sai Krishna S/o Jagannadharao Occ: Doctor, Sai Orthopedic And

Maternity Hospital Palakole, West Godavari District Andhra Pradesh

2. United India Insurance Company Rep. by its manager, H. No. 2-4-1/4, M.G.

Road, Secunderabad Andhra Pradesh

.......Respondents

BEFORE




For the Petitioner : Mrs. K. Radha Rao, Advocate


ORDER


The Apollo Emergency Hospital, Hyderabad has filed two identical revision petitions No.3698 and 3699 of 2012. Both are against FA Nos.644 of 2010 and 862 of

2011 decided by the AP State Consumer Disputes Redressal Commission, decided in a common impugned order.

2. The matter arose out of a consumer complaint filed by Dr.Bommakanti Sai Krishna

(hereinafter referred to as Dr. BSK) alleging negligence in his treatment at OP hospital. The Complainant had fractured his hip which was fixed at OP hospital by the concerned doctors with screws. On 12.1.2004 he came to the hospital for removal of his screws for which an operation was performed under the supervision of an anaesthetist. It is alleged that he was not properly attended to by the duty doctors and nurses. Therefore, his condition worsened and on 14.1.2004 he was shifted to the ICU in critical condition. The Complainant allegedly, suffered septicaemic shock and multiple organ failure, due to negligence of the doctors at OP hospital. On 16.1.2004, he was shifted by the OP to Apollo Hospital Jubilee Hill where he remained under very expensive treatment till his discharge on 15.2.2004. Considering the high expenditure on his treatment, loss of medical practice of himself (an orthopaedic surgeon) and his wife (a practising Gynaecologist) and the suffering undergone by him, total compensation of Rs.15.25 lakhs was claimed.

3. The District Forum held that it was a clear case of deficiency of service and negligence on the part of the OP and its doctors, which were the cause for the infection, bed sores and resultant discomfort and suffering undergone by the Complainant. The

District Forum allowed the complaint with compensation of Rs. 5 lakhs and cost of

Rs.10,000/-. The award of the District Forum was challenged by both parties in two appeals, as already noted.

4. The appeal of the OP was dismissed and in the appeal filed by the

Complainant Dr. BSK, the State Commission additionally awarded 9% interest from the date of the complaint observing that:-

“Now coming to the F.A. No.862/2011 filed by the complainant for enhancement of compensation and for awarding of interest on the awarded amount by the District Forum, we do not find any material much less sufficient material for enhancement compensation awarded by the District

Forum holding that it is inadequate. However regarding awarding of interest, the District Forum ought to have granted interest on the awarded amount at least from the date of the complaint. Therefore we are inclined to granted interest at 9% p.a on the awarded amount of Rs.5,00,000/- from the date of the complaint i.e. 21.09.2005.”

5. We have carefully considered the records submitted by the Apollo Emergency

Hospital in the two revision petitions and have heard their counsel, Mrs. K.Radha Rao, at length.

6. The main contention of the revision petitioner is that a very high level of cleanliness and hygiene is maintained in the hospital and the performance is reviewed

every 15 days. The floors, operation theatre and the rooms are cleaned and disinfected every day. Further, there is no evidence showing that the Complainant suffered infection due to unhygienic and improper maintenance of the hospital equipment.

However, we find that simultaneously, the possibility of infection is also admitted in the revision petition in the following words:-

“it is submitted that it is a basic principle that infection can happen due to improper sterilization surgical equipment which does not mean that has been occurred in the case of the respondent in the petitioner’s hospital.(Ground F)...........the medical record suggests that Pseudomonas is also present in the healthy body/patient. Steps can be taken only minimize the infection but not total eradication of it. Every hospital acquired infection does not presuppose the improper and unhygienic maintenance of the hospital. (Ground G)”

7. The fact remains that the infection developed while the complainant/Dr. BSK was at OP hospital for his treatment. The possibility of infection occurring is not denied and is, in fact admitted in the revision petition, though very indirectly. Neither the revision petition nor the counsel point to any evidence placed before the fora below and ignored by them which could have shown that the cause/source of the infection lay not in the treatment in the OP hospital, but elsewhere. Therefore, we reject this contention of the revision petitioner.

8. It is also alleged that there is no direct evidence against hospital to show that the infection was acquired at the hospital. As already observed, the infection occurred during the stay of the Complainant at the hospital. On the other hand, there is nothing to show that the source of infection lay outside the hospital. Thus, there is preponderance of possibilities of the infection having been acquired in the hospital itself.

We therefore, do not accept the contention that it was necessary for the Complainant to produce expert evidence to prove negligence on the part of the concerned doctors in the hospital.

9. In view of the details considered above, we do not find any merit in this revision petition. The same is dismissed for want of merit. No orders as to costs.

.………………Sd/-…………

(J. M. MALIK, J.)


MEMBER s./-

……………Sd/-…………….

(VINAY KUMAR)





1. Usha Rani Gupta W/o Ishwar Chand Gupta

2. Raksh Kumar S/o Late Sh. Ishwar Chand Gupta Both are R/o Kaushik Nagar Jind,

Haryana.

… Petitioners/Complainants

Versus

1. Life Insurance Corporation Branch Office Urban Estate, Jind Thr. Authorized officer,

Manager Legal, LIC of India, Div. office, Sector – 17, Chandigarh

2. Smt. Seema W/o Sh. Rajinder Parshad

District Jhapa Nepal.

C/o Mahavir Stores vill. Birta Mor,

3. Smt. Manisha W/o Sh. Rajesh Kumar R/o Anaj Mandi, Gohana

… Respondents/OPs

BEFORE



For the Petitioners : Mr. Punit Jain, Advocate


O R D E R


This revision petition has been filed by the petitioners against the impugned order dated 30.8.2012 passed by the Haryana State Consumer

Disputes Redressal Commission,Panchkula

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

No. 137 of 2008

– LIC of India & Anr. Vs. Usha Rani Gupta by which while allowing appeal, set aside order of District Forum and dismissed the complaint.

2. Brief facts of the case are that Ishwar Chand Gupta husband of petitioner No. 1, father of Petitioner No.2/Complainant/Respondent No.2 & 3/OP Nos. 2 & 3 obtained life insurance policy on 28.4.1998 for a sum of Rs.50,000/- from OP No.1/Respondent

No.1. Policy lapsed due to non-payment of premium which was revived on 18.6.2003 by making personal statement on that date. Assured died on 5.8.2003 due to heart attack. Complainants being nominee and legal heirs of the deceased submitted claim to

OP No.1 which was repudiated by letter dated 18.12.2003, hence, alleging deficiency in service, filed complaint before the District forum. OP No.1/Respondent resisted claim on the ground of false personal statement made at the time of revival of policy regarding his state of health. Despite the fact that assured was under treatment since 29.1.2001 for IHD CVA Angina, learned District Forum after hearing both the parties allowed complaint and directed OP NO. 1 to make payment along with 10% p.a. interest. OP

No. 1 filed appeal and learned State Commission vide impugned order set aside order of District Forum and dismissed complaint against which this revision petition has been filed.


4. This petition has been filed along with application for condonation of 16 days delay. As there is delay of only 16 days, application for condonation of delay is allowed and delay in filing appeal is condoned.

5. Learned Counsel for the petitioner submitted that previous treatment had no nexus with cause of death and learned State Commission has committed error in allowing appeal and dismissing complaint on the ground of suppression of material fact and false statement, hence, petition may be admitted.

6. Perusal of record reveals that life assured was suffering from IHD CVA Angina for which he had taken treatment from Balaji General and Maternity Hospital, Jind from

29.1.2001 to 8.2.2001. Life assured also remained on earned leave from 14.4.2000 to

10.2.2001 and on medical leave from 11.2.2001 to 29.4.2001 which clearly reveals that

even before hospitalisation, life assured was suffering from disease and even after dis charge from hospital he had to remain on leave for more than 2½ months. At the time of revival of lapsed policy, assured made personal statement regarding his life and made false statement and denied to the fact of treatment for more than a week. When the assured was suffering from the disease for more than a year, it was obligatory on his part to give correct answers at the time of revival of insurance policy and as insured suppressed material facts regarding disease and gave false answers, OP has not committed any deficiency in service in repudiating claim of the complainant. Learned

State Commission after citing many judgments of this Commission has rightly come to the conclusion that revival of the insurance policy is a fresh policy because of fresh declaration and personal statement and on account of giving wrong answers to the questions put to him with respect to his state of health, OP cannot be held liable to pay any insurable benefits to the complainants.

7. Learned Counsel for the petitioner submitted that assured died due to heart attack and cause of death has no nexus with previous treatment of disease. This argument is devoid of force because assured was under obligation to give correct answers pertaining to his health at the time of revival of lapsed policy whether cause of death has any nexus or not with the disease suffered by life assured.

8. Learned State Commission has not committed any error in allowing appeal and dismissing complaint. I do not find any infirmity, illegality, material irregularity, or jurisdictional error in the impugned order and revision petition is liable to be dismissed.


..………………Sd/-……………


MEMBER k





1. Gian Singh S/o Sh. Chhotu Ram R/o Village Nonand, Tehsil & Distt. Rohtak

2. Dhanpati W/o Gian Singh S/o Sh. Chhotu Ram R/o Village Nonand, Teh. & Distt.

Rohtak


Versus

1. Life Insurance Corporation of India, Rohtak Through its Branch Manager,Subhash

Road, OPP. All India Radio, Rohtak

2. Senior Divisona Manager, Karnal Division Office, LIC Jeevan Parkash, 489, Model

Town, P.B. No.106 Karnal

3. Zonal Manager LIC of India, Jeevan Bharti, Connaught Circus, New Delhi

… Respondents/OPs

BEFORE



For the Petitioners : Mr. Yashpal Rangi, Advocate


O R D E R


This revision petition has been filed by the petitioners against the impugned order dated 15.04.2011 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1223/06 – LIC of India & Anr. Vs. Gian Singh & Anr. by which while allowing appeal, set aside order of

District Forum and dismissed the complaint.

2.

Brief facts of the case are that complainant’s son Om Parkash got his life assured with the OPs/respondents for Rs.3,00,000/- vide policy no. 172860509 after submitted proposal form dated 26.9.2001. Life assured OM Parkash died on 10.1.2002 and claim submitted by complainant was repudiated by OP vide letter dated 5.7.2003 on the ground that life assured had not disclosed true and material facts with respect to his state of health while submitting proposal form and making personal statements despite the fact that life assured was addicted to drugs and had become very weak in health and his lungs were totally damaged and he was not insurable. Complainants alleging deficiency, filed complaint before the District Forum and learned District Forum allowed complaint and directed OP/respondent to pay full claim of policy along with interest and litigation expenses. OP filed appeal before learned State Commission and State

Commission vide impugned order allowed appeal and dismissed complaint against which this revision petition was filed.


4. Petitioner has filed this petition along with application for condonation of delay of

288 days and submitted that petitioner had suffered paralytic attack in June, 2010 and remained in hospital for a week and even after discharge was under regular supervision of doctors so could not attend even the State Commission. Now, he has recovered to some extent and on recovery contacted his Counsel in first week of May, 2012 and then filed this revision petition.

5. Learned State Commission passed impugned order on 15.4.2011 and petitioner received it on 19.5.2011 but revision petition has been filed on 30.5.2012 meaning thereby after one year of receipt of order. No reason for condonation of delay of one year from 19.5.2011 to 30.5.2012 has been given in application for condonation of delay. Petitioner has simply stated that in June, 2010 on account of paralytic attack he remained in hospital for a week which fact is not relevant for condonation of delay in filing revision petition. Petitioner also filed medical case sheet of Base Hospital, Delhi

Cantt. according to which on 11.2.2012 prescription was given to him apparently for 3 days. Petitioner has not given any explanation for not filing revision petition from

19.5.2011 to 10.2.2012 and from 17.2.2012 to 29.5.2012 and in such circumstances,

inordinate delay of 288 days cannot be condoned. Learned Counsel for the petitioner placed reliance on (2000) 9 SCC 94

–

State of Bihar and Ors . Vs. Kameshwar

Prasad Singh & Anr.

in which Hon’ble Apex Court condoned delay of 697 days in filing

Special Leave Petition (SLP) as due to fear of contempt and various coercive orders passed by the High Court against the State and its officials SLP, could not be filed in time. This citation does not help to the petitioner because in the instant case petitioner has not given any reason for condonation of delay. As far paralytic attack is concerned, he suffered it in June, 2010 which has no significance pertaining to delay.

6. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed:

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

7. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme

Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

8. Ho n’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries

Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459 as under;

“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort

to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”

9.

Hon’ble Apex Court in (2012) 3 SCC 563 –

Post Master General &

Ors. Vs. Living Media India Ltd. and Anr . has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

10.

Hon’ble Apex Court in 2012 (2) CPC 3 (SC) –

Ansul Aggarwal Vs. New Okhla

Industrial Development Authority observed as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the

Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer

Foras”.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 288 days. Revision petition is liable to be dismissed on the ground of delay alone.

11. As far merits of the case are concerned, learned State Commission rightly dismissed complaint on account of false declaration about his habits and health and observed as under:

“Annexure R-5 issued from Nav Jiwan Drug De-Addiction and

Rehabilitation Centre reflects that the life assured was addicted to drug (Opium) for the last twelve months and he was admitted in the aforesaid institute on 29.12.2001 for taking treatment. It is a matter of common knowledge that the person involved in the habits of drugs, take shelter in an institute, when his habits increases to a high level. The claim Enquiry

Report Annexure R-2 reveals that the Investigator of the

Corporation had collected evidence from the neighbourhood with respect to the habits of addiction of the life assured but this fact was not disclosed by the Life Assured while making his personal statement at the time of submitted the proposal form and gave wrong answers to question No. 11(d) (h) and (i) which are reproduce as under:-

11

(d)

QUESTIONS

Are you suffering from or have you ever suffered from ailments pertaining to liver,

Stomach, Heart, lungs,

Kidney, Brain or

Nervous System?

ANSWERS

No.

11

(h)

11

(i)

Do you use or have you ever used alcoholic drinks, narcotics, or any other drugs?

What has been your usual state of health

No.

Good

From the statement of the life assured reproduced above, it is established that he had concealed true and material facts with respect to his habits as well as the state of health at the time of obtaining the insurance policy. The medical report Annexure R-5 issued from Nav Jiwan Drug De-Addiction and Rehabilitation Centre clearly reflect that the life assured was addicted to opium for the last twelve months. It has been held in catena of judgments that the contract of insurance is based on good faith and it is the life assured who can give the correct information with respect to his health, which in the instant case the life assured Om Parkash had not given and as such we feel that the Corporation had rightly

repudiated complainants’ claim. The District Forum has not appreciated Annexure R-5 i.e. the Medical Report issued from Nav

Jiwan Drug De-Addiction and Rehabilitation Centre, which is duly signed by the Director of the institute and as such the impugned order under challenge in this appeal is not sustainable in the eyes of law.

12. Thus, it becomes clear that even on merits, petitioners are not entitled to any claim and learned State Commission has not committed any error in dismissing complaint. I do not find illegality, material irregularity or jurisdictional error in impugned order and revision petition is liable to be dismissed.

13. Consequently, revision petition filed by the petitioner is dismissed with no order as to cost.

..………………Sd/-……………


MEMBER k




of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur)

Deputy Director Horticulture Department Wardha (Now alias District Superintending

Agriculture Officer) Bajaj Building, Near Income Tax Office, Wardha, Maharashtra

…Petitioner

Versus

Prabhakar Zaparaji Punse R/o Adegaon, Post Gaur, Teh. Deoli, District Wardha,

Maharashtra

……Respondent

BEFORE:


HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Rahul Joshi, Advocate

For the Respondent : Mr. V. T. Bhoskar, Advocate


ORDER


There is challenge to order dated 5.1.2012, passed by Maharashtra State

Consumer Disputes Redr essal Commission, Circuit Bench at Nagpur(for short, ‘State

Commission).

2. Brief facts are that respondent/complainant a farmer, procured 277 orange trees after taking loan under ‘Capital Grant Scheme’ of the Govt. Since the trees did not bear any fruits, respondent lodged his complaint with the petitioner/o.p. Petitioner got the site inspected through Agricultural Scientific Organization which in its inspection report stated that it was necessary to get the land examined before plantation of the orange orchard. Due to loss suffered by respondent, he filed complaint against the petitioner.

3. The complaint was resisted by the petitioner stating that respondent being a farmer, had adequate knowledge as to whether orange plantation would be feasible in his agricultural land or not. Hence, there is no deficiency in service on the part of the petitioner.

4. District Consumer Disputes Redressal Forum, Wardha (for short, ‘District

Forum’) vide order dated 31.08.1999, dismissed the complaint.

5. Aggrieved by the order of District Forum, respondent filed an appeal before the

State Commission which accepted the same, vide its order dated 13.06.2007 and remanded the matter back to the District Forum for fresh trial.

6. District Forum after remand, vide order dated 4.12.2007, partly allowed the complaint and directed petitioner to pay Rs.2,00,000/- as compensation and Rs.10,000/- on account of expenses.

7. Against order dated 4.12.2007 of the District Forum, petitioner filed appeal before the State Commission. Alongwith it, an application seeking condonation of delay of five months was also filed.

8. State Commission, vide impugned order, rejected the application for condonation of delay and consequently dismissed the appeal.


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

11. In the application for condonation of delay it is stated that, after remand, petitioner could not put its appearance as concerned Superintendent Sh. S.V. Thakre did not inform about receipt of the notice of the appeal to the concerned officer. Therefore, petitioner could not file its reply and ex parte order came to be passed. It is further averred that petitioner came to about order dated 4.12.2007 only when respondent’s counsel sent notice dated 1.1.2008. Thereafter, petitioner took steps for filing the appeal. Petitioner has also initiated action against the above Superintendent. In such circumstances, delay has been caused and same should have been condoned by the

State Commission. In support, learned counsel for the petitioner has relied upon a judgment ; “Collector, Land Acquisition, Anantnag Vs. Ms. Katiji and others, AIR

1987 Supreme Court 1353”.

12. On the other hand it has been contended by learned counsel for the respondent, that there is no infirmity or illegality in the impugned order passed by the State

Commission.

13.

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

14. In Ram Lal and Ors.Vs. Rewa Coalfields Ltd., AIR 1962 Supreme

Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant

.”

15. 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 be nevolence.”

16. 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 .”

17.

Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs.

Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation

prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji

(1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7

SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9

SCC 106 ”.

18. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development

Authority, IV (2011) CPJ 63 (SC) has observed ;

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this

Court was to entertain highly belated petitions filed against the orders of the consumer foras

”.

19. 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 ;

“24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under ;

“29. It needs no restatement at our hands that the object for fixing timelimit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly.

Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the

State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the

Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest.

Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no publi c interest.”

The Court further observed;

“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the

Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural 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.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates,

according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

31.

In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs ”.

20. State Commission, in the impugned order observed ;

“ 5 Undisputedly, after remand of the matter, the notice was issued and it was received by the Office Superintendent of the applicant/appellant. Therefore, it cannot be disputed that the appellant neglected to contest the complaint after remand.

Moreover, though the notice, which was sent by the nonapplicant/respondent, communicating the exparte decision, received on 01.10.2008, there was also delay on the part of officials of the appellant to obtain the certified copy for the purpose of preferring the appeal. It is submitted by Mr.Bhusari Ld. Counsel for the appellant/applicant, the Office Superintendent himself purposely suppressed the notice of the complainant and therefore, showcause notice was served on him for taking necessary action. But when the notice was received by the Office Superintendent of the appellant and if he would have purposely suppressed the same, the appellant department can recover the amount of compensation from the Office Superintendent and pay it to the nonapplicant/Respondent. Merely because Office Superintendent suppressed the notice and appellant is being a Government

Department, such inordinate delay cannot be condoned. Therefore, we are declined to condone the delay and pass the following order :-

O R D E R i) Misc. Application for condonation of delay is rejected.

ii) Consequently, the appeal bearing No. A/08/580 is

dismissed ”.

21. It would be interesting to observe that petitioner in the entire application has nowhere mentioned the period of delay nor it has placed on record, notice dated 1.1.2008 purported to have been sent to the petitioner, by counsel for the respondent Mr. V. T. Bhoskar. Moreover, it is nowhere stated as to when the same was received. Even in the entire application it is nowhere mentioned as to when petitioner received the free copy of order of the District Forum. In the application, there is clear cut admission on the part of the petitioner that their own officer was at fault. Thus, decision of Collector, Anantnag(supra) is not at all

applicable to the facts of the present case, as in that case there was delay of only

9 days.

22. It is well settled that latches and negligence cannot command premium and for the fault of the petitioner, respondent being a consumer cannot be made to suffer. The observations made by Hon’ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case.

23. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. No sufficient grounds had been made out for condoning the long delay of five months in filing the appeal before the State Commission. Under these circumstances, the State Commission rightly dismissed the application for codonation of delay. We do not find any ambiguity or infirmity in the impugned order passed by the State Commission. The present revision petition being without any legal basis and having no merit is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only)

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

1987, within four weeks from today. In case, it 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/




of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur)

Deputy Director Horticulture Department Wardha (Now alias District Superintending

Agriculture Officer) Bajaj Building, Near Income Tax Office, Wardha, Maharashtra

…Petitioner

Versus

Prabhakar Zaparaji Punse R/o Adegaon, Post Gaur, Tah. Deoli, District Wardha,

Maharashtra ……Respondent

BEFORE:



For the Petitioner : Mr. Rahul Joshi, Advocate

For the Respondent : Mr. V. T. Bhoskar, Advocate


ORDER


There is challenge to order dated 5.1.2012, passed by Maharashtra State

Consumer Disputes Redressal Commission, Circuit Bench at Nagpur(for short, ‘State

Commission).

2. Brief facts are that respondent/complainant a farmer, procured 277 orange trees after taking loan under ‘Capital Grant Scheme’ of the Govt. Since the trees did not bear any fruits, respondent lodged his complaint with the petitioner/o.p. Petitioner got the site inspected through Agricultural Scientific Organization which in its inspection report stated that it was necessary to get the land examined before plantation of the orange orchard. Due to loss suffered by respondent, he filed complaint against the petitioner.

3. The complaint was resisted by the petitioner stating that respondent being a farmer, had adequate knowledge as to whether orange plantation would be feasible in his agricultural land or not. Hence, there is no deficiency in service on the part of the petitioner.

4. District Consumer Disputes Redressal Forum, Wardha (for short, ‘District

Forum’) vide order dated 31.08.1999, dismissed the complaint.

5. Aggrieved by the order of District Forum, respondent filed an appeal before the

State Commission which accepted the same, vide its order dated 13.06.2007 and remanded the matter back to the District Forum for fresh trial.

6. District Forum after remand, vide order dated 4.12.2007, partly allowed the complaint and directed petitioner to pay Rs.2,00,000/- as compensation and Rs.10,000/- on account of expenses.

7. Against order dated 4.12.2007 of the District Forum, petitioner filed appeal before the State Commission. Alongwith it, an application seeking condonation of delay of five months was also filed.

8. State Commission, vide impugned order, rejected the application for condonation of delay and consequently dismissed the appeal.



11. In the application for condonation of delay it is stated that, after remand, petitioner could not put its appearance as concerned Superintendent Sh. S.V. Thakre did not inform about receipt of the notice of the appeal to the concerned officer. Therefore, petitioner could not file its reply and ex parte order came to be passed. It is further averred that petitioner came to about order dated 4.12.2007 only when respondent’s counsel sent notice dated 1.1.2008. Thereafter, petitioner took steps for filing the appeal. Petitioner has also initiated action against the above Superintendent. In such circumstances, delay has been caused and same should have been condoned by the

State Commission. In support, learned counsel for the petitioner has relied upon a judgment ; “Collector, Land Acquisition, Anantnag Vs. Ms. Katiji and others, AIR

1987 Supreme Court 1353”.

12. On the other hand it has been contended by learned counsel for the respondent, that there is no infirmity or illegality in the impugned order passed by the State

Commission.

13.

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

14. In Ram Lal and Ors.Vs. Rewa Coalfields Ltd., AIR 1962 Supreme


“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

.”

15. 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.”

16. 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 .”

17.



“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation

prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji

(1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7

SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9

SCC 106 ”.

18. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development

Authority, IV (2011) CPJ 63 (SC) has observed ;



”.

19. Recently, Hon’ble Supreme Court in Post Master General and others vs. Living


“24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under ;

“29. It needs no restatement at our hands that the object for fixing timelimit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly.

Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the



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;




29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural 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.



31.


32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs ”.

20. State Commission, in the impugned order observed ;

“ 5 Undisputedly, after remand of the matter, the notice was issued and it was received by the Office Superintendent of the applicant/appellant. Therefore, it cannot be disputed that the appellant neglected to contest the complaint after remand.

Moreover, though the notice, which was sent by the nonapplicant/respondent, communicating the exparte decision, received on 01.10.2008, there was also delay on the part of officials of the appellant to obtain the certified copy for the purpose of preferring the appeal. It is submitted by Mr.Bhusari Ld. Counsel for the appellant/applicant, the Office Superintendent himself purposely suppressed the notice of the complainant and therefore, showcause notice was served on him for taking necessary action. But when the notice was received by the Office Superintendent of the appellant and if he would have purposely suppressed the same, the appellant department can recover the amount of compensation from the Office Superintendent and pay it to the nonapplicant/Respondent. Merely because Office Superintendent suppressed the notice and appellant is being a Government

Department, such inordinate delay cannot be condoned. Therefore, we are declined to condone the delay and pass the following order :-

O R D E R i) Misc. Application for condonation of delay is rejected.

ii) Consequently, the appeal bearing No. A/08/580 is

dismissed ”.

21. It would be interesting to observe that petitioner in the entire application has nowhere mentioned the period of delay nor it has placed on record, notice dated 1.1.2008 purported to have been sent to the petitioner, by counsel for the respondent Mr. V. T. Bhoskar. Moreover, it is nowhere stated as to when the same was received. Even in the entire application it is nowhere mentioned as to when petitioner received the free copy of order of the District Forum. In the application, there is clear cut admission on the part of the petitioner that their own officer was at fault. Thus, decision of Collector, Anantnag(supra) is not at all

applicable to the facts of the present case, as in that case there was delay of only

9 days.

22. It is well settled that latches and negligence cannot command premium and for the fault of the petitioner, respondent being a consumer cannot be made to suffer. The observations made by Hon’ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case.

23. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. No sufficient grounds had been made out for condoning the long delay of five months in filing the appeal before the State Commission. Under these circumstances, the State Commission rightly dismissed the application for codonation of delay. We do not find any ambiguity or infirmity in the impugned order passed by the State Commission. The present revision petition being without any legal basis and having no merit is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only)

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

1987, within four weeks from today. In case, it 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/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI


(From order dated 23.09.2011 in First Appeal No. 647 of 2006 of the

Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)

Akbar Ali S/o Ismall Baig No. 1/3, New No. 5, Kumaraswamy Street, Anna Salai,

Chennai 600002 Tamil Nadu

… Petitioner (s)

Versus

M/s Savitha Estate & Resorts India Pvt. Ltd. Rep. by its Managing Director Mr.

M. Purnachandran, BBC Plaza, 180, North Usman Road, 3 rd Floor, T. Nagar, Chennai-

600017 Tamil Nadu

… Respondent (s)

BEFORE:



For the Petitioner (s) : Mr. P. R. Kovilan, Advocate

Pronounced on : 7 th February, 2013

O R D E R


1.

There is a delay of 230 days in filing this revision petition. The petitioner has explained the delay in filing this revision petition. His main plea is that he was lying sick. Following averments were made in the application for condonation of delay. The petitioner is a chronic diabetic and BP patient. He has stones in his gall bladder and kidney for a long time. These ailments aggravated in the year 2010-11. He is aged about 61 years. Due to this ailment, he suffered frequent fatigue and as a result he could not attend his daily chores. Medical reports have been attached to support his case. Again, he could not contact his counsel due to medical condition. The petitioner changed his address and could not receive the free copy sent by the fora.

2. We have perused the medical report submitted by him. These documents go to show that he is suffering from these ailments for the last 15-20 years. These ailments did not crop up recently. The learned counsel for the petitioner admitted that he was never admitted in any hospital. The petitioner has not explained about his relatives, who could have helped

him in filing the revision petition. Again, he has not mentioned from which address to which address he had shifted. The application is vague and evasive and the learned counsel for the petitioner also denied the knowledge about the same. A person who can go to the hospital, every now and then, cannot be said to be unable to attend the Commission proceedings. This is not a sufficient ground. The advocate who was contesting the case for him at State level could have helped him in filing this revision petition. The Consumer

Protection Act, 1986 is a special Act, which prescribes summary procedure and its own period of limitation. General law of limitation is not applicable to this case. There is inadequate delay and it cannot be condoned. This view stands emboldened by the following authorities.

3. 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 ”.

4. See also the laws laid down in Balwant Singh Vs. Jagdish Singh & Ors ., (Civil

Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010; Bikram Dass Vs.

Financial Commissioner and others AIR 1977 Supreme Court 1221 and in Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361.

5. Now let us turn to the merits of this case. There was an agreement between the parties that the petitioner-complainant, Akbar Ali would purchase a flat from the opposite party-M/s Savitha Estates & Resorts India Pvt. Ltd. The opposite parties sold undivided share of the land to the complainant on 8.5.2000. The possession of the flat was delivered on 16.11.2000. The grievance of the complainant was that there was incomplete work in many areas. It was alleged by the complainant that opposite party had not completed 14 items of work as mentioned in the complaint. The said fact was admitted by the opposite party as per letter dated 16.11.2000 exhibit A4. The opposite parties explained that as per letter exhibit A4, only five items were left to be completed. Those incomplete works were also completed subsequently according to the opposite parties. The flat was ready and the complainant suppressed the fact of due payment of Rs.1,18,500/- to the opposite party as demanded by it. The said amount was to be paid to the CMDA and as per the condition

clause 4(c) in the agreement, it was mentioned that Rs.2,32,080/- were to be retained by the party for the payment to the CMDA towards regularization charges which were to be paid before taking possession of the flat. It is explained that the possession of the flat was given to the complainant on 16.11.2000 as per exhibit A4. The complainant has paid only a sum of Rs.1,13,500/- towards regularization charges by leaving the arrears of Rs.1,18,500/- as per the document Ex. A-4.

6. Consequently, the complainant is liable to pay a sum of Rs.1,18,500/- As a matter of fact, in the year 2004, a suit was filed by the opposite party claiming the arrears of

Rs.1,18,500/-. However, that suit filed by the opposite party was dismissed observing that only after completing the unfinished work of the complainant’s flat, that amount could be claimed. Before us, the petitioner has contended that he has completed all the incomplete work. The complainant has not filed the report of an expert which may go to show that there were defects in the said premises. Moreover, about 12 years have already elapsed. It is also surprising to note that the complainant has not disclosed all these facts in his complaint. Under the circumstances, the orders passed by both the fora below cannot be faulted. Learned counsel for the petitioner also did not pick up a conflict with the construction work. He pointed out that the regularization work is a different aspect but he could not draw our attention that the complainant is to pay money for the same.

The complainant cannot get rid of paying the money in filing this revision petition. The complainant is directed to pay the residuary amount and in case the said premises are not regularized, it will become another ground for invoking the jurisdiction of consumer fora . As per the agreement, he was supposed to pay regularization charges to the opposite party. The cause of action in his favour will arise only if there is a deficiency on the part of the opposite party.

The revision petition is, therefore, dismissed.

.…..…………Sd/-………………



.…..………Sd/-…………………

(VINAY KUMAR)

MEMBER

Naresh/reserved




No. 339 of 2008 of the Punjab State Consumer Disputes Redressal Commission)

1. Worldwide Immigration Consultancy Services Limited (WWICS Ltd.) Head Office at

A-12, Phase VI, Industrial Area, Mohali

2. Worldwide Immigration Consultancy Services Limited (WWICS) Ltd.), 211, Defence

Colony, Jalandhar City, (Punjab), through its authorized representative Sh. Bharat Lal

……….Petitioners

Versus

Gurjinder Singh Jabbal S/o Sh. Tarlochan Singh, R/o H. No. 206, Gali No.9,

Krishan Nagar, Near Adarsh Nagar, Jalandhar City.

.......Respondent

BEFORE




For the Petitioner : Mr. Sunil Goyal, Advocate with

Mr. R.K. Zutshi, Advocate

For the Respondent : Mr. Madhurendra Kumar, Advocate


ORDER


The matter in this revision petition arises from the services of the revision petitioner, Worldwide Immigration Consultancy Services Ltd. (hereinafter referred to as

WWICS), taken by the respondent/Complainant in connection with his application for immigration visa to Canada. On preliminary assessment on 19.12.2000 by WWICS, the

Complainant was considered to be a fit case for visa. Allegedly, Rs.92,600/- was paid to WWICS for necessary fee and services. The application for visa was forwarded on

12.08.2004 to the High Commission of Canada. But, on 7.12.2006 the respondent/Complainant was informed that the application had been rejected. Thereupon, the refund of the amount paid was sought and upon failure of

WWICS, the consumer complaint was filed on 2.4.2007.

2. The District Consumer Disputes Redressal Forum, Jalandhar, allowed the complaint holding that the OP has wrongly assessed the qualification marks of the

Complainant as 72 when it was only 52 in the assessment of the Canadian High

Commission. This was a deficiency of service on the part of OP, which had resulted in rejection of the visa application.

3. The appeal of WWICS was rejected by the Punjab State Consumer

Disputes Redressal Commission in FA No.339 of 2008. Travelling beyond preliminary objections of the appellant as to territorial jurisdiction of District Forum Jalandhar and to alleged delay in filling the complaint, the State Commission noted that:-

“The contention of the learned counsel for the OP/appellant is that the complainant had entered into two contracts one with them and the other with Worldwide Immigration Consultancy Services, Canada Inc. (hereinafter referred to as the WWICS, Canada) on 17.03.2001. It is contended that they have no objection to the direction of the learned District Forum to refund the amount of Rs.25,000/- received by them but so far as the payment of US $700/- is concerned the same was paid to the WWICS,

Canada and the appellants cannot be directed to refund the said amount.”

The State Commission came to a conclusion that the OPs had failed to prove if there was any agreement between the Complainant and the WWICS Canada. Therefore, it upheld the order of the District Forum.

4. We have heard the counsels for the two parties and carefully considered the records submitted. The main ground of challenge to the impugned order is that the

State Commission should have relied upon on the common order of the National

Commission in WWICS Vs. Manohar Singh Randhawa(RP/3334/2010) and WWICS

Vs. Suresh Kumar (RP/3335/2010), pronounced on 8.3.2011.

5. A perusal of this decision shows that the National Commission had set aside the decision of the fora below directing refund of the amount paid to WWICS Canada, on the ground that these amounts were not received by the revision petitioner. However, in a subsequent decision of 25.5.2011 in WWICS

Chandigarh Vs. Devinder Chauhan (RP/4011/2010) the National Commission has held that the identity of the WWIC Canada, as an agency independent of the

OP/revision petitioner, was not established before the State Commission. Therefore, the order of the State Commission was upheld. Again, in WWICS Chandigarh Vs.

Ajay Pal Singh (RP/2558/2012) pronounced on 3.9.2012

a similar view was taken by this Commission.

6. Neither the revision petition nor the counsel for WWICS have been able to point to any specific evidence which was led before the State Commission on the question of hiring of services of two separate agencies namely, WWICS India and WWICS Canada

and which was overlooked. The sole reliance is sought to be placed on the decision of this Commission in Manohar Singh Randhawa case, mentioned above. In the matter now before us, the State Commission has observed that there is nothing to show that the Complainant had intended to enter into a separate agreement with WWICS

Canada. The entire complaint shows that his contact and agreement was with the

OPs/RP. The fees were paid to them. The Commission has also observed that:-

“It is admitted fact that the complainant on 17.03.2001 was in India and signed the agreement Annexure R-1. He never went to Canada on that date nor any representative of WWICS, Canada is proved to have come to

India to sign the agreement with the complainant. The OPs have therefore, failed to prove if there was any agreement between the complainant and

WWICS Canada and this story now being put forward by the OPs cannot be believed.”

We find ourselves in full agreement with the view taken in the impugned order. It is also contended that the complaint was bad for non-joinder of necessary and proper party i.e.

WWICS Canada.

7. Having agreed with the State Commission on non-existence of a separate contract with WWICS Canada, we also hold that the question on non-joinder of necessary party does not arise. We have also noted earlier in this order that before the State

Commission, the OPs/revision petitioner had contended that they have no objection to the direction of the District Forum in relation to the refund of the amount of Rs.25,000/-

. Therefore, we do not consider it necessary to go into the grounds on which the order of refund of this amount of Rs.25,000 is questioned by the revision petitioner. We also do not find any merit in the contention that the complaint was barred by limitation. As already observed, the application for visa was rejected on 7.12.2006 and the consumer complaint was filed on 2.4.2007. Therefore, the question of limitation would not arise at all.

8. For the reasons discussed above, we hold that the revision petition is devoid of any merit. It is consequently dismissed with no order as to costs.

.………………Sd/-…………

(J. M. MALIK, J.)


……………Sd/-…………….

(VINAY KUMAR)

MEMBER s./-



(Against the order dated 18.09.2006 in Complaint Case No.91/2001 of the West Bengal

State Consumer Disputes Redressal Commission)

General Motors India Pvt. Ltd. 401-412, Palm Court 20/4, Sukhrali Chowk Mehrauli-

Guragaon Road Gurgaon-122001 Haryana

… Appellant

Versus

1. G.S. Fertilizers (P) Ltd. Podder Point, “A” Block (First Floor) 113, Park Street,

Kolkata-16

2. India Automobiles (1960) Ltd. 12, Government Place East Kolkata-69

… Respondents




India Automobiles (1960) Ltd. 12, Government Place East Kolkata-69

… Appellant

Versus


Kolkata-16

2. General Motors India Pvt. Ltd.

Global Business Park, Tower “A” 6 th Floor, Global

Business Park Mehrauli-Gurgaon Road Gurgaon-122002 Haryana

… Respondents

BEFORE:



For General Motors : Mr. Sanjay Kumar Singh, Advocate

For G.S. Fertilizers : Mr. Dipak Bhattacharya, Advocate

For India Automobiles : Mr. Murli Manohar, Advocate with

Mr. M.M. Singh, Advocate

Pronounced on 7 th of February, 2013

ORDER


1. Being aggrieved by the order dated 18.09.2006 of the West Bengal State

Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the

State Commission) in S.C. Case No. 91/0/2001, allowing the complaint of M/s G.S.

Fertilizer (P) Ltd., original Complainant before the State Commission and Respondent

No.1 herein, the present cross First Appeals No. 723 of 2006 and 736 of 2006 have been filed by M/s General Motor India (P) Ltd. and India Automobiles (1960) Ltd.,

Opposite Parties No. 1 and 2 respectively and Appellants herein. Since the facts and parties in both cross first appeals are common, we propose to dispose of these appeals by a common order.

FACTS :

2. Respondent-Complainant, M/s G.S. Fertilizer (P) Ltd., had purchased an OPEL

ASTRA Diesel Driven Hard Top Saloon Car for Rs.9,43,280/- on 31.03.1999 for use by its Managing Director from Opposite Party No.1-M/s India Automobiles (1960) Ltd., the authorized dealer of Opposite Party No.2-M/s General Motor India (P) Ltd., the manufacturer of the said vehicle. Soon after taking delivery of the car several problems arose in the car, for which it was sent for repairs on a number of occasions to Opposite

Party No.1’s workshop but these could not be rectified and in fact the complaints became more aggravated. Ultimately, the car had to be left at the garage of Opposite

Party No.1 since 10.09.2001. It was contended that though both Opposite Parties expressed regrets regarding the malfunctioning of the vehicle and apologized for the inconvenience and harassment caused to Respondent-Complainant, the vehicle was never satisfactorily repaired. However, the period of warranty was extended because of

the innumerable defects in the car. It was contended that Opposite Party No.2 i.e. the manufacturer through its agent Opposite Party No.1 had sold a defective car to the

Respondent-Complainant with inherent manufacturing defects which could not be repaired and on which he had to spend over Rs.10 Lakhs and also suffer untold harassment and inconvenience. Respondent-Complainant, therefore, filed a complaint before the State Commission on grounds of deficiency in service and unfair trade practice and requested that Opposite Parties be directed to pay it Rs.5 Lakhs as compensation, apart from refund of the price paid for the car which was Rs.9,43,280/- or in the alternative replace it with a new car of the same quality.

3. Opposite Parties No. 1 and 2 on being served filed written replies denying the allegations made by the Respondent-Complainant. Opposite Party No.1 contended that from the job card dated 26.04.2000, which is filed in evidence, it was clear that the vehicle had travelled over 12000 kms. within a period of one year from the date of purchase, which indicates that there was no manufacturing defect in the car otherwise it could not have made such extensive journeys. The job card dated 04.08.2000 again showed that the car had travelled 15400 kms. but thereafter the Respondent-

Complainant tampered with the mileage indicator, as a result of which it registered only

1324 kms. It was stated that after this tampering Respondent-Complainant sent 6 letters to Opposite Party No.1 regarding various defects. It was also contended that the vehicle had met with 3 accidents within 7 months of its purchase and although the

Respondent-Complainant termed these accidents as minor, in one accident alone the repairing bill was for over Rs.43,000/- as reflected in the job card dated 04.06.1999. The vehicle was thoroughly repaired after these accidents but Respondent-Complainant actually wanted to purchase a new car at a concessional rate and tried to pressurize both Opposite Parties to make this available and when he was not obliged, he continued his allegations regarding noises in the steering, defects in wheel gear, under carriage, doors, dicky and air conditioner etc. making out a case for replacement. Opposite Parties also raised the point of maintainability of the complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the Act) as the vehicle had been purchased by the Respondent-Complainant which is a private limited

company for its Managing Director, which amounts to use for ‘commercial purposes’ and, therefore, under Section 2(1)(d)(ii) of the Act, Respondent-Complainant is not a

‘consumer’.

4. The State Commission after hearing the parties and going through the evidence placed before it allowed the complaint by observing as follows:

“… After hearing both sides and perusal of the documents placed before us we are of considered view that the car had some manufacturing defect almost from the very inception otherwise the O.Ps. would not have attended to the Complaint, so many times. However, the fact that the complainant took about 2 years 3 months time to return the car to the manufacturer/dealer proves that he was not decided as to what action he should take visà-vis the car with the defects. The 2 years and 3 months time is considered rather long which has not been properly explained to the satisfaction of the commission, however, as already been observed the manufacturer, i.e. O.P. No.2 evidently admitted the manufacturing defects of the car which ultimately prompted it to offer a new car at a concessional price with a discount of Rs. 1.5 lakhs which is supported by their letter no. GMT/DEL/CAL/2001.264 dated 15.6.01. Hence, the deficiency of OP nos. 1 and 2 has been proved beyond doubt. In view of the above position and considering that the complainant used the car for 2 years and 3 months we are not in favour of allowing refunding the full price. We, however, consider that an amount equal to 80% of the price of the car will be reasonable amount to refund to the complainant after taking into account this proportionate deduction for depreciation together with interest of 9% p.a. on the amount. It would be probably appropriate to refer to the decision in 2006 CPJ 558 (CP) (NCDRC) Raja Rao vs. Mysore

Auto Agency & Another – wherein the Hon’ble National Commission allowed full refund of the price of the car to the Complainant though the car was used for about 7 months and had run 36,377 kms.”

The State Commission, therefore, directed Opposite Parties No. 1 and 2 to jointly and severally pay Rs.7,17,000/- (i.e. 80% of the price of the car) to the Respondent-

Complainant within a period of 30 days from the date of receipt of that order alongwith interest @ 9% per annum from the date of payment till the amount is paid in full. After expiry of that date the above amount will carry interest @ 12% per annum. Opposite

Parties No.1 and 2 were also directed to pay litigation cost of Rs.3000/-.

5. Aggrieved by this order, both Opposite Parties No. 1 and 2 i.e. the authorized agent (M/s India Automobiles (1960) Ltd.) and the manufacturer (M/s General Motor

India (P) Ltd.) filed two separate appeals.

6. Learned Counsel for both Appellants as also Respondent-Complainant made oral submissions.

7. Learned Counsel for Appellants contended that the State Commission erred in directing them to jointly and severally refund 80% of the cost of the vehicle with interest

@ 9% per annum to the Respondent-Complainant because there was no proof that there was any manufacturing defect in the vehicle. The State Commission merely noted that the vehicle was required to be taken to the workshop on a number of occasions and based on this concluded that there was a manufacturing defect. On the other hand, from the job cards it is clear that the vehicle had been used extensively, which would not have been possible if there had been any manufacturing defect. In fact,

Respondent-Complainant had filed this complaint with an ulterior motive because he wanted a new vehicle at concessional rate. Further, the State Commission failed to take note of the fact that since the vehicle had been purchased by a private limited company i.e. Respondent-Complainant for use of its Managing Director, it was obviously for a ‘commercial purpose’ and not for the purpose of earning livelihood by self-employment. Respondent-Complainant, therefore, did not fall within the purview of the definition of ‘consumer’ under Section 2(1)(d)(ii) of the Consumer Protection Act,

1986 and the complaint was not maintainable.

8. Learned counsel for the Respondent-Complainant denied that there was any ulterior motive in his making the complaint before the State Commission. The job cards showing the number of times that the vehicle needed to be repaired was a clear indication that there were manufacturing defects right from the beginning and it was because of this reason that the warranty period was also extended. Learned counsel for the Respondent-Complainant cited a judgment of this Commission in R. Raja Rao v.

Mysore Auto Agencies & Anr. [2006 CTJ 558 (CP) (NCDRC)] in support of his contention, wherein it had been held that if a consumer of a new motor vehicle is forced to hand it over to the dealer/manufacturer on the ground that it is to be repaired every now and then within a few months of its purchase, it cannot be said that he is to be deprived of refund of the amount paid as purchase consideration. The State

Commission being the first court of fact after carefully considering the evidence before it had rightly concluded that there was manufacturing defect in the car and directed both the Appellants to redress the grievance of the Respondent-Complainant by directing them to refund 80% of the price of the car that the Respondent-Complainant had paid. Refuting the contention of the Appellants regarding maintainability of this case

under the Consumer Protection Act, 1986, Counsel for the Respondent-Complainant pointed out that since the instant case was filed in 1999 and was prior to 2002 when the amendment referred to the Act was made, it would not be relevant in the present case.

