NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.4690 OF 2009
(Against the order dated 12.10.2009 in First Appeal No.37/2007 of the State Commission,
Andhra Pradesh)
1. Pragathi Hospitals, Nizamabad,
Managed
by Pragathi Hospital
Trust,
Hyderabad
Road, Nizamabad Represented by its Trustee Dr. Ala Lakshma Reddy, S/o. A.V. Ganga Reddy,
Nizamabad.
2. Dr. Meenakshi W/o. Dr. P.V. Ramakrishna, R/o Nizamabad.
3. Dr. P.V. Ramakrishna S/o S.Venkatachalam R/o Nizamabad
……….Petitioners
Versus
1. Kumari Shirisha Madhuri, D/o Hanmanth Rao, Teacher, R/o Srinagar (Village) Varni Mandal,
Nizamabad District
2. Dr. Shyamsunder Reddy S/o Not Known, R/o. Nizamabad (Deleted)
3. Dr. Seetharamaraju S/o Not Known, R/o. Nizamabad (Deleted)
4. Dr. N.S. Rao, S/o Not Known, R/o. Nizamabad (Deleted)
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
For the Respondent
: Mrs. Radha, Advocate
: Mr. B. Suyodhan, Advocate
PRONOUNCED ON: 01.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The three revision petitioners were arrayed as OPs-1,2 and 3 respectively, before the
District Forum in the complaint filed by Kumari Shirisha Madhuri. The Complainant had listed
there other doctors as OPs-4, 5 and 6. The order of the District Forum, Nizamabad dismissed the
complaint against them and fixed the responsibility, jointly and severely, on OPs 1, 2 and 3 to
pay a compensation of Rs.5 lakhs to the Complainant, with 9% interest from the date of the
complaint. The appeal of OPs 1,2 and 3 in FA 37/2007 was dismissed by the AP State
Consumer Disputes Redressal Commission with cost. The order of the State Commission is now
challenged in the present proceedings by OPs 1,2 and 3.
2.
Before the District Forum, the case of the Complainant was that her mother,
Smt. Parvata Vardini was operated for hysterectomy in the OP-1 hospital on 28.4.1994. Her
condition worsened when she developed abdominal swelling and respiratory problem. Allegedly,
it was informed that a puncture wound was found in her intestine and leakage from it had to be
removed. On 4.5.1994, another surgery was performed on her by OPs 3 to 6 but the patient died
on the next day i.e. 5.5.1994.
3.
On the other hand, the contention of the OPs was that on 2.5.1994 the patient complained
of breathlessness. Her blood urea and serum creatinine were slightly above normal. On 3.5.1994
distension of abdomen was noticed and 4.5.1994 she was running temperature. Here, as per the
written response of the OPs:“Then X-ray of abdomen was taken which showed large gas shadow under the
left side Diaphragm with multiple fluids levels. As Dr.Lakshma Reddy was not
at Nizamabad on that day, the respondent no.5 was called to see the case. He
advised Giproteam as the cause for above condition of the patient is not know. As per
his advice, respondent no.6 who is a senior anesthologist was called and the respondent
no.5 performed surgery at 6.30 p.m. which went uneventfully. It is false to allege that
five litres of fluids was found in the abdomen. Patient recovered from anaesthology was
8.30 p.m. and was shifted to post operative ward. On 5.5.94 at 3.30 a.m. the patient
developed Hypertension and was treated for the same. Patient died at 11.15 a.m. Death
certificate was issued. The patient died of Cardoi-Respiratory failure due to septic and
shock with some underlying renal problem.”
4.
The District Forum and the State Commission both have relied heavily on the case sheet of
the patient (Ext. A-7 before the District Forum) as evidence of the complication which developed
after the surgery of 28.4.1994 and which eventually led to the second surgery of 5.5.1994.
5.
Significantly, the Complainant along with OPs 4,5 and 6 have been arrayed as the
respondents in the appeal before the State Commission as well as in the present revision petition.
But, the proceeding before this Commission of 16.9.2010 shows that the counsel for the revision
petitioners sought deletion of the names of respondents No.2 to 4 (OPs 4 to 6) on the ground that
they were not a necessary parties to the present proceedings. This was contested by counsel for
respondent No.1 (the Complainant) stating that respondent No.3 was the doctor who, during the
second surgical operation, had noticed the puncture in the jejunum and therefore his appearance
was necessary. The Commission after hearing the two counsels ordered deletion of respondents
No.2 to 4 from the array of the parties. Again, on 9.5.2012, counsel for the respondents
submitted that the presence of respondent No.3, already ordered to be deleted from the list of
parties, was necessary. This argument was kept open for consideration on the next date of
hearing, but has not been pressed by the respondents. The revision petition was finally heard on
23.8.2012 and reserved for orders.
6.
We have perused the records and heard the counsels for the two sides. It needs to be noted
that the revision petition assails the impugned order stating that:“The State Commission erred in holding that, the non-examination of
respondents 3 and 4 herein (Opposite Parties 5 & 6) who conducted the subsequent
operation, gives rise to the conclusion that the perforation occurred during the first
operation and the petitioners herein are negligent. The reasoning of the appellant
authority that the Opposite Parties 5 and 6 failed to file affidavit evidence and explain
the circumstances under which the perforation to jenjunum was occurred, obviously
they did not like to depose in favour of the petitioners as the perforation was caused
when the opposite parties 2 and 3 performed the operation is perverse and
unsustainable in law.”
7.
This contention needs to be viewed in the light of the evidence placed before
the fora below. No evidence was adduced that an abdominal ulcer, perforated or otherwise,
existed before the first surgery on 28.4.1994. On the contrary, the GYNAECOLOGICAL CASE
SHEET shows that the first evidence of it came in the morning of 4.5.1994. It reads—
“X Ray plain abdomen in erect posture
Large gas shadow before Lt diaphragm
With multiple fluid levels
? Volvlus
Posted for Laprotomy at 6 pm”
8.
The State Commission has observed that—
“Though Opposite Parties 1 to 3 in their affidavit evidence stated that they had
operated her for hysterectomy on 28.4.1994 they did not observe any puncture to
jejunum. Opposite parties 5 and 6 had performed an operation on 5.5.1994 when they
found puncture in the jejunum. Opposite Parties 1 to 3 could not explain why such a
puncture was caused.”
Due to this, the State Commission has noted that OPs 5 and 6 should have been the best
witnesses to answer questions on the of puncture in the jejunum but OPs 1,2 and 3 chose not to
examine them.
9.
In our view, the record in the GYNAECOLOGICAL CASE SHEET and the Written
Response of the OPs, noted above, clearly support the view taken by the State Commission. We
therefore, find no substance in the above contention of the Revision Petitioner.
10. The other ground raised in the revision petition, as well as argued by their counsel is that,
as per medical literature cited before the fora below, perforation of jejunum is an uncommon
disorder which can be caused due to many reasons and is rarely diagnosed preoperatively. But,
the counsel for petitioner could not explain how does this support their claim that perforation of
the jejunum was not caused during the surgery for hysterectomy. Learned counsel for the
respondents pointed out the petitioners should in that case, have examined the doctors who
performed the second surgery. We find ourselves in agreement with the latter. No evidence has
been led, before the fora below, by the petitioners/OPs 1,2 and 3 to show that it was not a
surgical perforation which occurred in the course of the first surgery and which necessitated the
second one.
11. We therefore, conclude that the revision petitioners have completely failed to make out any
case against the decision of the A P State Consumer Disputes Redressal Commission in
FA/37/2007 which could justify our intervention under Section 21(b) of the Consumer Protection
Act 1986. The revision petition is therefore dismissed for want of merit.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO.482 of 2007
(From the Order dated 29.05.2007 in Complaint Case No.47/1999 of the State Consumer
Disputes Redressal Commission, Delhi)
St. Anthony’s Senior Secondary School
C-6, S.D.A Hauz Khas,
New Delhi-110016 Through its Principal
.. Appellant
Vs.
Richa Gupta (Minor) Through her father
and Natural Guardian Mr. Ashok K. Gupta,
F-49, Green Park, New Delhi
…..Respondent
BEFORE: HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
For the Appellant
For the Respondent
PRONOUNCED ON:
: Mr. Jagdeep Bedi, Advocate
: Mr. Rajesh Aggarwal, Advocate
01 .11.2012
ORDER
ASHOK BHAN, J., PRESIDENT
Appellant which was Opposite Party before the State Commission has filed this Appeal
against the judgment and order dated 29.05.07 passed by the State Consumer Disputes Redressal
Commission, Delhi (in short, ‘the State Commission’) in Complaint Case No. C-47/1999
wherein the State Commission allowing the complaint filed by the Respondent has directed the
Appellant to pay a sum of Rs.25,000/- as compensation to the Respondent .