9. We have heard learned counsel for both parties and have gone through the evidence on record. We note that in his complaint before the State Commission the

Respondent-Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director. We agree with Appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office. Counsel for the

Respondent-Complainant has sought to challenge this contention by pointing out that since the present case pertains to 1999 and the amendment referred to was made only in 2002, it was not applicable in the instant case. We are unable to agree with this contention as well because the 2002 Amendment to the Act pertains to Section

2(1)(d)(ii) of the Act relating to hiring or availing of services for a consideration and not to Section 2(1)(d)(i) of the Act which relates to purchase of goods. In fact, the interpretation of Section 2(1)(d)(i) of the Act relating inter alia to purchase of goods has been well settled by the Hon’ble Supreme Court as far back as in 1995 in its judgment in Laxmi Engineering Works v. P.S.G. Industrial Institute [1995 (3) SCC 583] , wherein the Hon’ble Apex Court has ruled as follows:

“… On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be

‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large-scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the largescale activity carried on for earning profit.”

10. Since the instant case pertains to the purchase of goods admittedly for

‘commercial purposes’ since the vehicle was purchased by a private limited company for its Managing Director, this case is squarely covered by the above judgment of the

Hon’ble Apex Court. The State Commission erred in not taking note of this important fact while deciding the complaint. Even otherwise, we note that the Respondent-

Complainant has not been able to produce any evidence, including that of an expert to indicate that there was any manufacturing defect in the vehicle. We also note that whenever there was any problem with the vehicle either because of normal wear and tear or following accidents, these were promptly attended to by the Appellants and there was no deficiency in service in this respect.

11. In view of the above facts and respectfully following the judgment of the Hon’ble

Supreme Court in Laxmi Engineering Works (supra) , we are unable to uphold the order of the State Commission and set aside the same. The present first appeals are, therefore, allowed. No cost.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh





General Motors India Pvt. Ltd. 401-412, Palm Court 20/4, Sukhrali Chowk Mehrauli-

Guragaon Road Gurgaon-122001 Haryana

… Appellant

Versus


Kolkata-16

2. India Automobiles (1960) Ltd. 12, Government Place East Kolkata-69

… Respondents




India Automobiles (1960) Ltd. 12, Government Place East Kolkata-69

… Appellant

Versus


Kolkata-16

3. General Motors India Pvt. Ltd. Global Business Park, Tower “A” 6 th Floor, Global

Business Park Mehrauli-Gurgaon Road Gurgaon-122002 Haryana i.

… Respondents

BEFORE:



For General Motors : Mr. Sanjay Kumar Singh, Advocate

For G.S. Fertilizers : Mr. Dipak Bhattacharya, Advocate

For India Automobiles : Mr. Murli Manohar, Advocate with

Mr. M.M. Singh, Advocate

Pronounced on 7 th of February, 2013

ORDER


1. Being aggrieved by the order dated 18.09.2006 of the West Bengal State

Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the

State Commission) in S.C. Case No. 91/0/2001, allowing the complaint of M/s G.S.

Fertilizer (P) Ltd., original Complainant before the State Commission and Respondent

No.1 herein, the present cross First Appeals No. 723 of 2006 and 736 of 2006 have been filed by M/s General Motor India (P) Ltd. and India Automobiles (1960) Ltd.,

Opposite Parties No. 1 and 2 respectively and Appellants herein. Since the facts and parties in both cross first appeals are common, we propose to dispose of these appeals by a common order.

FACTS :

2. Respondent-Complainant, M/s G.S. Fertilizer (P) Ltd., had purchased an OPEL

ASTRA Diesel Driven Hard Top Saloon Car for Rs.9,43,280/- on 31.03.1999 for use by its Managing Director from Opposite Party No.1-M/s India Automobiles (1960) Ltd., the authorized dealer of Opposite Party No.2-M/s General Motor India (P) Ltd., the manufacturer of the said vehicle. Soon after taking delivery of the car several problems arose in the car, for which it was sent for repairs on a number of occasions to Opposite

Party No.1’s workshop but these could not be rectified and in fact the complaints became more aggravated. Ultimately, the car had to be left at the garage of Opposite

Party No.1 since 10.09.2001. It was contended that though both Opposite Parties expressed regrets regarding the malfunctioning of the vehicle and apologized for the inconvenience and harassment caused to Respondent-Complainant, the vehicle was never satisfactorily repaired. However, the period of warranty was extended because of the innumerable defects in the car. It was contended that Opposite Party No.2 i.e. the

manufacturer through its agent Opposite Party No.1 had sold a defective car to the

Respondent-Complainant with inherent manufacturing defects which could not be repaired and on which he had to spend over Rs.10 Lakhs and also suffer untold harassment and inconvenience. Respondent-Complainant, therefore, filed a complaint before the State Commission on grounds of deficiency in service and unfair trade practice and requested that Opposite Parties be directed to pay it Rs.5 Lakhs as compensation, apart from refund of the price paid for the car which was Rs.9,43,280/- or in the alternative replace it with a new car of the same quality.

3. Opposite Parties No. 1 and 2 on being served filed written replies denying the allegations made by the Respondent-Complainant. Opposite Party No.1 contended that from the job card dated 26.04.2000, which is filed in evidence, it was clear that the vehicle had travelled over 12000 kms. within a period of one year from the date of purchase, which indicates that there was no manufacturing defect in the car otherwise it could not have made such extensive journeys. The job card dated 04.08.2000 again showed that the car had travelled 15400 kms. but thereafter the Respondent-

Complainant tampered with the mileage indicator, as a result of which it registered only

1324 kms. It was stated that after this tampering Respondent-Complainant sent 6 letters to Opposite Party No.1 regarding various defects. It was also contended that the vehicle had met with 3 accidents within 7 months of its purchase and although the

Respondent-Complainant termed these accidents as minor, in one accident alone the repairing bill was for over Rs.43,000/- as reflected in the job card dated 04.06.1999. The vehicle was thoroughly repaired after these accidents but Respondent-Complainant actually wanted to purchase a new car at a concessional rate and tried to pressurize both Opposite Parties to make this available and when he was not obliged, he continued his allegations regarding noises in the steering, defects in wheel gear, under carriage, doors, dicky and air conditioner etc. making out a case for replacement. Opposite Parties also raised the point of maintainability of the complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the Act) as the vehicle had been purchased by the Respondent-Complainant which is a private limited company for its Managing

Director, which amounts to use for ‘commercial purposes’

and, therefore, under Section 2(1)(d)(ii) of the Act, Respondent-Complainant is not a

‘consumer’.

4. The State Commission after hearing the parties and going through the evidence placed before it allowed the complaint by observing as follows:

“… After hearing both sides and perusal of the documents placed before us we are of considered view that the car had some manufacturing defect almost from the very inception otherwise the O.Ps. would not have attended to the Complaint, so many times. However, the fact that the complainant took about 2 years 3 months time to return the car to the manufacturer/dealer proves that he was not decided as to what action he should take vis-

à-vis the car with the defects. The 2 years and 3 months time is considered rather long which has not been properly explained to the satisfaction of the commission, however, as already been observed the manufacturer, i.e. O.P. No.2 evidently admitted the manufacturing defects of the car which ultimately prompted it to offer a new car at a concessional price with a discount of Rs. 1.5 lakhs which is supported by their letter no. GMT/DEL/CAL/2001.264 dated 15.6.01. Hence, the deficiency of OP nos. 1 and 2 has been proved beyond doubt. In view of the above position and considering that the complainant used the car for 2 years and 3 months we are not in favour of allowing refunding the full price. We, however, consider that an amount equal to 80% of the price of the car will be reasonable amount to refund to the complainant after taking into account this proportionate deduction for depreciation together with interest of 9% p.a. on the amount. It would be probably appropriate to refer to the decision in 2006 CPJ 558 (CP) (NCDRC) Raja Rao vs. Mysore

Auto Agency & Another – wherein the Hon’ble National Commission allowed full refund of the price of the car to the Complainant though the car was used for about 7 months and had run 36,377 kms.”

The State Commission, therefore, directed Opposite Parties No. 1 and 2 to jointly and severally pay Rs.7,17,000/- (i.e. 80% of the price of the car) to the Respondent-

Complainant within a period of 30 days from the date of receipt of that order alongwith interest @ 9% per annum from the date of payment till the amount is paid in full. After expiry of that date the above amount will carry interest @ 12% per annum. Opposite

Parties No.1 and 2 were also directed to pay litigation cost of Rs.3000/-.

5. Aggrieved by this order, both Opposite Parties No. 1 and 2 i.e. the authorized agent (M/s India Automobiles (1960) Ltd.) and the manufacturer (M/s General Motor

India (P) Ltd.) filed two separate appeals.

6. Learned Counsel for both Appellants as also Respondent-Complainant made oral submissions.

7. Learned Counsel for Appellants contended that the State Commission erred in directing them to jointly and severally refund 80% of the cost of the vehicle with interest

@ 9% per annum to the Respondent-Complainant because there was no proof that

there was any manufacturing defect in the vehicle. The State Commission merely noted that the vehicle was required to be taken to the workshop on a number of occasions and based on this concluded that there was a manufacturing defect. On the other hand, from the job cards it is clear that the vehicle had been used extensively, which would not have been possible if there had been any manufacturing defect. In fact,

Respondent-Complainant had filed this complaint with an ulterior motive because he wanted a new vehicle at concessional rate. Further, the State Commission failed to take note of the fact that since the vehicle had been purchased by a private limited company i.e. Respondent-Complainant for use of its Managing Director, it was obviously for a ‘commercial purpose’ and not for the purpose of earning livelihood by self-employment. Respondent-Complainant, therefore, did not fall within the purview of the definition of ‘consumer’ under Section 2(1)(d)(ii) of the Consumer Protection Act,

1986 and the complaint was not maintainable.

8. Learned counsel for the Respondent-Complainant denied that there was any ulterior motive in his making the complaint before the State Commission. The job cards showing the number of times that the vehicle needed to be repaired was a clear indication that there were manufacturing defects right from the beginning and it was because of this reason that the warranty period was also extended. Learned counsel for the Respondent-Complainant cited a judgment of this Commission in R. Raja Rao v.

Mysore Auto Agencies & Anr. [2006 CTJ 558 (CP) (NCDRC)] in support of his contention, wherein it had been held that if a consumer of a new motor vehicle is forced to hand it over to the dealer/manufacturer on the ground that it is to be repaired every now and then within a few months of its purchase, it cannot be said that he is to be deprived of refund of the amount paid as purchase consideration. The State

Commission being the first court of fact after carefully considering the evidence before it had rightly concluded that there was manufacturing defect in the car and directed both the Appellants to redress the grievance of the Respondent-Complainant by directing them to refund 80% of the price of the car that the Respondent-Complainant had paid. Refuting the contention of the Appellants regarding maintainability of this case under the Consumer Protection Act, 1986, Counsel for the Respondent-Complainant

pointed out that since the instant case was filed in 1999 and was prior to 2002 when the amendment referred to the Act was made, it would not be relevant in the present case.

9. We have heard learned counsel for both parties and have gone through the evidence on record. We note that in his complaint before the State Commission the

Respondent-Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director.

We agree with Appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office. Counsel for the

Respondent-Complainant has sought to challenge this contention by pointing out that since the present case pertains to 1999 and the amendment referred to was made only in 2002, it was not applicable in the instant case. We are unable to agree with this contention as well because the 2002 Amendment to the Act pertains to Section

2(1)(d)(ii) of the Act relating to hiring or availing of services for a consideration and not to Section 2(1)(d)(i) of the Act which relates to purchase of goods. In fact, the interpretation of Section 2(1)(d)(i) of the Act relating inter alia to purchase of goods has been well settled by the Hon’ble Supreme Court as far back as in 1995 in its judgment in Laxmi Engineering Works v. P.S.G. Industrial Institute [1995 (3) SCC 583] , wherein the Hon’ble Apex Court has ruled as follows:

“… On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be

‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large-scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the largescale activity carried on for earning profit.”

10. Since the instant case pertains to the purchase of goods admittedly for

‘commercial purposes’ since the vehicle was purchased by a private limited company

for its Managing Director, this case is squarely covered by the above judgment of the

Hon’ble Apex Court. The State Commission erred in not taking note of this important fact while deciding the complaint. Even otherwise, we note that the Respondent-

Complainant has not been able to produce any evidence, including that of an expert to indicate that there was any manufacturing defect in the vehicle. We also note that whenever there was any problem with the vehicle either because of normal wear and tear or following accidents, these were promptly attended to by the Appellants and there was no deficiency in service in this respect.

11. In view of the above facts an d respectfully following the judgment of the Hon’ble

Supreme Court in Laxmi Engineering Works (supra) , we are unable to uphold the order of the State Commission and set aside the same. The present first appeals are, therefore, allowed. No cost.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



With

IA/2/2012 and IA/3/2012

(From the order dated 29.08.2011 in Appeal No.133/2009 of the Tamil Nadu State

Consumer Disputes Redressal Commission, Chennai Bench-II)

Mrs. Jessie Rajamaanickam W/o A. Rajamanickam, Door No.30-B, Float No.G-2,

Ragul Foundations, Banajai Koil Street, Choolaimedu, Chennai

– 600 094 (Tamil Nadu)

… Petitioner/Complainant

Versus

1. D. Govindasamy S/o T.V. Durai Kannu, Residing at : No. 10, Athreyapuram Main

Road, Choolaimedu, Chennai – 600094 (Tamil Nadu)

2. D. Pandurangan S/o T.V. Durai Kannu, Residing at : No. 10, Athreyapuram Main

Road, Choolaimedu, Chennai – 600094 (Tamil Nadu)

… Respondents/OPs

BEFORE


HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Jayanth Muth Raj, Advocate

For the Resp. No.1: Mr. D. Pandurangan, Auth. Rep.

For the Resp. No.2 : In person

PRONOUNCED ON 8 th February, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the petitioner against the order dated

29.8.2011 passed by the Tamil Nadu State Consumer Disputes Redressal Commission,

Chennai (in short, ‘the State Commission’) in Appeal No. 133/09 –

D. Govindasamy & Anr. Vs. Mrs. Jessie Rajamanickam by which while allowing appeal, set aside order of District Forum allowing complaint and dismissed complaint.

2. Brief facts of the case are that petitioner/complainant entered into an agreement with the OP/Respondent Nos. 1 & 2 for purchase of a flat and as per agreement, petitioner was required to pay Rs.5,25,000/- which she paid and took possession of flat on 1.11.2002. After occupying flat, petitioner noticed many defects in the construction and omissions and requested OPs to rectify the defects but as defects were not removed, petitioner filed complaint alleging deficiency and claimed compensation. OPs/Respondents contested complaint and submitted that as per request of complainant, additional work was done and OPs were to receive Rs.

6,14,220/- whereas complainant had paid only Rs.5,95,500/- and balance amount of

Rs.18,720/- is still due from the complainant and further denied any defect in the construction. Learned District Forum after hearing both the parties allowed complaint and directed OPs to pay compensation of Rs.1,00,000/- and Rs.5,000/- as litigation charges. OPs filed appeal before the State Commission and learned State Commission vide impugned order allowed appeal and dismissed complaint against which this revision petition has been filed.

3. Heard learned Counsel for the petitioner, Authorized Representative for

Respondent No.1 and Respondent No. 2 in person at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that in spite of defects in construction as per Engineer’s report and non-installation of lift, learned State

Commission has committed error in dismissing complaint; hence, petition may be allowed and impugned order be set aside. On the other hand, respondents submitted that order passed by learned District Forum is in accordance with law, as there were no defects in construction and petitioner’s flat being on ground floor, he was not concerned with lift.

5. Petitioner submitted that as per Agreement for Sale, OP was under an obligation to install lift and as per para 10 of the Agreement, OP has also collected maintenance

charges of lift and other common facilities. It appears that lift was to be installed by OP but OP submitted that as permission was not granted by the local authorities for construction of ground+2/3 floors, lift was not installed and whenever permission is granted and construction is raised, OP will provide lift. As petitioner’s flat is on the ground floor, he is not c oncerned with the lift and as per Engineer’s report he is not entitled to get compensation of Rs.60,000/- on account of non-installation of lift. Petitioner has not filed any document on account of which it can be inferred that maintenance charges of lift have been collected by OP from the petitioner/complainant.

6.

As per Engineer’s report, complainant claimed Rs.2,000/- for telephone and TV point and Rs.2,960/- for raising height of compound wall and Rs.8,554/- for completion certificate. In th e light of Advocate Commissioner’s report dated 23.6.2008 which has been prepared after 4 years of Engineer’s report, as per directions of District Forum in the presence of both the parties, complainant is not entitled to get any compensation for providing telephone and TV point and for raising compound wall because as per

Advocate’s report, telephone cable box and connections are provided inside the petitioner’s flat and average height of the compound wall need not be raised because it is 3’9” inside the premises and 5’6” high outside the premises. As far completion certificate is concerned, learned State Commission has observed in its order that complainant has already obtained completion certificate Ex.B-4 dated 15.11.2002 issued to the complainant by the Panel Engineer of Indian Bank from whom complainant has availed housing loan. Thus, complainant is not entitled to Rs.8,554/- claimed for obtaining completion certificate.

7. As per Commissioner’s report, cracks were seen in eastern wall of kitchen and southern wall of master bed room and in such circumstances, complainant is entitled to get Rs.5,000/- for rectifying cracks, Rs.3,819/- for colour washing the walls after rectification of cracks and Rs.16,667/- for weather proofing course as shown in

Engineer’s report dated 16.4.2002. Thus, complainant is entitled to get a sum of Rs.

25486/- from the OP/respondent.

8. Learned State Commission has committed error in dismissing complaint on the ground that there were no defects in the construction and revision petition is to be allowed partly to the extent of compensation of Rs. 25486/-.

9. Consequently, revision petition filed by the petitioner is partly allowed and impugned order dated 29.8.2011 passed by learned State Commission is set aside and order of District forum dated 20.10.2008 is also modified and it is ordered that petitioner/complainant will be entitled to get a sum of Rs. 25486/- from OP/respondents along with Rs.5,000/- as litigation charges.

..………………Sd/-……………



..…………Sd/-…………………

( B.C. GUPTA )

MEMBER k


NEW DELHI


With

IA/59/2013

IA/60/2013

IA/61/2013

(From the order dated 27.01.2012 in Appeal No.1947/07 of the Haryana State


1. Haryana Urban Development Authority Through its Chief Administrator Sector 6,

Panchkula Haryana.

2. Estate Officer, Haryana Urban Development Authority Sector 13-17, HUDA, Panipat.

Haryana.


Versus

Sukhbir Singh Malik S/o Shri Jai Singh Malik, R/o Village Ugra Kheri, Tehsil and District

Panipat Haryana

… Respondent

BEFORE



For the Petitioners : Ms. Anubha Agrawal, Advocate


O R D E R



27.1.2012 passed by the Haryana State Consumer Disputes Redressal Commission,

Panchkula (in short, ‘the State Commission’) in Appeal No. 1947 of 2007 – HUDA &

Anr. Vs. Sukhbir Singh Malik by which appeal filed by the petitioner was dismissed and order passed by District Forum allowing complaint was upheld.

2. Brief facts of the case are that land of the complainant and his brothers comprised in Khewat No.112, Khatoni No.140 to 145 was acquired by HUDA vide

Award No.7 dated 22.7.1998 for developing Sector 24, HUDA, Panipat. Complainant applied for a residential plot measuring 10 Marlas as per the oustees policy and deposited Rs.56,242/- but his application was not entertained as he had not furnished

‘No Objection’ of the other co-shares. Complainant alleging deficiency on the part of petitioner/OP filed complaint before the District Forum. OP contested the complaint and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint and directed petitioner/OP to allot plot out of oustees quota and pay interest on the deposited amount. Appeal filed by the petitioner was dismissed by impugned order against which this revision petition has been filed.


4. Petitioner has filed revision petition along with application for condonation of delay of 252 days. It was submitted in the application for condonation of delay that time was spent in necessary approvals, sanctions and collecting relevant documents from the concerned departments and in preparation of revision petition. No details have been given as to how much time was spent in these activities, namely; seeking sanctions, approvals, collections of documents and in preparation of revision petition, etc. Apparently, no reasonable explanation has been given for condonation of inordinate delay of 252 days.

5. Learned Counsel for the petitioner submitted that liberal approach should be adopted and delay should be condoned as petitioner has good case on merits. This argument is devoid of force because delay can be condoned only when there is reasonable explanation for condoning delay. Apparently, no explanation, what to talk of reasonable explanation has been given in the application for condoning inordinate delay, which cannot be condoned in the light of observations made in the following authorities:

6. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it

has been observed:

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/pe tition.”


Court 361, it has been observed;


8. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries

Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459 as under;

“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”

9.




10.




“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer

Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

11. From the above discussion it becomes clear that as petitioner failed to give satisfactory explanation for condonation of delay, application for condonation of delay is liable to be rejected and revision petition being time barred is liable to be dismissed.

12. Consequently, revision petition filed by the petitioner is dismissed at admission k stage as barred by limitation, with no order as to cost.

..………………Sd/-……………



..……………Sd/-………………

( B.C. GUPTA )

MEMBER



(From the order dated 10.10.2012 in Appeal No.876/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

D.P. Srivastava S/o Late Sh. Keshava Prasad Srivastava C1/102, Mayfair Tower

Charmwood Village, Suraj Kund Road, Faridabad – 121009, Haryana

… Petitioner/Complainant

Versus

M/s. Reliance General Insurance Co. Ltd. Plot No.60, Okhla Industrial Estate Phase II

Opp. SBI Bank, New Delhi – 110020

. … Respondent/Opposite Party

BEFORE



For the Petitioner : Mr. Vishnu Langawat, Advocate


O R D E R


This revision petition has been filed by the petitioner/complainant against the order dated 10.10.2012 passed by the Haryana State Consumer


No. 876 of 2012 – Reliance General Insurance Co. Ltd. & Ors. Vs. D.P. Srivastava 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 purchased Car No. HR 05Q

6846 from its registered owner Anil Kumar and obtained a comprehensive insurance cover of Rs.1,35,000/- in his name for the period from 29.8.2009 to 28.8.2010. During subsistence of policy, car got burnt on 18.2.2010. Complainant submitted claim which was repudiated by OP/Respondent on the ground that registration certificate of the car was in the name of Anil Kumar whereas insurance policy was in the name of complainant.

3. Complainant filed complaint alleging deficiency before the District

Forum. OP/Respondent contested complaint and submitted that as the registration certificate of the car was in the name of previous owner and complainant failed to get it transferred in his name, complainant is not entitled to any compensation and prayed for dismissal of the complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to pay Rs.75,000/- along with interest and litigation expenses. On appeal filed by the OP, learned State Commission vide impugned order allowed appeal and dismissed complaint against which this revision petition has been filed.


5. Learned Counsel for the petitioner submitted that OP was also negligent in insuring vehicle in the name of petitioner, though, registration certificate stood in the name of previous owner Anil Kumar; so Insurance Company was liable to make good the loss and learned State Commission has committed error in dismissing complaint, hence, revision petition be admitted.

6. It is admitted fact that registration of the car stood in the name of Anil Kumar and petitioner after purchasing vehicle got it insured in his own name without transfer of registration certificate in his name. Section 50 of the Motor Vehicle Act, 1988 provides as under:

”50(1)(b) The transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the

transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration”.

7. As per this provision, the petitioner was bound to get the registration certificate transferred in his name and intimate to the insurance company but as the petitioner failed to get it transferred in his name within specified period, petitioner was not entitled to get any compensation only on the ground that policy existed in his name. At the time of taking policy, petitioner had no insurable interest in the vehicle and respondent/OP has not committed any error in repudiating claim. Learned State Commission has not committed any error in allowing appeal and dismissing complaint filed by the petitioner. We find no infirmity, material irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.


..………………Sd/-……………



..…………Sd/-…………………

( B.C. GUPTA )

MEMBER k



(Against the order dated 24.11.2006 in Complaint No. 80/2002 of the Karnataka State


Sri M.R. Virupaksha S/o Late M.R. Krishna Rao Aged about 64 years No.15, 14 th Main,

MICO Layout Mahalakshmipuram Bangalore-560086, Karnataka

… Appellant

Versus

1. M/s Wockhardt Hospital & Heart Institute No.14, Cunningham Road Bangalore-

560042, Karnataka Rep. by General Manager

2. Dr. Vivek Jawali Chief Cardio Thorasic Surgeon M/s Wockhardt Hospital & Heart

Institute No.14, Cunningham Road Bangalore-560042, Karnataka

… Respondents

BEFORE:



For Appellant : Mr. S.N. Bhat, Advocate

For Respondents-1&2 : Ms. Geeta Handa Khanuja, Advocate

Pronounced on 8 th February, 2013

ORDER


1. This first appeal has been filed by Shri M.R. Virupaksha, Appellant herein and

Complainant before the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (hereinafter referred to as the State Commission), being aggrieved by the order of that Commission which had dismissed his complaint of medical negligence made against M/s Wockhardt Hospital & Heart Institute and Dr. Vivek Jawali, Opposite

Parties before the State Commission and Respondents No. 1 and 2 respectively herein.

2. In his complaint before the State Commission, Appellant stated that his wife Smt.

Geetha Virupaksha (hereinafter referred to as the Patient) was suffering from heart ailment and believing the claims made by Respondent No.1 as being an institution of excellence for treatment of Cardio Vascular cases, he had got her admitted to the

Respondent Hospital for Coronary Angiography on 18.09.2000, wherein she was entrusted to the medical care of Respondent No.2. Numerous tests were conducted on the Patient and thereafter Respondents unilaterally decided and conducted a Coronary

Artery Bypass Grafting (CABG) surgery on the Patient on 20.09.2000 without prior intimation or consent of the Appellant and when the Patient’s clinical condition was not satisfactory and she was not fit for surgery. According to the Appellant, the surgery was conducted for unjust enrichment and after the surgery she was discharged on

30.09.2000 when her condition was still critical and she was suffering from acute breathlessness, sweating, nausea apart from constant oozing of blood from the chest region. She was advised to come for further check-up on 03.10.2000. Appellant brought the Patient for the check-up on the stipulated date with continued complaints of breathlessness, acute pain in the chest etc. but instead of examining her personally,

Patient was entrusted to an Assistant for check-up who did so in a routine manner and asked the Appellant to again bring the Patient on 06.10.2000 since her blood pressure was very high and the fluid collection appeared to be severe. When the Patient’s condition deteriorated further on 04.10.2000, the Appellant was advised to again bring her to the Respondent Hospital, when she was admitted to the surgical ICU at 8.00 p.m. and retransferred to the ward at 11.30 p.m. Appellant was also advised to arrange for blood on 05.10.2000 and by the time he had made the necessary arrangement, he was informed that the Patient had suffered a cardiac attack and had been shifted to the surgical ICU, where she was kept from 05.10.2000 to 12.10.2000 on which date at about 2.00 p.m. she was again shifted to the ward. Respondent No.2 did not care to visit and examine the Patient and she expired on 25.10.2000. It was contended that the

Patient died because of the careless and negligent attitude of Respondents, who in the first instance conducted the surgery when the Patient was not in a fit condition to undergo the same and without Appellant’s consent and then hurriedly discharged her

when her condition was serious right from the time of her admission till her death. Being aggrieved Appellant issued a legal notice to Respondents and on not receiving a satisfactory response, he filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against both Respondents and requested that they be directed to pay him a total sum of Rs.13,93,000/- as compensation and costs.

3. Respondents on being served vehemently denied these allegations and stated that when the Patient was admitted in Respondent No.1/Hospital, she had a history of co-morbidities, including diabetes and anaemia. She was diagnosed with Ischemic heart disease and LV dysfunction and had undergone an angiography which confirmed her heart condition. A CABG was, therefore, advised, for which Patient was referred to

Respondent No.2. It was only after discussions with the cardiologist and conducting a series of pre-operative tests to assess her clinical condition and fitness to undergo

CABG, which required 4 grafts, that the surgery was conducted. Thereafter she was kept in the ICU and her condition carefully monitored. The fluid collection in her left pleura caused because of congestive cardiac failure had continued to ooze through the pleural drainage site and this was also managed with the required antibiotics, antifungal treatment and repeated dressings.

Patient’s scheduled discharge was postponed till her condition stabilized and she was discharged on 01.10.2000 in a satisfactory condition. However, she was asked to come for follow-up visits and on each occasion she was carefully examined by Respondent No.2 and other senior doctors and thereafter readmitted to the Respondent No.1/Hospital when required. It was emphasized that immediate cardiac surgery was necessitated since many of her arteries were blocked and despite best possible medical care provided in an institute of excellence by highly qualified doctors Patient expired because of her poor previous medical history.

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

“10. … The complainant has not produced the evidence of any experts to show that the decision taken by the OPs to conduct CABG on the particular day was not proper and that CABG was conducted without making the patient fit for operation. In the absence of expert evidence to show that the decision taken by

the OPs to conduct the operation at that particular juncture was not proper, we are of the view that the complainant has failed to prove the deficiency on the part of the OPs in that regard.

11. Similarly, the complainant has not produced any expert evidence to show that the treatment given by the OPs after the operation was not proper. One of the charges made against the OPs after the operation is that the patient was discsharged from the Hospital before the wound healed completely. The OPs have contended that the patient was asked to be brought for review 3 days after the discharge. The patient was brought 3 days after the discharge and the patient was examined by Dr. Mallikarjun who is said to be a person well qualified to deal with heart ailments.

12. The records produced by the OPs also go to show that the OPs have postponed the date of discharge so as to see that the patient was actually fit for discharge. We do not find any valid ground to hold the OPs negligent in that regard.

13. It is worth of note that the patient was already aged about 60 or 62 years at the time when she was admitted in the Hospital with the complaint of severe chest pain. She already had triple vessel coronary artery disease. She was a diabetic for more than 20 years preceding the admission. Under such circumstances, if something has gone wrong after the operation and after the discharge from the Hospital, we fail to understand as to how the entire responsibility can be put on to OPs without there being expert evidence on the question. We are, therefore, of the view that the complainant has failed to prove negligence on the part of OP. …”

Hence, the present first appeal.

5. When the case came up before a Bench of this Commission presided by Mr.

Justice S.N. Kapoor on 24.08.2007, Appellant moved an application to take expert opinion of a Cardio Thorasic Surgeon, to which Respondents had no objection. This

Commission, therefore requested the Director of the All India Institute of Medical

Sciences (AIIMS) to appoint a Cardio Thorasic Surgeon to examine the medical and related records in the light of the complaint and written statement filed by the

Respondents and give his opinion whether any medical negligence is attributed to the concerned doctors or otherwise. A report from AIIMS has since been received, wherein it was opined that the charges of medical negligence on the part of Respondents “were defini tely not substantiated”.

6. Learned Counsel for both parties made oral submissions.

7. Learned Counsel for the Appellant stated that from the evidence filed before the

State Commission, it is clear that there was medical negligence and deficiency in service in the treatment of the Patient. It was contended that the CABG operation was conducted without taking the consent of either the Appellant or the Patient’s daughter

whereas when the angiography was done the consent of the Patient’s daughter had been taken. Apart from this, there is evidence on record that the surgery was conducted in haste and contradictory findings were given in the medical record e.g. in the diagnosis dated 18.09.2000 signed by Dr. K.H. Srinivasa it was stated that the “LV a ngio was normal” and yet early CABG was recommended. A similar contradiction is there in the deposition of Respondent No.2 (Dr. Vivek Jawali) before the State

Commission, wherein he had denied that at the time of discharge the Patient was suffering from inter alia continuous oozing of blood from the chest region and subsequently stating that the blood continued to ooze because there was fluid collection in the left pleura since the Patient had congestive cardiac failure. It was further contended that the report from the AIIMS was not a detailed investigation and the findings were perfunctory.

8.

Counsel for the Respondents stated that the Appellant’s contention that the CABG surgery was conducted in a hurry for unjust enrichment and without taking the consent from the relatives and properly assessing the condition of the Patient, is factually incorrect as per the documentary evidence on record. In this connection, it was specifically pointed out that the Cardiac Catheterisation/Angiography Report, which was filed in evidence before the State Commission, clearly indicated that CABG was required immediately in the interest of the Patient’s life because at least 4 of her arteries were blocked. It was also denied that the Patient was not fit for surgery, which was conducted keeping in mind her past medical history and a careful clinical assessment of the essential parameters. The consent of a relative, namely K. Savitri, was taken, who was present with the Patient at that time. Counsel for the Respondents pointed out that as per the detailed case history of the Patient, which is on record, it is clear that her condition was very carefully and regularly monitored and all steps were taken to check post-operative complications, like oozing of blood from the drain site, and only after this was controlled was she discharged. During subsequent visits also the Patient was attended to by senior doctors, including Respondent No.2, and only the preliminary check-ups were done by the Assistant. Further, discrepancies pointed out by the counsel for the Appellant are misconceived. For example the recording that LV angio

was normal meant that the procedure was conducted normally and without any adverse incident. A specialist from AIIMS to whom all the necessary papers were made available has also independently concluded that there was no medical negligence on the part of the Respondents. On the other hand, Appellant has been making false allegations without producing any evidence, including the evidence of a medical expert, to contradict the credible documentary evidence produced by the Respondents although there was onus on Appellant to do so. It was reiterated that despite the best possible medical care given to the Patient by highly qualified doctors using their best professional judgment Patient expired because of her poor health condition and preexisting serious ailments and not because of any medical negligence or deficiency in service.

9. We have heard learned counsel for both parties and have carefully gone through the evidence on record. It is apparent that the Patient required an immediate CABG procedure because of blocked arteries, which was detected following the angiography conducted on the Patient. We note from the detailed medical records placed on file that a series of pre-operative tests were conducted before the surgery was undertaken and thereafter also there did not appear to be any negligence in the medical treatment and care of the Patient. Her medical condition was assessed on a day-to-day basis. Her discharge was also delayed by few days and only when her condition was stable was she discharged with specific written advice regarding follow-up visits. The blood oozing from the Patient’s chest region has also been satisfactorily explained because as per medical literature it is known to occur in Patients who have been suffering from congestive cardiac failure. We note that a Cardio Thorasic expert from AIIMS, to which the matter was referred by this Commission alongwith necessary records, has also concluded that no medical negligence or deficiency in the treatment of the Patient could be established. Other allegations made by the Appellant against the Respondents are also not backed by any independent or credible evidence to support the same and are mere contentions. We, therefore, agree with the State Commission that the Appellant on whom there was onus to do so has not been able to produce any credible evidence, including that of an expert, to prove that there was any medical negligence in this

case. While it is a fact that the Patient expired soon after the surgery, as stated earlier, there is no evidence that this was because of any medical negligence or deficiency in service but could be well explained by the fact that she had been suffering from serious coronary artery disease apart from diabetes and some other co-morbidities for some years and unfortunately despite the CABG her life could not be saved.

10. What constitutes medical negligence is now well established [Jacob Mathew v.

State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis

– including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. Applying these principles in the instant case, we are of the view that there was no medical negligence or deficiency in the instant case, where after careful clinical diagnosis and required tests the CABG was conducted by qualified doctors using their best professional judgment in a well-equipped and reputed hospital. This fact has also been confirmed by the report of the medical expert from

AIIMS.

11. We, therefore, uphold the well-reasoned order of the State Commission and dismiss the present first appeal. No costs.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



Alongwith

(I. A. No. 2 of 2011)

(for Condonation of Delay)

(From the order dated 21.4.2011 in Appeal No.458/08/2011

of the State Commission, Gujarat)

Kuldeep Singh D. Rana Residing at : A-364, Ghanshyamnagar, Near Noblenagar,

Kotarpur, Ahmedabad …Petitioner

Vs.

National Insurance Company Ltd. D.O. B-2, Neptune House -2, Above Vijay bank,

Mithakhali Navrangpura, Ahmedabad – 380009.

...Respondent

BEFORE:


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

For the Petitioner : Mr. Niraj Jha, Advocate

For the Respondent : Mr. R. B. Shami, Advocate


ORDER


In this revision there is challenge to order dated 21.4.2011, passed by State

Consumer Disputes Redressal Commission, Ahmedabad, Gujarat (for sho rt, ‘State

Commission’). Alongwith it, an application seeking condonation of delay has been filed in which no period of delay has been mentioned. However, as per office note, there is a delay of 14 days. For the reasons mentioned in the application, same is allowed and delay of 14 days is condoned.

2. Case of petitioner/complainant before the District Consumer Disputes

Redressal Forum, Ahmedabad

(for short, ‘District Forum’) was that he

purchased Qualis Car (Taxi) for which he obtained an insurance policy from the respondent/opposite party valid from 18.10.2006 till 17.10.2007. On 30.10.2006, above car was going from Jaipur to Ahmebad with passengers in the morning hours. Due to sudden burst of front tyre, the vehicle became unbalanced and it climbed on divider of the road. The driver of the vehicle turned on the parking light and went to nearby hotel for making a telephone call. Meanwhile, another Alto

Maruti Car No.HR26Z 2071 came in full speed being driven by its driver negligently and dashed against the car of the petitioner, causing substantial damage to its vehicle. FIR was lodged with Police Station, Vijaynagar of Ajmer Distt. Petitioner informed the respondent about the said accident and lodged a claim of Rs.1,89,571/- but the same was rejected by the respondent, vide its letter dated 23.3.2007 stating that driver of the petitioner namely, Jagdish K. Agrawal was not holding the cab driver badge at the time of accident. Due to deficiency in service, petitioner filed complaint before the District Forum.

3. Respondent in its written statement took the plea that since vehicle was being used for commercial purposes as such consumer complaint is not maintainable. However, factum of accident has not been disputed. It is also admitted that a s per Surveyor’s report, a sum of Rs.87,568/- is payable. Since, there is a breach of terms and conditions of the policy as driver of the petitioner was not holding a valid driving license, the respondent is not liable to pay for the damage caused to the vehicle.

4. District Forum, vide order dated 3.10.2007, allowed the complaint and directed the respondent to pay a sum of Rs.86,388/- along with interest @ 6% p.a. from 30.6.2007 till the date of payment. A sum of Rs.1,250/- was also awarded towards the cost.

5. Petitioner did not challenge the order of the District Forum. On the other hand, respondent filed an appeal which was allowed by the State Commission, vide its impugned order.



8. It has been contended by learned counsel for the petitioner that driver of the petitioner was having a valid driving license and copy of which has been placed on

record. Moreover, Surveyor has also approved the claim, as such State Commission has wrongly dismissed the complaint.

9. On other hand, learned counsel for the respondent argued that as driver of the vehicle in question was not having a valid commercial driving license, there was breach of terms and conditions of the insurance policy. Thus, claim of the petitioner was rightly rejected by the State Commission. In support, learned counsel for respondent relied upon following judgments ;

(i) New India Assurance Co. Ltd. Vs. Prabhu Lal, 1(2008) CPJ 1

(SC);

(ii) National Insurance Company Ltd. Vs. Meena Aggarwal, (IV)

(2009) CPJ 25 (SC) and

(iii) National Insurance Co. Ltd. Vs. Kusum Rai and others,

2006(ACJ),1336.

10. As per averments made in the complaint as a result of bursting of the tyre of the vehicle in question it was parked stationary and driver had turned on the parking light. Meanwhile, another vehicle dashed with the stationary vehicle of the petitioner.

In this manner accident was occurred. These facts have not been disputed by the respondent in its written statement.

11. Since, vehicle in question was damaged at that time when it was in stationary condition, the question of having valid driving license by the driver of vehicle of the petitioner is not all material in this case. Even otherwise, petitioner has placed on record copy of the driving license of the driver who was driving the vehicle and the same is a valid driving license. Moreover, surveyor’s report assessing a sum of

Rs.87,568/- as damages for the vehicle in question has not been disputed by the respondent.

12. Various judgments cited by learned counsel for the respondent are not applicable to the facts of the present case.

13. State Commission, in its impugned order has not given any reason at all for setting aside the order passed by the District Forum. In our view the decision of the

District Forum is perfectly legal and justified. Under these circumstances, we are unable to sustain the impugned order. The same is accordingly set aside and complaint of the petitioner stands allowed. Present revision petition thus stands allowed.


SSB

…..…………………………J

(V.B. GUPTA)


…..…………………………J


MEMBER



(From the order dated 23.05.2011 in Appeal No. 130/2010 of the Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

Life Insurance Corporation of India Through its Branch Manager, Branch Office No.1,

Kutchery Road, Ajmer Rajasthan. Also at: Life Insurance Corporation of India,

Divisional Office, “Jeevan Prakash” Bhawani Singh Road, Jaipur – 302 005.

Also at: Life Insurance Corporation of India] H-39, New Asiatic Building, Connaught

Place, New Delhi

– 110001

… Petitioner/OP

Versus

Anil Kumar Jain S/o Shri Hasti Mal Jain, Beawar Road, Near Dorai Railway Crossing,

P.O. Dorai, Ajmer (Rajasthan)


BEFORE



For the Petitioner : Mr. Rajat Bhalla, Advocate

For the Respondent: Mr.Hastimal Jain, Auth. Rep. (father of Respondent)


O R D E R



23.5.2011 passed by the Rajasthan State Consumer Disputes Redressal Commission,

Jaipur (in short, ‘the State Commission’) in Appeal No. 130 of 2010 – LIC Vs. Anil

Kumar Jain by which appeal filed by the petitioner was dismissed.

2.

Brief facts of the case are that complainant/respondent’s father obtained insurance Policy No.18117446 under term table 79-30 for a sum of Rs.50,000/- on

1.3.1988. For first five years, premium was payable @ Rs.1486.50 per year, for next five years premium was payable @ Rs.1,608/- per year and for next twenty years premium was payable @ Rs.1779.50 per year and insured amount was also to be

increased accordingly from Rs.50,000/- to Rs.75,000/- and Rs.1,00,000/-. Complainant was depositing premium amount regularly but vide letter dated 15.12.2007, OP asked complainant to deposit Rs.22,445/- as premium which were deposited less.

Complainant denied demand. Then, OP vide letter dated 28.3.2008 asked complainant either to deposit Rs.24,275/- or send acceptance for insured sum of Rs.50,000/- in term table 14-30. As complainant did not accept this proposal, OP vide letter dated

29.4.2008 intimated to the complainant that his policy has been converted under term table 14-30 in place of term table 79-30 and refunded Rs.5,731/- through a cheque. Complainant returned cheque and made complaint to Sr. Divisional Manager of OP and later on filed complaint before the District Forum alleging deficiency on the part of OP with a prayer to OP not to change term plan. OP-petitioner contested complaint and submitted that as per terms and conditions of policy, premium was also to be increased in proportion to increase of sum assured but by mistake, premium amount was not increased and when this mistake was noticed, complainant was asked to deposit premium accordingly but as complainant refused to deposit premium, his term plan was changed and there was no deficiency on the part of OP; hence, prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to receive premium as per policy issued for term table 79-30 and also maturity amount accordingly. 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’s father (authorised representative of respondent) at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that by typographical error, less amount was shown as premium payable in the term table 79-30 and as the respondent did not agree to make revised payment of premium; accordingly the petitioner had not committed any deficiency in revising term table and learned District Forum has committed error in allowing complaint and learned State Commission also committed error in dismissing appeal without assigning any reasons; hence, petition be allowed and impugned order be set aside. On the other hand, father of the respondent submitted that parties are bound by the contract and as complainant was paying premium as shown in term table 79-30, petitioner had no authority to change it into term table 14-30 and order passed by learned District Forum is in accordance with law which has been upheld by learned State Commission; hence, petition may be dismissed.

5. It is admitted case that father of the complainant obtained life insurance policy under term table 79-30 for the benefit of complainant from OP. It is also not disputed that complainant’s father was also employee of OP. It is also not disputed that complainant was making payment regularly as shown in term table 79-30. It is also not disputed that on audit objection, it was revealed that by wrong calculations, less amount

of premium receivable has been shown after 5 years and after 10 years. It is also not disputed that OP asked the complainant to make payment of Rs.22,445/- to continue this term table. It is also not disputed that complainant denied to make payment and in such circumstances, OP changed term table to Rs.50,000/- from Rs.1,00,000/- and refunded excess premium by cheque which was not accepted by the complainant.

Respondent has nowhere stated that demand raised for short premium in term table 79-

30 by notice dated 15.12.2007 is not correct except to the extent that it was made after

20 years.

6. The short question which is to be decided in this revision petition is whether OP can rectify typographical mistake and charge more premium, which is payable on term table 79-30. Learned authorised representative of respondent submitted that petitioner cannot change terms and conditions of policy and placed reliance on 2010 (7) Supreme

83 – M /s. SurajMal Ram Niwas Oil Mills (P) Ltd . Vs. United India Insurance Co. Ltd.

& Anr . in which

Hon’ble Apex Court observed as under:

“24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties”.

7. We agree to the principle enunciated in this judgment but this citation does not help to the respondent as petitioner is not deleting or substituting any word(s) of the policy but is rectifying only typographical mistake committed by employee of the petitioner.

8. On the other hand, learned Counsel for the petitioner placed reliance on Civil

Appeal No. 6347 of 2000 – H.P. State Forest Company Ltd . Vs. M/s. United India

Insurance Co. Ltd . in which Hon’ble Apex Court held that on the basis of typographical mistake which has been rectified in the records of the Company before the occurrence, insured cannot get benefit of typographical mistake. In that case insured took insurance cover for a period of 8 months whereas by typographical mistake, one year was mentioned in the insurance policy and insured was not held entitled for compensation on account of loss caused after 8 months but within 12 months of insurance policy on the basis of typographical mistake in the insurance cover. He also placed reliance on judgment of this Commission in Original Petition No. 178 of 1995

–

Satya Deo Malviya Vs. Life Insurance Corporation of India Ltd . in which

typographical mistake was allowed to be rectified after 5 years and sum assured was reduced from Rs. 25,00,000/- to Rs.2,50,000/-. In R.P. No.377 of 2011

–

LIC

& Anr.

Vs. Raj Nandan Jha , this Commission vide its order dated 13.8.2012 allowed correction of typographical mistake after 8 years and reduced sum assured from

Rs.2,39,163/- to Rs.1,56,000/- and pension amount from Rs.2,000/- to Rs.1,560/-.

9. In the light of aforesaid citations it becomes clear that typographical mistakes can be rectified as and when they are noticed and OP has not committed any error in asking complainant to make payment of premium to continue old term plan, particularly when complainant’s father, who was employee of petitioner must be aware that premium shown in term table 79-30 is not correct, and on refusal by the complainant, OP has not committed any error in revising term plan.

10. Learned District Forum has committed error in allowing complaint and learned

State Commission has committed error in dismissing appeal without any speaking order and revision petition is liable to be accepted.

11. As typographical mistake has been noticed in audit objection after about 20 years, we deem it proper to allow the complainant to make payment of premium, which was less paid by him up till, without interest to continue old term table 79-30 and pay further premium as advised by OP/petitioner, otherwise complaint shall stand dismissed.

12. As observed above, revision petition filed by the petitioner is allowed and impugned order dated 23.5.2011 passed by learned State Commission and order of

District Forum dated 17.12.2009 are set aside and complaint is dismissed with no order as to cost.

..………………Sd/-……………



..…………Sd/-………………

( B.C. GUPTA )

MEMBER k



(From the order dated 11.05.2011 in Appeal No. 1093/2011 of the Rajasthan State

Consumer Disputes Redressal Commission, Jaipur)

1. Rajasthan Housing Board, Jaipur Through Chairman Jyoti Nagar Near Vidhansabha

Jaipur, Rajasthan

2. Asstt. Housing Officer Office Circle III, Jaipur Rajasthan

3. Dy. Housing Commissioner Circle III, Rajasthan Housing Board, Near Jawahar Circle

JLN Marg, Jaipur Through Assistant Housing II Rajasthan

… Petitioner/OP

Versus

Damodar Lal Garg S/o Sh. Ramswaroop Garg R/o Near Balaji Chowk, Gangapur City,

District Sawai Madhopur, Rajasthan


BEFORE



For the Petitioner : Mr. Vinay Kumar Sharma, Advocate

For the Respondent: Mr.D.M. Mathur, Advocate


O R D E R



11.5.2011 passed by the Rajasthan State Consumer Disputes Redressal Commission,

Jaipur (in short, ‘the State Commission’) in Appeal No. 1093 of 2011 – Rajasthan

Residential Board & Ors. Vs. Damodar Lal Garg by which appeal was dismissed and order of District Forum was upheld.

2. Brief facts of the case are that complainant/respondent applied for allotment of plinth size plot in outright sale under middle income group ‘B’, Indra Gandhi Nagar

(Jagatpura) plan of the OP/petitioner and deposited Rs.50,000/- by bank draft along with application. Plot was allotted to the complainant by letter dated 21.12.2001 and

complainant further deposited Rs.35,000/- on 6.3.2008. OP vide letter dated 25.8.2008 intimated to the complainant that he will be given full constructed house instead of plinth level plot. Complainant alleging deficiency filed complaint. OP contested complaint and submitted that OP can change terms and conditions of its plan and as OP decided to provide constructed house instead of plinth size plot, letter was issued to the complainant stating that if complainant does not want to get constructed house, he can receive back money deposited by him and prayed for dismissal of complaint. District

Forum after hearing both the parties allowed complaint and directed petitioner/OP to handover possession of plinth size plot within a month along with compensation and cost and further observed that if complainant consents to take constructed house within a week, the same may be given. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order.

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

4. Learned Counsel for the petitioner submitted that impugned order is not a speaking order and learned State Commission has not dealt with the arguments placed by the petitioner regarding right to amend the policy, hence, petition be accepted and matter may be remanded back to the learned State Commission for disposal by speaking order. On the other hand, learned Counsel for the respondent submitted that

District Forum has elaborately discussed contentions of the parties and order passed by learned State Commission is in accordance with law, hence, petition be dismissed.

5. Perusal of impugned orders reveals that it is not a speaking order and simply it was observed that as there is no error in the order and order passed by District Forum is based on facts, no interference is warranted.

6. Appellate Court while deciding an appeal is required to deal with all the arguments raised by the appellant and as learned State Commission has not dealt with arguments of the appellant, it would be appropriate to remand the matter back to the learned State Commission for disposal by speaking order after dealing with all the contentions and arguments raised by the petitioner.

7. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 11.5.2011 passed by the learned State Commission is set aside and matter is remanded back to the learned State Commission for deciding it by speaking order after giving an opportunity of being heard to the parties.

8. Parties are directed to appear before the learned State Commission on

19.3.2013. A copy of this order be sent to the Rajasthan State Commission, Jaipur.

..………………Sd/-……………



..…………Sd/-………………

( B.C. GUPTA )

MEMBER k


NEW DELHI

United India Insurance Company Ltd. Through the Regional Manager, DRO-1,

Kanchenjunga Building, 8 th Floor,18, Barakhamba Road, New Delhi- 110001



(Against the order dated 05.3.2012 in First Appeal No.395/2011 of the State

Commission, Delhi)

Versus

Rani Sharma W/o Sh.R.B.Singh, R/O. 58-A, Pocket-A, MIG Flat, GTB Enclave, Delhi-

110093

.........Respondent

BEFORE




For the Petitioner : Mr.Harsh Kumar, Advocate

PRONOUNCED ON: 12 th February, 2013

ORDER


United India Insurance Company Ltd has filed this revision petition against the order of the Delhi State Consumer Disputes Redressal Commission in Appeal

No.395/2011. State Commission has dismissed the appeal of the revision petitioner against the order of the District Forum in which the complaint of the respondent/Rani

Sharma was allowed.

2. In very brief, the matter arose out of the incident of theft of the vehicle of the

Complainant on 31.1.2008, which was insured with the RP/OP. The claim under the policy was repudiated on 21.5.2008 on the ground that the RC was fake and the

Complainant was not the registered owner of the vehicle. The consumer complaint against repudiation was filed on 2.9.2008 and was allowed by the District Forum observing:-

“ The complainant claimed insurance after report of the theft and filing of no trace report, yet the Insurance Co. adopted an attitude of not settling and raising for one or other documents, queries for long time, and after once repudiating claim, corrected itself but failed to settle as mentioned in

the complaint and other letter of Insurance Co. filed by complainant to show humiliation and harassment to the complainant.

After filing of the complaint, the Insurance Co. has paid in 2010

Rs.5,49,000/- to the complainant, through FDR in the Bank. Now the short question that remains is compensation for the delay on the part of opposite party. The deficiency of service is to be compensated though its corrected after filing of complaint.

After considering the course of dealing and dilatory conduct and attitude of the Insurance Co., we direct the Opposite Party to pay interest @

9% from date of claim till payment, through FDRS in the Bank and

Rs.20,000/- as compensation for harassment and litigation charges to complainant.”

3.

Interestingly, the revision petition filed by the Insurance Company itself carried the explanation for the observation of the District Forum that the insurance claim was paid after the proceedings before the District Forum had already been initiated. In para 2 (e) of the revision petition it is stated that:-

“On 21-04-2008 the surveyor deposited the necessary fee at RTO office Bahadurgarh and on 01-05-2008 the RTO Bahadurgarh gave the remarks that for detail information about the ownership the case be referred to main office of the registration authorities and further no other papers were available is available in the file. On the basis of the above remarks of the

RTO, the Surveyor concluded that the Registration Certificate (R/C) produced was Fake.”

In the very next para 2(f), the revision petition shows that in an undated reply allegedly received by the surveyor in the month of November, 2008, the RTO office informed that the Complainant was the owner of the vehicle.

4. This amounts to a clear admission that the RP/OP had, for reasons best known to its officials who dealt with the case, had rushed through repudiation of the claim in May,

2008 when the actual information about ownership of the vehicle was received much later in November, 2008.

5. Records produced by the revision petitioner also carry the relevant letters from the investigator appointed by RP/OP. In the letter of 15.4.2008 he has said that the claim

‘appears to be true and genuine’. Within a few days thereafter in his letter of 2.5.2008 he has advised that Mrs. Rani Sharma was not the registered owner and the RC was fake. Finally, his letter of 11.12.2008 he certified that the Complainant, Smt. Rani

Sharma was the owner of the vehicle, as per information obtained from RTO

Bahadurgarh.

6. In the above factual background, we find no explanation from RP/OP as to why the claim was repudiated even without concluding the process of verification of ownership of the vehicle. This is a clear case of deficiency of service on the part of

RP/OP. Shri Harsh Kumar, Advocate for the revision petitioner has argued that the claim of the Complainant was settled as soon as ownership of the vehicle was

confirmed. This is no explanation for pre-mature repudiation of the claim and the resultant delay, inconvenience and harassment undergone by the Complainant. We therefore hold that the State Commission was very right when it observed —

“The OP Insurance Co. was certainly deficient in not settling the claim of the complainant within the stipulated period which resulted in causing mental agony and harassment to the complainant. Besides the OP also withheld his insured amount without any plausible reasons while the complainant had already furnished all the requisite documents to the complainant is well borned out from the record.”

7. What we find even more objectionable is that the United India Insurance Company has chosen to file this revision petition against concurrent findings of the fora below which are clearly based on its own admitted facts and pleadings. As already observed by us, the revision petition itself is an admission of the facts that repudiation of the claim in May, 2008 was pre-mature and unjustified, in view of the subsequent report of the

RTO. Moreover, in para 3 of the written response before the District Forum, the RP/OP has gone to the extent of stating that —

“That no cause of action subsists in favour of complainant as the opposite part is willing to settle the claim as per the terms and conditions of the party. As admitted by the complainant in para 21 of the complaint. In fact the complainant has not submitted required documents as requested by the company.”

Therefore, we are constrained to view the revision petition as an attempt to draw the respondent/Complainant into an unnecessary and uncalled for litigation. It has also resulted the wasting the time of this Commission in frivolous proceedings.

8.

It is for cases of this type that Hon’ble Supreme Court has observed in Ramrameshwari Devi & Ors. Vs. Nirmala Devi & Ors., (2011) 8 SCC 249 (paras

29,43 and 47)that:-

“The Supreme Court has to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his illegitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs.

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. The credibility of the entire judiciary is at stake unless effective remedial steps are taken without

further loss of time.”

9. In view of the above the revision petition is dismissed with punitive cost of

Rs.50,000/- (Rupees fifty thousand). Out of this Rs.25,000/- shall be paid by United

India Insurance Co, to the respondent/Complainant. The remaining Rs.25,000/- shall be credited by it to the Consumer Welfare Fund of the Central Government, in terms of the provisions contained in Rule 10-A of the Consumer Protection Rules, 1987. Both these payments shall be made within a period of three months from the date of this order. Failing this, interest at 10% per annum shall be payable for the period of delay.

.……………Sd/-……………

(J. M. MALIK, J.)


…………Sd/-……………….

(VINAY KUMAR)

MEMBER

S./-


NEW DELHI


(From the order dated 28.03.2012 in First Appeal No.458 of 2007 of the State

Commission, Punjab)

1.Punjab Urban Planning & Development Authority (PUDA), Ferozepur Road, near BRS

Nagar, Ludhiana through its Chief Administrator, SCO No. 63-64, Sector 17-C,

Chandigarh

2. Punjab Urban Planning & Development Authority through its Estate Officer, Ludhiana

……Petitioners

Versus

Smt. Neelam Kumari Wife of Sh. Som Nath Garg Son of Sh. Dogar Mal,

Resident of 357, Bharat Nagar, Ludhiana

........Respondent

BEFORE:

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



For the Petitioners : Mrs. Rachana Joshi Issar, Advocate

Ms. Nidhi Tewari, Advocate

Ms. Ambreen Rasool, Advocate

For the Respondent : Mr. G.D.Goel, Senior Advocate

Mr. Manu Arya, Advocate

PRONOUNCED ON: 12-02-2013

ORDER


Punjab Urban Planning & Development Authority (PUDA) has filed this revision petition against the order of the Punjab State Consumer Disputes Redressal

Commission in FA No.458 of 2007. This appeal was disposed off in terms of the decision of the State Commission in FA No.457 of 2007. The State Commission has dismissed the appeal of PUDA against the order of the District Forum, Ludhiana under which petitioner HUDA was directed “to charge non-construction fee in accordance with

Rule 13 of the 1995 Rule and to refund the same if the amount has been received in excess”.

2. The case of the Complainant before the District Forum was that she was owner of a plot which she had decided to sell. For this she had sought no objection certificate

(NOC) from the petitioner. In the communication of 30.6.2004 from Estate Office,

Ludhiana, PUDA, she was asked to deposit Rs.2,66,350/- on account of extension fee/non-construction charge. The Complainant allegedly contested it, claiming that under the relevant rules/memo of 29.1.1988 she was required to be charged only

Rs.6600/-. However, in view of her financial constraints and need to sell the plot, she paid the demanded amount on 30.6.2004 and was granted a necessary NOC on

1.7.2004. Thereafter, she filed the consumer complaint on 24.8.2004 before the District

Forum, Ludhiana seeking refund of the excess amount of Rs.2,06,350/- together with compensation and cost.

3. The claim was contested by PUDA on the ground inter alia that the amount of

Rs.2,66,350/- charged to the Complainant, was “Legally in accordance with law on account of non-construction charges. Therefore she was not entitled to its refund.”

4. The State Commission has dismissed the appeal, relying on the decision of the

National Commission in Narinder Singh Nanda Vs. P.U.D.A. in RP No.2125 of 2006 decided on 27.5.2009.

The State Commission held that in terms of the law laid down by the National Commission, there was no illegality in the order of the District Forum.

5. The above order of Punjab State Consumer Disputes Redressal Commission is challenged by revision petitioner PUDA in the present proceedings. We have carefully perused the grounds of revision. The main ground is that —

“The impugned order has been passed by the Hon’ble State

Commission relying on the order dated 27.5.2009 in Revision Petition

No.2125/2006 (Narinder Singh Nanda Vs. PUDA) & Revision Petition

No.2568/2006 (PUDA Vs. Narinder Singh Nanda) of thi s Hon’ble

Commission, which is pending consideration before the Hon’ble Supreme

Court being subject matter of S.L.P. (C) No.28198-99 of 2009 (Now Civil

Appeal No.8314-8315 of 2010) Punjab Urban Planning and Development

Authority & Anr. Vs. Narinder Singh N anda wherein the Hon’ble Supreme

Court has been pleased to grant leave and confirm the interim stay vide order 20.09.2010.”

It needs to be observed here that the revision petition was filed on 16.7.2012 and the matter was finally heard on 15.1.2013. Learned counsel for the petitioner Mrs. Rachna

Joshi Issar was heard for the revision petitioner PUDA and Mr. G.D. Goyal, Senior

Advocate was heard on behalf of the respondent/Complainant. No further change in the status of the civil appeal, under considerati on before Hon’ble Supreme Court, has been reported by the counsel for PUDA.

6. It was argued on behalf of the petitioner/PUDA that the impugned order has been passed in ignorance of the ratio of the decision of Hon’ble Supreme Court in HUDA Vs.

Sunita [2005] 2 SCC 479, wherein it was held that consumer fora do not have jurisdiction to go into the correctness of demand for composition/extension fee by a public housing authority. On the other hand, learned counsel for the respondent/Complainant sought to distinguish the decision in HUDA Vs. Sunita on the ground that the demand has been raised under the HUDA Act and Regulations, while the question before the National Commission is whether the demand made was as per the relevant law and rules or not.

7. We note that the above question was directly raised before the National

Commission in Narinder Singh Nanda Vs. P.U.D.A. [(RP No.2125 of 2006) decided on 27.5.2009] , which has been relied upon by the State Commission in the impugned order. It was observed that:-

“Learned Counsel for the petitioner relying on the Judgment of the

Hon’ble Supreme Court of India in HUDA v. Sunita case, reported in

(2005) 2 SCC 479, in which the Supreme Court upheld the Order passed by this Commission holding that the Consumer Fora did not have the jurisdiction to go into the correctness of the demand made by the Haryana

Urban Development Authority (HUDA), contends that the Judgments of the

Hon’ble High Court of Punjab and Haryana in Tehal Singh’s and Sant

Kaur Jabbi’s cases (supra) are no longer good law. That since the

Consumer Fora did not have the jurisdiction to entertain the complaints, the

Appeal by the PUDA has to be accepted and the complaint be ordered to be dismissed. We do not find any substance in this submission.

In Sunita’s case (supra), HUDA was performing its statutory duties under the provisions of the Haryana Urban Development Authority Act. It cannot be doubted that if an Order is passed by the Statutory Authority acting under and in accordance with the provisions of the Act and the Rules framed thereunder, the Consumer Foras would not be entitled to interfere but if the Authority is acting contrary to the provisions of the Act or is acting beyond the scope of the Act, then, certainly that would be a deficiency in service. In the present case, PUDA was charging extension fee at enhanced rates which it could not do in view of the two Judgments in Tehal

Singh’s and Sant Kaur Jabbi’s cases (supra), meaning thereby that the

PUDA was acting against the provisions of law as it was demanding extension fee under the instructions which had already been struck down by the High Court being ultra vires the provisions of the Act.

A consumer would certainly be entitled to file a complaint under the

C.P. Act with a prayer to direct the Authority to act under the provisions of the Act and not beyond it or in any case which has already been struck down by the High Court. High Court of Punjab and Haryana is the highest

Court insofar as the State of Punjab is concerned. Until and unless the

Judgments passed by the High Court of Punjab and Haryana are set aside, the administrative instructions issued on 15.01.1998 and the amended instructions issued on 08.10.2001 by the State of Punjab seeking to charge enhanced extension fee, cannot prevail and the PUDA, under those instructions, cannot charge the enhanced extension fee. The law declared by the High Court of Punjab and Haryana is binding in the State of Punjab.

Special Leave Petitions filed against the said Judgments have already been dismissed by the Supreme Court. Under the instructions issued by the State of Punjab on 15.01.1998 and, subsequently, on 08.10.2001, the PUDA was

not entitled to charge enhanced extension fee at enhanced rates. A fee, if any, can be charged only as per the Act and the Rules in terms of the Order passed by the High Court”.

8. We respectfully reiterate the above view taken by this Commission in Narinder

Singh Nanda Vs. PUDA (Revision Petition No. 2125 of 2006, decided on

27.5.2009) . Accordingly, we find no ground to interfere with the impugned order.

Consequently, revision petition No.2603 of 2012 is dismissed and the order of Punjab

State Consumer Disputes Redressal Commission in FA No.458 of 2007 is confirmed. No order as to costs.

.……………Sd/-……………

(J. M. MALIK, J.)


…………Sd/-……………….

(VINAY KUMAR)

MEMBER

S./-



WITH

(I.A. NO.1 OF 2012, FOR STAY)

(Against the order dated 5.1.2012 in Appeal No. 526/2011

of the State Commission, Orissa)

M/s. Sundaram Finance Ltd. A company incorporated under Companies Act, 1973 having Regd. Office At 21, Patulous Road, Chennai and Regional Office at 607-

608, 6 th Floor, Ashoka Estate 24, Barakhamba Raod, New Delhi – 110001

Through Shri D. Vilasrao, Authorized Representative

........ Petitioner

Versus

1.

Jagan Mohan Nayak S/o Late Shri Natabar Nayak Vidya Nagar, 2 nd Line,

Rayagada, Orissa

2.

Shri A.S.V. Prasad S/o Shri Goverdhan Rao, Door No.12-12-

10, Jagadambanagar Phoolbag Road, Vizayanagaram, Andhra Pradesh

3.

Shri A.S.V. Srnivas S/o Shri A.S.V. Prasad Door No.12-12-

10, Jagadambanagar Phoolbag Road, Vizayanagaram, Andhra Pradesh

…….Respondents

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Sunil Dutt, Advocate

For the Respondent no.1 : Mr. P. Vinay Kumar, Advocate

For Respondent no.2 : Mr. R.K. Panigrahi, Advocate with

Mr. S.K. Mohanty, Advocate

For Respondent no.3 : Mr. Nemo


ORDER

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

Being aggrieved by order dated 5.1.2012, passed by Orissa State Consumer

Disputes Redressal Forum, Cuttack (short, “State Commission”), Petitioner/O.P.no.3, has filed the present revision petition.

2. Respondent no.1/complainant, filed a complaint under section 12 of the

Consumer Protection Act, 1986 (for short as “Act”) against petitioner as well as respondent nos.2 and 3/O.P. nos.1 and 2 alleging deficiency on their part. Before

District Forum, respondents nos.2 and 3 refused to receive the notice, hence they were proceeded ex parte. Petitioner received the notice on 23.6.2010, but it also did not appear.

3. District Forum, vide order dated 28.8.2010, allowed the complaint ex-parte, against petitioner and respondent nos.2 and 3. Petitioner filed (Appeal No.552 of 2010) before the State Commission, which was allowed vide its order dated 25.10.2010 and directed the District Forum to issue notice to both parties afresh and allow the petitioner to file written version and after hearing the parties, pass order in accordance with law. Accordingly, petitioner was directed to appear before the District

Forum, Rayagada on 22.11.2010.

4. Even after acceptance of its appeal, Petitioner neither appeared before the District

Forum despite specific directions given to appear before the District Forum on 22.11.2010 nor did it file any reply. As such, Petitioner was proceeded ex parte.

5. District Forum vide order dated 11.8.2011, allowed the complaint. Petitioner and respondent nos.2 and 3 were ordered to refund the sum of Rs.3,00,000/- with interest

@ 12 % p.a. from the date of its receipt and also to pay Rs.50,000/- as compensation.

6. Being aggrieved by order dated 11.8.2011 of the District Forum, Petitioner filed

(Appeal No.526 of 2011) which was rejected at the admission stage itself by the State

Commission, vide its impugned order.

7. Hence this revision petition.

8. None appeared for respondent no.3 despite service. Hence, he was proceeded ex parte.

9. We have heard learned counsel for the petitioner as well as counsel for respondent nos.1 and 2.

10. It is argued by learned counsel for the petitioner that there is no privity of contract between petitioner and respondent no.1. Moreover, complaint is barred by limitation. Thus, on these counts, present complaint is liable to be dismissed.

11. On the other hand, it has been contended by learned counsel for respondent no.1 that, petitioner had been ex-parte throughout, that is, before District Forum as well as before the State Commission. Therefore, petitioner has no defence and present revision merits dismissal.

12. The State Commission, while disposing of Appeal No.526 of 2011, in its impugned order observed;

“The present respondent as complainant filed the aforesaid

Consumer Complaint against the opposite parties. In the said complaint, notices were issued by the District Forum, Rayagada to the opposite parties, which were also received by them, but they failed to appear on the relevant date, for which the matter was heard ex parte by the District Forum. Thereafter, this appellant preferred

First appeal bearing no.552 of 2010 before this Commisison challenging the order dated 28.8.2010 passed in

CC no.117 of 2010 and at the admission stage, this Commission while setting aside the ex parte impugned judgment and order of the

District Forum, Rayagada directed both the parties to appear before the said District Forum on 22.11.2010 and file their counter/written version. The appellant entered appearance through advocate but it is stated that due to ill health of the Branch Manager of the appellant, the Branch Manager could not coordinate with the learned advocate and the advocate could not file written version in time, for which the opposite parties were set ex parte on 11.8.2011. It is the case of the appellant – Sundaram Finance Lt. that non filing of written version and non-participation was not intentional or

deliberate and in the circumstances, a prayer has been made for setting aside the impugned judgment and order dated 11.8.2011 passed by the District Forum, Rayagada in CC no.117 of 2010. It was argued by the learned counsel for the appellant that due to unintentional non-participation again an ex parte order has been passed against them by the District Forum. It is prayed by the learned counsel that the said ex parte order may be set aside and the matter may again be remitted back to the District

Forum, Rayagada for providing another chance to the opposite party/appellant to file its written version and contest the matter before the said District Forum.

Mr.C.A. Rao, learned counsel appearing for the respondent submits that there is absolutely no illegality or irregularity or impropriety in the order, which is assailed. This Commission had provided sufficient opportunity to the appellant for appearance before the District Forum, Rayagada and had fixed a date for appearance of both parties. Though the appellant entered appearance, due to laches on the part of the appellant – opposite party no written version was filed. The District Forum has rightly set him ex parte and passed the impugned judgment and order which should not be disturbed as it would cause immense hardship to the complainant/respondent, who has already suffered a lot.

After hearing learned counsel for both parties and considering the submissions made by them, looking to the plight of the complainant/ respondent and in view of the fact that this

Commission had already provided chance to the appellant by setting aside the earlier ex parte order directing it to file written version and the same opportunity having not been availed due to no sufficient reason, we find no reason to admit the appeal and interfere with the impugned judgment and order passed by the District

Forum, Rayagada on 11.8.2011 in CC non.117 of

2010. Accordingly, we reject the appeal memo at the admission stage.”

13. Petitioner admittedly did not file its written statement despite specific directions given by the State Commission while allowing its Appeal No.552 of 2010.

14. It has also been established from the record that, initially petitioner did not appear before the District Forum and was proceeded ex parte. Even after acceptance of the appeal of the Petitioner, it did not file the written statement inspite of various opportunities granted to it. Thus, petitioner has no defence at all on merits in this case nor there is any rebuttal to the case of respondent no.1. Hence, this plea of the petitioner that there is no privity of contract between it and respondent no.1, is of no

legal consequences. Under these circumstances, there is illegality or infirmity in the impugned order.

15. The present petition is nothing but gross abuse of the process of law and has been filed just to waste time of this Commission and to deprive respondent no.1 in whose favour award was passed about two and half years ago. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for courts to provide easy and speedy justice to the genuine litigants. A strong message is required to be sent to those litigant who are in the habit of challenging the order of the fora below even if the same is based on sound reasoning. No one should be permitted to frustrate the object of the Act which provide for speedy justice, by indulging in frivolous litigation. Under these circumstances, present revision petition is liable to be dismissed with punitive cost.

Accordingly, we dismiss this revision petition with punitive cost of Rs.25,000/- (Rupees

Twenty Five Thousand only). Out of the cost, Rs.15,000/- be paid to respondent no.1(Jagan Mohan Nayak) by way of demand draft, remaining cost of Rs.10,000/- be deposited by way of demand draft in the name of ‘Consumer Welfare Fund’ as per

Rule 10A of Consumer Protection Rules, 1987, within four weeks from today.

16. In case, petitioner fails to pay/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

Sonia/



(From order dated 27.02.2012 in First Appeal No. A/10/1246 of the

Maharashtra State Consumer Disputes Redressal Commission, Mumbai )

WITH

I.A. No. 1 OF 2012

(Exemption from filing official translation)

Subhash Motilal Shah (HUF) Dead through his LRs :

1. Smt. Mahananda S.Shah W/o Late Subhash Motilal Shah

‘Triveni’, Vardhaman

Nagar Malegaon, Dist.Nashik

2. Ajay Subhash Shah S/o Late Subhash Motilal Shah 107, Tilak Road, Malegaon

District Nashik

3. Sanjay S.Shah S/o Late Subhash Motilal Shah

‘Samkeet’, Near Ekata Chowk

Malegaon, District Nashik

4. Vijay S.Shah S/o Late Subhash Motilal Shah ‘Triveni’ Vardhaman Nagar

Malegaon, District Nashik

5. Smt. Neena B.Shah D/o Late Subhash Motilal Shah 1 st Floor, Chandanbala

Apartment Shingada Talao, Nashik

6. Rainbow Corporation Mr.Ajay S.Shah (HUF) Through its Proprietor

Mr.Ajay S.Shah R/o R.No.107, Tilak Road Malegaon, District Nashik

7. Rainbow Agencies Through its Proprietor Seema Ajay Shah Dist.Nasik

… Petitioners

Versus

Malegaon Merchants Co-op Bank Ltd. H/o Somwar Ward Mamcobhavan

Malegaon Branch Malegaon District Nashik

… Respondent

BEFORE:



For the Petitioners : Mr. Sudhanshu S. Choudhary, Advocate

Pronounced on_12.02.2013

O R D E R

JUSTICE J.M.MALIK

1. Subhash Motilal Shah, Petitioner No.1/Complainant No.1, and subsequently represented by his LRs, Petitioner Nos. 2, 3, 4 and 5, Rainbow Corporation, Petitioner

No.6/Complainant No.2, and Rainbow Agency, Petitioner No.7/Complainant No.3, filed a complaint against Malegaon Merchants Co-op. Bank Ltd., OP, before the District

Forum. The complaint was dismissed and the appeal preferred by the complainants was also dismissed. Both the foras below came to the conclusion that the petitioners are not

“consumers”, since the transaction in question relates to “commercial one”.

2. It was alleged that the respondent Bank was deficient in service as they honoured various cheques, which according to the complainants were cheques, not issued by the account holder, and the signatures of operating persons were forged.

3. We have heard the learned counsel for the petitioner. The State Commission was pleased to hold :-

“ Admittedly, since Rainbow Corporation is a firm of Ajay

Subhash Shah (HUF), i.e., jurisdic person, there arise no question of self-employment so as to cover the case under explanation to section 2(1)(d)(ii) of the Consumer Protection Act,

1986 (‘Act’ for brevity). It is a case relating to an action related with services given while operating the Current Account of

Appellant Rainbow Corporation which was admittedly opened and used for business purpose, of the business of ‘commission agent’ and business of ‘yarn sale’. Therefore, since the account itself is connected and related to the business transactions and such banking activity is required for the functioning of a given business enterprise of the appellant/complainant, services hired for that purpose would fall within the category of hiring services for commercial purpose. A useful reference can be made to free dictionary by FARLEX (on Internet) which defines the ‘Business

Activity’ as the activity undertaken as a part of commercial enterprise. Further, reference can be made to an article available on the internet Website Wise Geek (copyright protected 2003-12 by Conjecture Corporation) and which is written by Alexis. W, edited by Heater Bailey. Under the circumstances, prima facie appellant/complainant Rainbow

Corporation cannot be a consumer within the meaning of

Section 2(1)(d)(ii) of the Act”.

4. Learned counsel for the petitioner vehemently argued that the view taken by the State

Commission is erroneous, because, even ‘commercial transaction’ can be taken into consideration. He has cited a Supreme Court’s authority in support of his case which is reported in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, (2000) 1

SCC 98, wherein it was held that the combined reading of the definitions of “consumer” and

“service” under the Act and looking at the aims and object for which the Act was enacted, it

is imperative that the words “consumer” and “service” as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the

Act.

5. As a matter of fact, there was amendment in the Act. By the Act No.62 of 2002, w.e.f.

15.03.2003, the said Amendment, runs as follows:-

Section 2(d)(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 .

[Inserted by Act 62 of 2002, sec.2 (w.e.f. 15.03.2003)]

Explanation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

[Subs.by Act 62 of 2002, sec.2, for Explanation (w.e.f.15.03.2003)] .

Consequently, this authority has no application to the present case.

6. The revision petition is without merit and the same is, therefore, dismissed.

dd/3

.…..…………………………



.…..…………………………

(VINAY KUMAR)

MEMBER



(From order dated 23.02.2007 in Appeal No. 375 of 2004 of the State Consumer

Disputes Redressal Commission, Bihar : Patna)

Upendra Kumar, Son of Late Om Prakash, Resident of 4-Gomati Apartment, Boring Canal

Road, Police Station-District/Town-Patna.

….(Complainant/Petitioner

Versus

1. The New India Assurance Company Limited, Rajgarhia Centre, Exhibition Road,

Patna.

2. The New India Assurance Company Limited, New India Assurance Building, 87-

Mahatma Gandhi Road, Fort, Mumbai-400 001

……(Opposite Parties/.Respondents

BEFORE:



For the Petitioner : Mr. Rajesh Dayal, Advocate

For the Respondents : Mr. S.L. Gupta, Advocate with

Mr. R. A. Gupta, Advocate

Pronounced on: 14 th February, 2013

ORDER


Present Revision Petition has been filed under Section 17(b) of the Consumer

Protection Act, 1986 (for short, ‘Act’) against order dated 23.2.2007, passed by State

Consumer Disputes Redressal Commission, Bihar, Patna (for short, ‘State Commission’).

2. Petitioner/complainant, filed a complaint before District Consumer Disputes

Redressal Forum, Patna(for short, ‘District Forum’) stating that he purchased second hand ‘Maruti Car’ which was insured with respondents/O.Ps for Rs.2,10,000/-. After two days after the purchase of the car, on 11.2.1999 the same was stolen. Petitioner lodged claim with the respondents. After about two and half years, respondents decided his case and paid Rs.1,15,000/- only. It is alleged by the petitioner that he accepted this amount

under protest, since he is entitled to get the insured amount of Rs.2,10,000/-, besides compensation for late settlement of the claim.

3. Respondents in their written statement admitted the factum of insurance of the car in question. It is stated that after receipt of the information of theft of the car, they appointed surveyor who assessed the value of the car as Rs.1,15,000/-. This amount was paid to the petitioner on 17.10.2001 as full and final settlement of his claim. Petitioner signed the discharge voucher and accepted this amount. Thus, there is no merit in the complaint.

4. District Forum, vide order dated 4.2.2004 allowed the complaint and directed respondents to pay to the petitioner a sum of Rs.95,000/- with 9% interest p.a. with effect form 11.2.1999 (from the date of making of claim) till the payment.

5. Being aggrieved by the order of District Forum, respondents filed appeal before the

State Commission which allowed the same, vide its impugned order.


7. We have heard the learned counsel for the parties and have gone through the record as well as reply filed by the respondents and written arguments filed on behalf of the petitioner.

8 It has been contended by learned counsel for the petitioner that petitioner had to accept the amount of Rs.1,15,000/- under compelling circumstances, as full and final settlement of his claim as his claim was kept pending for more than two and half years.

9. On the other hand, it has been argued by learned counsel for the respondents that in the complaint it has been nowhere alleged that any coercion or pressure was put upon the petitioner to accept the amount. This plea has been taken up for the first time in this revision petition.

10. State Commission, while allowing the appeal of the respondents has held ;

“ In view of the admitted fact the car was about 4 and half years old from the date of its first hand purchase and also considering the price of the new Maruti Car on the date of theft as stated above, we are of the view that there was reasonable ground from the surveyor to assess the price of the stolen Car to Rs.1,15,000/- only. We do not find any element of prejudice on the part of the surveyor in assessing the value of the Car.

The value of the Car has been assessed on the price of the new Car on the date of theft and as such it is a case of close proximity. Prima-facie, we do not find any material irregularity in calculating the valuation of the

Car which was admittedly about four and half years old on the date of its theft. As such, we are of the view that there is no reason not to accept the surveyor’s report. The reason assigned by the District Forum that since the Assurance Company has insured the Car for Rs.2,10,000/-, therefore, it should pay the same amount is not a valid ground to come to the conclusion that surveyor has assessed under-value price of the

Car and hence its report should not be accepted. On the other hand we find that there is no reason to reject the report of the surveyor, as such, accepting the report of the surveyor we are of the view that the insured is entitled to get Rs.1,15,000/- which he has received from the

Assurance Company.

In the result, the appeal is allowed. The impugned order of the District

Forum is set aside ”.

11.

Law on this subject has been clearly laid down by Hon’ble Supreme Court of India in United India Insurance Vs. Ajmer Singh Cotton & General Mills and others (1999)

6 Supreme Court Cases 400, in which it was held that, discharge voucher 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. However (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case.

There mere execution of discharge voucher and acceptance of the insurance would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The

Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance.

The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.

In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints

”.

12. In Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 Supreme

Court Cases 311, Apex Court has observed ; .

“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 74.1993. 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 nonacceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and 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 offer. acceptance of the

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 ”.

13. In the present case, there is nothing on record to show that petitioner was compelled by the respondents at any stage to settle the claim at lesser amount than the claim made by him. There is also not an iota of evidence on record to show that any official of the respondent compelled the petitioner to settle the claim at lesser amount. Interestingly, petitioner after having received the sum of Rs.1,15,000/- as far as back in the year 2001, has been enjoying the aforesaid money for last more than twelve years. Now petitioner wants to repudiate the discharge voucher duly signed by him. This clearly shows malafide intention on the part of the petitioner in filing the present complaint. It is well settled that provisions of the Consumer Protection Act,

1986 are not meant for enrichment of the consumer. Once petitioner has received the amount unconditionally, under these circumstances petitioner cease to be ‘Consumer’

as per the Act. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment petitioner accepted the amount unconditionally.

14. Thus, there is no merit in the present petition and same is accordingly dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).

15. Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization.

16. List on 12 th April, 2013 for compliance.

…..………………………

…J

(V.B. GUPTA)


…..…………………………J

(K.S. CHAUDHAR)

MEMBER

SSB


REVISION PETITION NO. 3729 OF 2012

(From order dated 25.06.2012 in SC Case No. FA/42/2011 of the

West Bengal State Consumer Disputes Redressal Commission, Kolkata)

HDFC Bank Ltd. Having its Registered Office at HDFC Bank House, Senapati Bapat

Marg Lower Parel (West), Mumbai & Branch Office at Central Plaza 2/6, Sarat Bose

Road, Police Station Bhowanipore, Kolkata

… Petitioner

Versus

Goloke Dutt Proprietor of M/s. Benud Behari Dutt Having its office at 84, Ashutosh

Mukherjee Road Police Station Bhowanipore Kolkata

… Respondent

And


(From order dated 25.06.2012 in S.C. Case No. FA/43/2011 of the

West Bengal State Consumer Disputes Redressal Commission, Kolkata)

HDFC Bank Ltd. Having its Registered Office at HDFC Bank House, Senapati Bapat

Marg Lower Parel (West), Mumbai & Branch Office at Central Plaza 2/6, Sarat Bose

Road, Police Station Bhowanipore, Kolkata

… Petitioner

Versus

Goloke Dutt Proprietor of M/s. Benud Behari Dutt Having its office at 84, Ashutosh

Mukherjee Road Police Station Bhowanipore Kolkata

… Respondent

BEFORE:



For the Petitioner in both the RPs : Mr.Rishab Raj Jain, Advocate

For the Respondent in both the RPs : Mr. Abhishek Sarkar, Advocate

PRONOUNCED ON_14.02.2013

ORDER

JUSTICE J.M. MALIK

1. This order shall decide the two above mentioned revision petitions which arise out of two different cheques pertaining to Goloke Dutt, the complainant. Somnath Mitra, complainant’s own employee withdrew an amount of Rs.81,538/- and Rs.1,38,115/- from current account of the complainant by forging his signatures. When it came to light, the complainant lodged a FIR with the police on 30.12.2006. The Complainant filed two separate complaints against the HDFC Bank Ltd, Petitioner/ OP in this case, before the

District Forum, praying that OP be directed to pay a sum of Rs.85,138/- and

Rs.1,38,115/-, respectively, with interest and Rs.2,00,000/- each, towards compensation.

2. The main defence set up by the OP/petitioner was that the misappropriation of funds was conducted by his employee and the matter should be investigated by a criminal court. OP also contended that the complaint was filed before the District Forum in the month of August, 2008, whereas the cause of action arose prior to the elapse of two years. Consequently, the case is barred by time.

3. The District Forum vide its orders dated 26.10.2010 and 28.10.2010 allowed both the complaints, compensation in the sum of Rs.85,138/- and Rs.1,38,115/- in respect of six cheques described in the petition of complaint was granted. Compensation in the sum of Rs.25,000/- and litigation costs of Rs.5,000/- was granted, total being

Rs.1,68,115/- was ordered to be paid within 45 days from the date of communication of that order, failing which it will carry interest @ 10% p.a., till full realization.

4. In the second complaint, it was ordered that payment of Rs.85,138/- along with compensation of Rs.25,000/- and litigation costs of Rs.5,000/- be paid by the OP within

45 days from the date of communication of that order, failing which it will carry interest

@ 10% p.a., till full realization. The State Commission dismissed the appeals.

5. We have heard both the counsel and perused the brief notes submitted by

Sh.Goloke Dutt, the complainant. There is no dispute that the signatures of Sh.Goloke

Dutt were forged. The report of the Handwriting Expert was also placed on record. This is also an admitted fact that Somnath Mitra was arrested and was confined to police and jail custody, for a considerable period and charge-sheet against him has been submitted under Sections 408, 467, 468, 474 and 477A of IPC.

6. The cause of action arose when it came to the knowledge of the complainant that some forgery has been committed and he has been cheated with such a huge amount.

The FIR was registered on 30.12.2006. The complaint was filed on

13.08.2008. Consequently, the case is within time.

7. As a matter of fact, there has been contributory negligence on the part of the Bank as well as the complainant. His own employee cheated him. It is also not explained whether some amount was recovered from the possession of Somnath Mitra. There should not be unjust enrichment. The complainant is also responsible because his own employee cheated him as well as the Bank.

8. The Bank is also negligent. There is deficiency on the part of the Bank for lack of care in tallying, comparing signatures in his current account with the cheques deposited.

The State Commission was pleased to hold :-

“Thirdly, the Appellant stated that the Bank personnel considered the pictorial identity of the signature of the current account holder with the signature on cheque in question but, in our view, the Bank should be very careful while disbursing any amount from any account. Nowadays, very sophisticated electronic gadgets are there in the Bank which facilitate to compare the signature of the account holder within seconds. Had the Bank employees been careful enough in finding out the genuineness of the signature put on the disputed cheques they would have come to know that those are fabricated ones”.

9. The fora below have taken note of the fact that for the above said reasons, the complainant is not entitled to any past interest nor the complainant has filed revisions in respect of the enhancement of the amount. He has not claimed interest. He is not entitled to that as well, because contributory negligence on his part also stands established. He should have given the cheques to a trusted person. Consequently, the revision petitions are without merit and are hereby dismissed.

..…………………..………J

(J.M. MALIK)


..……………….……………

(VINAY KUMAR)

MEMBER dd/7 & 8


REVISION PETITION NO.1989 OF 2012

(From the order dated 24.01.2012 in F.A. No.682 & 1521 of 2009 of the Haryana


MAJOR JAI PARKASH SENA MEDAL R/O B/17, SECTOR 23-A, DWARKA, NEW

DELHI-110075.

...... PETITIONER

Versus

1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS, CHIEF

ADMINISTRATOR SECTOR-6, PANCHKULA, HARYANA.

2. THE ADMINISTRATOR, HUDA, GURGAON.

3. THE ESTATE OFFICER, HUDA, GURGAON.

.......RESPONDENTS

BEFORE:

HON’BLE MR. JUSTICE AJIT BHARIHOKE,


For the Petitioner : Mr.Yashpal Rangi, Advocate

For the Respondents : Ms. Anubha Agarwal, Advocate

PRONOUNCED ON: 15 th FEBRUARY, 2013

ORDER

This revision petition is directed against the order of the State Consumer

Disputes Redressal Commission, Haryana dated 24.01.2012 in appeal no.682 of 2009 and appeal no.1521 of 2009 whereby the State Commission accepted the appeal against the order of the District Forum, Gurgaon preferred by the respondents/OPs and dismissed the appeal against the order of the District Forum preferred by the petitioner/complainant.

2. Briefly, put the facts relevant for the disposal of this revision petition are that the complainant was allotted plot no.796-P, Sector 38, Gurgoan underdefence quota by the

OPs vide allotment letter dated 15.12.1999. Pursuant to the allotment letter, the complainant deposited a sum of Rs.7,61,934/- (25% of total price of the plot) with the

OPs. The complainant/petitioner however failed to pay the installments in time; consequently, the OPs imposed penalty of Rs.25,397/- on account of non payment of installments. The complainant vide his letter dated 18.12.2002 requested the OPs to set aside the penalty or to refund his money. The OPs instead of waiving the penalty cancelled the allotment of the said plot and refunded a sum of Rs.5,46,032/- after deducting a sum of Rs.2,15,902/- (10% of the price of the plot). Grievance of the complainant/petitioner is that the cancellation of the allotment of plot by the OPs and

also deduction of 10% of the price of the plot while refunding the payment made by the petitioner is without any justification and it amounts to deficiency of service as well as unfair trade practice.

3. The case of the OPs is that the complainant vide his letter dated 18.12.2002 has surrendered the plot and requested for refund of payment made by him thus the OPs were justified in canceling the allotment and refunding the deposited amount after deduction of 10% of the price of the plot as per the HUDA policy. The OPs further claimed that once the complainant had surrendered the plot and accepted the refund without protest, he is not a consumer and as such, his complaint is not maintainable. The OPs also took the plea that the complaint is barred by limitation.

4. Learned District Forum decided the complaint vide order dated 01.05.2009. The operative portion of the order reads thus:

“The order dated 23.12.2002 vide which the plot of the complainant was resumed by Estate Officer, HUDA, Gurgaon was illegal and the same is hereby set aside. We therefore direct the opposite parties to permit the complainant to deposit with the opposite parties the whole of the price of the plot in question from the complainant within a period of four months from today along with interest as per

HUDA policy. However, it is made clear that the amount of

Rs.2,15,902/- which was forfeited by the HUDA will also be adjusted towards the principal amount of the plot in question. We the above direction the present complaint stands disposed of. File be consigned to records after making the compliance.”

5. OPs being dissatisfied with the order of the District Forum preferred appeal no.682/2002 before the State Commission. The complainant/petitioner also dissatisfied with the order of the District forum preferred appeal no.1521/2009 before the State

Commission. The State Commission after hearing the parties allowed the appeal of the

OPs and set aside the impugned order. The appeal filed by the petitioner/complainant was dismissed. It is against the aforesaid order of the State Commission, the petitioner/complainant has preferred this revision petition.

6. On perusal of the impugned order, it transpires that the State Commission has set aside the order of the District Forum and dismissed the complaint mainly on the ground that the complaint filed by the petitioner is time barred and also that the petitioner after

having surrendered the plot and accepted the refunded amount without any protest does not fall within the definition of the Consumer as defined under Section 2 (d) of the

Consumer Protection Act, 1986.

7. Learned counsel for the petitioner has contended that the impugned order of the

State Commission suffers from material irregularity and liable to be set aside. It is contended that the District Forum in its order has failed to examine the issue of limitation, therefore on this count alone the State Commission, if it was of the view that the petition is time barred, ought to have been remanded back the matter to the District

Forum for adjudication on the issue of limitation. Secondly, it is contended that the State

Commission has concluded on the basis of the letter dated 18.12.2002 written by the petitioner that he surrendered the plot of his own accord whereas careful reading of the aforesaid letter would show that the spirit of letter was to seek waiver of the penalty imposed because ofnon payment of the installments in time and not to surrender the plot.

8. Above contention of the learned counsel for the petitioner is misconceived and devoid of merit. As regards the issue of limitation Section 24 (A) (1) of the Consumer

Protection Act deals with the period of limitation for filing a complaint and it reads thus:

“ 24A Limitation period. - (l) The District Forum, the State Commission or the

National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.”

9. On bare reading of this Section it is evident that the above provision is mandatory and the District Forum, the State Commission or the National Commission cannot entertain any complaint unless it is filed within two years from the date of cause of action. No doubt Section 24 (A) (2) confers a power upon the concerned forum to condone the delay in filing of complaint provided the complainant is able to show a sufficient cause for not filing the complaint within the prescribed period. Admittedly in the instant case no application for condonation of delay was filed thus only point which is to be seen before entertaining the complaint is whether or not complaint has been

preferred within two years from the date of cause of action. Admittedly pursuant to the letter dated 18.12.2002 allotment of the plot in favour of the petitioner was cancelled and the amount of Rs.5,46,032/- after the deduction was refunded to the complainant vide cheque dated 23.12.2002. From this it is evident that allotment in favour of the petitioner was cancelled on 23.12.2002 which is date on which cause of action for challenging the cancellation of allotment arose. The complaint before the District Forum was filed on 03.02.2006 i.e. much after the expiry of two years period of limitation as provided under Section 24 (A). Therefore, I do not find any merit in the contention of the learned counsel for the petitioner on the point of limitation raised by him when the complaint was clearly time barred. There was no obligation on the State Commission to send the matter back to the District Forum for deciding the issue of limitation particularly when there was no dispute of fact. Thus, it is clear that the State Commission has rightly decided the issue of limitation against the complainant.