FACTS:-
Briefly stated the facts of the case are that the Complainant/Respondent was admitted in
the Appellant School vide registration No.5252 in KG Class on 22.02.1988. She continued her
studies without hindrance upto VIIIth Class for the session 1997-98. She was promoted to IX
class after verifying the entries of examinations by the Appellant. The classes for the session
1998-99 started from 01.04.98. However, the Respondent was not permitted to attend IX class
without giving any reason. As per averments made in the complaint, the principal of the
Appellant School told the father of the Respondent that she would not be allowed to attend the
school unless Rs.50,000/- were paid as donation to the School. The father of the Respondent
sought to leave the school. The transfer certificate was issued to him on 28.04.98 but the mark
sheet of VIII Class of the Respondent was not supplied. Respondent remained at home for a long
period without education till she was admitted to VIII Class in another School on 15.07.98.
Complainant, being aggrieved, filed the complaint before the State Commission alleging that she
lost one precious academic year due to illegal act of the Appellant.
Appellant, on being served, entered appearance and filed its written statement resisting
the complaint, inter-alia, on the grounds; that though the Respondent had failed in Class VIII
examination, yet she was provisionally promoted to Class IX only on trial basis as her overall
percentage of marks in Class VIII examinations was above 40%; that the Respondent herself did
not attend the classes w.e.f. 1.04.98 and the fees for the first quarter was not remitted; that no
donation was demanded by the Appellant; that the transfer certificate was issued to the
Respondent’s father on 28.04.98 and the mark sheet/progress report was also handed over to the
Respondent on 30.03.98.
State Commission after scanning the material available on record and going through the
evidence led by the parties partly allowed the complaint and directed the Appellant School to pay
a sum of Rs.25,000/- to the Respondent as compensation by observing thus:“10. Be that as it may, we find the O.P. guilty for deficiency in service in not
handing over the mark sheet issued to the complainant so as to facilitate her to get the
admission somewhere else even though her father had asked for transfer
certificate. Merely because the O.P. had provisionally promoted the complainant to
higher class on the basis of overall percentage of 40% in spite of her having
successfully cleared 5 subjects, nothing prevented the O.P. from issuing duplicate mark
sheet. Even if we accept that the O.P. did not permit the complainant to attend Class
IX after having been provisionally promoted as the father had asked for transfer
certificate still the allegation of having no handed over the mark sheet cannot be wiped
out.
11.
Mark sheet is important for a student to get admission in any other
school. Mere transfer certificate is not guarantee for admission. It appears that the
O.P. was shying away from issuing the mark sheet because of their own acts of
omission and commission in, may be showing generosity by, promoting the
complainant from one class to another in spite of her having failed in most of the
subjects but her over all percentage having been more than 40%. By this act of O.P,
the complainant wasted one year of her study and for this limited deficiency, we deem
that a compensation of Rs.25,000/- shall meet the ends of justice. Payment be made
within 15 days from the date of receipts of this order. The complaint is disposed of in
above terms. “
Appellant, being aggrieved, has filed the present appeal.
We have heard the ld. Counsel for the parties at length.
Ld. Counsel appearing for the Appellant contends that the State Commission has
committed an error in holding that the mark sheet was not supplied to the Respondent; that the
same was handed over to her on 30.03.98 in the class itself when her result was declared. That it
is a matter of common knowledge when the school results are declared, the mark sheets are
handed over to the students in the class room itself without taking any acknowledgement. That
the Respondent had failed in five subjects, i.e., English, Mathematics, General Science, Social
Studies and Computer Science and she as a matter of right could not demand a ‘pass’ certificate.
That the father of the Respondent did not make any request for issuing a duplicate mark sheet as
he was not interested in a duplicate mark sheet which could always be issued by the Appellant
but her farther wanted a Mark Sheet which declared the Respondent as pass in all failed
subjects. As against this, Ld. Counsel for the Respondent supports the order passed by the State
Commission.
We find substance in the contention raised by the Ld. Counsel for the Appellant. As per
general practice the mark sheets are supplied to the students in the class room at the time of
declaration of results without taking any acknowledgement. In the present case also the mark
sheet must have been supplied to the Respondent in the class room at the time of declaration of
result. Moreover, when the Appellant had given the school leaving certificate to the Respondent
it cannot by any stretch of imagination be presumed that the Appellant would not issue the mark
sheet too. There is no evidence on record to show that the mark sheet was not supplied to the
Respondent. In case Respondent had applied for issuance of duplicate mark sheet, the Appellant
as stated in their written statement would have issued the duplicate mark sheet. The finding
recorded by the State Commission that the Appellant did not give the mark sheet is not based on
any reliable evidence. State Commission has erred in awarding the compensation of Rs.25,000/to the Respondent. Accordingly, the direction given by the State Commission to the Appellant to
pay compensation of Rs.25,000/- to the Respondent is set aside. Appeal is allowed.
Appellant had deposited 50% of the awarded amount with the State Commission. State
Commission is directed to release the deposited amount in favour of the Appellant along with
accrued interest.
…………….. . . . . .
(ASHOK BHAN J.)
PRESIDENT
................
(VINEETA RAI)
MEMBER
Yd
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1602 OF 2012
(Against the order dated 03.02.2012 in First Appeal No. FA/12/24 of the Chhattisgarh State
Consumer Disputes Redressal Commission, Raipur)
1. Amal Sai S/o Late Birjhu
2. Smt. Pancho W/o Late Birjhu Both R/o Village Basen, Post Jigdi, P.S.& Tehsil Rajpur
Distt. Balrampur (C.G.)
... Petitioner
Versus
1. United India Insurance Co. Ltd. Through Branch Manager, United India Insurance Company
Ltd. Branch Brahma Road, Ambikapur, Distt. Surguja, C.G.
2. Surguja Kshetriya Gramin Bank Through Branch Manager, Surguja Kshetriya Gramin Bank,
Through Branch Manager, Branch Pasta, PS. & Tehsil Rajpur, Dist. Balrampur (C.G.)
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Ms. Sara Sundaram, Advocate
Pronounced on : 2nd November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Shri Amal Sai and Smt. Pancho are the owners of a tractor with trolly attached. They had
taken loan from Sarguja Kshetriya Gramin Bank, opposite party No. 2. The above said tractor
was insured by United India Insurance Company Limited, opposite party No. 1. The said tractor
met with an accident on 26.3.2009 and it was damaged considerably. The complainants claimed
damages from the opposite party No. 1 but the opposite party No. 1 refused to pay the claim on
the ground of violation of terms and conditions of the insurance policy issued by opposite party
No. 1.
2.
The complainants filed a complaint alleging deficiency in service by respondents. The
complaint was dismissed. The complainants filed an appeal through registered post to the State
Commission, Raipur. They were under the impression that the learned State Commission would
send a notice for hearing in their favour. However, no such notice was received.
3.
Through this revision petition, they have challenged the order passed by the State
Commission dated 3.2.2012.
4.
None appears on behalf of the petitioners. However, the Commission received a letter on
behalf of the petitioners stating that they were not in a position to appear before this Commission
and prayed for engagement of an advocate on their behalf. Consequently, Ms. Sara Sundaram,
Advocate was appointed as amicus curiae. Learned Amicus Curiae submitted that she has sent a
letter to the petitioners but she did not receive any response. She argued that she is not assisted
by her client. She stated that she even does not have the policy.
5.
We have gone through the record. It is apparent that at the time of the accident, its driver
did not have the effective and valid driving licence. He was having driving licence to drive the
light motor vehicle only. Consequently, the claim filed by the complainants found
no favour even with the District Forum or with the State Commission. The order of the State
Commission clearly goes to reveal that it had sent the SPC for the date of hearing but none
appeared on behalf of the petitioners.
The State Commission did not find any substance in
the appeal and dismissed the same.
6.
The District Forum in its paras 18 and 19 as per English version mentioned as follows.
“18. In the documents exh. A-7, A-8 and A-9 filed on behalf of complainant, it has been
mentioned that at the time of accident, vehicle Tractor No. CG 15 A/4137 and Trolley No. CG 15
A/4138 was not being driven by Rajesh Dass, it was being driven by Ramdass. Rajesh was
sitting in the trolley of vehicle, however in the document exh. D-5 (1) filed on behalf of
respondent No. 1, Rajesh Panka was driving the vehicle on 26.3.2009 at the time of accident,
who expired in this accident. Complainants did not make any objection immediately after the
accident that Rajesh Panika was not driving the vehicle at the time of accident and after a long
period, in an after-thought manner, to get the benefit of insurance, it has been shown that the
vehicle in question was being driven by Ram Dass and sent the Exh. A-7, A-8 to Inspector
General of Police, Sarguja Range on 5.10.2009 to Superintendent of Police, Ambikapur on
12.5.2009. In these circumstances, it is not found reliable that at the time of accident, the vehicle
in question was being driven by Ram Dass. Complainants has not produced the driving license
of Rajesh Panika, vehicle driver, who was driving the vehicle at the time of accident as
mentioned in the Exh. D-5.
(1) In these situations, it is found established that condition of Insurance policy were violated.
19.
Even if it is presumed for the sake of arguments that Ram Dass was driving the vehicle in
question at the time of accident, then in these situations, it is to mention that the photocopy of
driving license of Ram Dass relates to the driving license of light vehicle. In these situations, he
was not authorized to drive the above-said tractor at the time of accident. In this manner, on the
basis of above, it is found established that conditions of Insurance policy were violated.”
7.
No evidence was produced to rebut these findings.
8.
The revision petition is sans merits and therefore we dismiss the same.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2359 OF 2012
(Against the order dated 11.5.2012 in Appeal No. 30 of 2010 of the Goa State Consumer
Disputes Redressal Commission, Panaji )
1. M/s Milroc Development Co.
A partnership Firm duly constituted
Under the Indian Partnership Act
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa
2. Mr. Kantipudi Kulasekhar
S/o Mr. K. Chandramohan
Partner of M/s Milroc Development Company
R/o Kasturi, Plot No. E-11,
La Citadel, Dona Paula, Goa
3. Mr. Kamlesh Shantilal Jhaveri
S/o S.G. Jhaveri,
Partner of M/s Milroc Development Company
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa.
4. Mrs. Shobha Kamlesh Jhaveri
W/o Kamlesh Shantilal Jhaveri
Partner of M/s Milroc Development Company
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa.
5. Mr. Allaparthi Durga Prasad
S/o Allaparthi Gopalkrishnamurthy,
Partner of M/s Milroc Development Company
Having its office at 501,
Milroc Lar Menzes,
Swami Vivekanand Road,
Panaji, Goa.
........ Petitioner (s)
Vs.
Mrs. Antonieta Ribeiro De Souza
W/o Jose Feliciano de Souza
R/o Flat No. G-1/B-31,
Rabindar Retreat, Rabinder
…….Respondent (s)
Ilhas, Goa
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
For the Respondent
Pronounced on
:
Mr. Kaustubh Sinha, Advocate with Mr. Dewat Singh, Advocate
NEMO
1st November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
This revision petition has been filed by M/s Milroc Development Co. and its partners,
Mr. Kantipudi Kulasekhar,
Mr. Kamlesh Shantilal Jhaveri,
Mrs. ShobhaKamlesh Jhaveri and
Mr. Allaparthi Durga Prasad. The complainant, Mrs. Antonieta Ribeiro de Souza and the
petitioners/opposite parties entered into an agreement wherein the complainant agreed to
purchase flat in the apartment project developed by the opposite parties for construction cum sale
of a flat having a built up area of 135 sq. mt. The possession of the flat was given to the
complainant on 8.7.1998. The sale deed was executed and registered by the parties on
29.3.2006.
2.
The complainant filed a consumer complaint before the District Forum, North Goa
at Porvorim alleging deficiency in service coupled with defective construction and seeking
certain directions. In the complaint, it is averred that brochure described the project as a
township consisting of 350 apartments and an exclusive shopping centre, a club house as well as
community hall. The brochure further stated that the complex would be walled on four sides,
with gates, entry way, manned by security personal round the clock. Again, it would have a
shopping complex enabling the purchasers to live a self contained existence within the Retreat by
providing daily amenities and services, such as provision stores, bank, beauty parlour, shopping
arcade and restaurants. The brochure also promised a Club House with well-equipped health
club. Consequently, the complainant booked one flat for which she paid Rs.9,47,500/- and one
time maintenance costs of Rs.39,813/-. However, in the sale deed, the amenities mentioned
above found no place. It is further averred that the quality of the construction is very poor. It
transpired that there was lot of absorption of water on all the outer walls of the apartment, cracks
had developed practically on all inner walls and there was dampness on the walls resulting into
formation of fungus, particularly, in the bedroom walls. This dampness attracted and provided
an ideal media for insects and other microscopic life. Those affected the skin of the complainant
and her husband. Again, there was tremendous absorption of water on the roof of the toilet of
the master bedroom. Dark brown and gray patches developed all over the roof of the toilet of the
master bedroom resulting in the formation of fungus and foul smell pointing to corrosion of the
street wires in the slab above the bedroom. It affected the health of the complainant and her
husband. They were medically treated. Again, there was seepage of water even through the
beams and walls, which had affected the crockery of the complainant. Moreover, the glazed tiles
in the bathroom are of poor quality as the tiles of the master bedroom had developed cracks and
holes and the holes need replacement. The granite stone on the platform of the kitchen is full of
holes and beautifully filled with cement of the same colour, which could not be seen at the time
of taking the possession. After sometime, the cement started peeling off and the holes have
started showing clearly indicating that second quality material was used.
3.
Shri S. N. Bhobe, an Architect visited the flat on 3.10.2003 and gave its report ext.
‘E’. The Architect has opined that the dark patches on the walls show that there is seepage of
water through the beams, thereby the steel has started corroding thereby endangering the entire
structure of the building. As per agreement, for Construction-cum-Sale, each unit was to be
provided with underground sump with an electric pump and an overhead tank. The same was
not provided. On the other hand, the petitioners had constructed the huge massive tank which is
connected to the water supply. In addition, the petitioners have dug 2/3 Bore Wells and they
pump water from the bore wells also into the tank, which mixes with the water from the Public
Works System. From this tank, water is supplied to all the apartments. For quite some time, the
water was being supplied to the apartments, including the apartment of the complainant. The
people are not getting clean water. It was prayed that the opposite parties be directed to execute
the deed of rectification so as to incorporate all the clauses of the agreement of Construction cum
Sale, which were not incorporated therein and which have been in the agreement for
Construction cum Sale dated 31.3.1997. The opposite parties be further directed to rectify the
problem of dumpness in the outer walls and inner walls and ceiling of the apartment including
the roof of the master bedroom and to repair all cracks in the walls and to replace the glazed tiles
which have cracked both in the kitchen as well as in the bathroom, to provide clean and potable
water to the complainant’s apartment. Besides this, compensation in the sum of Rs.1
lakh be granted in favour of the complainant.
4.
The opposite parties contested this case. In the written statement, the opposite parties
submitted that the complainant is not a consumer. No negligence on their part has been spelt
out. The case for rectification is not maintainable. The case is barred by time. The relief for
mandatory injunction or specific performance cannot be granted and all the pleas have been
denied.
5.
The District Forum partly allowed the complaint. It directed the opposite parties to rectify
the problems of dampness in the outer walls and inner walls and ceiling of the apartment
including the roof of the master bedroom; to repair all cracks in the walls; to replace the glazed
tiles which have cracks both in the kitchen as well as in the bathroom and to provide clean and
potable water to the complainant’s apartment. It also granted compensation in the sum of
Rs.50,000/- towards inconvenience and discomfort caused to her.
6.
The State Commission dismissed the appeal filed by the opposite parties.
7.
The revision petition has been filed by the opposite parties. Argument advanced by the
learned counsel for the petitioners has two prongs.
He vehemently argued that the present case
is barred by time. He places reliance on two authorities reported in Raja Ram Maize Products
Etc. etc. vs. Industrial Court of M.P. and Ors. AIR 2001 SC 1676 and Annu Enterprises
India vs. Haryana Urban Development Authority & Ors. I(2012) CPJ 552 (NC).
8.
The facts of these authorities are different. This is a case of continuing cause of
action. The main document in this context has been placed on record, which is the agreement
entered into between the two parties. Last portion of clause 7 reads as follows:“Upon possession any cracks to the plaster/dampness in external plaster walls shall not be
considered as defective work unless the architect of the Vendor opines otherwise.”
7.
The
petitioners-opposite
parties
also
took
an
expert
opinion
from
Mr. Jayant V. Pai Vernekar, who inspected the spot and gave the following report dated
14.10.2003.
“This has reference to our visit to the above flat with you to assess the Spot/patches on the toilet
ceilings of the above flat on 11/10/2003.
We checked the ceilings of both the bathrooms of this flat and found that the ceiling were
thoroughly dry everywhere. We noticed some spots and patches on the ceiling of one toilet and
the beam side of the other toilet. These were earlier leakages spots, which were found to be
completely dried up during the inspection. The whole ceiling had old fungus marks created due
to condensation of atmospheric moisture on the cold surface of the ceiling.
You mentioned that a few months back the nahani traps in the upper toilets were grouted with
cement water and waterproofing compound to plug any crevices and avoid the possibility of any
moisture in the toilet below. This has stopped the ingress of moisture that was earlier noticed
causing marks on the ceiling as mentioned above.
We also noticed condensation marks on the wall between the bedroom and the living
room. These are caused due to the cool air from the air conditioner in the bedroom, mainly when
atmospheric humidity is high. These marks have nothing to do with the toilet of the upper flat.
In case you need any further assistance in the matter, please do get in touch.
Thanking you,”
8.
The report of this expert engaged by the petitioners themselves reveals so many defects. It
is surprising to note that the walls are incapable to tolerate the cool air coming from the Air
conditioner. It shows the poor quality of the material used there. The facts of this case speak for
themselves. The allegations leveled against the petitioner stand proved.