10. Coming to the second contention of the learned counsel for the petitioner, admittedly the petitioner had written letter dated 18.12.2002 to the OP. Para 2 of the aforesaid letter reads thus:

“2. Due to exigency of service I could not deposit the installment amount due in Feb 2002 and I will not be able to do so till I get leave. The estate officer has imposed penalty of Rs.25397. You are requested to set aside the penalty or I will ask for refund of complete amount deposited by me with interest.”

11. On reading of the aforesaid paragraph it is clear that petitioner vide this letter had prayed for waiving the penalty imposed upon him or to refund the amount paid by him with interest. Pursuant to this letter OP had cancelled the allotment and refunded the sum of Rs.5,46,032/- to the petitioner vide chequedated 23.12.2002. The petitioner admittedly has encashed aforesaid refund cheque without any protest. Since the petitioner has encashed the chequepursuant to cancellation of the aforesaid plot, he no more remains a Consumer. As such, his complaint before the District Forum is not maintainable. Similar view was taken by Punjab & Haryana High Court in the matter of HUDA Vs. M/s Zuari Industries, 2009(3) R.C.R. (Civil) 104 as also in the matter

of HUDA vs. Pashu Lal Nagpal, 2010 (1) CPC 277 wherein it is held that once the complainant has surrendered the plot and accepted the price of the plot, he cannot seek the re-allotment of the plot.

12. In view of the discussion above, I do not find any infirmity in the impugned order, which may call for interference in revisional jurisdiction. The revision petition is according dismissed.

……………….……………

(AJIT BHARIHOKE J.)

PRESIDING MEMBER bs



(From the order dated 22.05.2007 in First Appeal No. 126/2006 of Uttarakhand State Consumer Disputes Redressal Commission)

Shri Akkan Khan S/o Sri Makkan Khan R/o Opp. P.W.D. Guest House, Lalkuan District

Nainital (Uttarakhand)

... Petitioner

Versus

The Oriental Insurance Co. B-6, Bhotia Parao, Haldwani District Nainital Through

Divisional Manager

…. Respondent

BEFORE




For the Petitioner(s)

For the Respondent(s)

Mr. Zafar Ullah, Advocate

Mr. Abhishek Kumar, Advocate

PRONOUNCED ON : 15 th FEB. 2013

O R D E R

PER DR. B.C. GUPTA, MEMBER

This revision petition has been filed by the petitioner against the impugned order dated 22.05.2007 passed by the Uttarakhand State Consumer Disputes Redressal

C ommission (for short ‘the State Commission’) in

FA No. 126 / 2006 vide which the appeal filed by the present respondent, Oriental

Insurance Co. Ltd against order dated 11.05.2006 passed by District Consumer

Disputes Redressal Forum, Nainital, was accepted, the order was set aside and the complaint was dismissed.

2. Brief facts of the case are that the present petitioner / complainant is the owner of vehicle bearing registration no. UP 70 R

– 2551 which was insured by the respondent insurance company via cover note No. 31-2004-2551. The said vehicle met with an accident on 1.1.2004 and was damaged. The surveyor appointed by the respondent assessed the damages to be Rs.70,000/- whereas the petitioner claims that he spent

Rs.95,000/- for the repair of the vehicle, after returning the salvage to the opposite party. However, the respondent / OP repudiated the claim on the ground that the driving licence possessed by the driver was fake. The case of the complainant is that the accident occurred due to mechanical failure and not due to lack of skill on the part of the driver. The District Forum after examining the documents submitted, directed the insurance company to pay Rs.61,393/- to the complainant within 30 days alongwith interest @9% p.a. from the date of filing of the complaint and also Rs.1500/- for the expenses incurred by the complainant.

3. Being aggrieved, the respondent / OP filed appeal before the State Commission against the order of the District Forum. The State Commission allowed the said appeal and dismissed the complaint, holding that the licence of the driver of the vehicle in question was fake and hence, the insurer was not liable to pay the said claim as there was violation of the terms of the policy of insurance. The learned State Commission relied upon the decision of the Hon’ble Apex Court in “National Insurance Co. Ltd. Vs.

Laxmi Narain Dhut” [2007 AIR SCW 2279]. It is against this order that the present revision petition has been filed.

4. At the time of arguments before us, it was contended by the learned counsel for the petitioner that while it was true that the petitioner was not holding a valid driving licence at the time of accident, but the cause of the accident was mechanical failure and hence the factum of not having a valid licence was not relevant in the present case. He pointed out our attention to judgement given by the Supreme Court in “Jitender Versus

Oriental Insurance Co. & Ors.” [2003 SAR (Civil) 602] in which it has been held that the repudiation of a claim by the insurance company, solely on the ground that the driver did not have a valid driving licence at the time of accident, was not justified and the insurer was liable to pay the damages. The learned counsel argued that this authority is fully applicable to the facts of the present case and hence the petition deserves to be accepted.

5. On the other hand, learned counsel for the respondent argued that the Supreme

Court in its decision dated 2.04.2008 in “Oriental Insurance Co. Ltd. V/s. Prithviraj had observed that the conditions contained in the section 149 of the Motor Vehicles Act,

1988 related only to third party risk and claim. For the purpose of present case, the terms and conditions of the insurance policy have to be seen, which make it very clear that the insurer must have a valid driving licence. This view was also taken by this

Commission in the case of “United India Insurance Co. Ltd. Vs. Inderjeet Singh” decided on 05.01.2011. He further argued that in the case of “National Insurance Co. Ltd. Vs.

Swarn Singh” [2004 (3) SCC 297], the matter related to third party only and hence the decision was not applicable in the present case.

6. In reply, learned counsel for the petitioner stated that in one similar case, relief had been allowed to the complainant and hence in the present case also, the insurance claim is liable to be paid.

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts of the present case make it clear that when the vehicle, in question, was coming from Bareilly to Haldwani on 1.1.2004, the tyre of the vehicle got burst and the driver lost control over the vehicle resulting the accident. Looking at the circumstances of the case in totality, it cannot be stated that the driver had no role in the accident. Under the Motor Vehicles Act, 1988 and the Rules etc. made thereunder, a Driving Licence is issued only to that person who is in a position to pass a test as prescribed under the statute. Before operating any vehicle, a driver is supposed to have reasonably good knowledge of the fitness of the vehicle, including the condition of the tyres. It can, therefore, be stated that the factum of the driver, not having a valid licence is a relevant factor in the present case. In the order of the Hon’ble Supreme Court cited by the petitioner as reported in [2003 SAR

(Civil) 602] it has been stated that the repudiation of a claim for damages for which the driver was not responsible in any manner, is not justified. This authority is obviously not applicable to the facts of the present case. The accident may have occurred due to mechanical defect but it cannot be said that the driver had no role in the matter. Accordingly, the order passed by the State Commission does not suffer from

any infirmity and the same is liable to be upheld and we order accordingly. The revision petition stands dismissed with no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)


..……………………………

(DR. B.C. GUPTA)

MEMBER

RS/



(From the order dated 13.03.2007 in First Appeal No. 1229/2006 of Maharashtra State


Kokan Merchantile Co-op. Bank Ltd. Office at Harbour Crest, Mazgaon T.T. Mumbai –

400 010 & Branch at Shivaji Nagar Gajanan Colony, Ahilyabai Holkar Marg, Govandi

Mumbai

– 400043

... Petitioner

Versus

Mohamed Ashan Mohamed Faruk R/o 13 / 34, Ratlam Building, 3 rd Sangli Street,

Byculla, Mumbai – 400008.

… Respondent

BEFORE




For the Petitioner(s) Mr. S.K. Sharma, Advocate

For the Respondent(s) NEMO


O R D E R


This revision petition has been filed by the petitioner against the impugned order dated 13.03.2007 passed by the Maharashtra State Consumer Disputes Redressal

Commission (for short ‘the State Commission’) in FA No. 1229 / 2006 according to which, the appeal of the petitioner / OP against the order dated 29.10.2005 passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban District was dismissed on the ground of being time barred, as there was a delay of 212 days in filing the appeal before the State Commission.

2. Notice was sent to the respondent for appearance at the time of hearing, but the respondent did not appear although AD card was received back.

3. Brief facts of the case are that the complainant / respondent Mohamed Ashan

Mohamed Faruk, a resident of Byculla, Mumbai deals in the business of zari work of clothes on contract basis. He had opened a current account, bearing number 394 with the petitioner / OP Bank. It was alleged by the complainant that although there was an outstanding balance in his account yet the cheques were dishonoured by the Bank and payment was made to some other persons without verifying the signatures by the

Bank. The learned District Forum after taking into account the evidence on record ordered the OP to pay a sum of Rs.3,81,900/- to the complainant together with an interest @9% p.a. from 20.10.95 till its recovery and also to pay Rs.20,000/- by way of compensation towards mental agony and loss of business and also Rs.5,000/- by way of cost of litigation and Rs.14/- towards debited charges.

4. This order was passed by the District Forum on 29.10.2005 but the appeal against the order was preferred before the State Commission on 30.06.2006. The learned

State Commission held that although an application for condonation of delay had been filed, but the inordinate delay in filing the appeal had not been satisfactorily explained. It was stated by the appellant / petitioner that papers were forwarded to the Solicitors for drafting and filing the appeal, but due to busy schedule in the office of Solicitors, the delay was caused. The State Commission refused to condone the delay and dismissed the appeal. This order has been challenged by way of filing the present revision petition.

5. At the time of arguments before us, the learned counsel for the petitioner invited our attention to an order passed by the Supreme Cou rt in “ N. Balakrishnan Vs. M.

Krishnamurthy [(1998) 7 SCC 123]

” saying that the courts should adopt a liberal approach, while deciding applications for condonation of delay. The learned counsel for the petitioner argued that in the interest of justice, the delay should be condoned. However, learned counsel was not able to put forward any other cogent reason for condonation of delay apart from the arguments already taken in the appeal.

6. We have examined the matter and given a thoughtful consideration to the arguments advanced before us. The sole reason taken by the petitioner in their appeal

before the State Commission says that due to busy schedule in the office of Solicitors, the delay was caused. This does not appear to be a satisfactory explanation by any standard.

In recent years, the Hon’ble Apex Court have observed in a number of cases that the party has to exercise a reasonable diligence while pursuing its appeal / revision petition.

7. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed:


8. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court

361, it has been observed;


9.

Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy wi thin the stipulated time.”

10.




11.




“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the

Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the

Consumer Foras”.

12. It is quite evident from the perusa l of the latest orders of the Hon’ble Apex Court that unless sufficient cause is shown for not filing the revision petition / appeal within the stipulated time, the delay should not be condoned. It has been specifically observed by the Hon’ble Apex Court that special period of limitation has been prescribed under the

Consumer Protection Act, 1986 for filing the appeals and revision petitions in consumer matters and the object of expeditious adjudication of consumer disputes will get defeated, if the courts were to entertain highly belated petitions.

13. In the light of the discussion above, it is held that the State Commission has not committed any irregularity / illegality in passing the impugned order dated

13.03.2007. This revision petition against the order of the State Commission is, therefore, ordered to be dismissed.

..……………………………



..……………………………

RS/


MEMBER



(From the order dated 10.09.2012 in First Appeal No. 876/2012 of Punjab State


Balbir Singh S/o Shri Ram Singh R/o Nawan – Naushehra Tehsil and District Gurdaspur

(Punjab)

... Petitioner

Versus

1. New India Assurance Co. Ltd. Branch Office (261603), G.T. Road, Dasuya, District

Hoshiarpur Punjab Through its Manager

2. The State Bank of India, Branch Office Pandhori, Mahantan 03931, Tehsil and

District Gurdaspur Punjab Through its Branch Manager

…. Respondent(s)

BEFORE




For the Petitioner(s) Mr. Lekh Raj Rehalia, Advocate


O R D E R


This revision petition has been filed by the petitioner against the impugned order dated 10.09.2012 passed by the Punjab State Consumer Disputes Redressal

Commission (for short ‘the State Commission’) in FA No. 876 / 2012 vide which the order dated 26.04.2012 passed by District Consumer Disputes Redressal Forum,

Gurdaspur, was upheld and the complaint filed by the petitioner before the District

Forum was ordered to be dismissed.

2. Brief facts of the case are that the petitioner / complainant Balbir Singh filed a complaint against respondent New India Assurance Co. Ltd. and others therein that his tractor bearing registration no. PB-54-C-8026, which was insured with the respondent /

opposite party no. 1 was stolen during the currency of the insurance policy. The petitioner / complainant made a report to this effect to the Police Authorities as well as got the matter published in newspaper on 4.4.2011. The required documents were also supplied to the insurance company but they refused to make him payment of the insurance claim. The District Forum found discrepancies in the version of the complainant saying that the claim was shrouded in suspicious circumstances and the complainant had failed to explain the reasons for delay in filing the complaint. The complaint was ordered to be dismissed by the District Forum. The State Commission in the appeal order also observed that the factum of theft having taken place had not been established. The report of the investigator as well as the Police also proved that the complaint was false. The State Commission affirmed the order of the District Forum in the appeal.

3. We have heard the arguments of the learned counsel for the petitioner at the admission stage.

4. He has drawn our attention to some order dated 10.12.2010 passed by learned

Judicial Magistrate (I st Class) saying that it was clear from this order that the tractor was not traceable till date despite best efforts. The State Commission and the District

Forum had failed to carry out the correct appreciation of the facts of the case. Further, the petition was very much within limitation from the date of knowledge of the impugned order. The statement of the Station House Officer (SHO) of the area had also not been considered while passing the impugned order. The petition should, therefore, be accepted and the orders of the State Commission as well as that of the District Forum should be set aside.

5. We have examined the material on record and have given thoughtful consideration to the arguments advanced before us.

6. It has been stated in the reply filed by respondent no. 1 before the District Forum that theft of the said tractor is stated to have taken place on 30.03.2010 but the Daily Diary Report (DDR) was recorded on 12.05.2010 with the local police. Such an occurrence should have been reported immediately to the local police. The Insurance Company was also given intimation after delay of more than 7 days. On enquiry, the local police found that the theft had never taken place. The

investigator appointed by respondent no. 1, S.A. Investigating and Consultant Agency found after investigation that the alleged theft never took place. The petitioner is also stated to have left the keys inside the vehicle and hence, found negligent. Both the

District Forum and State Commission have reached the conclusion that the alleged theft never taken place. In view of these facts, we do not find any merit in the petition.

7. Consequently, the revision petition is dismissed in limine .

..……………………………



..……………………………


MEMBER

RS/

NTAIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONv NEW DELHI


(From order dated 21.12.2010 in Appeal No. 239 of 2010 of the Maharashtra State Consumer Disputes Redressal Commission Mumbai)

Nidhei Choudhry, R/o H. No. 521, Sector-9, Faridabad, Haryana

…. Petitioner

Versus

Surya Developers, 301, Parmila Apartment, C.T.S. No. 119B, Sub Plot No. 1,

Lakhaaki Road, Next to Kirloskar Building, Model Colony, Shivajinagar, Pune-411016.

…… Respondent

BEFORE:



For the Petitioner : In person

For the Respondent : Ms. Vinita Sasidharan, Advocate


ORDER


By way of present revision petition, petitioner/complainant has challenged order dated 21.12.2010, passed by State Consumer Disputes Redressal Commission,

Mumbai (for short, ‘State Commission’).

2. Brief facts are that petitioner filed a complaint before District Consumer Disputes

Redressal Forum, Pune (for short, ‘District Forum’) against respondent/o.p. who had constructed the tenaments. It has been alleged that petitioner agreed to purchase Flat

No.902 admeasuring 1125 sq. ft. for consideration of Rs.15,32,500/ - from the respondent. Apart from this amount, petitione r paid an amount of

Rs.45,000/ - to wards M.S.E.B.charges,Rs.5,000/ -to wa rds le gal

charges,Rs.30,000/ - to ward s club house deve lopment charges. In addition to this, she was liable to pa y maintenance charges of Rs.16,875/ -. It is further alle ged tha t she had pa id all the cha rges referred abo ve to the respondent. The p arkin g place was to be allo tted to the petitione r on payment of Rs.70,000/ -.It is alle ged that there was deficiency in se rvice in not pro vid in g the fire fightin g e quipments, lift and the quality of constru ction wa s of poor quality an d there is wate r leakage. It is also alle ged that respon dent had handed ove r possession of the area le ss than given in the a gree ment. Furthe r, re spondent had not formed co -operative housin g so ciety an d e xecuted the co nve yance in fa vour of the Society. It is a lso a lle ged that respondent had n ot giv en the accou nt of the payments made towa rds p ro vidin g various am enities. Hen ce, complaint wa s filed pra yin g for the follo win g reliefs:

“ That the application be kindly allo wed and the Opponent be kindly directed to give account for utilization of the pa yme nts made by the Complainant till date, a timeline as to when the issues re lating to the flats mentione d in the pa ra (1 ) to para

(29) will be re solved and to pa y to the Complaina nt the amounts as described in Clause s (a), (b ) and (c) o f this complaint withi n 3 0 days of the receipt of the order passed by this Hon’ble Forum ”.

3. Respondent in its written version denied the alle gations, made in the complaint. It is stated that re spondent has obtained necessa ry permissions and sanctions from the concerned a uth orities and th e constru ction is made in accordance with the sanctioned buildin g plan and as per the a gree ment entered with the purchase rs. Respondent has complied all the promises and has h anded ove r the possession. Society has also been formed and resp ondent has handed over all the accounts to the Society. Simila rly, respondent h as handed o ve r the draft of final con ve yance to the Society. Ho we ve r, it ha s not been finalized b y the

Society.

4. District Fo rum, vide orde r dated 4.1.2010, allo wed the co mplaint partly and directed the re spondent to execute the deed of conveyan ce in favour of the Society within, four months from the date of rece ipt of the order b y the respondent.

5. Not satisfied with the reliefs granted, petitioner filed an appeal before the State Commission, which dismissed the same, vide impugned order.

6. Hence, the present revision.

7. Petitioner who has appeared in person has argued her case. Whereas, Ms.

Vinita Sasidharan, Advocate has argued on behalf of the respondent.

8. It is stated by the petitioner that she has placed photographs of the flat on record which clearly shows that there were number of cracks in the flat alongwith number of defects in the walls. Since, there is deficiency in service on the part of the respondent, petitioner is entitled for compensation for loss suffered by her.

9. On the other hand, it has been argued by learned counsel for the respondent that petitioner has not adduced any evidence on record to show that her flat is defective or there is any seepage.

10. District Forum, in its order has held that the alleged internal deficiencies have not been brought on the record. Therefore, it is not possible to hold that quality of construction is poor. It also held that the complainant is conspicuously silent about the alleged less area of the flat in question. Further, there are no complaint received by the respondent regarding the alleged deficiency in providing the lift to the occupants and adequate water supply is also there.

11. State Commission, while dismissing the appeal observed ;

“( 7) . The Respo ndent/orig inal Op posite Pa rty had obtained occupancy ce rtificate fro m the local authority a nd the occupancy ce rtificate is produced in the appeal co mpilation.

W hen the construction is co mp leted as per the bu ild ing plan and when the necessa ry facilities as per the Develop ment

Contro l Ru les a re provided then on ly the occupancy ce rtificate is issued b y th e loca l authority. The Re spondent/orig inal

Opposite Party has att ached the copy of ma intenance contract executed with Omega Elevato rs to p rove that he has p rovided the lift to the building. The Appella nt has not produced any evidence to p rove that the lift is su bstandard. Similarly, the

Opposite Party has attached cop y of the fire fighting ce rtificate issued by the co mpetent authority. W hen there are certificates fro m the co mpete nt authorities and the Appellant h as not proved that the ce rtificate s are not valid, the Appe llant cannot question the va lid ity of the fire fi g hting arrange ments and quality of lift.

(8) Apart fro m this, the Appe llan t has contended that there is seepage proble m a nd because of see page proble ms cra cks a re developed in th e constru ction. However, to p ro ve the allegations the Ap pellant has not a dduced any evide nce to prove that there is seepage prob le m and cracks have been developed. Appe llant is alleging tha t the Re spondent/orig inal

Opposite Pa rty ha d handed over the possession of the lesser area than men tio ned in the agreement. Fo r provin g this deficien cy the App ellant is re lying o n the assessment notice given by the Corp oration. For proving that area of th e flat is less than the agree ment the Appellant should have adduced the evidence fro m the co mpetent technical person that the area is less than pro vided in the agree ment. Hence, me re relia nce on the notice issued by the Corporation will not pro ve the contention of the Appellant that the area provided by the

Respondent/origina l Opposite Party is less than the Agree ment.

(9) The Appellant has vehemently contended that the

Respondent/origina l Opposite Party has asked for an a mo unt of

Rs.70,000/ - fo r stilt parking p lace. This ha s been ad mitted by the Respondent/o rig inal Opposite Party in h is written version. The Appellant re lies on th e ruling of the Bo mba y High

Court dated 25 t h April, 2009, whereby the builde rs can not sell stilt and open pa rking spa ce. The sa me ru ling of the Bo mbay

High Cou rt is upheld by the Apex Court. In view of this, the

Respondent/origina l Opposite Pa rty cannot s ell the area of stilt parking to the Appellant. It is not a case of Appellant that she has paid the a mou nt of pa rking asked by the builder. Had she paid the a mount she was entitled for the a mount fro m the

Respondent. The Foru m below after taking into c onsid eration the evidence adduced by the parties p assed the orde r.

(10) Therefore, w e find that th is ap peal devo id of any substan ce and pass the follow ing orde r :

O R D E R

(i) The appeal stands dismissed.

(ii) No order as to costs ”.

12.

It is well settled that under Section 21 (b) of the Consumer Protection Act,

1986(for short, ‘Act’) scope of revisional jurisdiction are very limited.

13. 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

Nationa l Co mmission are de rived fro m Section 21 (b ) of the

Act, under which the said power can be exe rcised on ly if

there is so me p rima facie jurisd ictional erro r appearing in the impugned orde r, and on ly then, may the sa me be set aside. In our con sidered opinion the re was no jurisd ictional erro r or miscarriag e of justice, which could have warranted the National Co mmission to have tak en a d ifferent view than what was taken by the two Foru ms. The decision of the National Co mmission rests not on the ba sis of so me legal p rinciple that was ignored by the Co urts below, but on a different (and in our opinion, an errone ous) interp retation of the sa me set of facts. Th is is not the manner in which revisional powers should be invo ked. In this view of the matter, we a re of th e conside red op inion that the jurisd ictio n conferred on the Nationa l Co mmission under Section 21 (b) of the Act has bee n transg ressed. It was not a case where such a view could have been taken by setting aside the concurrent findin gs of two fora ”.

14. In the present case, petitione r has not adduced any e vidence at all to sho w that flat allotted to her was d efective, it was le ss in area, there was seepage and the lift in stalled in the flat was d efective.Thus, no jurisd iction or le gal erro r has been sh o wn to us to call for inte rference in the exe rcise of power unde r section 21 (b) of the Act, since two fora belo w ha ve give n cogent reasons in their o rder, which does not call for any inte rference n or the y suffer from any infirmity o r re visional e xercise of jurisd iction.

15. 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 reasoning.

16.

Present re vision petition ha ving no merits and the same being without an y lega l basis, is hereb y d ismissed with costs of Rs. 5,000/ -

(Rupees Five Thousand only).

17. Petitioner is directed to deposit the costs of Rs.5,000/- (Rupees Five Thousand

Only) by way of demand draft in the name of “Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today In case, petitioner fails to deposit the cost within prescribed period, then she shall be liable to pay interest @ 9% p.a. till its realization.

18. List on 5 th April, 2013, for compliance.

……..

……………………J

(V.B. GUPTA)

SSB/


…………………………

(REKHA GUPTA)

MEMBER



Smt. Munesh Devi W/o Late Shri Jagbir Singh R/o. A/103, Sunita Vihar 100 ft. Road,

Loni Tehsil & District Ghaziabad Uttar Pradesh Presently residing at : C/o B.P.Singh,

C-31 Gali No.1, Khajoori Khas Delhi – 110094

.... Complainant

Vs.

1. The U.P. Power Corporation Ltd. Shakti Bhavan, 14, Ashoka Marg Lucknow

2. The Executive Engineer Electricity Distribution Division – 11 SB-VI, Shastri Nagar,

Ghaziabad

3. The Sub-Divisional Officer Electricity Distribution Division Pargana Loni, District

Ghaziabad

….. Opposite Parties

BEFORE:



For the Complainant : Ms. Shaveta Choudhary, Advocate

With Mr. Jatin Rajput, Advocate

For all the Opp. Parties : Mr. Daleep Kr. Dhayani, Advocate

With Mr. Pradeep Misra & Mr. Manoj Kumar

Sharma, Advocates


ORDER


1. If a complaint is filed after the period of limitation and if the complainant has no sufficient cause for condonation of delay, the law under Section 24A of the Consumer

Protection Act, 1986, strikes a snap in allowing the complaint, whatsoever worth/strong the case may be.

2. In this complaint case filed before this Commission on 11.07.2002, by Smt.

Munesh Devi, Widow of late Shri Jagbir Singh, R/o. A/103, Sunita Vihar, 100 ft. Road,

Loni, Tehsil & District Ghaziabad, Uttar Pradesh, (Presently residing at C/o B.P.Singh,

C-31, Gali No.1, Khajoori Khas, Delhi

– 110 094) has claimed a sum of Rs.25,00,000/- because the death of her husband was caused due to the transformer installed and maintained by the Opposite Parties, while he was returning home from duty. The transformer of the Uttar Pradesh Power Corporation Ltd., (UPPCL, in short), arrayed as

OP No.1, suddenly burst and the hot oil of the transformer fell upon her husband, late

Sh. Jagbir Singh, on 05.02.2000 at about 6.00PM. He received 85% burn injuries. He was taken to Safdarjung Hospital where he succumbed to burn injuries on

08.02.2000.

3. Sh Jagbir Singh who was residing at the above mentioned address was an employee of the Mahanagar Telephone Nigam Ltd., (MTNL in short) at Delhi. The information regarding the death of the deceased was given to the Police. The complainant claimed Rs.25.00 lakhs as compensation under different Heads before the

OPs. The said claim has not been decided so far. The transformer in question was very old and rusty. The OPs were entrusted with the job of maintenance, removal and replacement of equipments which are needed for the generation and supply of electricity. The local inhabitants informed the OPs about the pathetic condition of the transformer but the OPs did not pay any heed to it. The deceased at the time of the death was drawing a monthly salary in the sum of Rs.6,275/-. He was born on

01.07.1961 and he passed away when his age was 38 years 7 months. The complainant, at the time of her husband’s death, was about 33 years and she has to look after her three minor children.

4. The complainant approached the civil court, Hon’ble High Court and Hon’ble

Supreme Court, respectively on the ground that she was unable to pay a sum of

Rs.1,00,000/- as court fee and wanted exemption from paying the court fee, but her request was not allowed. It is prayed that complainant be awarded a sum of

Rs.25,00,000/- on account of the deficiency, negligence and dereliction of duty on the part of the OPs.

5. The OPs contested the case and set up the following defences. The complainant is not a consumer and she is not entitled to Rs.25,00,000/-. The details given by her are not clear. All the allegations have been denied including that no application for compensation was received by the replying OPs. It is, admitted that UPPCL,

OP1 is a Government Company which has been entrusted with the work of transformation and distribution of electricity in Uttar Pradesh. It is also admitted that a transformer of the OPs was burnt due to sudden fall. No copy of FIR was enclosed with the complaint. The OPs were maintaining the transformer from time to time and its capacity and load and oil used to be checked from time to time. It is denied that the transformer burst out due to negligence of the OPs. There is no provision under which compensation for sudden accident due to the fact which was

beyond the control of the replying OPs could be granted. The incident did not occur in the premises of the complainant but had occurred on the road, and by chance, the complainant’s husband was passing by it, at that time. No cause of action has arisen in favour of the complainant and she is not entitled to any compensation.

6. We have heard the counsel for the parties and gone through the written synopses. The record reveals that complainant had claimed a sum of Rs.20.00 lakh only. The complainant was supposed to pay court fee in the sum of Rs.1,50,607.50ps but the complainant paid a court fee of Rs.200/- only. Her plea was rejected and she was directed to pay the deficit court fee in the court, within fourteen days, w.e.f. 07.08.2000, when the Civil Judge passed the above said order. Aggrieved by that order, the complainant approached the Hon’ble High

Court. The Hon’ble High Court vide its judgment dated 01.11.2001 passed the following orders:-

“Heard Shri Deepak Jaiswal, learned counsel for the petitioner. It may be an unfortunate case where the husband of the petitioner died in an accident as alleged in the writ petition. Compensation or any monetary relief can come to the petitioner only in accordance with the provision of law. No such provision has been cited. Therefore, the petitioner can always file a suit for a compensation if exigencies so desire. The writ petition consequently di sposed of with the aforesaid observations”.

7. Thereafter, the complainant filed Special Leave Petition before the Hon’ble

Supreme Court of India. The Hon’ble Supreme Court of India dismissed the petition on

15.03.2002. Thereafter, the instant complaint case was filed before this Commission on 11.07.2002.

8. Although this complaint was filed on 11.07.2002, yet, no application for condonation of delay was moved. On 07.01.2013, final arguments were heard and the case was reserved for orders. On 15.01.2013, we passed the following orders:-

“1. We have already heard the learned counsel for the parties. It appears that the complainant has not moved any application for condonation of delay. She has also not submitted the proof that the complainant had claimed Rs.25 lakh from the opposite party. Only copy of the application has been produced on record. There is no proof that the same was received by the opposite party.

2. Under the circumstances, we give opportunity to the complainant to move the application for condonation of delay. Notice be issued to both the parties for the date fixed.

3. List on 31.1.2013 for final hearing”.

9. Pursuant to the above said directions, the application for condonation of delay was moved by the complainant, for the first time, on 24.01.2013. In the said application, the following averments were made. This is admitted that the cause of action in the present case arose on 05.02.2000. The claim petition was filed before the

OP on 28.07.2000. The said claim petition was submitted to the concerned officer, by hand, and the same was received by them. It is contended that the cause of action is still continuing because no compensation has been paid by the OP to the

Complainant. They have not cared to respond to the said application. It is prayed that under these circumstances, the delay in filing this complaint, of about 156 days, be condoned. The said application was hotly contested by the OP.

10. We are of the considered view that the complainant has failed to prove sufficient ground for condonation of delay. The complainant has produced the copy of the claim petition filed before the OP, which the OP has categorically denied receiving the original copy of the claim petition. There is no proof of service. Signature of a person appears with the remarks “received”. No stamp appears on it, in token of the receipt of the original claim petition. The signatures are illegible. The counsel for the complainant could not explain to whom it had been handed over. Such like evidence can be created at any time. The complainant has failed to produce solid and unflappable evidence in support of her case. It is clear that the complaint is barred by time.

11.

The Hon’ble Apex Court in the celebrated authority, reported in

State Bank of

India Vs. B.S. Agricultural Industries (I), II (2009) CPJ 29 (SC) was pleased to hold, as under :-

“7. Section 24 A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

“24A. Limitation period – (1) The District forum, the State

Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in subsection (1), if the complainant satisfies the District forum, the

State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period : Provided that no such complaint shall be entertained unless the National Commission, the State

Commission or the District forum, as the case may be, records its reasons for condoning such delay”.

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.

12. Again, the

Hon’ble Supreme Court in M/s. Advance Scientific

Equipment Ltd. & Anr. vs. West Bengal Pharma & Photochemical

Development Corporation Ltd., (Civil Appeal Nos.17068-17069, decided on

09.07.2010) has 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”

.

13. This authority was further followed by this Commission in M/s.Agari Enterprises

Vs. Sesappa Saphaliga & Ors. (RP 3851 of 2012, decided on 10.12.2012) . See also Thai Airways International Public Company Ltd. Vs. Gargi Basak, 2008 (1) CPJ

134 (NC).

14. The ratio of the above said authorities is applicable to this case as well. It may be also mentioned here that neither the Hon’ble High Court nor the Hon’ble Supreme Court mentioned about the limitation of this case.

15. It was argued, in the instant case that the complainant is an illiterate person and she was not aware of the legal position. It is well settled that ignorance of law is no excuse. It may be mentioned here that the complainant has got the service of Class

IV employee, on compassionate ground. Her husband was working as UDC.

Consequently, we dismiss the complaint as barred by time.

.…………………..………J

(J.M. MALIK)


..……………….……………

(VINAY KUMAR)

MEMBER



(From order dated 24.02.2012 in First Appeal No. 168 of 2011 of the

Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Udaipur)

Madan Yadav S/o Sh. Subash Yadav Through Legal Guardian & Mother

Smt. Jay Shree Yadav R/o Plot No. 266, Krishanpura Udaipur, Rajasthan

… Petitioner

Versus

Vinod Menon Proprietor The Commerce Institute 303, 3 rd Floor, Anand Plaza

University Road, Udaipur, Rajasthan … Respondent

BEFORE:



For the Petitioner : Mr. S. K. Sharma, Advocate


O R D E R


1. The complaint of the petitioner was dismissed by the District Forum and the order of the District Forum was confirmed by the State Commission, through a cryptic order. The facts of this case are these.

2. Manan Yadav, the complainant, approached Vinod Menon, OP, P roprietor, “The

Commerce Institute”, Udaipur, Rajasthan, for 11 th Class Coaching and informed him that he had failed in 10 th Standard and had presented the application for re-totalling. He also told him that if he cleared in re-totalling, then he will continue the coaching and otherwise respondent assured him to refund the fee. The fee was paid on 06.08.2010 in the sum of

Rs.3,500/-. The complainant was declared ‘failed’ in the result of re-totalling, dated

05.09.2010. Thereafter, the complainant stopped taking coaching and asked the OP to refund the fee. The money was not refunded. A legal notice was served through the

Advocate of the complainant on 01.10.2010 to OP. The OP/respondent took the notice and denied all the allegations.

3. A complaint under Section 12 of the Consumer Protection Act, 1986, was filed before the District Forum which was dismissed vide order dated 26.09.2011. The Appeal filed by the petitioner was also dismissed by the State Commission, on 24.02.2012.

4. We have heard the counsel for the petitioner. He vehemently argued that the orders passed by the fora below are illegal. The coaching normally starts after primary talks with student’s qualification. As the student had failed, therefore, his money should have been returned.

5. These arguments lack conviction. The order of the District Forum clearly mentions that the petitioner had taken coaching classes from 21.07.2010 up to 20.09.2010. The petitioner himself mentions that the coaching classes started from August, 2010 and the OP used to take 3 days coaching within a week, i.e. one day after another. On 06.09.2010, the petitioner asked for refund of money. The petitioner himself admits in his complaint that when the receipt was given to him in respect of Rs.3,500/-, it was written, at the foot of the receipt ‘once fee paid is not refundable’. There is no evidence of any oral discussion as alleged. It is a settled law that once the coaching starts, and the student attends the class, one cannot claim the money for that very year or semester. The revision petition is devoid of merit and, therefore, the same is dismissed. It is the case of a student, therefore, we refrain from imposing costs upon the petitioner.

.…..…………………………



.…..…………………………

(VINAY KUMAR)

MEMBER

dd/2



(Against the order dated 09.01.2007 in Appeal No.1998/2004 of the State

Commission, Maharashtra)

Mr. Ashok Laxman Gulhane R/o Wadgaon Road, Tal & Dist. Yavatmal

........ Petitioner

Versus

1.

The Manager Tata Finance Co. Ltd. Adhura Centre, 4 th Floor,

82, Mahakali Cavage Road, Andheri (East), Mumbai

– 93

2.

The Regional Manager Sundar Automobiles Pvt. Ltd. Tata Diesel Vehicle

Dealer Suwalal Batra Nagar, Murtizapur Road, Shivani, Akola, T.Q.

& Distt. Akola

3.

Branch Manager Sundar Automobiles Pvt. Ltd. Bharti Complex, Darwah

Road, in front of Rural Police Station, Yavatmani, T.Q. & Distt. Yavatmal

4.

Road Transport Officer (RTO) District Transport Office Kalamb Road,

Kalamb Chowk, Yavatmal

…….Respondents

BEFORE:



For the Petitioner : Mr. S.K. Sharma, Advocate

For the Respondent : Mr. Sunil Dalal, Advocate for R-1


ORDER

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

Being aggrieved by order dated 9.1.2007, passed by Consumer

Disputes Redressal

Commission, Mumbai (short, “Consumer Commission”),

Petitioner/complainant has filed the present revision petition.

2. Brief facts are that petitioner wanted to purchase a tractor and for that purpose, he took financial assistance from respondent no.1/opposite party no.1. The total outstanding dues were Rs.7,50,176/-. Admittedly, petitioner had failed to pay EMI as per schedule. As per terms and condition of the Hire Purchase Agreement, the vehicle was repossessed. Respondent no.1 issued notice to the petitioner and asked him to pay the outstanding dues till 28.6.2002. Respondent no.1 had specifically informed the petitioner that on failure to deposit the outstanding dues, the vehicle will be sold in auction. Petitioner did not pay the outstanding dues. Hence, the vehicle was sold for

Rs.4,30,000/- and sale proceeds were adjusted against the outstanding dues and petitioner was supposed to pay remaining amount of Rs.77,000/- to respondent no.1.

3. District Consumer Disputes Redressal Forum, Yavatmal (for short, “District

Forum ”) before whom petitioner filed a complaint under section 12 of the Consumer

Protection Act, 1986, (for short, “Act”) dismissed the same, holding that there is no deficiency on the part of respondent no.1.

4. Being aggrieved by order of the District Forum, petitioner filed appeal before the

State Commission, which dismissed the same, vide its impugned order.

5. Hence, the present revision petition.

6. We have heard learned counsel for the petitioner as well as counsel for respondent no.1 and have perused their written arguments.

7. It is contended by learned counsel for the petitioner that no notice for termination for Hire Purchase Agreement, as required was given. Only thereafter, respondent could have taken the possession of the vehicle. Since, no notice for termination of the agreement was given, the impugned order cannot be sustained. Learned counsel for petitioner has cited a decision of this Commission, L & T Finance

Ltd. Anr. Vs. Vithal & Vithoba, IV (2010) CPJ 402 (NC).

8. On the other hand, it has been contended by learned counsel for respondent no.1, that there are concurrent findings of fact given by the fora below, that petitioner was a defaulter and after notice to the petitioner, vehicle in question was auctioned. There is no infirmity in the order passed by fora below. In view of the concurrent findings of facts, no legal issue is involved.

9. District Forum, in its order held ;

“After taking loan, it is the responsibility of borrower to regularly pay the loan installments. However, applicant has paid total amount of Rs.2,50,113/- only on different dates i.e. 29.3.2001,

27.6.2001, 1.10.2001 and 3.4.2002. In this connection, it is the say of non-applicant that total amount of loan payable by applicant with interest is Rs.7,50,176/-, in case applicant would have regularly paid installments, no amount would have outstanding, but applicant has not regularly paid installments. It is thesay of applicant that without giving notice non-applicants have seized his vehicle. As per column No.18 of hire purchase agreement non-applicant no.1 is empowered to take possession of vehicle without giving notice to applicant. So

also, they have reserved rights with them to sold the vehicle. For that in agreement words “with or without notice” are used. It appears that non-applicant no.1 issued notice to applicant on dated 27.10.2001. It also appears that notice dated

27.2.2002 is issued to applicant and his guarantors wherein, amounts due at that time are mentioned, it is also mentioned that amount be paid within 14 days or vehicle be returned back. Non applicant no.1 has filed posting certificate with list about issuing of notice dated 27.2.2002 on dated 9.3.2002 to applicant. Non applicant no.1 has filed document wherein there is letter about possession dated 21.5.2002 in which there is entry of taking possession of said vehicle from concerning driver and thereon there is also his signature. It appears that applicant has wrongly mentioned in his complaint that said vehicle was taken from his possession on 26.10.2002. In this connection, it is the say of applicant that truck was parked in concerning service centre and it was kept idle during the period 1.5.2002 to

30.6.2002 and for that permission was obtained from nonapplicant no.4. However, applicant has not filed documents about the same. Further, it is the say of applicant that as said vehicle was not repaired it was kept there as it is. Further, as applicant was busy in his other work and as he has paid amount of Rs.1,00,000/- he has not paid amount of installments and non-applicant no.1 has taken said vehicle on 26.10.2002, this say of applicant also appears unreliable. Because in fact, said vehicle appears to have taken in May, 2002 and further notice was issued by non-applicant no.1 to applicant and his guarantor on 18.6.2002 by registered post informing them that said vehicle will be sold, for that they have filed certificate dated 19.6.2002 issued by postal department. As per said notice non-applicant no.1 have taken possession of said vehicle as applicant committed breach of agreement dated 25.5.2002 and by that time amount of Rs.1,15,863/- was due against applicant. It was communicated to applicant that said amount be paid up till

28.6.2002, otherwise said vehicle will be disposed of as per agreement. Despite this applicant has not made any complaint with non-applicant about the same. So also he has not issued any notice and after lapse of about one year he has directly filed this complaint before the District Consumer

Disputes Redressal Forum.”

10. District Forum, in its order has specifically held, that notices dated 27.10.2001 and 27.2.2002, were issued to the petitioner as well as his guarantors, specifically demanding that amount be paid within 14 days and also to return the vehicle. Thus, this plea of the petitioner that no notice was issued to him falls to the ground. It is also not

in dispute that, petitioner was a defaulter and has not paid the entire EMI as agreed by him.

11. Under Section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There is no illegality or material irregularity on the part of the State Commission in this case.

12. 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 .”

13. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act. Since, two fora below have givendetailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).

14. Petitioner is directed to deposit the cost of Rs.5,000/- (Rupees Five Thousand only) by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.


Sonia/

.………………..………..J

(V.B. GUPTA)


…………………..………..

(REKHA GUPTA)

MEMBER



(Against the order dated 23.4.2012 in Appeal No.149/2011 of the State Commission,

Himachal Pradesh)

Raj Kumar Dhiman S/o Shri Gian Chand Dhiman R/o V & P.O. Shahpur, Distt. Kangra,

H.P. ........ Petitioner

Versus

1 . M/s Trehan Automotives Pvt. Ltd. Through its Managing Director, Bye Pass

Road, Sidhra Jammu – 180017 (J & K)

2. M/s Honda Siel Cars India Ltd. Through its Managing Director

Plot No.A-1, Sector 40/41, Suraj Pur – Kasna Road, Greater Noida Industrial

Development Area – 201306, District Gautam Budha Nagar (U.P.)

…….Respondents

BEFORE:


HON'BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

For the Petitioner : NEMO


ORDER


Being aggrieved by order dated 23.4.2012, passed by Himachal Pradesh State

Consumer Disputes Redressal Forum, Shimla (short, “State Commission”) petitioner has filed this appeal under Section 19 of the Consumer Protection Act, 1986(for short,

‘Act’).

2. Petitioner’s case is that respondents/petitioners started a scheme for the sale of

Honda Civil Hybrid 1.3 car and they offered a special discount of about Rs.8,50,000/- if the car is booked during the stipulated period in November,2008. On request of the petitioner, respondent no.1 sent quotations of the car and demanded a sum of

Rs.1,00,000/- as booking amount. Accordingly, petitioner sent demand draft of Rs.

1,00,000/-. Respondent No. 1 issued a Sale Contract dated 15.11.2000. Later on, respondents showed their inability to deliver the said car to the petitioner and this amount to unfair trade practice and deficiency in service.

3. Respondent No. 1 was duly served before the District Forum but failed to put its appearance and was proceeded ex parte.

4. Respondent No. 2 contested the complaint and filed its written statement taking preliminary objections with regard to the territorial jurisdiction. It is stated that District

Forum had no jurisdiction, as neither of the respondents have their offices at Kangra nor do they carry any business activity or personally works for gain in the said territory . No cause of action has either partly or wholly arisen at Kangra for the reasons that the car was booked at Jammu. It was further alleged that there was no privity of contract between respondent no. 2 and the petitioner.

5. District Consumer Disputes Redressal Forum, Kangra(for short, ‘District

Forum’) vide order dated 4.4.2011, partly allowed the complaint. It passed the following order ;

“ Accordingly, the complaint is partly allowed. The opposite parties No. 1 and 2, jointly and severally are directed to supply the car in question (i.e. Honda Civic Hybrid 1.3 Car) on the quoted price of Rs. 13,42,800/- to the complainant, and in case they are unable to supply the said car to the complainant, then they will pay the amount of Rs. 8.50 lacs to the complainant, alongwith interest @ 10% per annum, from the date of complaint, till its actual payment. The cheque amount of Rs.1,00,000/-,if encashed by the complainant, be adjusted in the sale amount/quoted amount of the car in question.

The opposite parties are also held liable jointly and severally to pay the compensation to the complainant to the tune of Rs .50,000/-, for causing mental pain, inconvenience and agony, along with litigation charges to the tune of Rs.5,000/-. The opposite parties jointly and severally are directed to comply with the order of this Forum, within

30 days from the date of receipt of this order

”.

6. Respondent No. 2, filed appeal before the State Commission which was accepted.

7. Hence, the present revision.

8. On 4.9.2012, when this petition came up for hearing, none was present on behalf of the petitioner. Thus, notice was issued to the petitioner for 18.1.2013. On that day again petitioner was not present. But petitioner has sent an application seeking exemption from personal appearance, praying that the matter may be decided in his absence by taking into consideration the grounds of appeal, contents of the complaint and evidence led by the parties.

9. We have perused the record.

10. Foremost question which arise for consideration is as to whether District Forum,

Kangra had the territorial jurisdiction to entertain the ’Consumer Complaint’ or not.

11. Section 11 of the Act, deals with the jurisdiction of the District Forum and it states ;

“11 Jurisdiction of the District Forum: --(1) subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).

(2) A complaint shall be institute in a District Forum within the local limits of whose jurisdiction,-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint actually of voluntarily resides or (carries on business or has a branch office or) personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually or voluntarily resides, or (carries on business or has a branch office), or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carries on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises ”.

13. State Commission in its impugned order observed ;

8. Annexure C-1 is in the nature of quotation of Honda H. Civic Hybrid

1.3 L. It indicates ex-showroom price plus logistic charges. This quotation was sent to the respondent-complainant by respondent

M/s Trehan Automobiles Private Limited, after he made a telephonic call to it. According to learned counsel for the respondent-complainant, Annexure C-1 is an offer by respondent-

M/s Trehan Automobiles Private Limited, on behalf of the present appellant. We are unable to accept this argument, because the document is simply a writing quoting the price of car and not making any offer. There is no mention in the document that a sum of Rs.1,00,000/- was required to be deposited for booking the car.

Therefore, respondent’s-complainant’s contention that by submitting a draft of Rs.1,00,000/-, he accepted the alleged offer made through Annexure C-1, cannot be upheld.

9. In our considered view, Annexure C-1 was nothing, but a writing indicating the price of car. After receipt of quotation, respondentcomplainant made an offer by submitting a draft of Rs.1,00,000/- in accordance with advertisement/press note referred to above.