9.
The petitioners themselves admit that the development of cracks of tiles in bathroom was
due to wear and tear and rough handling by the complainant. It was observed that the granite
stone placed in the kitchen was in good shape and had no blemishes. It was also communicated
that filling of holes with cement is only imaginary and cannot be technically possible. It was
communicated that if cement is filled, the holes cannot be lost even one month as it is a natural
stone. This cannot be said to lucid explanation.
10.
The complainant has also produced the report of Architect, Mr. S. N. Bhobe, which goes to
support the case of the complainant. The case of the complainants is supported by adequate
evidence discussed above.
11.
It is also noteworthy that all the terms and conditions mentioned in the agreement were not
included in the sale deed.
12.
The revision petition is without merit and the same is therefore dismissed.
..…………Sd/-………..………
(J.M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-….……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2920 OF 2011
(From the order dated 5.4.2011 in Appeal No.1075/06 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Sukhbir Singh S/o Sh. Ami Chand R/o House No.1922, Sector – 8 Faridabad (Haryana)
… Petitioner/Complainant
Versus
Haryana Urban Development Authority, Faridabad, Through its Estate Officer, HUDA,
Faridabad.
… Respondent/Opposite party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner
:
Mr. Manoj Kumar Sood,
Advocate
PRONOUNCED ON 2nd November, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed against the order dated 05.04.2011 passed by the
Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State
Commission’) in Appeal No. 1075/06 – HUDA Vs. Sukhbir Singh by which while accepting
appeal order dated 20.2.2006 passed by District Forum was set aside and complaint was
dismissed.
2.
Brief facts of the case are that petitioner/complainant was allotted plot No.1607-P, Sector
65, Faridabad by the opposite party vide allotment letter dated 29.10.2001. Complainant
deposited Rs.27,110/- i.e. 10% of the tentative price of the plot with application on 29.12.2000
and thereafter deposited Rs.47,441/- i.e. 15% of the tentative price of the plot on
28.11.2001. The remaining price of the plot was to be paid in instalments. As the opposite party
failed to develop the area and deliver possession of the plot within the stipulated period to the
complainant, the complainant moved application on 17.9.2002 to the opposite party for surrender
of plot with prayer to refund the entire deposited amount. The opposite party accepted prayer of
complainant, cancelled allotment of the plot and refunded Rs.24,504/- vide letter dated 10.3.2003
after deducting 10% of the total consideration, as per HUDA policy. After accepting refund,
complainant filed complaint before the District Forum alleging that the plot was surrendered
under compelling circumstances and requested that original plot or an alternate plot of the same
size in the same sector may be allotted to him. Opposite party filed written statement and
submitted that as the complainant had surrendered the plot voluntarily and requested refund,
complainant is no more a consumer, hence, prayed for dismissal of the complaint. District
Forum after hearing both the parties allowed the complaint and directed opposite party to reallot
the same plot or alternate plot of the same price along with interest etc. On appeal, learned State
Commission vide impugned order while allowing appeal dismissed complaint against which this
revision petition has been filed.
3.
Heard learned counsel for the petitioner at admission stage and perused record.
4.
Learned counsel for the petitioner submitted that learned State Commission passed the
order without hearing petitioner, hence, order of State Commission may be set aside and order of
District Forum may be confirmed.
5.
Learned State Commission has observed in its order that –
“Respondent has been served but failed to appear either in person or through his
agent/representative. Waited sufficiently. No request or intimation has been
received so far. Hence, respondent is proceeded exparte”.
This observation clearly reveals that petitioner did not appear before the State Commission even
after service and in such circumstances, impugned order was passed. Learned Counsel for the
petitioner has drawn my attention towards different order sheets from the year 2006 to
11.2.2011. In the last order sheet dated 11.2.2011, learned State Commission observed as under
:
“Service not effected. Fresh notice be issued to the respondent registered post for
5.4.2011 along with the documents relied upon by the appellant at own
responsibility. In addition to this office is also directed to issue notice to the
respondent for the date fixed. Till then stay is extended. Notice be givendasti as
requested”.
It appears that after this order notices were sent to the petitioner by registered post
and after service of notice petitioner did not appear before the State Commission
and in such circumstances exparte order was passed which is in accordance with
law.
6.
As far merits of the case are concerned, it is an admitted case of the petitioner that the plot
was surrendered by him and he received refund amount and after 5 months of receiving refund,
complaint was filed before the District Forum for reallotment of plot. Learned State Commission
has rightly placed reliance on judgment of Punjab and Haryana High Court and judgement of the
State Commission in HUDA Vs. Pashu Lal Nagpal – 2010 (1) CPC 277 wherein it was held
that after surrendering plot and taking refund the complainant has no right to get the surrendered
plot.
7.
The State Commission has rightly allowed appeal and dismissed complaint as petitioner
had already surrendered plot and received refund. I do not find any illegality or material
irregularity in the impugned order and in such circumstances, the revision petition is liable to be
dismissed at admission stage.
8.
Consequently, the revision petition filed by the petitioner is dismissed without any order as
to cost.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1279 OF 2012
(Against the order dated 17.10.2011 in First Appeal No. 471 of 2011 of the
Bihar State Consumer Disputes Redressal Commission, Patna)
Bihar State Housing Board Through its Managing Director,
6 Mangles Road, Patna, Bihar
... Petitioner
Versus
1. Smt. Geeta Choudhary W/o Late Abhay Narain Choudhary
2. Arun Kumar Chaudhary
3. Anil Kumar Choudhary Both sons of Late Abhay Narain Choudhary
All residents of Village Nehra, P.S. Manigachi, District Darbhanga
4. Smt. Manju Jha, Wife of Sri Shivanand Jha, Resident of
Village Deorh P.S. Ghoghardeha, District Madhubani
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr.
Amit Pawan, Advocate
Pronounced on : 1st November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The first appeal filed by the Bihar State Housing Board, the petitioner, was dismissed as
barred by time by the State Commission vide its order dated 17.10.2011. There was delay of 15
months in filing the said appeal.
2.
Aggrieved by that order, the revision petition has been filed. The explanation given by the
petitioner under Section 5 of the Limitation Act read with Section 15 of the Consumer Protection
Act before the State Commission was as follows, the order passed by the District Forum was
communicated on 25.6.2010, which was received by the petitioner’s counsel and the same was
sent to the legal advisor of the Housing Board, who received it on 6.7.2010. The permission was
granted by the Managing Director, Housing Board to file appeal on 14.7.2010. It was sent to
empanelled
lawyer
of
the
petitioner
on
16.7.2010
but
the
empanelled
lawyer Shri Nawal Kishore Prasad Singh expressed his inability to appear before the State
Commission
and
thereafter
another
counsel
empanelled
for
the
Housing
Board,
namely, Rakesh Kumar Singh was handed over the file for drafting of memo of appeal, which
was received by Sri Singh on 23.07.2010 but even after several reminders, Sri Singh returned the
record with the draft copy of memo of appeal on 16.12.2010. Thereafter several paraphernalia
were observed by the Board officials and ultimately the office had to obtain necessary directions
from the Managing Director, Housing Board and after direction of the Managing Director, the
appeal was filed on 13.09.2011. It took 15 months in filing this appeal. The State Commission
did not condone the delay and dismissed the appeal.
3.
The alarm bells should have rung when the case was dismissed on the point of limitation
but it did not leave any impact on the petitioner-Bihar State Housing Board. The filing of this
revision petition was further delayed by 55 days. No application for condonation of delay was
filed with the revision petition.
4.
We have heard the learned counsel for the petitioner. He argued that in the interest of
justice, opportunity of being heard should be granted in favour of the petitioner.
5.
We find that the State Commission has rightly given the short shrift to this matter. We are
unable to take a different view from the one taken by the State Commission. State Commission
has made a perspicacious decision which cannot be faulted. The petitioner must show that
besides acting bona fide, it had taken all possible steps within its power and control and had
approached the court without any unnecessary delay. The test is whether or not a cause is
sufficient to see whether it could have been avoided by the party by the exercise of due care and
attention. Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005 as quoted by the Apex
Court in Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 wherein it was held:
“The party should show that besides acting bona fide, it had taken all possible steps within its power
and control and had approached the Court without any unnecessary delay. The test is whether or
not a cause is sufficient to see whether it could have been avoided by the party by the exercise of
due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”
6.
The Apex Court in recent authority reported in Office of the Chief Post Master General
& Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL (Web) 132 (SC) was pleased to hold:
“13. In our view, it is the right time to inform all the
government bodies, their agencies and
instrumentalities that unless they have reasonable and acceptable explanation for the delay and
there was bonafide effort, there is no need to accept the usual explanation that the file was kept
pending for several months/years due to considerable degree of procedural red-tape in the
process. The government departments are under a special obligation to ensure that they perform
their duties with diligence and commitment. Condonation of delay is an exception and should not
be used as an anticipated benefit for government departments. The law shelters everyone under
the same light and should not be swirled for the benefit of a few. Considering the fact that there
was no proper explanation offered by the Department for the delay except mentioning of various
dates, according to us, the Department has miserably failed to give any acceptable and cogent
reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay.”
7.
In
other
case,
titled
as “Mahindra
Holidays
&
Resorts
India
Ltd.
Versus Vasantkumar H. Khandelwal & Anr.” [Revision petition No. 1848 of 2012 decided on
21.05.2012], the Bench of this Commission headed by Hon’ble Mr. Justice Ashok Bhan, has
rejected the explanation that the file was moving from table to table to get the permission to file
that appeal. It was further held that under the Consumer Protection Act, 1986, the District Forum
is supposed to decide the complaint within a period of 90 days from the date of filing and in case
of some expert evidence is required to be led then within 150 days. The said Bench dismissed the
revision petition on the ground that it was delayed by 104 days.
8.
In the celebrated authority reported 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”.
9.
Again, no explanation is forthcoming as to why the filing of this revision petition was
delayed by 55 days. The silence on the part of the petitioner ispernious.
10.
The attempt to kick against the pricks miserably fails. The revision petition is, therefore,
dismissed.
………Sd/-……………….
(J. M. MALIK, J.)
PRESIDING MEMBER
………Sd/-………………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1955 OF 2012
(Against the order dated 14.11.2011 in First Appeal Nos.527/2010 & 363/2010 of the State
Commission, Andhra Pradesh)
Bajaj Allainz Life Insurance Company Ltd. Through its Branch Manager
Mancherail, District Adilabad Andhra Pradesh
…Petitioner
Versus
1. Sowbhagyalaxmi W/o late Sunka Anandam
2. V. Swapna W/o Sh. Srinivas
3. Swathi W/o Sh. Laxminarasaiah
4. S. Aditya S/o late Sh. Sunka Anandam
All residents of H.N. 12-9/2 Gowthaminagar, Mancherial, Adilabad
.....Respondents
REVISION PETITION NO. 1956 OF 2012
(Against the order dated 14.11.2011 in First Appeal Nos.527/2010 & 363/2010 of the State
Commission, Andhra Pradesh)
Bajaj Allainz Life Insurance Company Ltd. Through its Branch Manager
Mancherail, District Adilabad Andhra Pradesh
….Petitioner
Versus
1. Sowbhagyalaxmi W/o late Sunka Anandam
2. V. Swapna W/o Sh. Srinivas
3. Swathi W/o Sh. Laxminarasaiah
4. S. Aditya S/o late Sh. Sunka Anandam
All residents of H.N. 12-9/2 Gowthaminagar, Mancherial, Adilabad
.....Respondents
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Pankul Nagpal, Advocate
For the Respondents/Caveator : NEMO
PRONOUNCED ON: 02.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
These two revision petitions arise out of a common impugned order passed by the AP
State Consumer Disputes Redressal Commission in FA No.527 of 2010 and FA No.363 of
2010. In the first, the appeal of the Complaint has been allowed and the OP/Insurance Company
has been directed to pay Rs.10,00,000/- with 9% interest. In the second, the appeal of the OP
against the order of the District Forum in which an award of Rs.2,00,000/- in favour of the
Complainant was made, has been dismissed.
2.
Both revision petitions have been filed with delay of 69 days, which is sought to be
explained in an application for condonation thereof. The application does not even mention the
exact date on which the petitioner came to know about the passing of the impugned order. It
may be stated that a copy was received in the second week of December. Apparently, some time
was spent in movement of papers from the Zonal office Chandigarh and the Delhi office of the
revision petitioner, but no details are indicated. Even the following statements in
the condonanation application offer no help in determining either the duration or the cause for
delaya) After it was decided that the revision petition should be filed, the relevant files kept lying in the
Delhi office without any action.(para 4)
b) Zonal Legal Manager spent considerable amount of time in collecting the data from the various
branches. (para 6)
c) Only in the last week of April it was discovered that the case had not been assigned to any
Advocate. (para 8)
3.
It is clear from the above that no conscious afford had been made to clearly explain the
delay at various stages in the office of the petitioner/ Bajaj Allianz Life Insurance Company
Ltd. We therefore, reject the explanation and consider the revision petition liable for dismissal
on account of limitation.
4.
Coming to the merits, we find that the petitioner has challenged the common impugned
order on several grounds most of which are only in the nature of reiteration of the contention that
the petitioner has rightfully repudiated the claim on the ground of failure to disclose material
particulars in the proposal form for insurance. This question has been considered at a great
length by the State Commission with reference to the records. The State Commission has
observed that:“11. The Insurance Company entrusted the matter to Satyam Investigation Private
Limited to enquire into the claim. If found that that the deceased had suffered from
blood motions for one and half years, and he was a known alcoholic and smoker and
consequently died. The fact that Satyam Investigations had conducted enquiry is not
evidenced either by a report or affidavit evidence of the investigator, who said to have
conducted investigation and visited Dr. T.Srinivas. No certificate was even taken
from Dr.T.Srinivas to state that Sunka Anandam had the above ailment. In fact in Ex. A.1
repudiation letter dated 28.02.2008, the fact that they have entrusted the matter to
Satyam Investigations and that it made an enquiry with Dr. T. Srinivas does not even find
a place. What all it was stated was:
“However, on receiving the death claim intimation for the above said policy, the
various medical records received confirm that lateMr. Sunka Anandam was suffering
from bleeding PR off and on since one year from June, 2007. This fact known to
late Mr. SunkaAnandam was not disclosed in the proposal form dated 29.08.2007.”
12. The Insurance Company did not disclose the material from which it could gather
the above information. In fact the complainants themselves filed a report, Ex.A.4 issued
by Dr. T. Sreenivas, M.D. The Ultra Sound Abdomen report discloses that he was not
suffering
from
ABNORMALITY
any
ailment. The
impressions
NOTED. SUGGESTED
were
CLINICAL
“NO
SONOGRAPHIC
CORRELATION.”
Equally,
Haemotology Report and Bio-Chemistry Report do not confirm that he was suffering
from any ailment. The complainants themselves submitted Ex. A.11 certificate issued
by Dr. T. Srinivas, M.D. dated 24.12.2007, obviously a family doctor, who certified that
he had some viral fever. He did not state any where that he was admitted as an in patient,
nor the fact that he was suffering from blood motions, etc.”
5.
It needs to be observed that the insurance company has substantially relied upon the report
of Satyam Investigation Pvt. Ltd., but the report has not been proved before the fora below. The
investigator has not been examined. Before the District Forum OP/Insurance Company had
marked seven exhibits which did not include the investigation report.
6.
Similarly, the O P/Insurance Company relied upon the report of the investigator that
according to Dr. T. Srinivas, the deceased had certain ailments. But, he was not examined. As
observed by the State Commission, no report from Dr. Srinivas was produced on the alleged
ailments. On the other hand, the Complainants themselves have filed a report given
by Dr. Srinivas as Ext. A-4. We may add that haematology and biochemistry reports relied upon
by the OP/Insurance Company as Ext. B-5 and B-6 also do not carry any adverse comments with
respect of the health of the deceased. We are therefore, in agreement with the finding of the State
Commission that the insurance company could not prove from their investigation or from
medical reports that the deceased suffered from those ailments.
7.
In the light of the details examined above, revision petition Nos. 1955 of 2012 and 1956 of
2012 are dismissed on the ground of limitation as well as merit.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3904 OF 2012
(Against the order dated 24.02.2012 in First Appeal No. 700 of 2011 of the Gujarat State
Consumer Disputes Redressal Commission, Ahmedabad)
Heir
of
deceased Sidikbhai
Mohamadshah Muhamadshah
Gulamahmed Saiyed
Mohmedshah Gulamahmed Saiyed Res. At Yoginagar Dhari Taluka Dhari Dist. Amreli Gujarat
... Petitioner
Versus
1. Manager Axis (UTI) Bank, Nr. Nathnath Temple, Nagnath Complex, 1st Floor, Amreli
2. Bajaj Allianz General Insurance Co. Ltd. 204-206 Time Square, Nr. Pariseema Complex, C G.
Road, Ellis Bridge Ahmedabad
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mrs. Hariharan, Advocate
Pronounced on : 2nd November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The State Commission dismissed the first appeal filed by the complainant as time
barred. There was delay of 204 days in filing the said appeal. Before the State Commission, the
petitioner explained the delay in para 4 of his application for condonation of delay, which is
reproduced as under:“4. The applicant submits that the order of the Hon’ble Forum is dated 15.3.2011. The advocate
for the applicant had written a letter to the applicant regarding the same but the applicant didn’t
receive the letter and was under impression that the complaint is still pending. The applicant
submits that thereafter when the applicant confirmed about the status from his advocate he came
to know that the complaint is dismissed and the order copy is already received and handed over
the same to the applicant.”
2.