Respondent-M/s Trehan Automobiles Private Limited accepted the said amount against Annexure C-3 and it was by this acceptance that the contract can be said to have been completed between the parties. Condition No.4 of Annexure C-3 states that in case of any disputes, the same will be subject to jurisdiction of

Courts at Jammu only.

10. In view of the above stated position, we are of the considered view that Learned District Consumer Disputes Redressal Forum,

Kangra, at Dharamshala did not have the territorial jurisdiction to entertain and adjudicate the matter. Consequently, appeal is allowed and the impugned order is set aside. Respondentcomplainant may, if so advised, approach the appropriate

Court/Forum ”.

14. As per copy of invoice placed on record(page 35 of the paper book) 100% payment before the delivery by cheque/demand draft was payable at Jammu.

Moreover, there is nothing on record to show that either of the respondents had their offices at Kangra or they reside or carrying on business activity or personally works for gain at Kangra(H.P.). Thus, no cause of action has arisen at Kangra at all. As per copy of the Sales Contract also, in case of any dispute, the same shall be subject to the jurisdiction of the Courts at Jammu only.

15. Under these circumstances, we hold that State Commission rightly dismissed the appeal of the petitioner holding that District Forum, Kangra did not have the territorial jurisdiction to entertain and adjudicate the complaint of the petitioner. We find no reason to disagree with the decision of the State Commission. There is no ambiguity or illegality in the impugned order. Under these circumstances, present revision petition is not maintainable and the same stands dismissed.

16. No order as to costs.

…………………..………..J

(V.B. GUPTA)


Sonia/SSB

…………………..………..J


MEMBER



WTH

INTERIM APPLICATION NO. 1 OF 2012

(STAY)

(Against the order dated 01.08.2012 in Appeal No. 2056 of 2010 of the State

Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow)

ICICI LOMBARD GENERAL INSURANCE CO. Ltd., Through Manager-Legal Space No.

315, Third Floor, Aggarwal City Mall, Pitampura, New Delhi

………Petitioner

Versus

1. Rajendra Kumar Gupta, Son of Harishchandra Gupta, Resident of

Mahalla Bhuiforwanath Bhatnagar Colony, District Lakhimpur, Kheri

2. Shriram Transport Finance Company Ltd., Through its Branch Manager,

Gurudarshan Building, Kancheri Road District Lakhimpur, Kheri

……….Respondent

BEORE:

HON’BLE MR. JUSTICE J.M. MALIK,



For the Petitioner … Ms. Manjusha Wadhwa, Advocate

For the Respondent No.1

(Caveator) …. NEMO

Pronounced on: 19.02.2013

ORDER

Per Mr. Vinay Kumar, Member

The matter in this revision petition arises from theft of a truck on

12.02.2008. The vehicle was of 2007 make and insured from 7.6.2007. It could not be

traced by the Police and therefore, a claim was lodged with the insurer. It was not paid on the ground that a criminal case was pending in the matter. The purchaser of the truck filed a consumer complaint against the insurer, ICICI Lombard General Insurance

Co. Ltd. (O.P. No.1) and the financing agency, ShriramTransport Finance Co. Ltd. (O.P.

No.2). O.P.1 contested the claim, while O.P.2 remained ex-parte before the District

Consumer Disputes Redressal Forum, Lakhimpur Kheeri. District Forum allowed the complaint.

2. The appeal of O.P.2 / present revision petitioner, has been dismissed by U.P.

State Consumer Disputes Redressal Commission in Appeal No. 2056/2010 on the ground of limitation, with the observation:

“Thus, the appellant has not given any appropriate and satisfactory reason or evidence for condonation of delay as per the principles laid down by the Hon’ble Courts with regard to the issue in question. Under such circumstances, the instant appeal is fit to be dismissed prior to consider it on merits and there is no need to interfere with the order of the District Forum.”

3. The District Forum has gone into the facts and evidence on record at great length and observed:

“In the instant matter both the parties admitted the fact of stealing of the vehicle and also the insurance of the vehicle which is completely established fact. The recovery of the stolen vehicle has not been made as yet. This fact has also not been contradicted by the Insurance Company. They have only expressed the possibility of recovery of vehicle.

Learned counsel for the complainant has argued that the insurance claim of the complainant should have been settled within 90 days. The O.P. Insurance Company has exhibited deficiency in service by not fulfilling this provision. Due to the nonpayment of amount by the O.P. Insurance Company the interest component has been piling against the complainant. In this context the complainant also submitted

Memorandums of the O.P. Insurance Company but neither the O.P. made payment of the claim nor gave any reply. The learned counsel for the Opposite Party expressed concern only about the complicity of the matter and the possibility of recovery of vehicle.

In the opinion of the Forum, there is no complicity in the instant matter. The matter relates to the theft of the vehicle which has not been recovered till date. For insurance claim the only mandatory requirement is the evidence of theft which is available on record. No report of its Surveyor / Investigator has been submitted by the

Insurance Company before the Forum and it is only unnecessarily delaying the settlement of the insurance claim.”

4. The record submitted on behalf of the revision petitioner is perused and

Ms. Manjusha Wadhwa, Advocate has been heard on behalf of the ICICI Lombard

General Insurance Co. Ltd. The main ground of challenge to the impugned order is

that it was a fit case for condonation of delay of three months and the State Commission should have gone into the merits of the case of the insurance company. We find from the record that while the theft took place on 12.2.2008, the criminal case before the

Judicial Magistrate came up for consideration only on 13.4.2009. There is nothing to show that the vehicle had been recovered in this interregnum of 14 months. Therefore, its actual recovery at a subsequent date is nothing more than a theoretical possibility. Before the District Forum, O.P.1 tried to justify non-settlement of the claim. It was pleaded in the Written Submissions that:

“That it appeared from the perusal of all the documents that the said act of stealing was not done by the thieves but was a loot and in this regard it also appeared from the Police documents that the said vehicle was sold in Siliguri and the Lakhimpur Police has recovered about two lakh rupees in this regard and also arrested few accused persons.

That the complainant filed a theft report in this regard in Police

Station, Lakhimpur and its F.I.R. No. 284/2008 being a criminal case is pending in the

C.J.M. Lakhimpur Khiri and the vehicle can also be recovered during the pendency of case. Therefore, under such circumstances, the claim of the complainant is not payable”.

5. This contention has rightly been rejected by the District Forum. Further, this

Commission has not been informed about any rule/regulation which requires the insured to wait till the conclusion of criminal proceedings. On the other hand the rules do require an insurer to settle the claim within 90 days. The District Forum has also mentioned that no material was placed on record to show that the complainant had been given any assessment / recommendation made in the matter by any surveyor appointed by the RP/OP 1. We therefore find full justification in the decision of the

District Forum on the merits of the claim.

6. Coming to the question of dismissal of the appeal on the ground of limitation, we do not find any justification for the claim that it was wrong for the State Commission to refuse condonation of the delay. The State Commission has relied upon the decision of Hon’ble Supreme Court of India in Anshul AgarwalVersus New Okhla Industrial

Development Authority IV (2011) CPJ 653 (SC) . It has been held that while deciding an application for condonation of delay, it needs to be kept in mind that special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters. The object of expeditious adjudication of consumer disputes will get defeated if highly belated petitions filed against the orders of the consumer fora are entertained.

7. In view of the above we find no merit in this revision petition. It is consequently dismissed. No orders as to costs.

.…………………………

(J. M. MALIK, J.)


………………………….

(VINAY KUMAR)

MEMBER

SB/3



(Against the order dated 07.05.2012 in Appeal No. AA/99/2455 of the State

Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

M/s. Deepa Enterprises, Opp. State Bank of India, Taluka Vengurla, Sindhudurg,

Maharashtra

………Petitioner

Versus

1. Atmaram Sakharam Nadkarni At Post Nirwade (Kulkarni Wada),

Taluka: Sawantwadi, District Sindhudurg, Maharashtra

2. Mangesh Sakharam Nadkaerni At Post Nirwade (Kulkarni Wada),


3. Vishnu Sakharam Nadkarni At Post Nirwade (Kulkarni Wada),


4. Mangala Sakharam Nadkarni (Deceased) Through Legal Heirs At

Post Nirwade (Kulkarni Wada), Taluka: Sawantwadi, District Sindhudurg, Maharashtra

5. M/s. Plastro Irrigation Systems, Plot No. 399, A/9, URSE, Taluka Maval, Pune,

Maharashtra

6. Mrs. Suhasini Bhaskar Pandit, 71, Laxmi Sadan, Tejpal Scheme No.3,

Vileparle (East) Mumbai – 400 057, Maharashtra

……….Respondent(s)

BEORE:

HON’BLE MR. JUSTICE J.M. MALIK,



For the Petitioner … Mr. Amol Chitale, Advocate

Pronounced on: 19.02.2013

ORDER

Per Mr. Vinay Kumar, Member

The Revision Petitioner / M/s. Deepa Enterprises was listed as O.P.1 in the proceedings before the Consumer Dispute4s Redressal Forum, Sindhudurg. The

District Forum allowed the complaint of the respondent/complainant Atmaram Sakharam Nadkarni and some others with a direction to the RP/OP to complete the balance of work. It also awarded compensation and cost.

The appeal of the RP/OP has been dismissed by the Maharashtra State Consumer

Disputes Redressal Commission in FA No. AA/99/2455 and the appeal filed by the

Respondent / Complainant for enhancement of compensation has been allowed. The

Commission has awarded compensation of Rs. 4,00,000/- and cost of Rs. 50,000/-

. Hence the Revision petition.

2. The matter arose out of erection of Drip Irrigation System by the petitioner. The case of the complainant was the work had been completed in about 75% of the area. This has been accepted by both the fora below. On the question of deficiency of service the District Forum has observed:

“When I study the said terms and conditions, on its basis, I can say that even if the said agreement was not made time bound or not, irrespective of that, once agreed to fulfill a work, it was necessary for the opponent party to fulfill the conditions and complete the task entrusted to them by virtue of said agreement irrespective of that it was clearly found here that the Drip Irrigation System installation has not been completed by the opponent to cover the entire agreed extent owned by the complainant which gave rise to the cause of this petition matter. Therefore, due to that, according to the opinion of this Ld. Forum, the

O.P. No.1 and 2 has indeed rendered deficiency in their service to the said complainant which has been duly established by the complainant. No serious discrepancies have even cropped up in his cross examination, to disprove any of his already stated facts. Therefore, the defence in this regard put forward by O.P.

No. 1 is not admissible to this Forum.”

3. In the appeal filed by the RP/OP, challenging the above finding of the District

Forum, the State Commission went into greater details of the extent of completion of the work and observed that :

“Ld. counsel appearing for the opponents submitted that the order passed by the District Consumer Disputes Redressal Forum is not legal one. According to Ld. Counsel the complainants are not possessed of 59 acres of land. They are only possessed of 52 acres of land only. He submitted that all the proposals made to the bank and to the agencies also shows that the scheme was made for 52 acres of land and, accordingly, scheme has been completed and, therefore, direction to carry out incomplete scheme is wrong and erroneous and under these circumstances, order is challenged.

Ld. Counsel who appears for the complainants submitted that they are possessed of 72 acres of land, out of that scheme is to be installed in 59 acres of land and the agreement specifically states that in 59 acres scheme is to be installed. He submitted that in the agreement total price ofRs.

5,23,405/- has been agreed between the parties for installing scheme in 59 acres and not for 52 acres of land and, therefore, he submitted that either the scheme shall be instituted in 59 acres of land and/or alternatively, price of 7 acres drip irrigation system shall be returned to the complainants by the opponents.

Upon this in reply Ld. Counsel for the opponent submitted that when there is no land to that extent how the scheme can be instituted in 59 acres of land. Ld. Counsel submitted that he has produced 7/12 extract of the complainants land and that shows complainants are possessed of only 52 acres of land and, thus, Ld. Counsel opposed the submissions of the Ld.

Counsel for the complainants.

What is important to see is that while considering service deficiency is an agreement between the parties. Respective obligations of the parties are to be considered in the light of the agreement between the parties. Now agreement states specifically that the price of the drip irrigation system for 59 acres is Rs. 5,23,405/-. Then in that circumstances, said amount cannot be taken by the opponents for installation of scheme in 52 acres of land. At the most if the opponents find that 52 acres are covered and if the opponents feels that further land is not available, then opponents should have asked where complainants wants installation of remaining 7 acres of land so as to complete the agreement of 59 acres of land and it is for the complainants to point out the land belonging to them so that opponent can install the said scheme. We asked Ld. Counsel for the complainant who is present in the

Commission, whether additional land is available with them so as to cover drip irrigation system and he stated that they are having 72 acres of land and they will point out remaining land so as to install the said scheme. Under these circumstances, submissions of the Ld. Counsel for the opponent that the land is not available and, therefore, scheme is not installed, is not sustainable. No doubt under the agreement opponent is under obligation to provide a scheme for remaining 7 acres of land. Looked from this angle, it is a clear cut case of deficiency in service and, therefore, rightly District

Consumer Disputes Redressal Forum has directed to complete the incomplete scheme. Therefore, we confirm the direction given by the District

Consumer Disputes Redressal Forum to that effect”.

4. We have carefully perused the records submitted on behalf of the petitioner and heard Ms. Pragya Baghale, Advocate on its behalf. The main contention of the petitioner is that the State Commission has wrongly held that the Drip Irrigation System was to be installed in an area of 59 acres while the actual installation has been only in

52 acres. It is contended that had the project not been completed, the respondent/complainant could not have claimed Government subsidy for the project. We find that in Para-6 of the complaint, the complainants themselves state that, “But as it was necessary to submit the application to the State Government within

March, 1997, to avail Govt. Subsidy for eligible Drip projects in good faith upon

Opponent Party No.1, the complainant issued necessary record of completion to O.P.

No.1. But in order to avoid the said misuse of said record by O.P. No.1 in future, an assurance letter was also procured from O.P. No.1 by the said complainant on date

15.1.1997. Thus, in the said paper, the Opponent No.1 has admitted that ‘Kit’ related unsupplied pending material is still due to be supplied to the complainant party by opponent.

”

5. The above averment in the complainant fails to disclose whether the State

Government subsidy was claimed for the entire agreed extent of 59 acres or whether it was limited to the actual reduced extent. Both, the District Forum and the State

Commission have given finding of fact that the completion was not for the total agreed extent of 59 acres. In such a situation, if the complainants have claimed and received the State subsidy for more than the actual completed extent of 52 acres, it will amount to an impropriety which cannot be overlooked.

6. Further, evidence on record also points to a possibility of reduction of extent by seven acres due to its being non-contiguous with the completed extent of 52 acres. If this extent of seven acres lies in an altogether different location, away from the completed extent, it will also be necessary to see whether the two could be considered and physically completed as parts of a single project.

7. A perusal of the complaint also shows that the total quantum of compensation sought by the complainants is substantially less than the amount actually awarded by the State Commission.

8. In view of the above, the matter is posted to 23.05.2013 for further hearing. Fresh notice be issued to both parties.

.…………………………

(J. M. MALIK, J.)


………………………….

(VINAY KUMAR)

MEMBER

SB/3



Andagro United Services Ltd.

Now Known as Noble Resources & Trading India Pvt. Ltd.

Registered office at

1A, Vandana Building, 11,Tolstoy Marg New Delhi –

110 001

Carrying on business at :

45-47, Atlanta, Nariman Point Mumbai

– 400

021

…. Complainant

Vs.

1. United India Insurance Co. Ltd.

Registered office at

24, Whites Road, Chennai &

Divisional Office No.5, 68/1

Janpath, New Delhi

2. Central Warehousing Corporation

Through its CMD, having its registered office

At 4/J, Siri Fort, Institutional Area, Khel Gaon Marg

New Delhi – 110 016

At Opp.Fire Station, Near West Gate, Kandla Port … Opp.parties

BEFORE:



For the Complainant : Ms. Ramni Taneja, Advocate

For OP1 : Mr. S.M. Tripathi, Advocate

For OP2 : Mr. Manoj K. Srivastav, Advocate

P PRONOUNCED ON_19.02.2013

ORDER


1. In this case, filed in this Commission on 07.06.2000, the main controversy swirls around the question “Whether the ‘Doctrine of Contribution’ is applicable in this case?. The marine policy is pitted against a Fire Policy, obtained from United India

Insurance Co. Ltd., OP2, in this case. Clause 4 of the Fire Insurance Policy states :

“This insurance does not cover any loss or damage to property, which at the time of the happening of such loss or damage, is insured by or would, but for the existence of this policy, be insured by any marine policy or policies except in respect of any excess beyond the amount which would have been payable under the Marine Policy or policies had this insurance not been effected”.

The other question is “Whether other clauses of Insurance Policy will pale into insignificance?. The said Clause is to be read as vacua or as a part of whole composite policy?. The another knotty question is “Whether the complainant has insurable interest?.

2. Let us now proceed to mention the facts of the case. The complainant is an

Importer and Dealer in commodities. In April, 1998, the complainant imported

5000MTs sugar to Kandla. The sugar was purchased CIF (Cost, Insurance, Freight) and the complainant’s Seller insured the cargo with Gerling-Konzern, who are the marine insurers and assigned the insurance to the complainant. The insurance with marine insurers was on a declaration basis and it was declared for a proportion CIF value of USD 662112. The cargo arrived at Kandla on 04.05.1998 by ship. It was cleared by the customs. A total relevant quantity of 181 MTs remained with the port premises and were stored in Central Warehousing Corporation (CWC), OP2. OP 2 charged the complainant for warehousing services and as a separate charge, charged for obtaining insurance. Insurance covered risk of “storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation”. The consideration was paid by the complainant in the first instance to OP2 and OP2 subsequently passed on the same to the United India Insurance Co. Ltd.,OP1. OP2 is required to make periodical declarations to OP1. OP2 is bound to obtain a proper and adequate insurance cover and to ensure that any insurance claim is paid to the complainant.

3. On or about 09.06.1998, a total quantity of 181MTs remained in the godown of

OP2. The port of Kandla was hit by a storm/cyclone, became inundated and flooded and was otherwise struck by an occurrence covered by the insurance policy. The warehouse and the port was flooded and all the goods were rendered unfit for human consumption. The goods were tested by the Port Health Organisation and were found not to conform to the standards and provisions of the Prevention of Food Adulteration

Rules. Certificate in this context, dated 26.06.1998 has been placed before the

Commission. OP2 was the Bailee of the goods and in actual custody of the goods. It was required to take due care of the goods as well as to take all necessary steps to protect the goods. On 17.11.1998, the complainant filed its claim with OP2. OP2 refused to disclose the terms of the insurance. Sh.H.Srinivasan, Sr.Divisional Manager of OP1 refused to disclose the full terms and conditions of the policy. He read over selective reading which was designed to mislead the complainant which is itself a deficiency in service.

4. Prior to that, on 03.03.1999, the OPs forced and induced the complainant to give an undertaking that they would not claim under the marine policy, but refused to disclose the policy. The complainant by its letter dated 08.03.1999, gave the undertaking. In response to the complainant’s Advocate’s letter, the OP2, purported to have forwarded a copy of the policy by its letter dated 25.08.1999. The said policy contained only one printed page which purported to exclude the liability of OPs. The non-supply of the full copy was another deficiency in service. The above said copy was incomplete and incorrect. However, vide their letter, dated 09.11.1999, OP1 dishonestly stated that the policy was complete. The complainant vide its letter dated 23.12.1999 asked the OP to send copy of each page of the policy, but in response to the said letter, the complaint policy was not sent, instead, a blank form containing printed terms and conditions was sent.

5. In the meantime, the complainant’s marine insurer, on 21.10.1999, in absence of any accurate information on the policy of OP1, considered the claim as a ‘Double

Insurance’ and settled the claim by paying 50% of the policy and balance was to be claimed from the OP’s policy. The claim of the complainant results from a total loss of

1881MTs of white refined sugar valued at USD 352.00 per MT @ Rs.44.05 equivalent to Rs.15,505.60 per MT and having a total value of USD 662,112.00 @ Rs.44.05 equivalent to Rs.2,91,66,033.60. The complainant claims the sum of USD 4,65,910.00

@ Rs.44.40 equivalent to Rs.2,06,86,406.24 being the total of the actual relevant cost of the goods i.e. USD 331,056.00 @ Rs.44.40 equivalent to Rs.1,45,79,706.24 plus interest @ 21% p.a. from the date of loss, i.e. 09.06.1998 till 06.06.2000. The complainant has also claimed other proportionate relevant expenses in the sum of

Rs.6,78,787/- along with interest @ 21%.p.a., compensation and damages in the sum of

Rs.1,20,00,000/- against the OPs, jointly and severally.

6. It is contended that the above said deficiency, on the part of OPs is apparent. The policy and full terms, and complete policy was never disclosed. The complainant was misled by giving false excerpted terms of the policy. The failure of the

OP to consider and honour the complainant’s claim or to perform the acts and deeds and things necessary for the expeditious consideration and the honouring of the complainant’s claim by the marine insurers. In the alternative, if the policy does not cover the complainant’s claim, the said OP has provided deficient service in charging premium and failing to obtain a proper and complete insurance policy with the complainant, the acts and omissions of OP has resu lted in the complainant’s claim being settled at 50% on their claim by the marine insurers and, therefore, OPs are liable to pay for the same. Again contract of insurance is a contract of ‘uberrimae fides’. OP1 owed a duty of utmost good faith to the complainant and was in breach of their duty. It avoided to perform all the obligations. 2 nd OP was an agent and/or bailee and/or warehouseman and owed diverse duties of care and faith to the complainant. OP2 while working with OP1 in cahoots, sought to avoid making payment under the insurance and to assist the OP1 in breaching its obligations.

7. In its written statement, OP1 has listed the following defences. The complainant is not a “consumer”. The complainant has not hired or availed of any services from OP1 for a consideration. It is also not the beneficiary of such services. The complainant is not a ‘consumer’ in terms of Section 2(b)(i) of CP Act, 1986 as he has not hired or availed of the services of OP1. Before a dispute can be ter med as a ’consumer dispute’, it is necessary that the petition should be in terms of the Act. This complaint does not constitute a complaint in terms of Section 2(c)(iii) as there is no consumer dispute and the complaint is not maintainable. The complainant does not disclose any provisions of law under which the services by the OP1 was required to be maintained. OP1 did not undertake any services to be performed to complainant in pursuance of a contract or otherwise as there is no question of any deficiency in discharge of its service.

8. As a matter of fact, OP1 had issued a Fire Insurance Policy to OP2. The said contract is purely between the OPs. No third-party or a stranger to a contract has any right to lay his claim against OP1 on the basis of the said insurance policy. The above mentioned insurance policy issued in favour of OP2 is itself dependant for its revival upon the compliance by OP2 with the terms and conditions and obligations specified in the policy. OP2, in whose favour the insurance policy has been issued, can also not transfer its rights under the policy to a third-party without the consent of OP1 as the insurance policy is a personal contract between the contracting parties. The

complainant cannot acquire a right to sue under the policy and cannot maintain the petition against the OP1. The complainant had no right to ask declaration of the contents of the insurance policy existing between OP1 and OP2 and to which insurance policy the complainant itself is not a party. The complaint was not filed in accordance with Section 12 of Consumer Protection Act, 1986.

9. OP1 admits that the sugar was imported. The Seller had insured the sugar and the insurance policy was assigned to buyer/complainant. The contribution in marine insurance applies only when the insurable interest is covered in more than one insurance policies, which ought to have become clear to the complainant and its marine insurer that if at all there was a fire insurance existing in the name of OP2, it would necessarily cover the insurable interest only of OP2 in the goods, which insurable interest would be very different than the one possessed by the complainant in respect of the subject matter. Merely because the goods are the same, the contribution does not apply at all. It was wrong for the marine insurer to have assumed that contribution applied. In case the complainant and its marine insurers proceeded under a misunderstood provisions of insurance law, it is a matter between themselves and the

OPs are not liable for the result flowing from such misunderstanding. Again, the subject matter of two contracts are not identical. The law of contribution does not apply. All the other allegations have been denied.

10. Now, we advert to the written statement of OP2. OP 2 admitted that the stock of the complainant was stored in the Kandla Warehouse. The insurance of the stock was arranged with OP1 on behalf of the complainant. The storage charges as well as the insurance charges were collected from the complainant at the time of delivery of the stock. It is admitted that stocks of the complainant were damaged in a cyclone on

09.06.1998, due to natural calamity. Consequently, it cannot be said that there was deficiency in service on part of OP2. The marine insurance policy was assigned to buyer/complainant. The credit note towards insurance charges was, for the first time, raised only on 31.08.1998 onwards. Whereas, the credit note towards the storage charges was raised on 03.06.1998 onwards. The insurance charges were recovered from the complainant only subsequent to the cyclone on 09.06.1998. Even though the same had been paid by OP2 to the insurance company in advance. OP2 has taken fire declaration from OP1 on behalf of all depositors whose goods arrive in the warehouse and covers all warehouses, OP2, situated all over India. A sum of Rs.3.90 crores were paid by OP2 to OP1 as a premium towards the said policy for the year 1998-99. It is

averred that the policy obtained by OP2 is a normal fire declaration with standard terms and conditions and, therefore, there was nothing confidential about the same. But on the other hand, the complainant failed to make available to OP2, the copy of marine insurance policy obtained by it, in spite of several reminders. The complainant has already got compensation to the extent of 50% of the claim. As per the conditions of the Fire Policy, the complainant had to first pursue the claim with the marine insurer. The marine insurer should have discharged its liability in full under the marine policy. The complainant should have pursued its right to recover the full amount of claim under the marine policy because it extended to cover the entire amount of loss. OP2 is not liable to the loss as it had happened force majure and secondly the fire insurance of a bailee covers interest from that of an owner of property and thirdly the fire insurance policies the world over contain the ‘Marine clause’ whereby the fire insurance can be called in to consider the claim, if any, only in excess of the liability under marine policy.

11. The claim made by Complainant is an exaggerated one. It cannot set up a claim for an amount in excess of that calculated strictly on the basis of principle of indemnity. However, in any case, OP2 is prepared to pay the compensation to the depositors if OP1 agrees to pay the same and the same is received from OP1.

12. We have heard the counsel for the parties and perused their written synopses.

Both the OPs have placed much reliance on Clause 4 of the Insurance Policy. Before proceeding further, it would be worthwhile to reproduce the relevant salient features of the Fire Policy :

Clause 4 of the said policy, already stated above.

Clause 6 of the said policy states : It is hereby declared and agreed that the property insured under this policy is either the insured’s own or held by him/them in trust, in deposit or in commission or on joint account with others for which he/they is/are liable in the event of loss or damage by fire.

Clause 11 of the policy states : If at the time of any loss or damage happening to any property hereby insured, there be any other subsisting insurance or insurances, whether effected by the insured or by any other person or persons covering the same property, this Company shall not be liable to pay or contribute more than its rateable proportion of such loss or damage .

Clause 3 of the Special Conditions appended with the policy, runs as follows:-

“

If at the time of any loss or damage happening to any property hereby insured there be any other subsisting insurance or insurances, on other than a declaration basis, whether effected by the insured or by any other person or persons covering the stocks hereby insured, this policy shall apply only to the excess of the value of such stocks at the time of the loss over the sum insured by such other insurance or insurances, this Company shall not be liable to pay or contribute more than that proportion of such loss which such excess [or if there be other declaration insurances covering the same stocks, a rateable proportion of such excess], but not exceeding the Sum Insured hereby, bears to the total value of the stocks ”.

Another special condition is also reproduced hereunder :-

“It is understood and agreed that the entire property in one complex/location is extended to cover risk of Storm, Cyclone, Typhoon,

Tempest, Hurricane, Tornado, Flood and Inundation and the sum insured for this extension is identical to the sum insured against the risk covered under Fire Policy ‘C’”.

13. It was argued that contribution in marine insurance applies only when the same insurable interest is covered under more than 1 insurance policies. It was submitted that it ought to have become clear to both the complainant and his marine insurer that if at all, there was any fire insurance existing in the name of OP2, it would necessarily cover the insurable interest only of OP2 in the insured property which insurable interest would be very different than the one possessed by the complainant in respect of the subject matter. It was emphasised that merely because the goods are the same, the contribution does not apply at all. The marine insurer wrongly assumed that the

‘Doctrine of Contribution’ is applicable. Moreover, there were two contracts of insurance, i.e. (1) the marine policy existing between the complainant and his marine insurer and (2) fire policy existing between OP1 & OP2. Since it does not contain the same insurable interest, the law of contribution does not apply and the OP1 had no duty to disclose to overseas marine insurer, the nature or extent of contract of fire insurance existing between the OPs.

14. It was also argued that the complainant had not hired or availed of any service of OP2 for consideration. The complainant is also not a beneficiary of such service. The complaint does not constitute a complainant as there is no consumer dispute visà-vis, this OP. Since OP1 has not undertaken any service to be performed by complainant in pursuance of a contract or otherwise, therefore, there can be no allegation of deficiency in this case. OP1 had issued a fire insurance policy in favour of

OP2. There is no privity of contract between the complainant and OP1. OP2 also cannot transfer its rights under the policy to a third-party without the consent of OP1.

Again, insurance policy is a transfer contract between the contracting parties. The complainant cannot acquire a right to sue under the policy and cannot maintain the complaint. The complainant has no right to ask disclosure of the contents of the insurance policy existing between the OP1 & OP2 to which insurance policy, the complainant is a stranger.

15. In their written submissions, OP2 admits that the above said cyclone did not give any time to OP2, to save the stocks as there was no prior warning. The cyclone caused damage worth Rs.600.00 crores at Kandla port. The official death toll went up to 100 persons. The complainant did not plead that there was negligence on the part of OP2 in keeping all the goods in warehouse and ipso facto, the deficiency of service does not arise on the part of OP2. This is loss of goods and act of God, which is not covered under the fire policy. This is universal practice across the globe. As per clause 4, 11 and clause 3 of the Special Conditions, the complainant had to exhaust the remedy first of all against the marine policy to the full extent. In the instant case, the complainant submitted its undertaking/bond dated 08.03.1999 that the complainant would not take the subject claim from the Marine Insurance of M/s. Gerline but per contra, despite submitting undertaking, the complainant obtained claim from marine insurance and settled the claim at 50%. Since the complainant had already settled the claim with marine policy, he is not entitled to get any claim from OP2. Moreover, Central

Warehouse Corporation is not liable by virtue of clause 4. The Doctrine of Double

Insurance is not applicable. Both the parties did not incorporate contribution clause.

Moreover, OP2 kept good under statutory provision not because of any contract with complainant. OP2 is appointed by the Customs under Section 57 of the Customs Act,

1962, as Public Warehouse for keeping the goods which are subject to customs clearance. The complainant imported total 5000 MTs of Pakistan sugar and the said record was getting cleared by customs step by step in lots and the last lots of said goods 1881 MT sugar were not cleared by them.

16. OP2 admits that it had realised the charges not at the time of deposit of goods but at the time of delivery and in the instant case too, by virtue of receipt dated 03.06.1999, the OP2 only raised bills in pursuance of condition printed at the right hand top of the said receipt and the said charges were realised on 31.08.1998, subsequent to

09.06.1998, and therefore, at the time of advent of cyclone, there was no consideration passed by the complainant to OP2 to make a concluded contract. OP2 has to pay the damages on pro rata basis and OP2 does not obtain insurance cover on behalf of any

of its clients, including the complainant as the OP2 got insured its interest of warehouse, not its clients and whenever a loss is caused to the goods at any point of time, the said loss is paid on pro-rata basis to all whose goods were kept and damaged.

It was also argued that in case of insurance claim, the CWC simply transfers the claim of the insurance company and it is the insurance company which is to appoint a

Surveyor and assess the loss of the complainant and whatever amount the insurance company decides to approve, the OP2 receives the same from the insurance company and again re-transfers to individual claimant/complainant or the charges on pro rata basis. Thus, the OP2 is merely a conduit between the insurer and the complainant and it cannot be made liable for the claim of the insurance. There is no privity of contract between the complainant and OP2. OP2 is merely the Bailee of the Customs and does not represent the Bailor. It was submitted that mere receipt of a premium does not give rise to a concluded contract of insurance as per ratio propounded in (1) M/s. Marthi

Crystal Vs. Oriental Insurance Co. Ltd. , AIR 2001 Mad, 288 and (2) Saleh Md. Vs.

Ramrattan Tiwari, AIR 1924 Nag 156 . Moreover, there is negligence on the part of the complainant itself. There was no water proof packaging and it did not invoke Section 23 of the Customs Act, 1962 for remission of Custom Duty. Again, Customs is not a party.

17. We find it extremely difficult to countenance these contentions. First of all, we will decide the question whether the complainant is a stranger to the contract of insurance. The OP2 obtained insurance services from OP1 for the benefit of complainant and other parties, whose goods were being kept there. Secondly, premium was paid by the complainant in advance to OP2. OP2 in its written statement clearly mentions about it. Consequently, the complainant is a “consumer”. The privity of contract stands established between the complainant and OP1 due to agreement entered into between OP1 & OP2. OP1 is jointly and severally liable with OP2, qua the complainant. This was never denied that the complainant had paid portion of total insurance policy, the suppression of relevant provisions of insurance policy, the missing representation and the admitted non-payment itself, constitute a deficiency in service on the part of OP1. In Shri Laxmi Cotton Traders Vs. CWC & Ors., III 1996 CPJ 22

(NC) same view was taken.

18. We are of the considered view that ‘Doctrine of Contribution’ is applicable in this case. The entire policy must be read holistically. We cannot rely upon one part and ignore the others, in favour of the insurance company and to the detriment of the complainant. Clause 11 of the insurance policy provides for Contribution as well as rateable proportion of such loss or damage. Clause 3 of the Special Conditions further provides that it will cover the risk of cyclone as well. In view of these clauses, Clause 4

of the insurance policy pales into insignificance. Other Clauses will prevail over Clause

4. Moreover, relevant clauses of the Fire Policy were never disclosed.

19. OP1 wants to have the benefit of both the worlds. It has accepted premium in the sum of Rs.3.90 crores paid by the OP2 for all the persons whose goods were kept there, and on the other hand, it does not want to compensate the complainant on frivolous grounds. Moreover, the privity of contract stands established with the following facts which cannot be skimmed over. (1) The cash receipt dated 03.06.1998, issued by OP2 to M/s. V.Arjoon, Forwarding and Clearing Agents, for the complainant indicating, inter alia, the insured charges paid by the complainant to OP2 and also the

Warehouse charges paid by the complainant to OP2 and the acknowledgement of stocks of sugar issued by OP2 to M/s.V.Arjoon, Forwarding & Clearing Agents for the complainant and delivery of these stocks (2) letter dated 09.06.1998 addressed by OP to M/s.V.Arjoon, Forwarding & Clearing Agents, wherein it is confirmed “Cargo stored in our warehouse at Kandla is insured with the United India Insurance Co. Ltd., under ‘All

India Floater Policy’, taken by our office, CWC, New Delhi. The insurance is for flood, fire, theft, cyclone, burglary, etc. (3) The claim submitted by the complainant through its

Consultants, addressed to OP2, dated 07.09.1998. (4) The revised bill dated

10.09.1998, given by OP2 to M/s.V.Arjoon, to the account of the complainant, in the sum of Rs.3,87,178/- being the dumping and destruction expenses. (5) Corresponding evidence which forms part of Annexure C-1, are (a) Letter dated 25.11.1998, wherein

OP2 admits that “consignment is also insured under marine policy”, (b) letter dated

21.12.1999, addressed by OP2, admits that “your claim is being processed at our

Regional Office/Corporate Office. There are other letters, dated 27.01.199, 28.01.1999,

03.03.1999, 09.04.1999, 01.05.1999, 12.05.1999, 02.06.1999, 11.06.1999, 25.08.1999,

09.09.1999, 06.10.1999, 15.12.1999, 27.01.2000, which show that OP2 took up the matter with OP1. There is a letter dated 08.03.1999 written by the complainant to OP2.

The relevant para of which runs as follows:-

“We refer to your letter under captioned and hereby undertake that we will not take the subject claim from our Marine Insurance

Company and that at the time of payment of claim to us we shall furnish an indemnity bond to this effect to the Central

Warehousing Corporation.

We trust you will find the above in order and expedite settlement of our claim at the earliest, especially when the same has been pending with you since September, 1998 and similar claims of other parties, to our knowledge have already been settled, needless to reiterate/highlight the financial hardship being experienced by us due to delay in settlement of our claim”.

20. The learned counsel for the OP submitted that it has breached the undertaking given by the complainant. It has recovered compensation to the extent of 50%. It was contended that the complainant is not entitled to any further compensation in view of the above said undertaking.

21. We do not locate substance in these arguments. This case is pending before this

Commission for the last thirteen years. Despite giving this undertaking, there lies no rub in pursuing the matter with the marine company. The complainant has not got reimbursement of a single paisa from the OPs. The undertaking was given on

08.03.1999. We find considerable force in the submission made by the counsel for the complainant that the complainant acted in the best interest of the OPs by claiming both from the marine insurer and from the OPs, in order to reduce the burden of

OP1. Moreover, according to insurance law, the assured has the right to persuade both the insurers on the basis of equity because it has paid the premium to two insurers and the two insurers must share the burden equally. The complainants are bound to claim in law, the rateable interest from both the policies.

22. So far as Marine Insurance is concerned, Section 34 of the Marine Insurance Act,

1963, provides as follows:-

“(1) Where two or more policies are effected by or on behalf of the assured on the same adventure and interest or any part thereof, and the sums insured exceed the indemnity allowed by this Act, the assured is said to be over-insured by double insurance.

(2) Where the assured is over-insured by double-insurance:-

(a) the assured, unless the policy otherwise provides, may claim payment from the insurers in such order as he may think fit, provided that he is not entitled to receive any sum in excess of the indemnity allowed by this Act;

(b) where the policy under which the assured claims is a valued policy, the assured must give credit as against the valuation, for any sum received by him under any other policy, without regard to the actual value of the subject-matter insured;

(c) where the policy under which the assured claims is an unvalued policy he must give credit, as against the full insurable value, for any sum received by him under any other policy;

(d) where the assured receives any sum in excess of the indemnity allowed by this Act, he is deemed to hold such sum

in trust for the insurers, according to their right of contribution among themselves”.

23. In an English case, reported in National Employees Mutual General Insurance

Association Ltd. Vs. Haydon 1980 2 Lloyds Law Reports 149 . The facts of this case were :

The Policy stated :

“This policy does not indemnify the insured in respect of any claim made against him (i) for which the Insured is or would but for the existence of this Policy be entitled to indemnify under any other Policy except in respect of any excess beyond the amount payable by such

Policy …….”.

It was held, :

“4. Each policy was to be looked at independently and if each would be liable but for the existence of the other, then the exclusion clauses were to be treated as cancelling each other out and the plaintiffs and defendants were liable on the policies and the plaintiff was entitled to a contribution”.

It was also held :

“In my judgment, this case turns on the construction of the two policies as a whole and in particular of general exception (i) in the NEM policy and general exclusion 5 (b) (iii) in the master policy. If those two clauses are indistinguishable in their effect, as the Judge thought, I would agree with him that, like Mr.Justice Rowlatt in Weddell’s case, the Court should invoke the equitable principle of contribution between co-insurers to avoid the absurdity and injustice of holding that a person who has paid premiums for cover by two insurers should be left without insurance cover because each insurer has excluded liability for the risk against which the other has indemnified him.

But I accept Mr.Irvine’s submission that the two clauses we have to consider are clearly distinguishable from each other, and that on their true construction the solicitors are covered by the NEM policy and not by the master policy against the Glover claim. Whether these clauses are rightly labelled exceptions or exclusions does not, in my opinion, matter. The question is, what in each case is covered by these policies read as a whole, including these clause s”.

It was further held :

“…. In the case of double insurance an exemption clause will not be allowed to deprive the insured of the benefit of both policies. The insured was only entitled to recover 50% under one policy because there was a rateable proportion clause which reduced the liability under that policy in the event of another insurance policy existing at the date of the accident, as it did” .

24. Again, in another English case, in reference, the Court of Appeal in case,

Commercial Union Assurance Co.Ltd. Vs. Hayden, [1977] Vol.I] 13 , held :

“Where a man has made a double insurance, he may recover his loss against which of the underwriters he please, but he can recover for no more than the amount of his loss…… It being thus settled, that the insured shall recover but one satisfaction, and that in the case of double insurance, he may fix upon which of the underwriters he will for the payment of his loss, it is a principle of natural justice that the several insurers should all of them contribute in their several proportions, to satisfy that loss against which they have all insured ”.

25. Similar view was taken in (1) Legal and General Assurance Society Ltd. Vs.

Drake Insurance Co.Ltd., [1984 L. No.1495], I.Q.B. 887, (2) British

Telecommunications PLC & Ors. Vs. Caledonia North Sea Limited & Ors.,

UKHL/0029/2002 and (3) Drake Insurance PLC Vs. Provident Insurance PLC,

UKCM/0001/2003 .

26. Generally, the rule applicable is that a Tribunal is endowed with such ancillary and incidental powers to discharge its functions. The Hon’ble Supreme Court in Grindlays

Bank and Central Government Industrial Tribunal, AIR 1981 SC 606 , went on to hold that by rule of statutory contribution, a Tribunal is endowed with such ancillary and incidental powers as necessary to discharge its functions effectively for the purpose of doing complete justice between the parties.

27. In General Assurance Society Ltd. Vs. Sitarama Rice Mill Co. & Ors., 1971

Comp Case 162 (Mad), it was held :

“The contribution clause in exhibit A-1 has been introduced only in order to secure to the first defendant the right of contribution wherever it arises. The general principle is that the assured who insures his property cannot recover more than a full indemnity. But for such contribution clause, it would be open to the assured to select the policy upon which to claim his indemnity

–if that alone is sufficient for the purpose – and the insurers upon that policy cannot resist liability upon the ground that there are other policies in existence which the assured might have enforced. (See page 415 of Ivamy’s General

Principles of Insurance Law). At page 416 of the same book, it is stated in order to give rise to a right to contribution the following conditions must be fulfilled: 1. All the policies concerned must comprise the same subject matter. 2. All the policies must be effected against the same peril. 3. All the

policies must be effected by or on behalf of the same assured.

4. All the policies must in force at the time of the loss. 5. All the policies must be legal contracts of insurance. 6. No policy must contain any stipulation by which it is excluded from contribution. In dealing with the conditions giving rise to right of contribution, it is stated in paragraph 528 at page 267 of

Hals bury’s Laws of England, third edition, volume 22, that each policy must cover the same interest in the property and the principle is explained in the following passage:

“Each policy must cover the same interest in the same property, that is to say, each policy must be intended to protect the same assured against the same loss. The policies must, therefore, cover a common interest; it is not sufficient that they cover the same property. Where separate insurances are effected upon the same property by different persons interested in it for the purpose of protecting their separate interests only, there is no contribution. Thus, there is no contribution when separate policies are effected by bailor and bailee, by mortgagor and mortgagee or by landlord and tenant for their individual protection. Where, however, one of the policies is intended to ensure for the benefit of both persons interested, as, for instance, where the bailee, mortgagor or tenant intends to cover the interest of his bailor, mortgagee or landlord as well as his own, a case of contribution arises between such policy and any policy effected by the bailor, mortgagee, or landlord for his separate protection, since both policies, in fact, cover a common interest, namely, the interest of the bailor , mortgagee or landlord”.

28. The learned counsel for the Complainant has invited our attention to (1) Contship

Container Lines Limited Vs. DK Lall & Ors., (2010) 4 SCC 256, (2) New India

Assurance Co. Ltd. Vs. Priya Blue Industries Pvt. Ltd., (2011) 4 SCC

231, (3) Oriental Insurance Co. Ltd. Vs. Ozma Shipping Co. & Anr., (2009) 9 SCC

159.

29. In view of the facts and circumstances of this case, no liability can be fastened upon OP2. However, instead of helping the complainant, it supported the OP1. Why did OP2 work in cahoots with OP1? On the other hand, the OPs compelled the complainant to give the undertaking that they would not claim any amount from the

Marine Policy as they would compensate it completely, on the other hand, OPs want to shirk from paying 50% of the loss.

30. The whole gamut of above said facts and circumstances leans on the side of the complainant. We, therefore, direct the OP1 to pay 50% of the total loss of

Rs.2,06,86,406.24ps with interest @ 9% p.a. from the date of filing of this complaint, i.e. 07.06.2000, till realisation of the decreetal amount, to the complainant.

Compensation for mental agony and harassment, in the sum of Rs.50,000/- is also granted, payable by OP1, to the complainant, within 45 days, failing which it will carry interest at the rate of 9%, p.a., till realisation.

…………………………...

(J.M. MALIK, J.)


…………………………...

(VINAY KUMAR)

MEMBER dd/21


NEW DELHI

REVISION PETITION No. 3954 of 2012

(From the order dated 17.03.2012 of the Maharashtra State Consumer

Disputes Redressal Commission, Mumbai in Appeal no. 215 of 2012)

M/s Vijay Stationers, Proprietor Shri Vijay Raj Kumar Manwani G – 796, D Ward,

Kolhapur Through Shri Vasdev Lalwani, Advocate C – 2, Takshshila Apartments I P

Extension, Delhi

– 110092

Petitioner (s) versus

Divisional Manager United India Insurance Co. Ltd. Station Road, Near

Congress Bhavan E

– Ward, Kolhapur, Maharashtra

Respondent(s)

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner Mr Vasdev Lalwani, Advocate

Pronounced on 20 th February 2013

ORDER

REKHA GUPTA

The present revision petition has been filed against the order dated 17 th March

2012 in Appeal no. A/12/215 of the Maharashtra State Consumer

DisputesRedressal Commission, Mumbai (in short, ‘the State Commission’), whereby the State Commission had dismissed the appeal of the petitioner for enhancement of the amount paid to him by the Insurance Company.

2. The complainant has a retail and wholesale business of stationery in the name of

M/s Vijay Stationers of which he is the owner and proprietor. It is situated in a property taken on “leave and license basis’. He had taken insurance of property/ building to the sum insured of Rs.3,50,000/- stock contained in the building insured for Rs.23 lakh and furniture insured for Rs.1,70,000/- for which the Insurance Company has issued a policy no. 160500/48/05/34/00002780 for the period 21.01.2006 to 19.01.2007 from the United

India Insurance Co. Ltd.

3. The complainant stated that there was a fire in his shop on 15 th October 2006. In the said fire, entire building and stock contained in it was totally damaged. The total insurance claim was made for Rs.28,20,000/- but the insurance company sanctioned only an amount of Rs.21,30,000/- which was the loss assessed by the appointed surveyor. This amount was deposited in the account of the complainant in the Subhadra Area Bank, Branch Kolhapur on 15.11.2007. Thereafter on 10.12.2007 he wrote to a letter to the Insurance Company that the amount paid is not acceptable to him and asked the Insurance Company to pay the difference of Rs.6,90,000/- along with

18% interest on the entire claim amount.