It is also interesting to note that the petitioner did not learn a lesson and delayed the filing
of this revision petition before this Commission by further 10 days.
3.
We
have
heard
the
learned
counsel
for
the
petitioner. He
reiterated
the
pleas raised in para 4 above. The petitioner has put up a fragile excuse. Such like story can be
created at any time. There can be no reason as to why did not the petitioner receive the letter
sent by his advocate. Moreover, it is required that a litigant must be vigilant and diligent in
pursing his case. It is expected from a litigant to keep himself posted with the next date of
hearing. The petitioner should have gone to the office of his Advocate and enquire about the
then status of his case. Negligence, inaction and passivity is writ large on these pleas.
4.
The following authorities further weaken the case of the petitioner.
5.
In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was
sought to be explained on the ground that the counsel did not inform the appellant in time, was
not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office
and enquired about the case, especially when the case was regarding deposit of arrears of rent.
The statute also prescribes a time bound programme regarding the deposit to be made.
6.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellant in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
7.
In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer
that he did not inform the client about the progress of the case nor has he sent any letter, was
disbelieved while rejecting an application to condone delay.
8.
In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63
(SC), it has been held that “It is also apposite to observe that while deciding an application filed
in such cases for condonation of delay, the Court has to keep in mind that the special period of
limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the consumer
disputes will get defeated if this Court was to entertain highly belated petitions filed against the
orders of the Consumer Foras”.
9.
In Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010, it was held:
“The party should show that besides acting bona
fide, it had taken all possible steps
within its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the party
by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd
Edition, 2005]”
10.
In
other
case,
titled
as “Mahindra
Holidays
&
Resorts
India
Ltd.
Versus Vasantkumar H. Khandelwal & Anr.” [Revision petition No. 1848 of 2012 decided on
21.05.2012], the Bench of this Commission headed by Hon’ble Mr. Justice Ashok Bhan, has
rejected the explanation that the file was moving from table to table to get the permission to file
that appeal. It was further held that under the Consumer Protection Act, 1986, the District Forum
is supposed to decide the complaint within a period of 90 days from the date of filing and in case
of some expert evidence is required to be led then within 150 days. The said Bench dismissed the
revision petition on the ground that it was delayed by 104 days.
11.
See also the law laid down in Office of the Chief Post Master General & Ors. Vs. Living
Media India Ltd. & Anr. 2012 STPL (Web) 132 (SC).
12.
Thus the version put forward by the petitioner does not just stack up. In view of this
discussion, the revision petition is dismissed.
……………Sd/-………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO.123 OF 2012
Sapient Corporation Employees Provident Fund Trust, DLF Cyber Greens,
DLF Phase-III, Sector -25 A, Gurgaon 122 001
(Through Shri Amit Khera, Trustee and Director Legal)
….Complainant
Versus
1. HDFC Bank Ltd., a Scheduled Commercial Bank carrying on
banking business in the private sector and having its Registered
Office at HDFC Bank House, Senapati Bapt Marg, Lower Parel,
Mumbai- 400013 Maharashtra (Through its Managing Director Sh. Aditya Puri)
2. M/s. HDFC Bank Ltd. K.G. Marg Branch situated at G-3/4,
Surya Kiran Building, 19 K.G. Marg, New Delhi-110001
(Through its Manager Ms. Varna Bhattacharjee)
3. Mr. Anand Somiach, Manager (FIG Delhi), HDFC Bank, 3rd Floor
B-6/3, DDA Commercial Complex Safdarjung Enclave,
Opp. Deer Park New Delhi -110029
....Opposite Parties
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: Mr. Pradeep K. Dubey, Advocate
For the Opposite parties : Mr. Rishab Raj Jain, Advocate
PRONOUNCED ON: 01.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
Consumer Complaint No.123 of 2012 is filed by M/s. Sapient Corporation Employees
Provident Fund Trust (hereinafter referred to as the Complainant), against the HDFC bank
Ltd. The Complainant has also impleaded two Managers of the Bank as OPs 2 and 3. According
to the Complainant, the short point for consideration is whether the OP-Bank has committed any
deficiency of service in terms of the provisions of the Consumer Protection Act, 1986, by
debiting the account of the Complainant. It is alleged that the demand of recovery was against
the Sapient Corporation not against the Complainant i.e. Sapient Corporation Employees
Provident Fund Trust, which is a separate legal entity.
2.
Brief facts of the case, as per the Complaint petition, are—
"that on 21.08.2010 Opposite Party No.1, through O.P. No.2, informed the officials of
the Company and followed it up by an email to the Company, informing that they are in
receipt of an order/notice dated 20.08.2010 from the Employee Provident Fund
Organization (EPFO) for the recovery of Rs.1,47,52,766/- (Rupees One Crore Forty
Seven Lac Fifty Two Thousand Seven Hundred Sixty Six only) against the Company and
for prohibiting from making any payments out of the amount lying in the credit of M/s.
Sapient Corporation Pvt. Ltd. (Company). It was further informed that they had put on
hold on the account of the complainant to the tune of said amount and if the company
wishes to make the account operational, then it should bring the stay order by 12:00
noon of 23.08.2010.”
3.
Allegedly, the OPs were advised that no debit should be made to the account of the trust
since it was a different entity under the law from the Company. The officials of the Company
sent a reply e-mail to the OP-Bank in this behalf. However, on 25.8.2010 the OPs informed the
Company that they have already issued a demand draft on 23.8.2010 in compliance with the
notice of the Employees Provident Fund Organization dated 20.8.2010.
4.
It is alleged that the OPs have acted with wilful negligence in wrongly paying out an
amount of Rs.1,47,52,766/- (Rupees One Crore forty seven lakh fifty two thousand seven
hundred sixty six only), without any authority or mandate, from the account of the Complainant
and are therefore guilty of deficiency in service and hence are liable to refund the said amount
along with interest and damages together with legal expenses and costs of this
complaint. Accordingly, the Complaint Petition seeks the following reliefs:“a.
ORIGINAL AMOUNT Rs. 1,47,52,766 (Rupees One Crore forty seven lakh fifty
two thousand seven hundred sixty six only).
b.
INTEREST @ 36% per annum from the date of debiting the account of the
complainant i.e. 23.08.2010 till the date of realisation.
c.
DAMAGES on account of deficiency in service causing harassment misery,
hardships and agony etc. being Rs.50,00,000/- (Rupees Fifty Lac Only).
d.
LEGAL Expenses incurred by the Complainant, computed at Rs.1,10,000/-
(Rupees One Lac ten thousand only.)”
5. We have perused the records and heard the counsels for the two parties. A perusal of the
records as submitted by the Complainant and the facts as stated in the Complaint Petition shows
that the Bank had received order no.HR/GGN/COMP-I/26147/5466 dated 20.08.2010 from the
Assistant Provident Fund Commissioner, Gurgaon. It clearly mentioned the account no. as C/A00031110000846 which is the number of the account held by the complainant Trust with the OP
Bank directed the Bank to pay a sum of Rs.14752766/- (Rupees one Crore forty seven lakhs fifty
two thousand seven hundred and sixty six) only to the credit of the regional Provident Fund
Commissioner through a demand draft. The order also directed the Bank as follows:“It may further be noted that no payments out of future receipts in the account
/accounts or any interest accuring or becoming payable in the accounts or Fixed
Deposit Receipts of the defaulting establishments may be made in favour of anybody till
the balance payable towards PF damages stand fully liquidated and this order of
attachment stands withdrawn.
Evidence of the above payments or payments having been made in compliance of
this order may be produced before the undersigned immediately.
It may be noted that in the event of non-compliance of the requirements of this
order the undersigned will have no other alternative but to deem you personally to be
the Employer in default to the extent of Rs.14752766/- (Rupees one Crore forty seven
lakhs fifty two thousand seven hundred and sixty six only), under the provisions of the
clause (x) of the sub-section 3 of Section 8F of the Act and further action to recover the
said amount as if the same is arrears due from you will be initiated in accordance with
the relevant provisions of the E.P.F. & M.P. Act, 1952.”
Copies of e-mails produced on record by the Complainant show—
a. that the OP/bank had informed the complainant about the order of APFC, Gurgaon on the very
next day i.e. on 21/8/2010, stating categorically that it would wait for stay or revocation of the
order till 1200 hrs on 23/8/2010 and thereafter “would be debiting the a/c with the recovery
amount and remitting the funds to the authorities.”
b. Admittedly, the notice for payment of the above amount was received by the Sapient on
11.8.2010 in which 15 days time, from the date of receipt, was given to make the payment. But,
the reply sent to the Bank does not show if any action to either pay or to obtain stay/revocation
of the order had been taken in the 10 days preceding the complainant’s reply of 21.10.2010. It
only says “We are in a process of challenging the said order by filing an appeal with EPFAT
(Employees Provident Fund Appellate Tribunal on 25.8.10 i.e. Wednesday (since
Monday/Tuesday courts being closed due to festivals.”(Page 34 of the Paperbook).
c. The reply of 21.8.2010 from the Complainant to the OP/bank states that “The RPFC letter of
20.8.10 does not specify any deadline for the bank to make the payment.” Therefore, the
complainant had advised the bank not to make any payment on 23.8.2010. This is factually not
true. The relevant part of the APFC order, reproduced earlier in this order, would show that the
bank, under the threat of legal action, had been directed by the authority that “Evidence of above
payment or payments having been made in compliance of this order may be produced before
the undersigned immediately.”
6.
In para 10, the Complaint petition says that “ the Opposite Parties have acted with wilful
negligence in wrongly debiting an amount of Rs 1,47,52,766 (Rupees one crore forty seven lac
fifty two thousand seven hundred sixty six only), without any authority or mandate, in account of
the Complainant and are therefore guilty of deficiency in service”. But, neither the complaint
petition nor the counsel for the complainant have made any attempt to explain how does action in
compliance with the direction of a statutory authority become wilful negligence and deficiency
in service.
7. We find that a copy of the Legal Notice issued by the complainant, before filing the
consumer complaint, has been annexed as Annexure C-14. In para 3 it says “That the account
of my above client was debited by you inspite of clear instructions from my client not to effect
the debit specifically bringing to your notice that the said orders of recovery caused by the
EPFO are without any basis, without authority and hence against law.” Subsequently, in para 8
the Legal Notice says “That now, through this notice my client wishes to inform you that in an
appeal preferred by the Company challenging the alleged recovery before the EPF Appellate
Tribunal (EPFAT), the appeal has been allowed against the RPFC, Gurgaon and needless to say
this has vindicated the stand of my client.” From this it is clear that the complainant knew that
his remedy against the order of recovery, lay in challenging its legality before the appellate
authority. It did eventually file an appeal. The Appellate Authority allowed the appeal and set
aside the recovery order.
8.
The question that arises here is whether the fact of appeal being allowed by the EPFAT in
2011 will render compliance in 2010 by the OP/bank with the order of the EPFO, an act of
deficiency in service. Section 2(1)(g) of the Consumer Protection Act, 1986 has defined
“deficiency” to mean—
“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;”
It is not the case of the complainant that the act of the bank in paying the amount, in compliance
with the orders of a statutory authority and after giving the complainant due notice of the same,
amounts to a deficiency of service. The allegation in the complaint petition is that the payment
has been made by the OPs, despite request and advice of the complainant not to make it. In
support, the complainant has relied upon the decision of this Commission in Saraswati Co-Op
Bank Ltd Vs. Dean Leslie Roy 1 (2008) CPJ 163 (NC), wherein it was held that unauthorised
debit in complainant’s SB account, without his consent, amounted to deficiency of service. Facts
of the case cited are that the Directorate of Enforcement had imposed a penalty of Rs 50,000 on
the complainant. But the OP/Bank had remitted an amount of Rs 2.5 lakhs, debiting it to the
account of the complainant. Allegedly, this was done on oral instructions of the complainant.
The National Commission held that in the absence of the name of the Bank officer who had
allegedly received the oral instruction and the date thereof, there was no reason to disbelieve the
complainant that no such instruction was given. The facts of the case before us are on an entirely
different footing. The OP bank has paid the amount, in spite of the advice of the complainant not
to pay. Therefore, the question is not whether there was any instruction from the complainant to
pay. The question is whether the action of the OP bank in not implementing the complainant’s
direction to disobey specific, written directions of a statutory authority, would amount to a
deficiency of service, as defined under the Act.
9.
In view of the detailed consideration of the facts and circumstances of the case before us,
we hold that the action taken by OP bank was proper, legal and after reasonable notice to the
complainant. It does not amount to a deficiency of service and no cause of action would arise
from it. We therefore reject the contention of the complainant that the cause of action first arose
when the bank informed the company on 21.8.2010 about the communication received from the
EPFO and arose again when the OP debited the account of the complainant on 23.8.2010. The
complaint petition is accordingly held to be devoid of any merit.
10. We also deem it necessary to consider whether this complaint would attract the provision in
Section 26 of the Consumer Protection Act, 1986. This provision requires the consumer fora to
dismiss a complaint if it is found to be frivolous or vexatious in nature. In other words, we need
to see whether the complaint lacks seriousness and is filed without sufficient cause or without
sufficient grounds. Significance of this provision lies in the fact that the Consumer protection
Act, 1986 is a social legislation to provide economic justice and to protect the consumer from
exploitation. For this reason, no court fees are payable for filing a complaint, as required in civil
suits. Consumer Protection Rules, 1987 prescribes a maximum fee of Rs 5000 for making a
complaint, involving total value above Rs one crore. Therefore simultaneously, there is need to
guard against possibility of such absence of court fee being misused for pursuing false and
frivolous litigation in the consumer fora. In this context, the following facts acquire special
significance—
a. The complaint is filed after the complainant had already won his appeal in the EPFAT against the
recovery of Rs 1,47,52,766 (Rupees one crore forty seven lac fifty two thousand seven hundred
sixty six only) made as per order of the EPFO, Gurgaon.
b. The complaint does not disclose whether consequent action, in pursuance of the order of EPFAT,
for obtaining refund of the excess/wrong recovery has been initiated by the complainant Trust or
by the company. If not, why?
c. If refund is already claimed or received from the EPFO as per the order of EPFAT, the complaint
makes no attempt to explain what is that other loss which is sought to be recovered from the OP
bank, as the appeal before the EPFAT also included claim for interest.
11. We therefore, hold that the complaint is not only without merit but also frivolous and
vexatious in nature. It has been filed with a very palpable purpose to harass the OP bank.
Consequently, Consumer Complaint No. 123 of 2012 is dismissed for want of merit as well as
for being vexatious and frivolous in nature. We therefore, deem it just and proper to impose cost
of Rs.25,000 on the complainant. The same shall be paid to the OP/HDFC Bank within a period
of three months. Failing this, the amount shall also carry interest at 10% for the duration of
delay.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………….
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1227 OF 2012
(Against the order dated 28.11.2011 in First Appeal No.931/2009 of the State Commission,
Haryana)
Dharambir, S/o Sh. Jhangi Ram R/o H No.89, Ram Nagar, Karnal Haryana
……….Petitioner
Versus
New India Assurance Co. Ltd. Divisional Office Gagan Building G T Road, Karnal
Haryana Also at New India Assurance Co. Ltd.,Regional Office: SCO no.36-37 Sector- 17-A,
Chandigarh
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Ms. Renu Verma, Advocate
For the Respondent
: Mr. J.P.N. Shahi, Advocate
PRONOUNCED ON: 01.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The revision petitioner Shri Dharambir was
the Complainant
before
the District
Forum, Karnal. The matter pertains to a car which was stolen on 24.10.2007. The OP/New India
Assurance Company had repudiated the claim on the ground that the Complainant had no
insurable interest on the date of loss, as he had already sold vehicle to one Shri Dilprit Singh on
24.7.2007. The District Forum examined Shri Dilprit Singh, who stated that he had borrowed the
car from the Complainant Dharambir for journey to Chandigarh and had not purchased it from
him. The District Forum therefore allowed the complaint and directed the insurance Company to
indemnify the Complainant. Appeal of the present respondent/New India Assurance Company
was allowed by the Haryana State Consumer Disputes Redressal Commission on reconsideration
of the documentary evidence led before the fora below.
2.
Therefore, the main question is whether the petitioner Dharambir was the owner of the car
in question or whether it was Dilprit Singh. The records of the case have been carefully perused
by us and the two counsels, Ms. Renu Verma, for the revision petitioner and Mr. J.P.N. Shahi, for
the respondent, have been heard. The main ground of challenge to the impugned order of the
State Commission is that the State Commission had failed to consider the statements of the
Complainant and Dilprit Singh before the District Forum that they had been misguided by the
insurance agent. The revision petition also objects to consideration of certain records by the State
Commission on the ground that they were not produce before the District Forum.
3.
However, interestingly one of the grounds of challenge to the impugned order comes very
close to admitting that the vehicle had infact been sold to Dilprit Singh but its ownership was not
transferred as the whole consideration had not been paid by the buyer, while the liability of the
seller to pay the financier was still continuing. The relevant ground (H) read as follows:“That assuming though not admitting that the car was sold by the complainant
to Dilpreet Singh, the Hon’ble State Commission should have considered that as per the
alleged annexure A-4 the whole consideration/price of the car has not been paid
by Dilpreet Singh and the complainant is still liable to pay to the ICICI Bank; hence the
ownership of the car remains with the complainant.”
4.
A perusal of the impugned order shows that the State Commission has relied upon the
following documents in arriving at its findings:a) The FIR filed before the Police (Annexure- 6) on 29.10.2007 was filed by Dilprit Singh, as the
owner of the vehicle and not by the Complainant.
b) In the affidavit of 25.9.2007 (Annexure 5), the Complainant Dharambir s/o Jhangi Ram has
categorically stated that:“1. I have sold a Hyundai Accent car bearing Registration no.HR05S-2616 model 2006 engine
no.307124 and chassis no.156038 to Sh. DilpreetSingh son of Sh. Harvinder Singh R/o
H.No.321-R, Model Town Karnal on 24/7/2007.