4. The respondent insurance company stated that a surveyor was appointed. The surveyor assessed the loss at Rs.21,30,000/-. The complainant accepted the same as full and final settlement of the claim and as such there was no deficiency in service on their part. In support of its say, they have filed the Survey Report and final discharge voucher signed by the complainant.

5. The District Forum after considering all the facts of the case came to the conclusions that the case laws/precedents filed by the complainant in his consumer complaint were not applicable to the said complaint and therefore, the three complaints of the complainant were dismissed.

6. The State Commission after considering the facts, as revealed from the documents and came to the conclusion that undisputedly, the Insurance Company sanctioned the claim of Rs.21,30,000/- towards the full and final settlement and the amount was deposited in the account of the complainant, once he accepted the same. Complainant tried to submit that he has not accepted the amount towards full and final settlement of the claim and filed a consumer complaint. In this background, no deficiency of service on the part of the Insurance Company could be alleged or said to have been established. Besides that there was no evidence adduced on behalf of the complainant to establish his total claim was of Rs.28,20,000/-. For all these reasons the State

Commission found that dismissal of consumer complaint by the District Forum could not be faulted with and that the appeal was devoid of any substance. Hence, the appeal was not admitted and was rejected.

7. Hence, this revision petition.

8. We have heard the learned counsel for the petitioner and have also gone through the record. The counsel for the petitioner has filed the discharge certificate. It is evident from the reading of the discharge certificate that nowhere has any protest been recorded while accepting the payment. The facts remains that the amount had been

deposited in his account on 15.11.2007. However, he sent a letter of protest only on

10.12.2007.

9. Learned counsel for the petitioner has cited two judgements of this Commission in support of his contention. Oriental Insurance Company Ltd., andAnr., vs Girdhari Lal Tulshiramji Joshi (1998 CCJ 210) is not relevant in this case. In this case the amount claimed had been settled by the opposite party on the basis of averages and that the said policy was for a total loss and hence, the grant of partial claim was taken as deficiency in service.

10. In the case of Nand Kishore Jaiswal vs National Insurance Co. Ltd., [III (2009)

CPJ 194 (NC) ] no valid reasons have been given for reducing the assessment made by the surveyor. In the instant case, based on the remarks of the Surveyor on the

Ownership of the Building the Insurance Company had disallowed the claim of the builder stating that the petitioner did not have any ‘insurable interest’ in the said building. Therefore, the claim for the damage of loss to the building was not payable.

11. Law on this subject has been clearly laid down by Hon’ble Supreme Court of India in Ajmer Singh Cotton and General Mills (supra).

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 beforewhom the complaint is made would be justified in granting appropriate relief. However (sic so), where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. There mere execution of discharge voucher and acceptance of the insurance would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer

Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of

service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act.

In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, misrepresentations or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints”.

12. In Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 Supreme

Court Cases 311, Apex Court has held ;

“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 74.1993. 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 chequesand 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 cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. A n “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 discloses 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 ”.

13. The petitioner has stated that to avoid any further loss of income and closure of business he had accepted the cheque and encashed the same. There is nothing on record to show that the cheque was accepted and encashed under protest. It is also a

fact that he wrote to the insurance company for the balance amount after almost 3 ½ weeks.

14. In the present case there is nothing on record to show that the petitioner was compelled by the respondent at any stage to settle the claim at a lesser amount than the claim made by him. There is also not an iota of evidence on record to show any coercion on the part of the respondent that he compelled the petitioner to settle the claim at a lesser amount. Once the petitioner had received the amount unconditionally, then he ceases to be a ‘Consumer’ as per the Act. The privity of contract of consumer and service provider between the parties, if any, came to an end, the moment the petitioner accepted the amount unconditionally.

15. Thus, there is no merit in the present revision petition and the same is accordingly, dismissed with cost of Rs.5,000/-. Cost be deposited by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10 A of the Consumer Protection Rule,

1987 within four weeks.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the Order dated 10.02.2012 in First Appeal No. 304/2011 of

Delhi State Consumer Disputes Redressal Commission)

Ms. Shashi Gupta D/o Sh. S.N. Gupta 231/20, Onkar Nagar-8 Tri Nagar, Delhi-110035

… Petitioner

Versus

Mr. B. Murli Sr. Vice President Nestle India Ltd. M-5A, Connaught Place New Delhi-

110001

… Respondent

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Mr. S.N. Gupta (Father of petitioner)

For the Respondent : Mr. Ravinder Narain, Sr. Advocate with Ms. Kanika Gomber, Mr. Siddharth B., Mr.

Avinash Mohapatra and Ms. Shravani Shekha,

Advocates

Pronounced on : 21 st February , 2013

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition challenges the order dated 10.02.2012 passed by the Delhi

State Consumer Disputes Redressal Commission, (‘State Commission’ for short) passed in First Appeal No.304 of 2011 by which the State Commission allowed the appeal of the respondent against the order dated 11.05.2011 passed by the District

Consumer Disputes Redressal Forum, New Delhi in CC/704/2010 filed by the petitioner.

The District Forum vide its order allowed the complaint of the petitioner and directed the respondent’s company to pay Rs.3480/- in cash to the complainant / petitioner or offer the products against the coupons along with Rs.1000/- as compensation for harassment and litigation expenses.

2. Briefly stated, the facts emanating from the record filed by the petitioner are that the petitioner who is a shareholder of the respondent’s company, namely, Nestle India

Ltd., went to attend the Annual General Meeting of the shareholders held on 21.4.2010.

The respondent Co. offered refreshment coupons for chocolate pack to its shareholders at this meeting. According to the petitioner, some of the shareholders could not

exchange their coupons against the chocolate pack because the stock of chocolate packs got exhausted due to huge gathering of the shareholders at the AGM. In view of this, such shareholders were asked to collect their chocolate packs from company’s office at Connaught Place.

3. Petitioner was one of those who could not collect the chocolate pack since the refreshment had exhausted. Feeling harassed by the response from the representatives of the respondent Co. who made him run from one office of the Co. to another to collect the chocolate pack, the petitioner filed a consumer complaint before the District Forum alleging deficiency in service on the part of the respondent Co. The District Forum vide its aforesaid order, accepted the complaint against which the respondent Co. went in appeal before the State Commission which reversed the order of the District Forum by accepting the appeal and setting aside the order of the District Forum.

4. We have heard Mr. S.N. Gupta who is father of the petitioner and appeared before us on her behalf and Mr. Ravinder Narain, Sr. Advocate assisted by Ms. Kanika Gomber for the respondent Co. Admittedly, the petitioner in this case is one of the shareholders of the Co. and she had attended the AGM of the Co. in her capacity as the owner of the Co. to the extent of her shareholding. Keeping this important aspect in view, the State Commission held that the petitioner is not a consumer qua the incident in question while attending the AGM of the shareholders.

While allowing the appeal of the respondent Co. and setting aside the order of the

District Forum, the State Commission has recorded the following reasons in support of the impugned order:-

“9. It is evident that payment of consideration in part or full or promise thereof is the basic ingredient of being a consumer. In fact a shareholder is a owner of the company to the extent of value of his/her shares and he/she attends the Company’s Annual General Meeting to facilitate its management to address concerns of the shareholders.

The company facilitates such meetings by offering lunch packs/snacks etc. for no payment by the shareholders.

Therefore, in the instant case no payment has been made by the shareholder that obligates the company to provide lunch/gift packs. Hence there is absence of the main ingredient of definition of the world “Consumer” as per the

Consumer protection Act.

10. That the above conclusion is in conformity as held by Hon’ble national Commission in

Dr. Goutam Das vs Sun Pharmaceuticals Ltd. and

another.

The Hon’ble national Commission was pleased to observed as under:-

“In our view, complainant, a shareholder cannot be the consumer Sun Pharmaceuticals Ltd.

–

Opposite party No.1 within the meaning of section

2(1)(d)(ii) of the Consumer Protection Act, 1986 and the present complaint, is therefore, not legally maintainable under that Act”

5. We agree with the view taken by the State Commission. The District Forum gravely erred in treating the petitioner as a consumer while accepting the complaint in question and non-suiting the defence of the respondent Co. in this regard. In these circumstances, we do not find any illegality or material irregularity which would call for our interference. The revision petition, therefore, stands dismissed. No costs.

……………Sd/-……..………..

(AJIT BHARIHOKE, J.)


…………Sd/-………..………..

(SURESH CHANDRA)

MEMBER

SS/


ORIGINAL PETITION NO.91 OF 2004

1. Smt.Kovi Ajitha w/o Dr.K.Ramana Kumar R/o 5-91-18/2, 3 rd Lane, Laxmi Puram

Guntur

– 520007

2. Dr.K.Ramana Kumar, M.D. s/o K.Chenchaiah Choudhary R/o 5-91-18/2,

3 rd Lane, Lumxi Puram Guntur – 520007

3. R.K.Diagnostics A partnership firm through Complainant No. 1 & 2 Having its office at D.No.12-12-89 Old Club Road, Kothapet, Guntur

– 522001

.… Complainants

Versus

1. Philips Medical Systems India Private Ltd. Rep. by Its MD No.3, Hado’s Road,

Chennai – 600006

2. M.S.Menon, General Manager, Philips Medical Systems No.3, Hado’s Road,

Chennai – 600006

.... Opposite Parties

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Complainants : Mr.Ranjan Mukherjee, Advocate,

Mr.Sanjoy Kumar Ghosh, Advocate,

Ms.Rupali S. Ghosh, Advocate

For the Opposite Parties : Mr.Ajay Kapur, Sr. Advocate with

Ms.Sujata Mehra, Advocate

Ms.Shaista Arora, Advocate

PRONOUNCED ON _21 ST FEBRUARY, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

M/s R.K.Diagnostics, a partnership firm, alongwith its partner

Smt. Kovi Ajitha and Dr. K. Ramanna Kumar has filed this complaint under section 21 of the Consumer Protection Act, 1986, against M/s Philip Medical System India Private

Limited and its General Manager Sh. M.S.Menon.

2. Briefly stated allegations in the complaint are that M/s R.K.Diagnostics Services

Private Limited, through its Director Dr.K.Ramana Kumar (complainant no.2) negotiated

with the Opposite Parties for purchase of a whole body scanner. During negotiations, the representative of the Opposite Parties assured of very high and superior quality images from the said CT scanner apart from the additional features including CT angiography package. Being impressed with the representation made by the representatives of the Opposite Parties, M/s R.K.Diagnostics Services Private Limited agreed to purchase the said equipment and paid the booking amount. M/s R.K.Diagnostics Services Private Limited later on dropped the idea of purchasing the said equipment and at that stage complainants no. 1 & 2 decided to start a partnership business and took initiative to purchase the said CT scan equipment booked by the Private Limited Company. For that purpose, a partnership firm, namely, complainant no.3 was constituted and the firm got sanctioned loan from the Andhra

Bank. Thus, the complainants purchased the above equipment with the above specifications as represented by the representative of the Opposite Parties for

Rs.1,05,00,000/- only. The configuration of the equipment was specified in the complainant’s letter dated 26.11.1999 addressed to the Opposite Parties. The Opposite

Party issued the invoice dated 26.11.1999 alongwith the payment schedule of the price of equipment.

3. It is further alleged that the Opposite Parties installed the equipment in the complainant’s premises on 03.03.2000 and issued a installation completion-handoveracceptance certificate. The complainant in the remark coloumn of the said certificate specified three deficiencies noticed at the time of installation, namely, Gantry cover should be replaced, quality of image not good as promised and Endoscopy and

Angiogram were neither installed nor demonstrated. The representatives of the opposite party assured the complainant that the deficiency pointed out by the complainant as per the above remarks shall be addressed to immediately. However, the Opposite Party failed to remedy the defects pointed out by the complainant. Consequently, the complainants instructed his bankers to stop payment of the four cheques issued against the payment of the price of the equipment. The opposite party infact presented those cheques for encashment but the same were dishonoured. The opposite parties, however, did not initiate any action against the petitioner for dishonour of the cheques. Aforesaid failure of the opposite party to rectify the defects pointed out by the complainants is alleged to be the deficiency in service which has led to the filing of the complaint seeking refund of the sum of Rs.74,25,000/- paid towards the cost of equipment besides the payment of interest charged from the complainants by Andhra Bank towards the loan amount as also interest on the principal amount and compensation for harassment and mental agony suffered by complainants no. 1 & 2.

4. Opposite party contested the claim of the complainants by filing written statement. They took preliminary objection to the effect that the complaint is not maintainable because the complainants had purchased the equipment in dispute for commercial purpose and as such they do not fall within the defi nition of ‘consumer’ as defined under section 2 (d) of the Consumer Protection Act, 1986. It is also contended that the complaint is hopelessly barred by limitation as it has been filed after a period of

4 ½ years from the date on which the CT scan equipment was installed at the premises of the complainants and the alleged deficiencies or defects were noted by the complainants.

5. On merits also, the allegations in the complaint are denied. It is alleged that the contact for supply of CT scan machine and other equipment was placed by M/s R.K.

Diagnostics ServicesPvt. Ltd. and not by the partnership firm. It is further alleged that

CT scan machine in perfect order in terms of contract was supplied on 14.02.2000 and the installation certificate was obtained from the complainant in March 2000. The objections raised by the complainants in the installation certificate were attended to and the service was undertaken on 08.6.2000 and after the service, machine was functioning properly and was in good working condition. Even the left Gantry cover was replaced. It is contended that despite of proper delivery and installation of machine, Dr.K.Ramana failed to make the subsequent payments and he kept on assuring the opposite parties that the payments were delayed due to certain financial problems. It is contended that the complainants owe a huge amount to the opposite parties towards the price of the machine and in order to avoid the said liability, the complainant has resorted to the instant complaint.

6. Both the parties have filed their evidence on affidavits. We have heard the counsel for the respective parties and perused the record including evidence.

7. Learned counsel for the opposite parties at the outset has submitted that the present complaint is liable to be dismissed, firstly, on the ground that the complainants do not fall within the definition of ‘consumer’ and, therefore, they cannot maintain consumer complaint under the provisions of Consumer Protection Act, 1986 ( in short,

‘the Act’). Secondly, it is contended that in the instant case, even if the averments made in the complaint are taken to be true, then also, the complaint is barred by limitation for the reason that it has been filed after a period of 4 ½ years from the date on which the cause of action arose.

8. Learned Shri Ranjan Mukherjee, Advocate for the complainants has submitted that preliminary issues raised by the learned counsel for the opposite parties cannot be reagitated now for the reason that aforesaid issues have already been settled by this

Commission vide its order dated 23.11.2005 dismissing the application of the complainant under Order 7 Rule 11 CPC seeking rejection of the complaint.

9. The above argument of learned counsel for the complainants is misconceived and is based upon incorrect reading of the order of the Commission dated 23.11.2005 which is reproduced thus:

“Whole purpose of speedy disposal under the Consumer Protection Act would be frustrated if such type of preliminary objections are entertained and decided. Further, it is abundantly clear that if we refer to Section 13 of the Consumer Protection Act, Order 7 of the CPC is not made applicable. Secondly, it is the contention of the complainant that by sheer mistake in a previous complaint which was filed, the names of the complainants were not properly described. Instead of describing the name of complainants, the area where the complainant is having its business was mentioned.

In this view of the matter, this application is rejected. Opposite party shall file its written version within 21 days from today alongwith the evidence by way of affidavit in support of it.

Stand over to 28 th Februrary , 2006”.

10. On perusal of the aforesaid order, it is evident that vide order dated 23.11.2005 this Commission declined to decide the application under order 7

Rule 11 CPC on two counts. Firstly that order 7 CPC is not applicable to the proceedings under the Act and secondly on the ground that if such preliminary objections are entertained and decided at the initial stage, it would frustrate the whole purpose of speedy disposal of consumer complaint, which is the object of the

Act. Thus, we are of the view that there is no merit in the plea of the learned counsel for the complainant that preliminary objections regarding maintainability of the complaint as also the limitation have already been decided by the Commission.

11. Coming to the maintainability of the consumer complaint under section 21 of the

Act, learned counsel Sh.Ajay Kapur, Senior Advocate for the opposite parties has contended that from the record, it is evident that CT Scan machine / equipment was purchased by the complainants for purely commercial purpose, therefore, the complainant, f irm and its partner are not covered under the definition of ‘consumer’ as defined under section 2 (d) of the Act. Thus, the present complaint under the Act is not maintainable.

12. On the contrary, learned counsel for the complainants has submitted that complainants had purchased the CT Scan machine / equipment for the purpose of earning the livelihood. Therefore, in terms of the explanation to Section 2 (d) of the Act,

the machine / equipment was purchased for the purpose other than commercial purpose. As such, complaint is maintainable under section 21 of the Act.

13. In order to appreciate the rival contentions, it would be useful to have a look on certain provisions of the Act.

Section 2 (b) of the Act defines the term ‘complainant’ and it reads thus:

“Complainant” means

(i) a consumer; or

(ii) any voluntary consumer association registered under the

Companies Act, 1956 ( 1 of 1956) or under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(iv) One or more consumers, where there are numerous consumers having the same interest;]

(v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint’’.

14. On reading of the above, it is evident that in order to successfully maintain the complaint, the complainants must fall within the definition of consumer. The term consumer has been defined under section 2 (d) of the Act. Relevant part of Section 2

(d) is reproduced thus:

“Consumer means a person who-

1) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

Explanation- For the purpose of this clause, “commercial purpose” does not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of selfemployment”.

15. On careful reading of section 2 (d) (1) reproduced above, it is evident that term

‘consumer’ for the purpose of the Act does not include a person who obtains goods in question for resale or for any commercial purpose. However, the explanation to the provision makes an exception that commercial purpose does not include use of the goods bought by the buyer exclusively for the purpose of earning his livelihood by means of self employment.

16. In the context of the above definition of consumer, now it is to be seen whether the partnership firm M/s R.K.Diagnostics and its partners Kovi Ajitha and Dr. K.Ramana Kumar, the complainants, herein are covered by the definition of consumer?

17. Admittedly the negotiations for the purpose of CT Scan machine were conducted by Dr. K.Ramana Kumar with the opposite parties in his capacity as the

Director of M/s R.K.DiagnosticsService Private Limited, which has several diagnostic centres throughout Andhra Pradesh. Thus, it is evident that the above referred private company was operating commercially for earning profits and not for earning the livelihood. It is also admitted case of the parties that Dr. K.Ramana Kumar as also the complainant Kovi Ajitha are shareholders of the aforesaid company. That being the case, it is clear that before the constitution of the partnership firm, M/s R.K.Diagnostics, its partners Dr.K.Ramana Kumar and Kovi Ajitha were running a private limited company for commercial purpose and earning profits. Therefore, by no stretch of imagination, it can be said that the partnership firm was constituted by the other two complainants with a view to earn their livelihood particularly when they were having a source of income in the above noted private limited company. Thus in our view, the complainants no. 1 & 2, who had other source of income constituted the partnership firm

M/s R.K.Diagnostics for commercial purpose. Therefore they as well as their firm do not fall within the explanation to the definition of ‘consumer’ as provided under section 2 (d) of the Act.

18. From the discussion above, it is also evident that the partnership was created by the other two complainants with a view to extend their diagnostic service business which they were already carrying on through M/s R.K.Diagnostics Services Private

Limited, a closely held company. Since the CT Scan machine / equipment was

purchased for a commercial venture i.e. the Diagnostic Service, the complainants do not fall within the definition of consumer and as such in our view they are not competent to maintain consumer complaint under section 21 of the Act. On this count alone, the complaint is liable to dismissed as not maintainable.

19. Coming to the issue of limitation. As per the allegations in the complaint, CT scan machine / equipment was installed at the premises of the complainants on

03.03.2000 and while signing the installation / delivery, the complainants noted the defects in the CT scan machine / equipment. From this it is evident that the defects in the machine came to the knowledge of the complainants on 03.03.2000. Therefore, the cause of action for filing complaint on the ground of supply of defective

CT Scan machine / equipment arose on 03.03.2000. The complaint as per the record has been filed on 04.11.2004 i.e. after the expiry of more than 4 ½ years from the date on which the cause of action arose. Section 24A of the Act provides for the limitation period for filing of complaint before the District Forum, State Commission or National

Commission. It provides that aforesaid fora shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. Of course

Section 24A (2) provides an exception to the aforesaid rule and confers power upon the aforesaid fora to condone the delay in filing of complaint beyond the period of limitation if the complainant shows sufficient cause for not filing the complaint within such period. No such cause has been shown by the complainants. It may be noted that earlier the complainants had filed the complaint against the opposite parties on the same cause of action on 05.02.2003 under the name of R.K.Scan Centre. The said complaint was dismissed vide order dated 13.09.2004 on the ground that R.K.Scan Centre has no locus standi to maintain the complaint. Thereafter, the present complaint in the name of the partnership firm and the partners was filed on

04.11.2004. Alongwith the complaint, an application of condonation of delay was filed stating that the complainants were prevented from filing this complaint within the period of limitation for the reason that under the mistaken belief, complainants were pursuing the complaint under the name of R.K.Scan Centre where the CT Scan machine / equipment was supplied. It is submitted by the learned counsel for the complainants that because of the aforesaid bonafide mistake , the delay in filing of complaint has occurred. This argument is of no avail to the complainants. Even if the aforesaid explanation of the complainants is taken to be the reason for delay in filing of complaint, it only explains the delay caused for the period w.e.f. 05.02.2003 till 13.09.2004. As discussed above, the cause of action for filing of complaint arose on

03.03.2000. Therefore, in view of Section 24A of the Act, the complaint ought to have been filed by 03.03.2002. Admittedly, the first complaint under the wrong name was

filed on 05.02.2003 i.e. after the beyond period of two years from the date of cause of action. Therefore, the first complaint itself was barred by limitation. There is no explanation given for the delay in filing of the complaint under the name of R.K.Scan Centre beyond the period of limitation. Thus, in our view the complainants have failed to show a sufficient cause which prevented them from filing the complaint within the two years period of limitation. Thus application for condonation of delay is dismissed. Resultantly, the complaint is barred by limitation.

19. In view of the discussion above, the complaint is neither maintainable nor it is within limitation. We find no reason to go into the merits of the case. Complaint is accordingly dismissed as not maintainable as well as barred by limitation with cost of

Rs.50,000/-.

…………………..………..



……………….……………


MEMBER

Am



WITH

(I.A. NO. 1 OF 2010, For C/Delay)

(Against the order dated 16.06.2009 in Appeal No. 981/2007 of the State

Commission, Gujarat)

REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT

FUNDS ORGANIZATION BHAVISHYNIDHI BHAVAN ASHRAM ROAD,

AHMEDABAD

....... Petitioner

Versus

SHRI SHIVPRASAD RAJENDER SINGH 353, VIDHYANAGAR SOCIETY NEAR

CENTRAL WORKSHOP ODHAV, AHMEDABAD

…... Respondent

BEFORE:

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


For the Petitioner : Mr. Keshav Mohan, Advocate with

Ms. Amrita Narayan, Advocate

For the Respondent : already ex parte

Pronounced on : 22 nd February, 2013

ORDER

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

In this revision petition, there is challenge to order dated 16.6.2009, passed by Gujarat

State Consumer Disputes Redressal

Commission, Ahmedabad (short, “State

Commission”) vide which appeal filed by the petitioner/o.p against order dated 5.2.2009 passed by Consumer Disputes Redressal Forum, Ahmedabad (short, “District Forum”) was partly allowed. Along with it, an application seeking condonation of delay of 90 days has also been filed.

2. Respondent/complainant filed a complaint for recovery of provident fund benefit as well as penal interest for the delayed period against petitioner. The complaint was contested by the petitioner. District Forum, allowed the complaint and passed the following directions ;

“The opposite party shall pay 9.5% interest as per

Notification of 2004 on the amount of Rs.1,22,940/- as paid by the opposite party to the complainant and pay 10% interest p.a. on such an amount since April, 2004.

The opposite party shall pay 10% interest on

Rs.56,996/- since April, 2000 till actual payment to the complainant as per Schedule – E of the complaint.

The complainant has applied for pension as he completed 58 years in 2003. The opposite party, therefore, calculate the pension as payable to complainant and pay him arrears after the date of completion of 58 years with 10% interest whereof p.a. till payment and shall regularly pay him the pension.

The opposite party shall pay Rs.2,000/- to the complainant as costs of this complaint and for the other expenses.”

3. Aggrieved by the order of District Forum, petitioner filed appeal before State

Commission which partly allowed it, vide the impugned order.

4. Hence, the present petition.

5. Notice of this petition was issued to the respondent. Initially, counsel for respondent appeared but later on he absented and respondent was proceeded ex- parte.

6. Arguments advanced by learned counsel for petitioner has been heard. We have also gone through the record.

7. As per application for condonation of delay, grounds on which delay has been sought states ;

“3. The petitioner submits that the impugned order in the revision petition is dated 16.6.2009 and a certified copy of the same was received by the counsel for the petitioner at State

Consumer Redressal Forum, on 4.7.2009.

4. That the certified copy of the impugned order was forwarded to the Ahmedabad office of the petitioner on 2.9.2009.

5. That after receiving the certified copy of the order dated

16.6.2009 the petitioner’s office in Ahmedabad forwarded a copy of the above stated order to the office in Delhi.

6. That the Delhi office thereafter sought advice from the present advocate in the matter who advised him to approach this Hon’ble Commission.

7. That petitioner respectfully submits that it took about a fortnight to collect all the papers with respect to the above case from the counsel at State Commission whichwere forwarded to the present counsel on 4.12.2009.

8. That upon receiving the papers the present counsel realized that the learned D istrict Forum’s order was in Gujarati and needed translation. The present matter is being filed immediately upon receipt of this translation.

9. The petitioner therefore, submits that delay of 90 days in filing the present revision petition is not intentional and has occurred due to reasons beyond his control. Therefore, the delay in filing the present revision be condoned.”

8.

It is well settled that “sufficient cause” for condonation of delay in each case, is a question of fact.

9. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court

361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application forcondonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

10. In

“

R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108

”, Apex

Court has observed ;


11. Recently, Supreme Court in “ Anshul Aggarwal vs. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC)” laid down that;

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras .”

12. Recently,

Hon’ble Supreme Court in

Post Master General and others vs. Living


“24.

After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and

Government Undertaking, this Court observed as under ;

“29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosersfacilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section

5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay

on the ground of involvement of public revenue. It serves no public interest.”

The Court further observed ;

“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings.

In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural 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.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs .”

13. As per petitioner’s case, copy of impugned order dated 16.6.2009, was received by its counsel on 4.7.2009. Admittedly, after about two months that is, on 2.9.2009 it was forwarded to petitioner’s office in Ahmedabad. There is no explanation at all as to why it took about two months for forwarding the copy of the order to the petitioner’s office which is situated in the same city that is, Ahmedabad where the State

Commission is also situated. Even, thereafter, it took petitioners more than three months to forward the papers to its counsel in Delhi. Moreover, petitioner has nowhere stated in its entire application as to which officials were responsible for the delay and what action has been taken against them for their careless and negligent act.

14. Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

15. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. Accordingly, no sufficient grounds are made out for condoning the delay of 90 days in filing the present revision petition. The application for condonation of delay, under these circumstances is not maintainable and present revision petition being barred by limitation is hereby dismissed with cost of Rs.20,000/- (Rupees twenty thousand only).

16. Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

17. Meanwhile, petitioner shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less and frivolous litigation, with the sole aim of wasting the public exchequer. The affidavit giving the details of the officers/officials from whose salaries the cost has been recovered, be also filed within four weeks.


…………………

..………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………...……….

(REKHA GUPTA)

(MEMBER)



(From order dated 22.06.2012 in Appeal No. FA/12/185 of the State Consumer

Disputes Redressal Commission, Raipur)

M/S Bajaj Allianz General Insurance Co. Ltd. Through 2 ND Floor, 1, DLF Industrial

Estate, Moti Nagar, New Delhi-110015

…Petitioner

Versus

Sushil Chandra Mishra S/o Sh. Murari Mishra R/o Ward No. 9, Purani Toli, Jashpur

Nagar, District Jashpur Chattisgarh.

…Respondent

BEFORE:



For the Petitioner : Mrs. Manjusha Wadhwa, Advocate

Pronounced on: 22 nd February, 2013

ORDER


In this revision petition there is challenge to order dated 22.6.2012, passed by

State Consumer Disputes Redressal Commission, Raipur (for short, ‘State

Commission’)

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

Consumer Prot ection Act, 1986 (for short, ‘Áct’) against petitioner/o.p. stating that his

Maxi truck was insured with the petitioner. During the insurance period, Maxi Truck met with an accident. However, claim submitted by him was rejected by the petitioner.

3. Complaint was contested by the petitioner.

4. District Forum, vide order dated 16.3.2012, allowed the complaint. It directed the petitioner to pay respondent a sum of Rs.2,99,250/- within one month from the date of the judgment and interest @9% p.a. w.e.f. 9.4.2010 till the date of payment. Sum of

Rs.1,000/- was awarded as compensation for mental torture and Rs.500/- towards cost.

5. Aggrieved by the order of the District Forum, petitioner filed appeal before the State Commission which dismissed the same.


7. It has been contended by learned counsel for the petitioner that appeal was filed within the period of limitation. However, there was some delay in depositing the statutory amount and for that reasonable explanation has been furnished by the officials of the petitioner. The State Commission ought to have condoned the delay in deposit of the statutory amount. In support, learned counsel has relied upon a decision of this Commission reported as ‘National Insurance Company Limited

Vs. M. R. N. Spinner (P) Ltd. IV (2010) CPJ 81(NC).

8. Section 15 of the Act is relevant for deciding the controversy and it read as under;

“15 Appeal.--- Any person aggrieved by an order made by the

District Forum may prefer an appeal against such order to the State

Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:

Provided that the State Commission may entertain an appeal after expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

(Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of that amount or twenty-five thousand rupees, whichever is less) ”.

9. State Commission, in its order observed ;

“Section 15 of the Consumer Protection Act clearly says that no appeal can been entertained unless the deposit under second proviso to section 15 of the Act is made and therefore the appeal becomes entertainable only when such deposit is made. If that deposit has been made after 21 days after expiry of period of limitation, then naturally it has become entertainable after 21 days from the last date of expiry of limitation. In fact the requirement was that the deposit be made first and then the appeal was to be filed after depositing the amount.

In view of this, this Commission asked from the appellant Company as to why the delay occurred. Then affidavit of one Mr. Punit

Rathore of local office of the company at Raipur was filed in which it was explained that main server of the Head Office, Pune, became defective and so the Head Office, Pune could not instruct the concerning Bank to prepare cheque. As Mr. Punit Rathore does not work at Head Office Pune and works only in the Raipur Branch of the Insurance Company, so whatever has been stated by him in his affidavit merely remains a hear say statement and cannot be accepted as proper explanation as a ground for condonation of

delay. That is why this Commission, asked the appellant Company to file affidavit of some competent person of the Pune Office in support of the statement that main sever of the Head Office became defective and so instruction could not be given to the Bank to prepare a cheque. At the same time it was also asked from the

Company to tell as to, in case of failure of computer system what the Company usually does, whether it stops all its activities or can also work manually, but this query has not been replied by the

Company. It appears that whatever explanation the Company has given for late deposit of amount, is an after thought defence which will not be supported by any reliable evidence, so it cannot be accepted by this commission unless duly supported by affidavit of a competent person, having knowledge of the facts.

As the Company has failed in providing proper explanation of the delay of 21 days by filing affidavit of a competent person and has also failed to reply the query made by this Commission, so we find that delay has not been properly explained by the Company and thus the appeal, which was barred by limitation as has become entertainable after 21 days from the last date of period of limitation and the delay has not been properly explained, is liable to be dismissed as barred by limitation, so the same is hereby dismissed ”.

10. The decision of M.R.N. Spinner (P) Ltd. (supra) relied upon by the learned counsel for the petitioner does not support her case. In this case, this Commission held ;

“8. It is not disputed that the petitioner did not make the deposit in terms of the requirement of second proviso of Section 15.

The question, which falls for consideration is —as to what is the effect of non-compliance of the aforesaid provision? Second proviso to Section 15 provides that no Appeal, filed by a person, who is required to pay the amount in terms of the Order of the

District Forum, shall be entertained by the State Commission unless the appellant has deposited, in the prescribed manner, fifty percent of the amount awarded by the District Forum or twenty-five thousand rupees, whichever is less. The w ord ‘entertained’ was interpreted by Hon’ble Supreme Court of India in Shyam Kishore and Others v. Municipal Corporation of Delhi and Another, reported in 48(1992) DLT 277(SC)= AIR 1992 (SC), to mean:

“to deal with or attempt to consideration”

9. Meaning thereby that deposit was a pre-condition for entertaining or admitting the Appeal. In Shyam Kishore’s case

(supra), it was observed as under :

“In M/s Lakashmiratan Engineering Works Ltd. v. Assistant

Commissioner (Judicial) 1,Sale Tax, Kanpur Range, Kanpur, AIR

1968 SC 488, the Supreme Court had occasion to construe the meaning of the word ‘entertained’ in proviso to Section 9 of the

UP Sales Tax Act,1948 and the Court took the view that the word

‘entertain’ means ‘admit to consideration’. The Supreme Court while interpreting the word ‘entertained’ continued in Section 9 of the U.P. Sales Tax Act, 1948 and the proviso thereto made a distinction between the expressions ‘appeal’ and memorandum of

‘appeal’. Section 9 contemplated that the appeal could not be entertained without the proof being given along with memorandum of appeal that the tax had been paid. While dealing with the meaning of the word ‘entertained’ Hidayatullah, J. in paragraphs 7 and 10 of the judgment at pages 491 and 493 observed as under —

“(7) To being with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question, thus, arises what is the meaning of the word ‘entertained’ in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available. The dictionary meaning of the word ‘entertain’ was brought to our notice by the parties and both sides agreed that it means either ‘to deal with or admit to consideration’. We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it

’entertained’ when it is filed or is it ‘entertained’ when it is admitted and the date is fixed for hearing or is it finally ‘entertained’ when it is heard and disposed of?. Numerous cases exist in the law reports in which the word ‘entertained’ or similar cognate expressions have been interpreted by the Courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present, we must say that if the Legislature intended that the word ‘file or receive’ was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such expressions have in fact been used……..”

“(10)…….When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax”.

10. In the present case, the Appeal had been filed after the coming into force of the second proviso of Section 15 of the Act and the same could not be entertained or admitted to hearing without deposit of either the fifty per cent of the amount awarded by the

District Forum or twenty-five thousand rupees, whichever is less ”.

11. Thus, compliance of second proviso to Section 15 of the Act is mandatory.

Admittedly, petitioner did not deposit the statutory amount within the specified period.

Under these circumstances, State Commission rightly dismissed the appeal of the petitioner. We find no ground to disagree with the reasoning given by the State

Commission. There is no infirmity or illegality in the impugned order passed by the State

Commission. Present revision petition, under these circumstances, stands dismissed.


……..……………………J

(V.B. GUPTA)


…………………………

(REKHA GUPTA)

MEMBER

SSB/



(From the order dated 16.03.2012 in First Appeal No.1021/2011 of the

M.P. State Consumer Disputes Redressal Commission, Bhopal)

Indore Development Authority 7, Race Course Road,

..

…. Petitioner

Versus

1. Smt. Dimple W/o Sh.Sunil Khatri R/o 146, Vishnupuri Colony Indore, Madhya

Pradesh 161/61, Pipliyarav, Indrapuri Colony, Indore

2. Gajanand Grah Nirman Sahkari Santha Maryadit Scheme No.71 Money Centre,

Near Ranjit Hanuman Indore, Madhya Pradesh

..... Respondents

AND


(From the order dated 16.03.2012 in First Appeal No.1022/2011 of the

M.P. State Consumer Disputes Redressal Commission, Bhopal)

Indore Development Authority 7, Race Course Road, ..

…. Petitioner

Versus

1. Ranchodlal S/o Late Sh.Khanaiyalal Joshi 150, Preconko Colony Indore, Madhya

Pradesh

2. Gajanand Grah Nirman Sahkari Santha Maryadit Scheme No.71 Money Centre,

Near Ranjit Hanuman Indore, Madhya Pradesh

..... Respondents

BEFORE:

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

For the Petitioners in both cases : Mr. Sulabh Samaiya, Advocate

For the Respondents in both cases : Mr. Ashutosh Nimgaonkar,

Advocate

PRONOUNCED ON _25.02.2013

ORDER

JUSTICE K.S. CHAUDHARI

1. These revision petitions have been filed by petitioner against impugned order dated 16.03.2012 passed by learned State Commission in Appeal No.1021/2011,

IDA Vs. Smt.Dimple & Anr., by which while dismissing appeals, upheld the order of the District Forum allowing the complaints. As both the revision petitions arise out of common order of the State Commission, these revision petitions are decided by common order.

2. Brief facts of the cases are that OP was to develop the land of the Sanstha and allot plots to its Members. The complainant/ respondent Smt.Dimple was allotted plot No.365, measuring 67.50 sq.mts and complainant/petitioner Ranchodlal was allotted plot No.351 measuring

67.50 sq.mts in Scheme No.97, Part-IV/1, developed by OP/petitioner on General

Conditions on lease for 30 years. Complainants paid price of the plot along with lease rent as per Agreement between OP and Gajanand Grah Nirman Sahkar Sanstha Maryadit, Indore. In spite of allotment of land, OP neither executed the lease deed nor handed over possession of the plots. Alleging deficiency on the part of OP, complainants filed separate complaints against OP in District Forum. OP resisted claim and submitted that consumer forum has no jurisdiction under section 64 of M.P. Co-operative Societies Act, 1960.

Further, it was alleged that complaints are timebarred and Gajanand Grah Nirman Sahkari Sanstha Maryadit is a necessary party and prayed for dismissal of complaints. Learned District Forum after hearing both the parties, allowed the complaints and directed OP to execute lease deed of the allotted plot and hand over possession within four months along with damages to the extent of Rs.3,000/- and costs of Rs.1,000/-.

3. Appeals filed by OP/petitioner were dismissed by learned State Commission by one impugned order against which these revision petitions have been filed.

4. Heard learned counsel for the parties at admission stage and perused the record.

5. Learned counsel for the petitioner submitted that as there is dispute between the Members and the Society and some of them have obtained stay from different authorities, petitioner is not in a position to execute lease deed and hand over possession and learned State Commission has committed error in dismissing the appeal, hence petition be allowed and impugned order and order of District Forum be set aside.

6. On the other hand, learned counsel for the respondent submitted that out of 87 plots, 70 plots have already been allotted and lease deed executed infavour of eligible Members and respondents are also eligible Members, hence entitled to get possession of plots and lease deed executed in their favour and learned State

Commission has not committed any error in dismissing appeal, hence revision petition be dismissed.

7. It is not disputed that land of Gajanand Grah Nirman Sahkari Sanstha Maryadit, was taken by petitioner/OP for development and after development, it was to be allotted to the eligible Members of the Society. It is also not disputed that out of 87 plots made available by the petitioner for allotment, complainants/respondents were also shown in the list of 87 eligible Members. In such circumstances, when complainants names appear in the list of eligible Members, they are certainly entitled to get possession of the allotted plot and also get lease deed executed in their favour. Learned District Forum has not committed any error in allowing complaint and learned State Commission has not committed any error in dismissing the appeal.

8. Learned counsel for the petitioner submitted that on account of stay orders obtained by some of the Members, petitioner is not in a position to hand over possession and executed lease deed. He further submitted that 63 cases are

pending in various forums, including consumer forum and Sub-Registrar, Joint

Registrar, Co-operative Society, merely because cases are pending in various forums, complainants cannot be denied benefit of taking possession and getting lease deed in their favour for the plots allotted to them as their names appear in the eligible list.

9. Learned counsel for the petitioner has not placed on record stay order against remaining 17 plots and in such a situation, the petitioner is not entitled to restrain eligible Members from taking possession of their allotted plots. Petitioner is bound to hand over possession of the allotted plot and execute lease deed in their favour as per allotment letter.

10. I do not find any illegality, irregularity or jurisdictional error in the order passed by learned State Commission which call for interference and revision petitions are liable to be dismissed at admission stage.

11. Consequently, revision petitions filed by petitioner are dismissed at admission stage, with no order as to costs.

…………………..………..

(K.S. CHAUDHARI, J.)


Dd/5 & 6



( I. A. No. 1 of 2012 for Condonation of Delay)

(I.A. No. 2 of 2012 for Stay)

(From order dated 30.12.2011 in Appeal No.18 of 2010 of the State Consumer

Disputes Redressal Commission, Chennai)

Ambadi Enterprises Limited, Rep. by its Director, 5 th Floor, Parry House, 43, Moore

Street, Chennai-600001

…Revisionist

Versus

Tmt. Rajalakshmi Subramanian No. 10, Thiruvengadam Street Extension, Mandaveli,

Chennai-600028 ……Respondent

BEFORE:



For the Petitioners : Mr. Vivek Singh, Advocate


ORDER


In this revision petition there is challenge to order dated 30.12.2011, passed by

State Consumer Disputes Redressal Commission, Ch ennai(For short, ‘State

Commission’).

2. Brief facts are that, respondent/complainant had availed a housing loan from petitioner/o.p. for purchase of house property. Even after discharge of the entire loan, petitioner has not returned the original deeds/documents of the properties, which were deposited with it at the time of availing the loan, which amounts to deficiency in service on the part of the petitioner. Hence, respondent sought directions to the petitioner to return original deed of her property and to pay a sum of Rs.1 Lac as compensation for illegally retaining the house property title deeds even after discharge of the loan, and

Rs.3 Lac as compensation for mental agony and physical stress, and a further a sum of

Rs. 1 Lac for the unfair trade practice, and costs.

3. Petitioner in its written statement took the plea that respondent is not a consumer qua the petitioner. It is the respondent’s husband who has availed the loan and there are criminal complaints against him lodged by the petitioner. So, the original title deeds of respondent’s property which were deposited as security with it cannot be returned to her since petitioner has a right to recover the money misappropriated by the respondent’s husband. Thus, there is no deficiency on its part.

5. The District Forum considered the rival contentions and dismissed the complaint holding that complaint is not maintainable and that there is no negligence or deficiency in service on the part of the petitioner.

6. Aggrieved by the order passed by the District Forum, respondent preferred an appeal before the State Commission which vide its impugned order, partly allowed the appeal and set aside the order of District Forum.

7. Being aggrieved by the order of State Commission, petitioner has filed the present petition. Alongwith it, an application seeking condonation of delay has also been filed. However, no period of delay has been mentioned. But, as per office noting, there is a delay of 78 days in filing of this petition.

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

9. It has been contended by learned counsel for the petitioner that though there is delay in filing of the present revision petition but same is not intentional. It was on account of the file having been misplaced in the office of the counsel for the petitioner at

Chennai. Petitioner has a good case on merits and as such delay should be condoned.

10. The only ground on which condonation of delay has been sought read as under ;

“3. That the Petitioner respectfully submits that there is a delay of

_______ days in filing the aforesaid petition which is not intentional but on account of the file being misplaced in the office of the counsel for the petitioner at Chennai ”.

11. State Commission, in its impugned order observed ;

“7. There is no dispute that the complainant discharged the entire housing loan availed from the opposite party and that the complainant’s documents were not returned to her by the opposite party, pending criminal proceedings against her husband. Even otherwise, the above documents Ex.A1,A2,A7 and Ex.A3 in particular, clearly go to establish that the complainant availed housing loan from the opposite party and that the complainant has discharged the loan in full and that her original documents given as security for her loan were retained by the opposite party for the reason that there were criminal proceedings against the complainant’s husband initiated at their instance.

8. Therefore, it is evident that the complainant is the beneficiary of the housing loan and that she is a consumer who has availed housing loan from the opposite party and they have consumer relationship, and therefore the contention of the opposite party that the complainant is not a consumer of the opposite party, is untenable, and therefore the complaint is very well maintainable before the Consumer Forum

”.

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

13. 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.”

14.



“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian

Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition,

Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy

(1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC

106 ”.

15. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development

Authority, IV (2011) CPJ 63 (SC) has observed ;


Court was to entertain highly belated petitions filed against the orders of the consumer foras ”.

16.

Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

17. In entire application for condonation of delay, no period of delay has been mentioned. Moreover, it is nowhere stated as to what is the name of counsel in whose office the file was misplaced nor it is mentioned as to on which date the file was misplaced and when the same was traceable. Even affidavit of that counsel, in whose office the file was misplaced and later on traced out, has not been placed on record.

18. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioners. Accordingly, no sufficient grounds are made out for condoning the long delay of

78 days in filing the present revision petition. The application for condonation of delay under these circumstances is not maintainable and present revision petition being barred by limitation is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).

19. Petitioner is directed to deposit cost of by way of demand draft in the name of

“Consumer Welfare Fund” as per Rule10A of Consumer Protection Rules,1987, within four weeks from today. In case, it fails to deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.

20. Pending applications, if any stand disposed of.


……..……………………J

(V.B. GUPTA)


…………………………

(REKHA GUPTA)

MEMBER

SSB



(Against the order dated 02.03.2012 in First Appeal No. 951 of 2007 of State Consumer

Disputes Redressal Commission, U.P, Lucknow)

LIC of India Branch Rampur Rampur, Uttar Pradesh

... Petitioner

Versus

1. Ved Prakash Gupta S/o Late Ram Ratan

2. Smt. Sushila Gupta W/o Ved Prakash Gupta Both R/o Mohalla Chipian Purana Ganj

Tahsil Sadar District Rampur, Uttar Pradesh

… Respondents

BEFORE


For the Petitioner

For the Respondents

Mr. Rajesh K. Gupta, Advocate

Mr. Bharat Swaroop Sharma, Advocate

PRONOUNCED ON 26.02.2013

O R D E R


1. This revision petition has been filed by the petitioner against the impugned order dated 02.03.2012 passed by learned State Commission in Appeal No. 951 of 2007, LIC of India Vs. Ved Prakash Gupta & Ors., by which, while allowing appeal of the petitioner, partly, order passed by the District Forum was upheld and modified to some extent.

2. Brief facts of the case are that complainants obtained 11 insurance policies Nos.

250179447, 250179448, 240033945, 240023425, 240026863, 240300371, 240211198,

240453907, 240454297, 240454298 and 240454299 for their son, Vineet Gupta. Vineet

Gupta was injured in an accident on 26.08.2003 and his leg was fractured. Ultimately, he died on 27.08.2003. OP/Petitioner paid insurance amount covered under the aforesaid policies to the complainants but OP did not pay any amount to the complainants towards accidental benefits covered under the policies. Complainants alleging deficiency on the part of OP, filed complaint before the District Forum. OP

resisted claim and submitted that Vineet Gupta died due to heart attack and not due to accident, as such, accidental benefits were not found payable and not paid and, therefore, prayed for dismissal of complaint.

3. Learned District Forum after hearing both the parties allowed the complaint and awarded Rs.14,50,000/- as accidental benefits, along with interest @ 8% p.a. from

27.08.2003 and Rs.20,000/- as damages and Rs.500/- as costs.

4. Petitioner filed appeal which was partly allowed and vide impugned order, it was held that complainants are entitled to get Rs.10,00,000/- as accidental benefits instead of Rs.14,50,000/- awarded by District Forum. Further, interest was allowed at the rate of 15% p.a. instead of 8% p.a. as awarded by the District Forum and further awarded

Rs.50,000/- as damages instead of Rs.20,000/- as awarded by District Forum, along with Rs.15,000/- as expenses of the appeal against which this revision petition has been filed.

5. Heard learned counsel for the parties at admission stage and perused the record.

6. Learned counsel for the petitioner submitted that learned State Commission has committed error in upholding the order of the District Forum, allowing Rs.10,00,000/- as accidental benefits and further submitted that even without appeal of the complainants, learned State Commission has committed error in enhancing rate of interest and compensation, 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 the learned State Commission is in accordance with law, hence revision petition be dismissed.

7. Perusal of the record reveals that against 11 insurance policies, District Forum allowed Rs.14,50,000/- as accidental benefits, which could not have been allowed and learned State Commission rightly restricted it to Rs.10,00,000/-.

8. No appeal was filed by the complainants against the order of the District Forum, even then, learned State Commission enhanced rate of interest from 8% to 15% and compensation from Rs.20,000/- to Rs.50,000/-, which could not have been done without any appeal on behalf of the complainants. In such circumstances, order enhancing interest and compensation amount by learned State Commission deserves to be set aside.

9. Learned counsel for the petitioner submitted that for taking accidental benefits, the complainants have made false averments in the complaint regarding accident on

26.08.2003 whereas accident occurred on 11.07.2003 and Vineet Gupta sustained fracture of his leg. It appears that to claim accidental benefits as per the terms and

conditions of the insurance policies, the complainants falsely mentioned in the complaint the date of accident as 26.08.2003 instead of 11.07.2003. Learned counsel for respondent admitted that deceased met with an accident on 11.07.2003 and by mistake, date of accident has been shown as 26.08.2003 in the complaint. Written statement submitted by petitioner further reveals that Smt.Surabhi Gupta, wife of deceased policy holder informed petitioner’s Branch Office, Rampur, on 27.08.2003 that deceased fell from scooter and sustained injuries and died during his treatment. Thus it becomes clear that to get accidental benefits, the date of accident was shown as

26.08.2003 instead of 11.07.2003, the actual date of accident.

10. Now, the question arises is, “Whether the complainants are entitled to get accidental benefits as per terms and conditions of the policies?”. As per Condition

No.10 of the policy, it becomes clear that accidental benefits were available only if death is caused within 90 days, on account of sustaining accidental injuries.

11. Learned counsel for the petitioner submitted that deceased died due to acute myocardial infarction or acute poising or so on and he did not die due to pulmonary infarction resulted by embolism. On the other hand, learned counsel for the respondent submitted that deceased died due to fracture sustained by him in accident.

12. Complainant was required to prove that there was proximity between the fracture of leg and death which occurred after 47 days of fracture in accident. Admittedly, Post-

Mortem was not conducted and in the absence of post-mortem report, real cause of death cannot be ascertained. In such circumstances, adverse inference is to be drawn against complainants. Apparently, on account of fracture of leg, insured could not have died after 47 days.

13. Complainants have not filed record of medical treatment, prescriptions, etc., of the treating doctor. Complainants have filed only affidavit of Dr.Vishesh Kumar in support of their contentions. As per his affidavit, he examined the deceased on

26.08.2003 in an emergency. He further submitted that deceased was confined to bed due to bony fracture lateral mallecocus (RT) side, having features of pulmonary inorction. He further submitted that disease could be caused due to accidental fracture. He further submitted that he prescribed necessary medicines immediately. He further submitted that due to accidental injuries embolus ones lodged in a vessel it obstructs the blood supply of the area and results in the ichaemia of the part, known as ingarction. He further submitted that the deceased had a trauma plastered limb leading to imobolisation of the part, possible etiologies include fat embolism after a trauma and long bone fracture with it. On the other hand, OP filed affidavit of Dr.K.C.Lohani, before

the District Forum. Dr.K.C. Lohani submitted in Paras 11 & 12 of his affidavit, as under:-

“11.After going through the papers and with the medical information about pulmonary embolism I state that pulmonary embolism is usually a rare complication of large bone fractures involving matrix of the bone, long plasters, prolonged bed rest, prolong immobilisation of limbs and old age, whereas in the instant case fracture was of small bone, no involvement of matrix (General Part) patient was advised regular movement of limbs and fingers, was of young age and healthy. Hence, it is not the case of pulmonary embolism.

12. That I studied all the papers including the Doctors opinion who attended the deceased and observed him, along with prescription and diagnosis and also discussed the matter with other senior colleagues including Dr.D.Pant,

D.M.(Cardiologist)&Dr.V.BhattM.S.(Orthopeadic)

Now I am of the opinion that there is no definite evidence of pulmonary embolism. There is no radiological or electro cartographic evidence of pulmonary embolism submitted by the claimant or the attending physician and late Mr.Vineet

Gupta may have died of acute myocardial infarction or acute poising or so on. As a result of which I am now of confident opinion that late Sri Vineet Kumar did not die due to pulmonary infarction resulted by embolism. He might have died due to myocardial infarction etc. The ground of my opinion is detailed in my letter dated 03.07.2005, written to

Manager (Claims) of LIC of India, Divisional Office,

Haldwani, which is annexed herewith as Annexure No.11 of this Affidavit”.

14. Dr. Vishesh Kumar examined the deceased only on 26.08.2003 and as per his affidavit, he prescribed certain medicines but his prescription has not been filed by the complainants and in such circumstances, no reliance can be placed on affidavit of

Dr.Vishesh Kumar. He submitted in his affidavit that there was fracture of long bone, whereas, Dr.K.C. Lohani submitted in his affidavit that after going through the papers, he found fracture of small bone. In such circumstances, it becomes doubtful whether

Dr.Vishesh Kumar examined the deceased on 26.08.2003 or not. Dr. Vishesh Kumar also stated in his affidavit that features of pulmonary inorction could be caused due to accidental fracture, meaning thereby he was not certain about the cause of pulmonary inorction. On the other hand, Dr.K.C.Lohani opined that deceased did not die due to

pulmonary infarction resulted by embolism, but might have died, due to myocardial infarction etc.

15. In the absence of post-mortem report, prescription of Dr.Vishesh Kumar and previous treatment papers from 11.07.2013 to 26.08.2013, it cannot be said that insured

Vineet Kumar died due to injuries sustained in accident, rather, it appears that he died due to myocardial infarction and in such circumstances, petitioner has not committed any deficiency in repudiating claim for accidental benefits in the issued insurance policies. Learned District Forum has committed error in allowing the accidental benefits to the tune of Rs.14,50,000/- and learned State Commission has committed error in confirming the accidental benefits to the tune of Rs.10,00,000/- and complaint is liable to be dismissed.

16. Perusal of record further reveals that only in four policies, bearing

Nos.250179447, 250179448, 240033945 and 240023425, the complainants were the nominees, whereas, in five policies, bearing Nos. 240026863, 240300371, 240211198,

240453907 and 240454297, deceased’s wife Smt.Surabhi Gupta was the nominee and in two policies, bearing Nos. 24045298 and 240454299, the deceased’s two daughters, namely, Kumari Namita and Kumari Smita, respectively, were the nominees.

Deceased’s wife Smt.Surabhi Gupta appears to have died before filing the complaint. The complaint regarding remaining seven policies in which nominees were

Smt.Surabhi Gupta and two daughters of deceased, namely, Kumari Namita and

Kumari Smita, could have been filed only by nominees and it is strange that complaint was filed by the complainants and on this count alone, complaint should have been dismissed by the District Forum regarding accidental benefits in aforesaid policies.

17. Consequently, the revision petition filed by the petitioner is allowed and impugned order dated 02.03.2012 passed by learned State Commission in Appeal No.951/2007,

LIC of India Vs. Ved Prakash and order of District Forum, dated 29.03.2007 in

Complaint Case No.164 of 2005, allowing the complaint, are set aside and complaint is dismissed, without any order as to costs. dd/5

..……………………………

(K. S. CHAUDHARI J.)




(Against the order dated 09.10.2012 in First Appeal No. 873/2012 of State Consumer

Disputes Redressal Commission, Haryana, Panchkula)

WITH

IA/779/2013

(Exemption to File Certified Copy)

Smt. Suman W/o Sh.Surender, R/o VPO Bidhal Tehsil Gohana, Dist. Sonipat,

Haryana ... Petitioner

Versus

The Oriental Insurance Company Ltd. Oriental House, A-25-27, Asaf Ali Road New

Delhi Through its Manager … Respondent

BEFORE

H ON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

For the Petitioner : Mr. Ravi Chaudhary, Advocate

PRONOUNCED ON_26.02.2013

O R D E R


1. This revision petition has been filed by the petitioner against the impugned order dated 09.10.2012 passed by the State Commission in FA No.873/2012, Oriental

Insurance Co.Ltd. Vs. Smt.Suman by which, while allowing appeal, set aside the order of the District Forum and dismissed the complaint.

2. Brief facts of the case are that complainant/petitioner’s truck HR/69A/2637 was insured by OP/respondent for a period of 1 year, from 21.12.2008 to

20.12.2009. During the substance of the insurance policy, vehicle was stolen in the intervening night of 11/12.06.2009. Complainant lodged FIR No.193, dated 15.06.2009 with the concerned Police Station and intimation was also given to OP. As OP repudiated the claim vide letter dated 15.07.2011, complainant alleging deficiency on the part of OP, filed complaint before the District Forum. OP resisted the claim and submitted that claim was rightly repudiated as FIR was lodged after 4 days and

intimation to OP was given on 25.06.2009, i.e., after 14 days of alleged theft, and prayed for dismissal of complaint.

3. Learned District Forum after hearing both the parties allowed the complaint and directed OP to make payment of Rs.11,52,000/- along with interest @ 9% p.a. and

Rs.2,000/- as compensation.

4. OP filed appeal against the order of the District Forum and learned State

Commission vide its impugned order, while accepting the appeal, dismissed the complaint against which this revision petition has been filed.

5. Heard learned counsel for the petitioner at admission stage and perused the record.

6. Learned counsel for the petitioner submitted that petitioner lodged FIR on

12.06.2009 even then learned State Commission has committed error in holding that

FIR was lodged on 15.06.2009 and further committed error in allowing the appeal and dismissing complaint on the ground of delay in intimation to respondent.

6. It is an admitted case that the vehicle was stolen in the intervening night of

11/12.06.2009. Copy of FIR (Anx.P-7) clearly reveals that FIR was lodged on

15.06.2009. Complainant has mentioned in the report that as she did not find vehicle in the morning of 12.06.2009 and had no doubt on any person, she tried to search at her own level and as she could not find the vehicle, she is lodging the report. Merely because the reason for delay has not been written by the Police personnel who chalked information, it cannot be interfered that FIR was lodged on 12.06.2009. As FIR was lodged on 15.06.2009 at 3.40PM, i.e., after more than 85, and intimation to

OP/respondent was given on 25.06.2009, i.e. after 14 days of alleged theft, the learned

State Commission has not committed any error in dismissing the complaint on the basis of judgment rendered by this Commission in FA 321/2005, New India Assurance Co.

Ltd. Vs. Trilochan Jane and by Hon’ble Apex Court in Suraj Mal Ram Niwas Oil Mills

(P) Ltd. Vs. United India Insurance Co. Ltd. & Anr., 2011 CTJ 11 (Supreme Court)

(CP) . In Trilochan Jane’s case also, there was delay of 2 days in lodging the FIR and delay of 9 days in giving intimation to insurance company and on the ground of delayed information, this Commission dismissed the complaint. Facts of the present case are similar to Trilochan Jane’s case and learned State Commission has not committed any error in allowing the appeal.

7. I do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission and revision petition is liable to be dismissed at admission stage.

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

..……………………………J

(K. S. CHAUDHARI )

PRESIDING MEMBER dd/11



(From the order dated 15.02.2012 of the West Bengal State Consumer

Disputes Redressal Commission, Kolkata in Appeal no. 395 of 2011)

Mr Sisir Basak Son of Late Gokul Basak Vill I

– Bethuadahari Station Road

PO Bethuadaharai, PS Nakashipara District Nadia – 741 126 (West Bengal)

Petitioner (s) versus

1. Mr Pradip Kumar Saha Proprietor Bishnupriya Gas P O Bethuadahari,

PS Nakashipara District Nadia

– 741126 (West Bengal)

2. Senior Area Manager Kolkata Area Office (Indane) 34 A Nirmal Chandra Street

(Opposite Hindi Cinema) Kolkata 700013 (West Bengal)

BEFORE:



For the Petitioner Mr Amit Kumar Singh, Advocate


ORDER

REKHA GUPTA

This revision petition is against the order dated 15.02.2012 passed by the West

Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State

Commission) in First Appeal no. 395 of 2011, whereby the State Commission dismissed the appeal of the petitioner/ complainant.

2. The brief facts of the case are as under;

Complainant has stated that he was a consumer with reference to respondent no. 1/ opposite party no.1 who supplies gas cylinders to him. He alleges deficiency in service with regard to supply of gas cylinders to him regularly. Respondent no. 1/ OP no. 1 in its written version has admitted that the complainant is a consumer under him and is the holder of two gas cylinders. He has also stated that he all along supplied gas cylinders to the complainant within 24 hours from the date of booking. All the dates of booking and delivery of the cylinder are mentioned in the gas book belonging to the complainant.

3. The District Forum on a careful perusal of the petitioner of complainant along with annexed documents and oral evidence of both parties and the written version filed by the OP no. 1 and also after hearing the arguments advanced by counsels of both parties came to the conclusion that the petitioner/ complainant had no cause of action to file this case and he is not entitled to get any relief as prayed for. Hence, the complaint was dismissed on contest against OP no. 1 and ex parte against OP no. 2 without any cost.

4. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission in its order stated as follows:

“ Respondent no. 1 is present through Learned Advocate. None appears on behalf of the appellant. On 27.01.2012 appellant was directed to show cause as to why the appeal shall not be dismissed on the ground of default. Since, none appears on behalf of the appellant today, appeal stands dismissed

.”

5. Hence, this revision petition.

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

7. The present revision petition has been filed on 05.10.2012. The date of the impugned order is 15.02.2012 and the order had been received by the petitioner/complainant on 15.05.2012. Vide IA no. 1 of 2012 in RP no. 3806 of 2012 the complainant has sought condonation of delay in filing the present revision petition. The application for condonation of delay reads as under:

“4. The accompanying revision petition could not be filed within the period specified under the Rules due to unavoidable circumstances inasmuch as the petitioner suffers from cardiac problems and was advised rest at home from

6 th April 2012 to 16 th June 2012. He was fit to resume his duties only after

17 th June 2012. A true copy of the Medical Certificate is marked and annexed.

5. That the petitioner thereafter consulted advocates who advised him that in view of the Supreme Court Judgment in “Rajeev Hitendra Pathak and

Others vs Achyut Kashinath Karekar and Anothers [(2011) 9 SCC 541 ] the appeal could be restored only by the Hon’ble National Consumer

DisputesRedressal Commission.

6. That the petitioner who hails from a humble background collected means to engage an advocate in Delhi for the purposes of filing a revision petition.

7. The aforesaid revision petition is filed with a delay of 54 days, which have not been caused del iberately.”

8. The medical certificate attached at Annexure A has been pursued. It reads as under:

“This is to certify that Sri Sisir Basak son of late Gokul Ch. Basak of

Village Bethuadahari Station Road, P O Bethuadhari, PS Nakshipara, District

Nadia,West Bengal was under my treatment for Cardiac Pain c HHD. I advised

him rest at home from 6 th April 2012 to 16 th April 2012 for his recovery. He was fit to resume his duties from 17 th June 2012”.

Sd/-

S K Bhowmik

Consultant Physician and Cardiologist

24.06.2012

9. It is seen that the said medical certificate is in the nature of fitness certificate. No evidence has been produced on record regarding and treatment for cardiac problems as also advice given for commencement of rest and leave prior to the fitness certificate given on 24.06.2012. As per certificate produced the concerned Physician and

Cardiologist, for cardiac pain c HHD had only advised rest at home from 6 th April 2012 to 16 th June 2012.

10. The complainant has failed to offer convincing reason in support of his application.

The petitioner/complainant is supposed to explain the day-to-day delay, but needful has not been done. The petitioner has failed to provide ‘sufficient case’ for the delay of 54 days. The facts of this case speak for themself. This view is further supported by the following authorities.

In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011)

CPJ 63 (SC), it has been held that “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the

Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras ”.

In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT

701=2009 (2) Scale 108, it has been observed that “We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal

Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If ‘sufficient cause’ is not proved nothing further has to be done; the application forcondonation has to be dismissed on that ground alone. If ‘sufficient cause’ is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at

this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the

Court may regard as relevant .”

In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya,

S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that “the expression ‘sufficient cause’ cannot be erased from Section 5 of the

Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ‘sufficient cause’ stated in the application and no such interference in the impugned order is called for”.

11. The petitioner has not been able to satisfactorily explain the cause of delay.

Accordingly, no sufficient ground has been made out to condone the delay of 54 days in filing this present revision petition. The application for condonation of delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.5,000/- (Rupees five thousand only).

12. Petitioner is directed to deposit the cost of Rs.5,000/- 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 cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till its realisation.

Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish



(Against the order dated 02.06.2009 in FAIA No. 1001/2009 & FASR No. 2019/2009 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

1. Divisional Engineer (Operations) APSPDCL, Gandhi Road Chittoor, Andhra Pradesh

2. Assistant Engineer (Operations) APSPDCL, Gandhi Road Pennur Town, Chittoor

District Andhra Pradesh

… Petitioners

Versus

1. Smt. Bujamma W/o Late Subramanyam Naidu

2. M. Madhavi D/o Late M. Subramanya Naidu

3. M. Sridevi D/o Later Subramanyam Naidu

4. M. Narasamma W/o Late Chengamma Naidu (All respondents are R/o

D.No. 4-59, Chherlopalli Village H/o Pulikallu Penumarru Mandal Chittoor District,

Andhra Pradesh … Respondents

BEFORE:



For Petitioners : Mr. A. Jaya Raju, Advocate

For Respondents : Mr. K.S. Rama Rao, Advocate


ORDER


1. This revision petition has been filed by the Divisional Engineer (Operations) and another, Petitioner herein and Opposite Parties before the District Consumer Disputes

Redressal Forum, Chittoor (hereinafter referred to as the District Forum) being aggrieved by the order of Andhra Pradesh State Consumer Disputes Redressal

Commission, Hyderabad (hereinafter referred to as the State Commission), which had dismissed their appeal and upheld the order of District Forum in favour of M. Bujamma

& others, Original Complainants before the District Forum and Respondents herein.

2. In her complaint before the District Forum, Respondent No.1 had contended that her late husband M. Subramanyam Naidu (hereinafter referred to as the Deceased), who was having an electrical service connection for his poultry farm taken from the

Petitioners after paying the due charges, had on 25.05.2008 gone out following failure of electricity being supplied to his farm and accidentally stepped on an electrical wire which had fallen to the ground and being a live wire, he received burn injuries and got electrocuted because of which he died. It was alleged that it was because of the grossnegligence and deficiency in service in failing in their statutory duty to properly maintain the electrical connections and to keep the live wire in a secure condition that it had broken and fallen to the ground resulting in the death of Respondent No.1’s husband. The fact that the deceased had died because of electrocution was confirmed in the inquest as also the post mortem conducted following his death. The deceased aged about 45 years at the time of his death was hale and hearty and was the only bread winner of the family. He was getting an income of about Rs.30,000/- to

Rs.40,000/- from his poultry farm which had 10,000 birds and he was also having 7 acres of agricultural land, in which commercial crops were cultivated and from which he was getting an income of Rs.70,000/- to Rs.1 Lakh per annum. Respondents, therefore, sent a legal notice to the Petitioners asking them to pay Rs.7 Lakhs as compensation. On not receiving a favourable response, Respondents filed a complaint before the District Forum and requested that the Petitioners be directed to jointly and severally pay Respondents an amount of Rs.7 Lakhs as compensation with interest @

18% per annum from the date of death of the deceased i.e. 25.05.2008 till the date of realization as also Rs.50,000/- towards damages, mental agony and hardship in not settling the claim within a reasonable time.

3. The above contentions were denied by the Petitioners, who claimed that it was deceased’s own negligence, which resulted in his death because after the live wire had snapped and fallen to the ground on account of heavy winds and gale, instead of informing the Electricity Department to fix it, he tried to meddle with it and fix it at his own risk, resulting in his death. Petitioners contended that this was further confirmed by the inquest report, wherein it was clearly mentioned that there was a burn injury on the

deceased’s hand clearly indicating that he had intentionally handled the wire. It was also contended that the Petitioners cannot be held guilty of negligence in maintenance of the electrical connection because the service wire is to be provided and maintained by the consumer as per the relevant rules and, therefore, it is for the consumer to ensure that the service wire is maintained in a proper condition. Petitioners also challenge d the Respondents’ contention regarding the income that the deceased was earning from the poultry farm by stating that it was a small poultry farm with only 1000 birds.

4. The District Forum, after hearing the parties and considering the evidence filed before it, allowed the complaint and directed the Petitioners to pay the Respondents a sum of Rs.4,41,000/- as compensation as also Rs.1500/- as costs within 8 weeks from the date of the order.

5. Being aggrieved, Petitioners filed an appeal before the State Commission, which dismissed the same by observing as follows:

“9) The opposite parties made an endeavor in this appeal to extricate themselves from the charge of negligence by trying to show that negligence if any was with the deceased. This is an absurd proposition as service providers are supposed to discharge the minimum duty of looking after the safety of the consumer besides extending the facility. The safety of the consumer is very much resting in the hands of the opposite parties as service providers and it is rightly observed by the Dist. Forum that the consumer was rather shut out from affecting service connection, and ultimately it was the responsibility of the electrical service provider to give connection after satisfying themselves about the soundness of the system got fixed up by the consumer. In this case, the connection at the live end that takes power into the service of the complainant was found snapped. That means the said connection which could not have been given except by the opposite parties not securely fastened and thereby was made tenuous and that even some wind and gale had broken that connection jeopardizing the lives of the inmates or the persons who were associated with the premises where connection was given. This spectacle, on the face of it, demonstrates negligence on the part of service provider. In other words this is a very appropriate case in which the principles of Res ipsa loquitur are squarely applicable.

10. The opposite parties have yet taken another funny plea that the injuries that the deceased sustained to his hand would go to show that he meddled with the live wire. On the other hand it proved that in all his innocence the deceased had touched the live wire. The complainants did mean to say that the deceased touched the wire without knowing that the electricity was passing through the said wire. The negligence of the opposite parties was at the root of the matter. This could have been warded off by the opposite parties by making the connection quite solid or by at once switching off the power to the service point, the moment gale and wind was noticed by them which they were supposed to do. So, viewed from any angle it is amply clear that negligence of the opposite parties was very much at the roof of this whole episode.”

The State Commission also upheld the compensation awarded by the District Forum by observing that it was lenient but scientific in its approach and had applied the multiplier factor, which had been consistently accorded judicial recognition by the dicta of various superior courts.


7. Learned counsel for both parties made oral submissions.

8. Learned counsel for the Petitioners stated that the learned Fora below erred in not appreciating the fact that the deceased by touching the live wire in a bid to repair it had died, for which Petitioners cannot be held guilty or responsible. He should have instead immediately contacted the Electricity Department to fix the wire for restoration of the electricity. It was also contended that there were a very large number of electrical connections and although all efforts are made by the Petitioners’ Department to maintain the wires in a proper condition, sometimes because of heavy winds and gale, as happened in this case, they can snap and fall to the ground, which is due to an act of

God and not because of any deficiency in service on the Petitioners’ part. It was also pointed out that the injury on the hand of the deceased clearly indicated that he had intentionally touched the wire lying on the ground and the death was, therefore, not accidental.

9. Learned Counsel for the Respondents on the other hand reiterated the facts as stated before the Fora below and pointed out that on the basis of evidence produced before the District Forum, including the inquest and post mortem reports, it was clearly proved that because of the Petitioners’ gross negligence and deficiency in service in properly maintaining the electricity connections that resulted in its snapping and falling to the ground that the deceased died when he accidentally touched the live wire in the dark following failure of electricity in the area.

10. We have heard learned counsel for the parties and have also gone through the evidence on record. We note that it was an external wire in the poultry farm provided by the Petitioners against payment, which had snapped and fallen to the ground. Under these circumstances, we are unable to accept the contention of the counsel for the

Petitioners that the responsibility for maintenance of the wire was that of the deceased. Clearly, the Petitioners are service providers, to whom deceased had paid for sanction and installation of the electricity connection including wiring, and it was, therefore, their responsibility to ensure that it was properly maintained and kept in a good condition so that it does not snap.

We are also unable to accept the Petitioners’ contention that the burn injury in the hand indicates that it is the deceased who intentionally touched the wire in a bid to repair it for restoration of electric supply, which resulted in his death. The Fora below after considering the evidence before them concluded that the deceased, who had gone out to his poultry farm following failure of electricity in the area, had accidentally stepped on the live wire which had snapped and fallen on the ground and had resulted in his death due to electrocution. In our revisional jurisdiction, we see no reason to interfere with this fiinding.

11. Taking into account the above facts, we agree with the finding of the Fora below that the Petitioners failed in their duty as service providers in ensuring that the electrical wires were properly maintained, moreso live wires which on contact can cause a serious risk to human life. We are also of the view that the quantum of compensation awarded by the District Forum and upheld by the State Commission is just and reasonable and also uphold the same. We, therefore, direct the Petitioners to pay the

Respondents a sum of Rs.4,41,000/- as compensation as also Rs.1500/- as costs within a period of 8 weeks from the date of the order.

12. The revision petition stands dismissed in the above terms.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



WITH

(I.A. NO.1 & 2 OF 2011)

(for stay & Exemption from filing certified copy of the order)

(From the order dated 14.09.2010 in Appeal No. 1730/2006 of the State

Commission, Haryana, Panchkula)

M/s Mahindra & Mahindra Financial Services Ltd. 2 nd Floor, Sadhana House

507, P.B. Marg, Worli Mumbai

– 400018 Through its Authorized Signatory

Samarjeet Khokhar Legal Executive Branch Office First Floor, 19, Brass Market

Near LIC Office, Rewari, Haryana

…. Petitioner

Versus

Virender Singh S/o Mangtu Ram R/o Village Sunaria Kalan Tehsil &

District Rohtak, Haryana

.

… Respondent

BEFORE:



For the Petitioner : Mr. Amit Singh, Advocate

For the Respondent : Already ex parte


ORDER


Present revision petition has been filed under section 21 (b) of the Consumer

Protection Act, 1986 (for short, “Act”). Along with it, an application seeking exemption from filing certified copy of the impugned order has also been filed.

2. Respondent/complainant filed a complaint before District Consumer

Disputes Redressal Forum, Rewari (for short, ‘District Forum’) stating that he had purchased a jeep bearing no.HR-61-0945 from the petitioner/opposite party no.1 and all installments were paid to the petitioner in time. It is further stated that clearance certificate was issued by petitioner on 21.9.2004. Inspite of the clearance certificate, petitioner illegally repossessed the vehicle forcibly. Thereafter, petitioner sent an illegal notice under section 138 of the Negotiable Instruments Act, mentioning that dues of loan had not been paid.

3. On notice, petitioner appeared before the District Forum but it did not file any reply inspite of providing sufficient opportunities. Thus, defence of the petitioner was struck off, vide order dated 21.3.2006. Thereafter, District Forum, vide order dated

2.5.2006, allowed the complaint.

4. Aggrieved by the order of District Forum, petitioner filed appeal before Haryana

State Consumer Disputes Redressal Commission, Panchkula (for short, “State

Commission”), which dismissed the same, vide impugned order dated 14.9.2010.

5. Hence, the present petition.

6. Notice of this petition was issued to the respondent. Initially, counsel for respondent appeared but later on, none appeared for the respondent. Hence, he was proceeded ex parte on 10.10.2012.

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

8. At the outset, we may point out that present petition is not maintainable as the same was not accompanied by the certified copy of the impugned order. Present petition was filed on 3.3.2011, challenging the impugned order dated 14.9.2010. In application seeking exemption from filing certified copy of the impugned order, it is stated that petitioner has applied for the copy of order dated 14.9.2010 but same has not been received till the filing of the present revision petition.

9. As per office noting, copy of impugned order had been received by the petitioner on 14.9.2010. Be that as it may, petitioner had placed on record the certified copy of the impugned order only on 4.2.2013. As per endorsement made on the certified copy, free copy of the order was supplied to the parties/counsel on 28.9.2010. Thus, petitioner has made false averments in the application for exemption that he has not

been supplied with the copy of the impugned order. On this short ground alone, present petition is liable to be dismissed.

10. Now coming to the merits of the case, since petitioner did not file any written statement/reply before the District Forum inspite of various opportunities granted to it, hence it has no defence on merits.

11. It is contended by learned counsel for the petitioner that in the District Forum, the court clerk has changed the date of hearing in connivance with respondent, that is, why petitioner was proceeded ex-parte.

12. In view of the serious allegations made by petitioner against the Court Clerk of the District Forum, this Commission called for report from the District Forum. In compliance thereof, District Forum furnished its report. Petitioner filed its reply/objections to the said report. In its reply/objections, petitioner itself admits that

“ This is a clear case of mis-conduct on the part of Shri H.K. Luthra and petitioner has filed complaint against that Advocate which is pending in Punjab & Haryana Bar

Council ”.

13. Thus, in view of petitioner’s own admission, it was their previous counsel who was negligent and did not file the written statement, inspite of various opportunities granted to him. Therefore, petitioner has made false allegations against the Court Clerk of the District Forum.

14. District Forum in its order has observed ;

“After hearing the parties and going through the record, it is established on the record the clearance certificate has been issued on 21.9.2004. Further, we are of the considered view that after issuing the clearance certificate the respondents have no right to snatch the vehicle or to demand any amount against the vehicle in question but the respondents did so and such type of act on the part of the respondents amounts to grave negligence and deficiency in service on the part. Not only this, the complainants in the absence of the vehicle must have been suffering a great loss and for such type of act and conduct on the part of the respondents, they cannot be escaped from burdening with some compensation.

After considering all the facts and circumstances of the case, the present complaint is allowed directing the respondents to release the vehicle in question to the complainant forthwith.

Further, on finding the respondent being quite negligent and deficiency in rendering their services, they are burdened with some compensation to the tune of Rs.20,000/- besides litigation charges of Rs.2,200/- to be paid to the complaint.

The compliance of this order be made within 45 days from the date of receipt of the copy of this order failing which interest

@ 9% p.a. shall be liable to be paid over this awarded amount.”

15. State Commission, upheld the order of the District Forum and observed;

“Admittedly, the complainant was issued clearance certificate by the appellant-opposite party on 21.9.2004, but thereafter they demanded the impugned amount of Rs.20,667/- and when the aforesaid amount was not paid by the complainant they snatched the vehicle of the complainant.

Thus, in view of the facts and circumstances of the case, it is a clear-cut case of deficiency of service on the part of appellant-opposite parties for the reason that after issuing the clearance certificate, the appellant-opposite parties have no right to snatch the vehicle or to demand any amount against the vehicle in question.

Finding no merit in this appeal, it is dismissed.”

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

illegally or with material irregularity.

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. It is apparent from the record that petitioner has been pursuing this litigation from day one in a very careless and negligent manner. Firstly, it did not file the written statement before the District Forum, inspite of various opportunities granted to it. Thus, a valuable right has accrued to the respondent. Secondly, it has made false and motivated allegations against the staff of the District Forum. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under

Section 21 (b) of the Consumer Protection Act, 1986. Since, two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction.

19. Keeping in view the conduct of the petitioner, present revision petition is hereby dismissed with punitive cost of Rs.25,000/- (Rupees twenty 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 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 it shall also be liable to pay interest @ 9% p.a., till realization.


.………………..………..J

(V.B. GUPTA)


…………………..………..

(REKHA GUPTA)

MEMBER

Sonia/



(Against the order dated 29.05.2009 in FA No.1538/2007 of the A.P. State Consumer

Disputes Redressal Commission, Hyderabad)

Mohd. Abdul Masood (Called as MD Masood) S/o Sri Mohd. Abdul Rasheed Aged 25 years C/o Sri Mohd. Afzal, Advocate H.No. 6-6-841, St. Shivajinagar Post &

Dist. Karimnagar (PC No. 505001)

(India) … Petitioner

State Andhra Pradesh

Versus

1. Dr. O. Muralidhar Vitreo Retinal Institute H.No. 1-1-51, 4 th Floor, Sairam Towers

Alexander Road, Secunderabad-500003 (A.P.)

2. Dr. Satish G. Agraharam Vitreo Retinal Institute H.No.

4 th Floor, Sairam Towers Alexander Road, Secunderabad-500003 (A.P.)

1-1-51,

3. Syed Mujeeb Ahmed C/o Sri Md. Najmuddin H.No. 3-6-420 Subhashnagar,

Karimnagar-502002 (A.P.)

… Respondents

BEFORE:



For Petitioner : Mr. Mohd. Afzal, Advocate

For Respondents : Mr. D. Srinivas, Advocate for

Mr. Rajesh Gupta, Advocate


ORDER


1. This revision petition has been filed by Mohd. Abdul Masood, Petitioner herein and

Original Complainant before the District Consumer

Disputes RedressalForum, Karimnagar (hereinafter referred to as the District Forum) being aggrieved by the order of Andhra Pradesh State Consumer

Disputes RedressalCommission, Hyderabad (hereinafter referred to as the State

Commission), which dismissed his complaint of medical negligence against Dr.O.Muralidhar, Respondent No.1 herein and two others.

2. In his complaint before the District Forum, Petitioner had contended that he was a well-reputed Imam Teacher in Arabic/Urdu languages for which he was paid Rs.2000/- per month in addition to other benefits. He had been experiencing some problems pertaining to his eyesight for which he had taken treatment at L.V. Prasad Eye

Institute. When the said problem recurred, a businessman i.e. Respondent No.3 dealing in spectacles referred him to the Vitreo Retinal Institute. After being examined there, Respondent No.1 advised him to undergo an operation in his right eye, which was to cost at Rs.16,000/-, which he paid. After his right eye was operated, he completely lost his eyesight. Respondent No.1 thereafter demanded Rs.8000/- for the second surgery pertaining to the left eye and promised that this eye would become normal, which he also paid. He was informed that new high power lens had been inserted in that eye but he could not regain his eyesight in that eye as well. Respondent

No.1 then referred the Petitioner to L.V. Prasad Eye Institute for further treatment and

Dr. G.Chandrashekar, a doctor in that institute, after examining him informed that he had lost his eyesight due to negligent treatment by Respondents in the VitreoRetinal

Institute and it would not be possible to restore his eyesight. Being aggrieved,

Petitioner issued a legal notice to Respondents requesting them for compensation for the damage caused to him. However, not receiving a satisfactory response and also not returning him the various bills pertaining to his medical expenses which he had enclosed to facilitate the compensation sought, he filed a complaint before the District

Forum on grounds of medical negligence and deficiency in service and requested that

Respondents be directed to pay him compensation of Rs.8 Lakhs with interest @ 12% per annum from 23.11.2005 till payment, Rs.25,000/- for mental agony and expenditure and Rs.2000/- as cost as also any other relief to which the Petitioner could be entitled.

3. Respondents on being served filed their written counter denying the allegations of medical negligence made against them. It was contended that when the Petitioner visited the Vitreo Retinal Institute on 04.11.2004, he hardly had any vision in his right eye with only perception of light. Similarly, there was doubtful perception of light in the

left eye. Petitioner had told the Respondent No.1 that he had been operated for cataract with IOL implantation in the right eye at the age of 10 years and a corneal transplantation was done in the left eye in the L.V. Prasad Eye Institute at Hyderabad and he was also on anti-glaucoma medication as advised by the doctors of L.V. Prasad

Eye Institute. These details clearly indicate that his contention that he had reasonably good eyesight was baseless and in fact since his childhood he had a very poor vision, for which surgeries had been performed. These facts were also confirmed during medical examination by Respondents at the Institute wherein it was found that the

Petitioner had Nystagmus indicating poor and unstable vision since childhood. After carefully considering the problems of the Petitioner, Respondent No.1 advised pars plana membranectomy to create an opening in the thick capsule membrane to assess the retina optic nerve and possibility of any navigational vision but with a very guarded visual prognosis since navigational vision was possible only if the retina and optic nerve were found to be healthy and these facts were clearly explained to the

Petitioner before the surgery for which an amount of Rs.16,000/- was charged. During the procedure, it was found that both the retina and the optic nerve were not healthy and, therefore, there was little possibility for visual improvement, about which the

Petitioner was informed. He was given oral and topical steroids during post operative care and the same was followed with weekly to 3 weeks check ups. He was advised for removal of IOL since it was touching the cornea. This procedure was also carried out and necessary medication was also given to him. It was denied that the

Petitioner was advised for operation of left eye or that Respondent No.1 gave any oral assurance to make the eyesight normal without any problems. An amount of Rs.8000/- was paid for IOL explantation. Respondent No.1 further denied that he had fixed any new lens much less a new high power lens in the right eye of the Petitioner. It was, however, admitted that Respondent No.1 gave a letter to the Petitioner addressed to Dr.

G. Chandrashekar of L.V. Prasad Eye Institute for better management of uncontrolled glaucoma in the right eye since this facility for the same was only available at L.V.

Prasad Eye Institute. To sum up, it was contended that the Petitioner had visited

Respondent No.1 with serious and congenital eye problems since his childhood, for

which he had already undgone surgeries, including a corneal transplantation in L.V.

Prasad Institute which had failed. He was also on anti-glaucoma medication. Under these circumstances, the complaint filed by the Petitioner was baseless and deserved to be dismissed.

4. The District Forum partly allowed the complaint by observing that had the

Petitioner been clearly explained that there were only remote chances of restoring the eyesight following the operation, the Petitioner would not have ventured for treatment by spending huge amount on the same. It was further observed that though Respondent

No.1 was a specialist in retinal surgery having rich experience, he did not use this experience while conducting the eye surgery on the Petitioner and he had not even taken the help of an anaesthetist and the medical record submitted by him creates doubt because of corrections and over writing with different inks. In view of this medical negligence and deficiency in service was established. The District Forum directed

Respondents No. 1 and 2 to pay the Petitioner Rs.3 Lakhs with interest @ 9% per annum from the date of filing the complaint i.e. 05.06.2006 along with cost of Rs.1000/- within a period of one month from the date of the order.

5. Being aggrieved, Respondents No. 1 and 2 filed an appeal before the State

Commission, which allowed the same and dismissed the complaint by observing as follows :

“22) Coming to the facts there is no dispute that R1 & R2 are competent orthopaedic surgeons competent to conduct surgery on eyes. The complainant’s contention that R1 & R2 while conducting the operation had implanted IOL with high power lens is ex-facie false. RW3 an expert besides R1 who performed the operation had categorically denied having implanted any IOL with high power lens. The complainant could not establish that high power lens was implanted due to which he lost his eyesight. On the other hand Ex. B4 shows that PW1 was having congenital disease in both eyes, and he has been taking treatment in L.V.

Prasad Eye Institute from 11 years of age. However, when RW3 advised him to undergo some more treatment, instead, he went to R1 & R2 who conducted the surgery with a further direction to go to L.V. Prasad Eye

Institute for laser treatment which he did not pursue. Though he went in

March, 2006, when RW3 referred him to rehabilitationcentre in the hospital for further treatment, he did not pursue. Obviously, he lost his eye sight as he himself did not take proper treatment as advised to him. For his own fault, he cannot impute negligence on the part of doctors and claim compensation. The Dist. Forum was not correct in stating that R1 & R2 ought not to have administered anaesthesia while conducting the operation which was nobody’s case. On that score compensation could not have been awarded. The Dist. Forum did not appreciate the facts in correct perspective. It did not record any finding as to why RW3 an expert’s evidence should not be given weight. PW1 did not examine any

expert in order to allege that there was negligence on the part of R1 &

R2. The complainant undoubtedly lost his eye sight at his tender age, however, R1 & R2 cannot be find fault for his plight for the loss of eye sight. We do not see any negligence on the part of R1 & R2 in this regard.”


7. Learned Counsel for both parties made oral submissions.

8. Learned counsel for the Petitioner contended that the State Commission erred in concluding that there was no medical negligence whereas the District Forum in its detailed order had rightly concluded that medical negligence was established. Counsel for the Petitioner stated that had the situation pertaining to both his eyes being so hopeless, Respondent No.1 should not have conducted any surgery or procedure. Further, it was because of wrong treatment including insertion of new power lens by removing the old ones that the optic nerve got damaged leading to glaucoma, which admittedly could not be controlled by Respondents because of which he was referred to L.V. Prasad Eye Institute. The second surgery within two months on the other eye was conducted without any diagnosis and the new lens fixed during the first surgery was removed without knowledge of the Petitioner, even though the glaucoma had not been controlled. It was again reiterated that Respondent No.1 had prepared a totally new case sheet tutored for the case. The District Forum had erroneously placed due reliance on the deposition of Dr. Anil Kumar Mandal, a medical expert, to establish medical negligence although Dr. Mandal, who was an employee of L.V. Prasad Eye

Institute, had clearly stated in his cross-examination that he did not know the details about the operation conducted by Respondents. To sum up, it was contended that no doubt the Petitioner did have defective eye sight but it was only after the treatment given by the Respondents/Opposite Parties that he became totally blind in both eyes because of their negligence.

9. Counsel for Respondents on the other hand stated that as per the medical history of the Petitioner filed in evidence it was clear that he had very defective vision in both eyes right from a young age in which he had undergone surgeries and related procedures at L.V. Prasad Eye Institute. Although there was a very guarded visual prognosis when he visited the Vitreo Retinal Institute, Respondent No.1 being a highly

qualified professional undertook the required procedure because there was a possibility of at least navigational vision in the right eye. It was further denied that new lens were inserted in the right eye. Regarding the left eye, it was noted that Petitioner had already undergone corneal transplant which had failed. Respondents had referred the

Petitioner for management of uncontrolled glaucoma in the right eye with laser photocoagulation since this facility was only available at L.V. Prasad Eye Institute. The medical expert from L.V. Prasad Eye Institute, Dr. Anil Kumar Mandal, Director,

Children Eye Care Centre, had in his deposition before the District Forum confirmed that the Petitioner, whom he treated when he was a child of 7 years, had major problem in his both eyes for which surgeries were done, which included an operation in the left eye in respect of retinal detachment, despite which the retina could not be reattached. The State Commission had, therefore, rightly concluded that there did not appear to be any negligence on Respondents’ part.

10. We have carefully considered the submissions made by learned Counsels for both parties and have also gone through various documents filed in evidence. From these records as also the deposition of Dr. Anil Kumar Mandal, Director of Children Eye Care

Centre at L.V. Prasad Eye Institute, it is proved that in 1990 itself when the Petitioner was a young boy he had come to Dr. Mandal for treatment with serious problems in his both eyes because of which he had limited vision in the right eye and was almost blind in the left eye. The procedures conducted at the Children Eye Care Centre included cataract surgery as also surgery to attach the detached retina but with very little success. It was under these circumstances, that the Petitioner was referred to a rehabilitationcentre to teach him how to move around with such limited vision because by 2002 the vision in his left eye was nil and the vision in his right eye was recordedupto a distance of 10 cms. Therefore, the Petitioner’s contention that he had visited the Respondents with only some problems in his eyes is not correct.

11. From the medical records filed in evidence, it is established that Respondents using their best professional skills as qualified doctors tried their best to preserve whatever limited vision remained in the right eye and, therefore, undertook a procedure where there was a possibility of getting some navigational vision in the right

eye. However, this procedure could not succeed because the retina and the optic nerve were found to be unhealthy. There is also no evidence that high power lens were implanted in the Petitioner’s eye because of which he became blind. No credible evidence, including that of any medical expert, was produced by the Petitioner, on whom there was onus to do so, to prove medical negligence on the Respondents’ part or to challenge the credibility of the documents and the statements of Respondents and other witnesses. Petitioner’s contention that it was because of the negligence of

Respondents that he contracted glaucoma is also not borne out by the evidence on record which clearly confirms that he was already undergoing treatment for glaucoma well before he visited Respondents at the Vitreo Retinal Institute. The State

Commission in its well-reasoned order has, therefore, rightly concluded that no medical negligence has been proved in this case. We agree with this finding and uphold the order of the State Commission in toto.

12. The present revision petition having no merits is dismissed.

Sd/-


PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh



(From the order dated 01.12.2011 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula in Appeal no. 1607 of 2011)

1. Haryana Urban Development Authority Through its Estate Officer Rewari, Haryana

2. Haryana Urban Development Authority Through Chief Administrator Panchkula,

Haryana

Petitioner (s)

Versus

Desh Raj Yadav Son of Shri Rattan Singh Resident of Village Nand Ram Pus Bass

Tehsil and District Rewari Haryana

Respondent (s)

BEFORE:



For the Petitioner Mr R S Badhran, Advocate


ORDER

REKHA GUPTA

This revision petition challenges the order dated 1 st December 2011 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula

(in short, ‘the

State Commission’) in First Appeal no. 1607 of 2011 filed by the Petitioner/ Opposite

Party.

2. The brief facts of the case are that Respondent/ Complainant is the owner of plot no. 1432 P measuring 225 square meters in sector 4, Rewari which was re-allotted to the complainant vide permission no. 8205 on 22.08.2006 by opposite party no. 1 and the same was allotted to the Respondent on 16.11.2006. The Respondent made several efforts with Petitioner for getting the possession of the above said plot but still no efforts have been made by the petitioner for delivering the possession of the plot in question. At the time of re-allotment it was assured by the Petitioner that the possession of the above said plot will be delivered to him immediately.

3. The Petitioner in their written statement stated that the office of the Petitioner had already written to LAC vide office memo no. 7946 dated 15.12.2010 and memo number no. 63 dated 17.01.2011 for identification/measurement of illegal part of released land structure so that encroachments can be removed and possession be handed over to the allottees of the plots. That some of the area in location where the plot of the

Respondent t is situated, has been released by the Government but the exact location is not identified by the LAC, hence, the LAC has been approached to depute the Patwari concerned to do the needful so that the plots could be handed over to the allottees concerned.

4. The District Consumer Disputes Redressal Forum, Rewari

(in short, ‘the District

Forum’) vide their order dated 31.05.2011 stated that the Respondent had got the reenrollment of this plot as back as on 16.11.2006 and he has been waiting for a roof of his own on his head which has been wrongfully denied by the opposite parties. Even the letter and his legal notice remained un-replied. Therefore, the Respondent must have gone through mental and physical harassment. Hence, he is entitled to damages for the same. Not only this, the cost of construction has also increased. Had the possession of the plot has been given in 2006, by this time the Respondent would have been living in his own house but he had to live in a rented accommodation. On this score also the

Respondent is entitled to compensation.

5. Hence, after going through the evidence on record and hearing the learned counsel for the parties the District Forum allowed the complaint and directed the

Petitioner to deliver actual physical possession of some other plot of the same size and of the same price. Petitioner were also directed to pay interest @ 14% per annum on the amounts received from the Respondent from time to time from the dates of receipts till handing over the actual physical possession. The District Forum further directed that due to harassment and increasing cost of construction, respondent is also entitled for compensation of Rs.15,000/- and litigation expenses of Rs.1,100/-. Further it directed that possession along with the amount of compensation and litigation expenses be delivered to the Respondent within a period of two months from the date of order otherwise it will carry interest @ 14% per annum from date of order till payment.

6. Aggrieved by the order of the District Form, the petitioner filed an appeal before the

State Commission. Along with the appeal the Petitioner had moved an application for condonation of delay of 120 days in filing the appeal. The condonation of delay has been sought on account of departmental and procedural delay. The order of State

Commission reads as under:

“ It has been expressly provided in section 15 of the Consumer Protection Act,

1986 that any person aggrieved by the order of the District Forum may prefer an

appeal against such order to the State Commission within a period of 30 days from the date of the order, in such form and manner as may be prescribed. The proviso contained therein permits the State Commission to entertain an appeal after the expiry of period of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within the stipulated period. The expression sufficient cause has not been defined in the Act, rightly so, as it would vary from facts and circumstances of each case. At the same time while examining the question of condonation of delay, it has to be kept in mind that it is the duty of the condoning authority to record satisfaction of the explanation submitted as to whether it is reasonable and satisfactory which is essential pre-requisite for condonation of delay. It is equally well settled that the delay cannot be condoned on the ground of equity as well as on the ground of generosity.

As regards the ground taken in the first application it would transpire that totally vague and ambiguous assertion has been made. The only reasons stated in the application for condonation of delay is procedural/ departmental delay. But the appellant has miserably failed to mentioned the date wise movement of the file from one table to another table. The same is position of the affidavit of Shri Aurbind Sharma, HCS, Estate Officer, Haryana Urban Development

Authority (HUDA), Rewari, which is also silent with respect to the date wise movement of the file. The reasons stated in the application taking of their fact value vary for conviction at all and under the circumstances of the case, it is not possible for us to hold that there was no negligence in difference and deliberate inaction to the urgency required in such matters on the part of the officials concerned of the opposite parties. Rather, the only conclusion that can be drawn under the circumstances of the case is the matter has been dealt with in most causal manner. In case Union of India vs Vijay Laxmi reported in 2006 (1) CPC

61 (NC), the petitioner claimed condonation of 65 day in filing the revision petition on the ground that the delay occurred as the matter had to be examined at various levels by the various government departments. While repelling the prayer made. It was observed that the petitioner had not disclosed the date wise movement of the file from one table to another table. It was further stated that no urgency had been shown from the side of the petitioner and the approach had been causal and for that reasons it was not condoned. The

Hon’ble Apex Court has also observed in the case titled ‘State of Nagaland vs Lipokan 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 condoning SCC 322.

It has been held by the

Hon’ble Apex Court that ‘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’. Under the circumstances, the reasons given in the application were taken as inadequate and insufficient in condone the delay. The ratio of the above-mentioned case fully applied to the facts and circumstances of the present case. Therefore, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected.

Even on merit, there is no force in this appeal. The short controversy involved in the case is with respect to the plot no. 1432 – petitioner Sector 4,

HUDA, Rewari which was re-allotted to the complainant vide letter dated

16.11.2006. The grievance of the complainant before the District Forum was that despite the fact that the plot in question was not in existence, the opposite parties

have put the plot in an auction and thereafter, it was re-allotted to the complainant second time by concealing the material facts in this regard.

This District Forum was of the view that there was apparent deficiency in service on the part of the opposite parties in harassing the complainant by wrongful means, therefore, while accepting the complaint the District Forum has issued the directions as noticed above”.

7.

As a sequel the State Commission dismissed the appeal both on the counts, i.e., on limitation as well as on merits in limini .

8. Heard the learned counsel for the petitioner. We have gone through the application for condonation of delay. The grounds of condonation of delay are reproduced below:

“ The impugned order was passed on 01.12.2011 and the State Commission issued the first copy on 02.12.2012.

That after obtaining the copy of the order, the case was processed for taking the decision through various channels/ branches of the petitioner authority, i.e., accounts branch and Estate Officer, HUDA.

That now there is a delay in filing the present revision petition which is neither deliberately or on account of culpable or on account of malafide no intentional but on account of aforementioned circumstances.”

9. In the entire application not even a single date or period has been mentioned so as to show as for what period the matter was processed by different branches of the petitioners and which officials had dealt with it. Application is absolutely silent and vague on these material facts. Reasons for the delay do not lead anywhere as to at which level the delay had occurred and who was responsible for the delay. The application does not even mention the number of days of delay for which condonation has been prayed.

10.

It is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.



“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.”

15.

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.”

16. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:


17. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs.

Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian

Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated

adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land

Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M.

Krishnamurthy (1998) 7 SCC

10 Vedabai v. Shantaram BaburaoPatil

(2001) 9 SCC 106”.

123 and



”.

19. 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;

18. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial

Development Authority, IV (2011) CPJ 63 (SC) has observed ;

“24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

“29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes.

Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the



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 serve s no public interest.”

The Court further observed;




29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural 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.



31.


32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs

”.

20. Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

21. 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.

22. 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.

23. 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.

24. Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public

Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public

Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

25. The Apex Court in Bikaner Urban Improvement

Trust Vs. Mohal Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely,

“4. It is a matter of concern that such frivolous and unjust litigation by

Governments and statutory authorities are on the increase. Statutory

Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust

objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation.

Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.

5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.

5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this

Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the

State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on

State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor

V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:

“2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.”

5.3 In a three-Judge Bench judgment of Bhag Singh

& Ors.v.Union Territory of Chandigarh through LAC, Chandigarh,

(1985) 3 SCC 737.

“3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.”

6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.

(ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.

The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to

Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an

exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.

7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- . But instead of remedying the wrong, by complying with the decision of the

Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National

Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.”

26. 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 .”

11. Thus gross negligence, deliberate inaction and lack of bona fides are imputable to the petitioners. Accordingly, no sufficient grounds are made out for condoning the delay of 15 days in filing the present revision petition. The application for condonation of delay under these circumstances is not maintainable and present revision is barred by limitation is hereby dismissed with cost of Rs.25,000/- (Rupees twenty 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 the Consumer Protection Rules, 1987 within four weeks from today. In case the petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till its realisation.

Sd/-

..………………………………

Satish


Sd/-

………………………………..

[Rekha Gupta]


NEW DELHI


(From the Order dated 23.05.2012 in First Appeal No. 818/2010 of A.P. State Consumer

Disputes Redressal Commission, Hyderabad)

With

IA/1/2012

(Delay)

AND


(From the Order dated 23.05.2012 in First Appeal No. 1261/2010 of A.P. State

Consumer Disputes Redressal Commission, Hyderabad)

With

IA/1/2012

(Delay)

P. Balaram S/o Appalaswamy Naidu Conductor in APSRTC R/o Peddapenki Village

Balijipeta Mandal Vizianagaram District Andhra Pradesh

… Petitioner

Versus

1. Dr. J. Lakshmana Rao S/o Venkanna Panthulu Civil Assistant Surgeon Govt. General

Hospital Vizianagaram Andhra Pradesh

2. The District Medical & Health Officer The District Government Hospital Vizianagaram

Andhra Pradesh

3. The Medical Officer APSRTC Dispensary RTC Complex Vizianagaram Andhra

Pradesh

BEFORE:

… Respondents



For the Petitioner : Mr. G.S. Mani, Advocate


ORDER


Both these revision petitions have been filed by the petitioner against the common order dated 23.5.2012 passed by the A.P. State Consumer

Disputes Redressal

Commission, Hyderabad (‘State Commission’ for short) by which the State Commission allowed F.A. No.818 of 2010 filed by respondent No.1 setting

aside the order dated 3.6.2010 passed by the District Consumer

Disputes Redressal Forum, Vizianagaram and dismissed F.A. No.1261 of

2010 of the petitioner. Along with these revision petitions, the petitioner has also filed an application forcondonation of delay of 79 days in filing the revision petitions.

2. It is submitted in the application that the petitioner received the certified copy of the impugned order in the first week of July 2010 but due to his financial condition, he took some time to arrange money for engaging a lawyer at New Delhi for filing the revision petitions. In the process, the delay occurred which according to the petitioner was neither wilful nor deliberate but on account of the financial condition of the petitioner. We are not convinced with the explanation for the delay offered by the petitioner and hence the petitions are liable for dismissal on this ground alone.

3. Coming to the merits, the facts relevant for decision in this case are that the petitioner who is an employee of the APSRTC was suffering from hernia and after diagnosis, he was operated by OP No.1 on 14.5.2004 and was discharged from the hospital of OP No.1 on 18.5.2004. Since he continued to suffer from pain, he consulted other doctors who stated that due to failure of operation, the complainant was suffering from pain because OP No1 had wrongly conducted the operation on a different nerve.

The complainant underwent another operation by spending substantial amount for which he made a request to Executive Director (Medical) of the APSRTC for grant of the expenses of Rs.26,600/-. Alleging deficiency in service, the complainant/petitioner filed a complaint before the District Forum which was registered by the District Forum as

C.C. No.5 of 2008. On notice, OP No.1/Respondent No.1 resisted the complaint denying any deficiency on his part while conducting the operation and treating the petitioner and also on the ground of limitation. The District Forum vide its order dated

3.6.2010 allowed the complaint on the premise that the OPs rendered deficiency in service in conducting the operation as a result of which, the complainant suffered and accordingly awarded an amount of Rs.1,50,000/- as compensation with interest and cost. Aggrieved by this order of the District Forum, OP No.1/Respondent No.1 filed F.A.

No.818 of 2010 against it denying deficiency on his part and contending that the complainant is not a consumer since he had not paid any money for treatment to the OP hospital and that the complaint was not filed within the period of limitation. Not satisfied with the order of the District Forum, complainant/petitioner also filed an appeal seeking enhancement in the compensation awarded from Rs.1,50,000/- to Rs.15,00,000/-. As stated above, the State Commission vide its impugned order allowed the appeal of the respondent No.1 setting aside the order of the District Forum and dismissing the appeal of the petitioner as also the complaint filed by him.

4. We have heard Mr. G.S. Mani, Advocate for the petitioner and perused the record. It be noted that the State Commission vide its impugned order has dismissed the appeal and the complaint of the petitioner both on the grounds of complaint being barred by limitation as well as it being without any merit. While dismissing the appeal of the petitioner as well as the complaint, the State Commission has given reasons in support of the impugned order in paras 20 to 23 which may be reproduced thus:-

“20. We have perused the complaint and could not find any prayer to condone the delay. Even if no other application to condone the delay caused in filing the complaint, at least a prayer ought to have been made in the complaint. The

District Forum though has discussed the limitation aspect, as contended by the appellant it has allowed the complaint on the ground that cause of action for filing the complaint is continuous and the complaint was filed within the period of limitation. We do not agree with the observation of the

District Forum that the complaint was filed within the period of limitation. For the foregoing reasons, we are not inclined to hold that the complaint was filed within two years from the date of accrual of right to sue to the respondent.

21. Even on merits of the case, the complainant has not examined any doctor to prove his contention that the opposite parties were negligent in conducting the surgery. The doctors at NIMS have expressed their opinion that the complainant was suffering from hallucinations and he was referred to a psychiatrist. The complainant has not chosen to deny the reason for the doctors at NIMS to come to the conclusion that he was suffering from hallucination and not from pain due to any cause. In the backdrop of the treatment administered to the complainant at NIMS and the course of treatment adopted therefor, it cannot be said that the opposite parties were negligent in rendering treatment to the complainant.

22. It is pertinent to note that even in the case of a successful surgery, according to au thors of “Baily and Love” there is possibility for 5% to 10% recurrence of hernia. The complainant has failed to examine an expert to prove that there was failure of the surgery and that the negligence of the opposite parties compelled him to undergo reoperation. Dr.Mahalaxmi, according to the complainant conducted the operation on 25.1.2007. Dr.Mahalaxmi in her evidence has not spoken of the reoperation. The complainant has not adduced any evidence to show that there was negligence on the part of the opposite parties and that the doctors at NIMS have diagnosed him with his nerve cut during the course of operation. In the medical record of

NIMS there is no remark or endorsement to the effect that his nerve was cut at the time of the surgery.

23. The opposite parties contend that there was no negligence in their medical treatment of the complainant. The report issued by Dolphin Diagnoses Services Ltd., the complainant was suffering from spondylitis and disc bulge and degenerative facet joints compressing thecal sac and bilateral existing nerve root. According to the opposite parties if there is any problem or pain it must be due to the spondilo arthosis or disc bulge or degenerative facet joints compressingthecal sac. We find the plea of the opposite parties convincing and supported by the evidence in the shape of report issued by the Dolphin Diagnoses

Services. Further, the plea of the opposite parties is supported by the medical record of the NIMS. It is not disputed that the complainant is having fatty liver. The ultrasound scanning report dated 16.11.2004 and MRI report issued on 30.11.2004 would support the fatty liver (grade-I) that the complainant was suffering from and added to the reports, the OP card issued on 12.9.2005 by NIMS indicates that the skin hypothesis done did not yield any fruitful result.”

5. We agree with the view taken by the State Commission. As regards the question of limitation, learned counsel for the petitioner has contended that the limitation period in the instant case got extended because of the second operation on 25.1.2006. The exact date of the filing of the complaint is not indicated on the copy of the complaint placed on record. However, since the complaint was registered as CC No.5 of 2008 by the District

Forum, it is established that the complaint was filed sometime in the year 2008. It is further seen from the letter dated 29.8.2005 addressed by the petitioner to the

Executive Director, APSRTC, Hyderabad for sanctioning an amount of Rs.26,600/- for conducting second operation that the petitioner was aware of the alleged deficiency on the part of the respondent No.1 doctor on the date that he sent this letter to the

Executive Director for financial assistance. The relevant portion of his letter (a copy of which is placed on record as Annexure P-5 at pages 53-54 of the paper-book) reads thus:-

“I, P. Balaram, Conductor No.E451032 informing herein that I have pain below my Abdomen, on the said reason, I went to

APSRTC Dispensary, Vizianagaram, then they referred to

District Government Hospital, Vizianagaram. Thereafter, they admitted me as In-patient and conducted Hernia Operation and same was failed. Again, the APSRTC

Dispensary, Vizianagaram referred me Tarnka Hospital,

Hyderabad. Again they referred to the NIMS Hospital. I got treatment in NIMS from 13.11.2004 to 30.3.2005, then they informed that the Nerve was cut due to operation conducted at Vizianagaram and they discharged me by stating that it is not possible to cure.

(Emphasis provided)

6. In view of the above, it is established beyond any doubt that the petitioner was aware of the alleged deficiency in service because of the cutting of the nerve due to operation conducted atVizianagaram by the respondent No.1. In view of this, the period of limitation for the present consumer complaint starts from the date of the knowledge about the deficiency which undeniably can be taken to be 29.8.2005 and as such the period of 2 years of period for filing the complaint ended on 28.8.2007. Even though the complainant/petitioner seems to have deliberately avoided mentioning the date of filing of his complaint, its registration by the District Forum establishes it to be a complaint of

2008 and as such it was barred by limitation. Since the complainant/petitioner was already aware of the alleged deficiency, we cannot accept learned counsel’s plea of extension in the period of limitation on account of the second operation which came to be performed by a different doctor, namely, Dr. P. Mahalaxmi (of a different hospital) on

25.1.2006. In this view of the matter, the District Forum committed a mistake in rejecting the objection taken by OP No.1/respondent No.1 in his written submission and treating the consumer complaint as being within limitation and proceeding to deal with it on merits. Keeping in view the mandatory nature of the provisions of section 24A of the

Consumer Protection Act 1986, the District Forum could not proceed to entertain a complaint which was filed beyond the period of limitation and that too without an application for condonation of delay. Even on merits, as recorded by the State

Commission, there is no case to support the allegations of the petitioner. In the circumstances both the revision petitions stand dismissed at the threshold with no order as to costs.

……………Sd/-……..………..



……………Sd/-……..………..


MEMBER

SS/


NEW DELHI


(From the Order dated 20.02.2012 in First Appeal No. 336/2011 & 507/2010 of


AND


(From the Order dated 20.02.2012 in First Appeal No. 336/2011 & 507/2010 of


A. Palanivel S/o Sh. Arumugam Door No.428/1, Upstairs Peramanoor Salem Door

No.27/5D, Perumal Mudalair Layout Venkatesapuram Extension Salem-7

… Petitioner

Versus

1. M/s Indusind Bank 701, Solitaire Corporate 167, Guru Hargovindji Marg

Andheri (East) Mumbai – 93

2. The Regional Manager Indusind Bank Ltd. No.34, G.N. Chetty Road T. Nagar,

Chennai-17

3. The Regional Product Manager (Two Wheeler Division) Indusind Bank Ltd. No.34,

G.N. Chetty Road T. Nagar, Chennai-17

4. The Regional Product Manager (Two Wheeler Division) Indusind Bank Ltd.

No.137, Santham Complex Saradha College Road Salem-16

Respondents

BEFORE:



For the Petitioner : Mr. Madhurendra Kumar, Advocate

Pronounced on : 28 th February , 2013

ORDER


Both these revision petitions are directed against the common order dated

20.2.2012 passed by the State Consumer Disputes Redressal Commission, Tamil

Nadu, Chennai (‘State Commission’ for short) in F. A. No.336 of 2011 and F. A. No.507 of 2010. By its impugned order, the State Commission partly allowed F.A. No.507 of

2010 filed by the respondents against the order dated 16.2.2010 passed by the District

Forum, Salem and dismissed F.A No.336 of 2011 filed by the petitioner for enhancement in the amount of compensation.

2. The factual matrix of this case are that the petitioner who is the original complainant in this case obtained some financial assistance from the OPs for purchase of a two-wheeler vehicle for which he was required to pay equated monthly instalment of Rs.2083/- for 24 months to repay. The vehicle was duly registered with Registration

No.TN 30P 6963 but after the registration, the OPs received the original RC book, insurance certificate, Form 35 and one original key from the local dealers which had sold the vehicle to the petitioner/complainant. After the entire amount of loan had been repaid by the petitioner, the 3 rd OP on 23.2.2009 handed over the Form 35 and original key to the complainant but did not hand over the insurance certificate and the original

RC book to him. When the petitioner asked for return of the same, the 3 rd OP told him to come after 10 days. Thereafter also when he approached the OP, there was no satisfactory reply and he was made to wait and suffer the delay and ill-treatment by the

OPs. Because of the non-availability of the RC book, the petitioner could not cancel the hire purchase endorsement before the registering authority. The insurance co. also asked for the original RC book and the previous policy for verification which could not be complied by the petitioner. Alleging deficiency in service on the part of the OPs, the petitioner sent a legal notice to the OPs followed by the consumer complaint in question before the District Forum praying for direction to the OPs to hand over the original RC book and insurance certificate or in the alternative to return the sale price of the vehicle with interest @ 12% p.a. In addition to this, the complainant also prayed for direction to the OPs to pay a sum of Rs.1 lakh towards mental agony and damages along with cost of litigation.

3. On notice, the OPs denied the allegations and opposed the complaint. On appraisal of the issues and the evidence adduced before it, the District Forum accepted the complaint of the petitioner and directed the OPs to hand over the original RC book and insurance certificate to the petitioner failing which, the OPs were directed to pay a sum of Rs.20,000/- towards compensation and to pay another sum of Rs.20,000/- towards mental agony and Rs.5,000/- towards cost of litigation. Aggrieved by this order of the District Forum, the OPs/respondents filed an appeal before the State Commission for setting aside this order and dismissal of the complaint. Not satisfied with the order of the District Forum, the petitioner also filed an appeal before the State Commission. Both these appeals came to be decided in terms of the aforesaid impugned order passed by the State Commission.

4. We have heard Mr. Madhurendra Kumar, Advocate for the petitioner and perused the record. The petitioner has prayed for setting aside the impugned order and consequently for enhancement in the compensation and cost to the extent as sought by the petitioner in his consumer complaint. In another I.A. No.1 of 2012 filed by the petitioner, it has been submitted that the respondents have not complied with the directions issued by the Fora below and have failed to hand over the original RC book, insurance certificate and one set of original keys of the vehicle to the petitioner till date in spite of the concurrent finding returned by the Fora below in favour of the petitioner.

The petitioner, therefore, vide this I.A. dated 1.10.2012 has prayed for direction to the respondents to hand over the original RC book, insurance certificate and original key of the vehicle without further delay.

5. We find that so far as the return of the original documents and the key of the vehicle are concerned, the petitioner has to file an execution application for return of the same but since he has chosen to approach this Commission for enhancement of the compensation amount, he alone is responsible for delay in compliance of the orders of the Fora below in respect of the return of the original documents and the key of the vehicle. In view of this, the only issue for our consideration in this petition is in respect of the quantum of compensation. It is seen from the orders of the Forabelow that both the Fora have returned their concurrent finding in respect of the deficiency in service on the part of the respondents in regard to the non-return of the original documents and the key and hence they have issued directions to the respondents to this effect. As regards the quantum of compensation and costs, the State Commission vide its impugned order has partly allowed the appeal of the respondents and modified the amount of compensation in terms of directions given in the impugned order. We do not find any illegality, material irregularity or jurisdictional error in the impugned order. We do not agree with the request of the counsel for increase in the amount of compensation since the same has been awarded by the State Commission keeping in view the facts and circumstances of this case which does not call for our interference while exercising our revisional jurisdiction under section 21(b) of the Consumer Protection Act. We, therefore, dismiss these meritless revision petitions with cost which is quantified at

Rs.5,000/-. The cost shall be deposited by the petitioner with the ‘Consumer Legal Aid

Account’ of this Commission within a period of four weeks.

5. List for compliance on 5.4.2013.

……………Sd/-……..………..



…………Sd/-………..………..


MEMBER

SS/



(From the order dated 15.12.2011 in First Appeal No. A/11/310 of the

Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Prabodh J. Kothari 18, Nutan Laxmi Society, Prasad Building, N.S. Road J.V.P.D.

Scheme, Vile Parle (West) Mumbai 400056

… Petitioner (s)

Versus

1. The Oriental Insurance Co. Ltd. Boriavli Divisional Office Shraddha Shopping Centre

2 nd Floor, S. V. Road, Borivali (West) Mumbai 400092

2. M/s C. P. Mehta & Co. No. 4-DB, Edena Building, 97, Marine Lines Mumbai 400020

3. The Oriental Insurance Co. Ltd. Mumbai Regional Office No. 2, Oriental House, 7 th Floor,

7, Jamdshedji Tata Road, Churchgate Mumbai 400020

… Respondent (s)

BEFORE:

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


For the Petitioner (s) : Mr. A.A. Pirani, Advocate

For the Respondents : Mr. Arvind Gupta, Advocate for R-1 & 3

NEMO for R-2, Surveyor


O R D E R


The complaint of the revision petitioner, Mr Prabodh J. Kothari (hereinafter referred to as the complainant or RP) was partly allowed by the District Consumer

Disputes Redressal Forum, Mumbai. But, it was dismissed in the order of the

Maharashtra State Consumer Disputes Redressal Commission which allowed the appeal of the Oriental Insurance Company Ltd, (hereinafter referred to as the OP or respondent). This revision petition is therefore, filed by the complainant, challenging the order of the State Commission.

2. The consumer dispute in these proceedings had arisen from an incident of house breaking and burglary. The loss, according to the complainant, was of Rs.18,16,192/- which included a claim of Rs.16,96,092/- towards loss of jewellery. The OP admitted the claim partly and paid Rs 31,186/- only. The failure of the OP to allow the full claim of the complainant under the House holder’s Insurance Policy, led to filing of the consumer complaint.

3. The District Forum considered the case of the two sides and directed the

OP to pay an additional sum of Rs 13,38,429/- together with interest and compensation.

The view taken by the District Forum was that —

“Surveyor/assessor reported that only the jewellery items belonging to the complainant’s wife, by name Ramila Kothari; which were stolen were included in the list, schedule attached to the insurance policy. Then, on internal page (06) of his final survey report, the surveyor/assessor furnished a table of ‘All Risks’ portion of the insurance policy and there, the surveyor/assessor mentioned that items worth an amount in the sum of Rs.33,000/- belonging to Mr. Prabodh Kothari- the complainant herein; were not in the list attached to the insurance policy and the items worth an amount in sum of Rs.13,38,429/belonging to the Complainant’s wife,

Smt. Ramila Kothari, were included in the insurance policy, but she was a person not mentioned in the insurance policy. On this basis, the surveyor/assessor observed that, that was not the liability under the insurance policy.

16. Here, we may observe that admittedly and as transpired form the survey report, Smt. Ramila Kothari; is the Complainant’s wife. She has been described such in the first as well as second survey report. Items recorded against her name in the table at page (06) were the items included in the insurance policy. However, the surveyor proposed to disallow the claim only on the ground that she was not ‘the Insured’ under the insurance policy. Obviously, those items must have gone under the name of the Complainant, since he was the proposer/Insured. While filling in the proposal form and taking the insurance policy, if the

Complainant has furnished details of the ornaments of his wife, claiming the same as his own, no fault could be found with the same. Interpretation of the surveyor that the jewellery items belonging to the Complainant’s wife were not belonging to the

Complainant, as the Insured, was perverse inasmuch as in the final survey report under Clause No. 4.2) thereof, while giving list of the insured’s family members, the surveyor/assessor had mentioned status of Smt. Ramila

Kothari, as the Complainant’s wife.”

4. As already noted the State Commission allowed the appeal of the OP and set aside the award of the District Forum on two grounds. First, that the complaint was filed in 2007 when the claim related to a burglary of 2001. Secondly, that there was no deficiency of service. The Commission has observed that —

“3. It is not in dispute that when the event of theft/burglary/ house-breaking had taken place at the house of the insured (the

Complainant) in between 21/7/2001 to 23/7/2001. Therefore, in view of decision of the Apex Court in the case of Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd ~

III-(2009)-CPJ-75-(SC), the cause of action arose on occurring of the said event and since the consumer complaint was admittedly filed on 7/4/2007 and that too, without any application for condonation of delay, being barred by limitation, could not have been entertained by the Forum. Since this submission is made by the Appellant on the basis of undisputed facts and since the Forum was under an obligation to look into these aspects on its own, we find the Forum committed an error of law entertaining this consumer dispute and as such, impugned order would not sustain

in the eyes of law. Submission made in this respect on behalf of the insurance company, therefore, needs to be accepted and appeal is required to be allowed on this count alone.

4. Insurance company only allowed the claim of loss in respect of furniture items. Insurance company disputes the claim in respect of jewellery items belonging to the Complainant’s wife firstly, because those items were not included in the First Information

Report of the theft/burglary lodged with the police and secondly, because it is not conclusively established that those items were stolen from the house or premises in respect of which the insurance policy was taken and, therefore, those items were not covered under the insurance policy (as revealed from the reports of the surveyors-cum-investigators). Further, to establish deficiency in service on the part of the insurance company, the Complainant must establish that repudiation of the insurance claim pertaining to jewellery items belonging to his wife and also about the alleged cash of M/s. Kothari Chemicals & Industries, alleged to have been kept inside the Complainant’s house; is an arbitrary action on the part of the insurance company. Considering the material placed on the record we find that such arbitrariness cannot be inferred on the part of the insurance company. Therefore, even deficiency in service on the part of the insurance company cannot be inferred”.

5. We have carefully considered the records and heard the two counsels. Learned counsel vehemently argued that the complaint could not have been dismissed on the ground of limitation as it was filed well within two years from the date of part-repudiation of the claim. He drew our attention to the letter of 4.12.2006 from the OP to the complainant which stated that —

“The matter has been since examined and the competent authority has conveyed that the claim for jewellery worth Rs. 16,96,029/- is not payable because of inordinate delay in obtaining the Police Report and

Final Report. Moreover, from the various facts and the circumstances it is observed that you have not exercised Reasonable Care as per General

Condition No.3 of the policy. We therefore regret our inability o admit the loss towards jewellery.

In view of the above we once again enclose herewith discharge voucher for Rs. 31,186/- being damage to the furniture.”

6. Further, a perusal of the Written Statement of the OP before the District Forum also shows that the settlement of the claim as above, finds a mention therein. Para 7 of the WS says

—

“7. The Opposite parties state that as per Surveyor’s report only admissible insurance claim as per policy conditions remained, damage to furnitures, and same was honoured by Opposite Parties by sending discharge voucher for Rs.31,186/- to Complainant vide Opposite

Party’s Borivali Divisional Officer letter dated 4/12/2006 finally deciding/settling the claim of Complainant. Opposite parties will refer to and rely upon Surveyor and Investigator’s Report and relevant correspondence carried with Complainant, when produced.”

7. Evidently, the finding of the State Commission on the question of limitation has overlooked both these important documents on record of the District

Forum. The order of the District Forum does refer to the repudiation letter of 4.12.2006 but does not comment on the averment in the complaint that “the cause of action in the present complaint has arisen only from that date and therefore, this complaint is filed within the time prescribed u/s 24A of the Consumer Protection Act, 1986”.

The term ‘cause of action’ has been explained by Hon’ble Supreme Court of India in K andimalla Raghavaiah & /co. vs. National Insurance Co. Ltd.

&Anr. III (2009) CPJ 75 (SC) in the following terms:-

“13. The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue.

Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated,

“cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit [See Sidramappa v.Rajashetty & Ors. 1970 (1) SCC 186]. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”

8. Therefore, in the present case, the cause of action first arose when the burglary took place on 21.7.2001. The question is, whether it arose again when the claim under the policy was substantially repudiated in the letter of 4.12.2006.

The concept of recurring cause of action has been explained by the Apex court in Raja Ram Maize Products vs. Industrial Court of M.P. and Ors.

(2001) 4 SCC 492 in the following terms:-

“10.The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Saalram Pujari WaghmareVs.

Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.”

9. Facts of the case before us need to be seen in the light of the law as laid down above. The bundle of facts begins with the incident of burglary, goes through the assessment of the loss by the surveyor and culminates in partial acceptance together with substantial rejection of the claim of the complainant in the letter of repudiation issued by the OP. Therefore, the period of limitation would run again from the date of repudiation in 2006 and would not remain confined to the date of loss in 2001. A similar view was taken by this

Commission in Iffco Tokio General Insurance Co. Ltd. vs. M/s Gokak Textiles Ltd. in First Appeal No. 80 of 2012, decided on 5.7.2012.

10.

We therefore, do not agree with the view of the State Commission that in this case the complaint was barred by limitation and should not have been entertained by the District Forum.

11. In so far as the finding on repudiation of the claim to the extent of jewellery items is concerned, the State Commission has held that the material placed on record does not bring out any arbitrariness on the part of the insurance company. On this issue, we have cited at length the material considered before the District Forum. It has noted that though the loss of jewellery was not initially reported, it was in fact added to the Police report and was a part of the subsequent investigation by the Police. This development was within the knowledge of the surveyor however, for reasons best known to him, he chose not to include the claim in his final recommendation.

12. From the written response of the O.P. before the District Forum, we find that the policy in question itself was called “House-holders Insurance Policy” covering risk under various heads including fire, burglary, housing breaking etc. It is therefore obvious that the insured under such a policy is covered as a “house-holder” and not just as an

“individual”. It is not the case of the OP that a house-holders policy is the same as and not distinct from a policy of individual indemnification. It is not the case of the OP that the jewellery items were not included in the proposal for insurance. It is also not the case of the OP that in the proposal form names of all members of the household were required to be mentioned. We therefore, have no hesitation in holding that the decision of the OP to exclude the jewellery from the admissible claim, is nothing but an act of arbitrariness. It amounts to a deficiency of service.

13. Consequently, the revision petition is allowed and the impugned order passed by the Maharashtra State Consumer Disputes Redressal Commission in First Appeal No.

A/11/310 is set aside and order of the District Forum allowing complaint is affirmed. No order as to costs.

.…..…………………………

(K.S. CHAUDHARI,J.)


.…..…………………………

(VINAY KUMAR)

MEMBER

Naresh/reserved



(I.A. No. 298 of 2013 for Stay)

(From order dated 21.08.2012 in Appeal No.12/758 a/w MA 12/231(delay) of the State

Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

Bhoruka Jet pvt. Ltd. through its authorized officer Mr. Sita Ram. Rahul Chambers,

First Floor, Kasarwadi Pune-411 034,

…Petitioner

Versus

1. M/s Pal Engineers, Main National Highway, Opposite to: Fire Station,

Sewa Complex, Gangyal, Jammu

…..Respondent No. 1

2. United India Insurance Company Ltd. Suffiar Park, A wing first floor,

Shivajinagar, Pune- 411005

……Respondent No. 2


(I.A. No. 296 of 2013 for Stay)

( I.A. No. 297 of 2013 for Additional evidence)

(From order dated 21.08.2012 in Appeal No.12/757 a/w MA 12/230(delay) of the State

Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

Bhoruka Jet pvt. Ltd. through its authorized officer Mr. Sita Ram. Rahul Chambers,

First Floor, Kasarwadi Pune-411034,

…Petitioner

Versus

1. Rajasthan Diesel Sales & Service, E-39/40, Road No: 5, Mewar Industrial

Area, Madri, Udaypouyr-313 003(Rajasthan)

…..Respondent No. 1

2. United India Insurance Company Ltd. Suffiar Park, A wing first floor, Shivajinagar,

Pune- 411005 ……Respondent No. 2

BEFORE:



For the Petitioner : Mr. Rakesh Mishra, Advocate


ORDER


Present revision petitions are being disposed of by this common order as facts in these petitions are common. These petitions arise out of identical order dated

21.8.2012, passed by the State Consumer Disputes Redressal Commission, Mumbai(

For short, ‘State Commission’).

2. Respondents No.1/complainants filed their complaints before Consumer

Grievances Redressal Forum, Pune(For short,‘Consumer Forum’) stating that they are the dealers for M/s Cummins India Ltd. which had sent them Air cleaner ailment kits/Kit

Injector through Lorry. The assignments were duly insured by respondent no.2-

Insurance Company. Assignment of Kit Injector did not reach its destination, whereas assignment of Air cleaner ailments kit was received in damaged condition. Thus, there was deficiency in service by the petitioner. Respondent No.1 informed this fact to respondent no.2 who appointed Surveyor which submitted its report. Thereafter, respondent no.1 filed claim for insurance. Respondent No.1 and respondent no. 2 entered into an agreement for letter of subrogation before the payment of the amount claimed. Hence, respondent no.1 filed complaints claiming compensation from the petitioner along with 18% interest as well as cost.

3. Petitioner did not appear before the Consumer Forum despite service nor it filed the written statement. Thus, petitioner was proceeded ex parte by the Consumer

Forum, vide its order dated 19.10.2010.

4. Consumer Forum, vide order dated 28.3.2011, allowed the complaints, of respondent no.1.

5. Being aggrieved by the orders of the Consumer Forum, petitioner filed separate appeals before the State Commission. As there was delay in filing of the appeals, State

Commission on 2.7.2012 passed the following order ;

“ Issue notice on delay condonation application to the respondent through Commission only, by Registered post acknowledgement due at the cost of applicant/appellant r/o 21/08/2012.

Applicant/Appellant shall make compliance of this order within a period of seven days from today. If the compilation is not submitted to the office within a period of 7 days, misc. application alongwith appeal shall stand dismissed ”.

6. Since, order dated 2.7.2012 was not complied by the petitioner, State

Commission, vide its impugned order, dismissed the applications for conodnation of delay and disposed of the appeals by observing as under ;

“Mr. J. K. Choudhari- Advocate for the applicant/appellant. In view of the order dated 02.07.2012, which is self operative order, since the compliance is not made, misc. application for condonation of delay stood automatically dismissed, and, as such, misc. application as well as appeal stood disposed off. Ld. counsel submits that he will comply today the said order but since the order is not complied with within the time and since the said order is self operative, supra, the belated readiness to comply it of no avail.

Pronounced on 21 st August, 2012 ”.

7. Hence, present petitions.

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

9. It is stated by learned counsel for the petitioner that following questions of law arises for consideration in these petitions ;

a) Whether the Respondent No. 1 herein or Cummins India Ltd., who ever may be the “insured” falls within the definition of ‘consumer’ under section 2(d) of the Consumer Protection Act in view of the Amendment

Act 62 of 2002 with effect from 15.3.2003?

b) Whether Ld. District Forum completely misread para 25 of the Judgment delivered by Five Judge Constitutional Bench in “Economic Transport

Organization Vs. M/s. Charan Spinning Mills (P) Ltd. & Anr.” Civil

Appeal No. 5611 of 1999 passed on 17.2.2010?

”.

10. It is an admitted fact that petitioner was proceeded exparte before the Consumer

Forum, Thus, petitioner has no defence on merits and as such a valuable right has accrued in favour of respondent no.1. It is manifestly clear from the record that petitioner has been conducting these cases in a very casual, careless and negligent manner. Firstly, petitioner did not appear before the Consumer Forum. Secondly, before

State Commission also petitioner’s conduct was very negligent and that of willful default, as it did not file appeal before it within the period of limitation. Thus, intention of petitioner from day one is to deprive the respondent no.1 fruits of the award passed in their favour. To a large extent, petitioner had succeeded in its effort, as order passed by

Consumer Forum about two years ago has not been complied with so far.

11. Hence, we do not find any infirmity or illegality in the impugned order passed by the State Commission. Present revision petitions being without any merit and having no legal basis, are hereby dismissed with cost of Rs. 5,000/-(Rupees Five Thousand only) each.

12. Petitioner is directed to deposit the costs of by way of demand draft in the name of

“Consumer Welfare Fund” as per Rule10A of Consumer Protection Rules,1987, within four weeks from today. In case, it fails to deposit the costs within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.

13. Pending applications also stand disposed of.


……..……………………J

(V.B. GUPTA)


…………………………

(REKHA GUPTA)

MEMBER

SSB



(From the order dated 24.02.2011 of the Andhra Pradesh State Consumer Disputes

Redressal Commission, Hyderabad in Appeal no. 60 of 2011)

Registrar Reliance Power Limited M/s Karvy Comptershare Pvt. Ltd., 305, 3 rd Floor,

New Delhi House Barakhamba Road Cannaught Place New Delhi – 110001 Also at

Karvy House, ZI Aveune 4 th Street, Banjara Hills Hyderabad, Andhra Pradesh

Petitioner (s)

Versus

Shri D Satyanarayan Son of Shri Rajnarsaiah Line Inspector House no. 10-15 Hanuman

Nagar Adilabad, Hyderabad (Andhra Pradesh)

Respondent

BEFORE:


HON’BLE MRS REKHA GUPTA

MEMBER

For the Petitioner Mr Manish Garg, Advocate


ORDER

REKHA GUPTA

This revision petition has been filed under section 21 of the Consumer

Protection Act, 1986 against the judgment and order of the Andhra Pradesh State

Consumer Disputes Redressal C ommission, Hyderabad (in short, ‘the State

Commission’) in Appeal no. 60 of 2011 passed on 24 th February 2011, whereby, the

State Commission dismissed the First Appeal no. 60 of 2011 thereby affirming the order dated 29 th March 2013 in CC No. 40 of 2009 passed by the District Consumer Disputes

Redressal Forum, Adilabad (in short, ‘the District Forum’) with cost of Rs.500/-.

2. The brief facts of the case are that the respondent/ complainant vide application no. 6277873 applied for 25 shares of Reliance Power Share and sent a cheque bearing no. 879081 for an amount of Rs.25,875/- to the petitioner/ opposite party. The petitioner neither allotted the shares nor has made any refund of the amount to the respondent.

On 02.03.2009 the respondent sent a legal notice to the petitioner for refund of the amount, upon which the petitioner sent a reply stating that they have sent the refund order bearing no. 1735047 for an amount of Rs.25,875/- on 02.02.2008 and further stated that on 29.02.2008 the amount was encashed. On the date of the complaint, the respondent had not received the said amount.

3. The petitioner in their written statement has stated that since the petitioner had not allotted any shares against the application of the respondent, refund order no. 1735047 for Rs.25,875/- was issued in favour of Mr D Satyanarayan on 02.02.2008 at his registered address available with his beneficiary account. On further verification it was found that the refund order was issued on 02.02.2008 stand encashed by Mr D

Satyanarayana on 29.02.2008, as per their records. Hence, there is no deficiency in service rendered by the Karvey Computershare Pvt. Ltd.

4. District Forum vide their order dated 29.03.2010 came to the conclusion that the petitioner had sent the cheque bearing no. 445502 dated 01.02.2008 for Rs.25,875/- in favour of Donthula Satyanaryana with account no. ABJ/01/3295. The cheque has nothing to do with the complainant in CC no. 40 of 2009 whose account no. is

ABJ01/00003295 and the said cheque was encashed on 03.03.2008 by Donthura

Satyanarayan son of Buchchi Raja Lingam. Thus the mistake arose due to the negligence or oversight of the petitioner only. It is up to the petitioner whether to recover or not from Donthula Satyanarayana but the petitioner has to pay the said amount to D

Satyanarayana respondent herein holder of account no. ABJ01/00003295. Hence, the

District Forum directed as under:

“ In the result the complaint is allowed in part. The opposite party is directed to pay a sum of Rs.25,875/- to the complainant with interest @ 9% per annum from the date of cheque, i.e., 22.01.2008 and also reimburse the court fee of Rs.100/- within one month from the date of receipt of this order, failing which the complainant is at liberty to proceed against the opposite party under section

25/27 of CP Act, 1986. No costs”.

5. Aggrieved by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission gave the following conclusion:

” It is an undisputed fact that the complainant has issued a cheque for Rs.25,875/- to the appellant/opposite party for allotment of shares and since shares were not allotted, the appellant/opposite party sent a refund order on 02.02.2008 for

Rs.25,875/-. Evidently, the said refund order was sent in favour of Donthula

Satyanarayana vide account bearing no. ABJ/01/3825. It is not in dispute that the complainant’s name is Dothula Satyanarayana and his account number is

ABJ/01/00003295. It might be that in the account of the person to whom the cheque amount was credited, must have withdrawn the same. At no stretch of imagination, it can be said that the complainant has encashed the cheque amount. He could not have encashed cheque since the account numbers are

different. Except the fact that the initials in the sur names of both the account holders are the same, the complainant has nothing to do with D Satyanarayana to whom the cheque was sent for an amount of Rs.25,875/. Despite the fact that the complainant could prove it by filing documentary evidence that no amount was sent to this account, the appellant did not verify nor tried to find out as to how Donthula Satyanarayana could encash the amount. Obviously, by mistake, when the amount was sent to a wrong account, the appellant cannot take plea that it had already paid the amount. It could not be construed as valid payment of amount to the complainant. Paying of the amount to a wrong person would not free or absolve the appellant from his liability. Since no amount was received by the complainant, it would certainly have to pay the same to him. The District

Forum, after considering the documentary evidence available on record, has rightly observed that there was a mistake on the part of the opposite party in sending the amount to another Satyanarayana with a wrong account holder.

Therefore, the appellant is liable to pay the amount which was sent by the complainant. We do not see any ground whatsoever to interfere with the order of the District Forum. There are no merits in the appeal.

In the result, the appeal is dismissed confirming the order of the District Forum with cost of Rs.500/. Time for compliance four weeks”.

6. The impugned order was passed on 24.02.2011 and copy thereof was received by the petitioner on 03.06.2011. The revision petition was filed on 23.12.2011. Thereafter, a revised application for condonation of delay has been filed, wherein it has been stated that the delay in filing the present revision petition is due to the reasons as set out hereunder.

“3. That the impugned judgment was passed on 24.02.2011.

4. That the certified copy which was to be made available free of cost was not received from the Hon’ble Commission.

5. That on enquires made of the outcome from the counsel of the appellant therein, he found that order has been passed and applied for the certified copy which was received by him on 03.06.2011.

6. That thereafter the case was forwarded to the petitioner’s office at

Hyderabad.

7. That records pertain to case were requisitioned from the counsel representing the petitioner at Consumer Forum at Adilabad, Andhra Pradesh, which took some time. Simultaneously, records were also requisitioned from the counsel representing the petitioner herein from the State Consumer Disputes

Redressal Commission at Hyderabad. The aforesaid process took some time in obtaining the document and thereafter, the present revision petition prepared typing, retying and photocopy and signature of the A/R of the petitioner took some time.

8. That sometime was lost in preparation, approval from Hyderabad, Head

Office which time and thereafter, on 23.11.2011, the present petition was filed.

9. In the meantime, it is also submitted that the petitioner herein also vide letter dated 04.03.2011, 17.04.2011 and 17.05.2011 requested the respondent/complainant to furnish details of his PAN no. However, till date

despite several efforts the respondent complainant failed to furnish the correct particulars of his PAN no. which clearly goes to show the respondent had malafide intention to seek further refund in the matter despite the fact on verification that refund order bearing no. 1735047 for Rs.25,875/- issued on

02.02.2008 stand encashed by Mr D Satyanarayan on 29.02.2008 as per records of th e petitioner”.

7. Hence, petitioner has prayed due to the aforesaid reasons, the delay of 113 days in filing the revision petition may be condoned.

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

9. It is well settled that “sufficient cause” for condonation of delay in each case is a question of fact.

10.

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.”

11. 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”.

12. 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”.

12. As per the petitioner’s case, the copy of the impugned order was received on

03.06.2011. No dates or reasons have been why it took so much time to get the record

from the counsel representing the petitioner at the Consumer Forum at Adilabad,

Andhra Pradesh and from the counsel representing before the State Commission,

Hyderabad. The petitioner himself was based in Hyderabad. There is no detailed explanation as to why it took 203 days for filing the revision petition.

13. Accordingly, no sufficient grounds have been made out for condoning the delay of

113 days in filing the present revision petition. The application for condonation of delay, under these circumstances, is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.25,000/-. Petitioner is directed to deposit the cost by way of demand draft i n 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 also be liable to pay interest @ 9% per annum till its realisation.

Sd/-

..………………………………


Sd/-

………………………………..

[Rekha Gupta]

Satish

Pronounced on : 12th February, 2013

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