2. That the deponent has received its payment from the purchaser and balance amount of loan
will be paid by the purchaser to the bank/Fi.
3. That after 24/7/2007 the purchaser will be responsible for all kinds of accidents, court
case, polie challan bank/FI dues against the said vehicle.
4. That the deponent has not any objection if the said vehicle be transferred in the name of the
purchaser after the clearance of loan dues of bank/FI.”
This document not only shows that the vehicle had been sold to Dilprit Singh but also gives the
reasons why it has not been registered in the name of the purchaser. Its contents are also in line
with Ground H in the revision petition, mentioned earlier in this order.
c) The Delivery cum-Receipt of the vehicle (Annexure 4) has been executed 24.7.2007, in a
printed form. It is not only signed by these two persons as the vendor and the vendee but also by
two witnesses.
d)
In a letter of 3.12.2007 (Annexure 3), addressed by Dilprit Singh to SDM (Registering
Authority, Motor Vehicle Karnal) a request is made to the Registering Authority not to register
this vehicle in the name of any other persons as it belongs to him. It is also informed that it was
stolen on 24.10.2007 and has not been traced since then.
5.
The revision petitioner has questioned acceptance of the above documents by the State
Commission on the ground that they were not produced before the District Forum. However,
from the records we find that these documents were clearly mentioned in the appeal
memorandum of the present respondents before the State Commission. The revision petitioner
was not unrepresented and his counsel was heard by the State Commission. This would mean
that the petitioner/Complainant had full opportunity to question the veracity of any of these
documents, if he had wished so. We therefore, do not accept the objection now raised by him in
the present proceedings.
6.
We find that the above documents considered by the State Commission, clearly establish
that the complainant had sold the vehicle to Dilprit Singh before it was stolen. Therefore, the
State Commission was right when it held that the OP/Insurance Company had rightly repudiated
the claim.
7.
On the question of insurable interest, the following two decisions have been cited by the
counsel for the petitioner:1.
2.
New India Assurance Co. Ltd. Vs. G.N. Sainani, (1997) 6 - SCC 383.
New India Assurance Co. Ltd. Vs. M/s. T.T. Finance Ltd. & Ors., AIR 2011 Delhi, 121.
The first related to assignment of the policy of insurance of goods under a Marine insurance
policy. Hon’ble Supreme Court held that the assignee of policy of insurance must have an
existing insurable interest in the goods till the time of termination of the insurance so as to entitle
him to lodge a complaint as a consumer. The second case arose from loss of an insured
vehicle. The insurance policy was issued in the name of the finance company and the
borrower. The High Court of Delhi held that insurable interest clearly existed in favour of the
finance company as it had financed purchase of the vehicle under a hire purchase
agreement. The
fact
that
the
name
of
the lonee was
also
mentioned
in
the
insurance policy, would make no difference as the contract was between insurance company and
the finance company.
8.
The facts in both these cases are totally different and therefore, the case of the revision
petitioner does not derive any support from either decision.
9.
In conclusion, we find no substance in this revision petition and dismiss the same for want
of merit. The order of Haryana State Consumer DisputesRedressal Commission in FA No.931 of
2009 is accordingly confirmed.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3597 OF 2012
(From the order dated 11.04.2012 in Appeal No. 1813/2006 of the State Consumer Disputes
Redressal Commission, Haryana, Panchkula) WITH IA/1/2012, IA/2/2012 (STAY & DELAY)
1. Manju Sharma @ Mamta Bhardwaj w/o late Shri Ashok Kumar S/o Late Shri Ratan Lal
2. Ms. Anshu Bhardwaj (minor) d/o Late Shri Ashok Kumar through the gaurdship of Mamta
Sharma @ Mamta Bhardwaj hear real mother
3. Kela Devi Mother of Late Shri Ashok Kumar & widow of late Shri Rattan Lal All residents
of H.No. 283/3, Opposite Ajit Cinema, Delhi Road, Gurgaon (Haryana)
… Petitioners
Versus
Life Insurance Corporation of India,Branch Unit 122, E.P. Plot No. 17, Near Syndicate Bank
Old Railway Road, Gurgaon-122001 through Its Senior/Branch Manager (At Present) Life
Insurance Corporation of India, Branch Unit 122, at Plot No. 104, Sector 44, Near Gold Souk,
Chowk, behind Apreal House, Gurgaon-122002, Haryana, Thorugh Its Chief Manager
… Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mr. Rishi Jain, Advocate with
Mr. Rajender Pathak &
Mr. Vinod Kr. Bhardwaj, Advocates
Pronounced on : 1st November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Deceased Ashok Kumar had obtained three Life Insurance Policies from Life Insurance
Corporation of India Limited, Opposite Party, on separate dates. Unfortunately, the insured
passed away on 17.08.2003. The case of the petitioner Smt. Mamta Sharma @ Mamta
Bhardwaj, wife of the insured and other complainants is that the deceased died due to
electrocution. Since the complainants failed to produce evidence in this respect, therefore, the
accident benefits were denied by the opposite party. Both the Foras below have refused to allow
the claim prayed by the complainants.
2.
We have heard the counsel for the petitioners. He explained that the deceased/insured died
of electrocution. He was taken to Kalyani Hospital, Gurgaon where he died. A slip-Annexure
20 reveals that the body of the deceased was handed over to Vinod Kumar, brother of the
deceased for taking him to Civil Hospital. Learned counsel for the petitioners vehemently
argued that as per society rituals, the body of the deceased was not taken to the Civil Hospital for
postmortem examination. The case of the petitioner hinges upon the fact that a civil suit was
filed against the LIC, wherein Dr. Arun Vashisth, Medical Officer, Kalyani Hospital admitted
that the deceased had died due to electrocution. It is also interesting to note that the statement of
Dr. Arun Vashisth, Medical Officer was also recorded before the District Forum. In his
deposition, Dr. Arun Vashisth stated that the patient was brought to the hospital’s emergency
department and was declared dead on arrival. He further stated that the ECG showed flat
line. He testified that he was brought with the history of electric shock. In his cross-examination,
he explained that he cannot comment on the exact cause of death of the patient but the patient
was brought with the history of electrocution. He could not say whether the postmortem was
conducted on the dead body or not. Learned counsel for the petitioners opined that all these facts
and circumstances sufficiently establish the fact that the insured had died due to electrocution.
3.
For the following reasons, we do not find ourselves amenable to these arguments. The
deceased died due to electrocution is a mere allegation, which is not supported by any cogent,
convincing ad conclusive evidence. It is difficult to fathom as to why did the kith and kin of the
deceased think it better not to get the autopsy conducted on the dead body of the deceased. It is
not understood as to why did they bury their heads in the sand. Search for truth is the foundation
of Judiciary. Again, truth is foundation of all knowledge and cement of all societies. It is
painfully apparent that it is impossible to gauge the reasons. The absence of any evidence has
taken the steam out of complainants’ case. It cannot be presumed that the deceased died due to
electrocution. The evidence adduced by the complainants does not go to scotch the doubts about
this case.
4.
The revision petition is devoid of merits and therefore, the same is dismissed.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(VINAY KUMAR)
MEMBER
Jr/10
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2615 OF 2011
with I.A. NO.01 OF 2012 (Application for Stay)
I.A. NO.02 OF 2012 (Application for Condonation of Delay)
(From the order dated 31.3.2011 in Appeal No.537 of 2008 of the State Commission, Punjab,
Chandigarh)
Life Insurance Corporation of India (A Body Corporate Constituted under the Life Insurance
Corporation Act) H-39, Connaught Place, New Delhi – 110 001.
….Petitioner
Vs.
1.
Smt. Priya Sharma W/o of Late Shri Sanjay Sharma
2.
Master Nischal Sharma, S/o of Late Shri Sanjay Sharma
3.
Miss Mansi Sharma D/o of Late Shri Sanjay Sharma
4.
Master Chirag Sharma S/o of Late Shri Sanjay Sharma
Respondents no.2 to 4 through their Mother and Natural Guardian Respondent no.1
All at : 215A, Nijatam Nagar, Jalandhar, Punjab
…Respondents
REVISION PETITION NO. 2616 OF 2011
with I.A. NO.01 OF 2012 (Application for Stay)
I.A. NO.02 OF 2012 (Application for Condonation of Delay)
(From
the
order
dated
31.3.2011 in Appeal
No.
538
of
2008 of the
Commission, Punjab, Chandigarh)
Life Insurance Corporation of India (A Body Corporate Constituted under the
Life Insurance Corporation Act) H-39, Connaught Place, New Delhi – 110 001.
….Petitioner
Vs.
State
1.
Smt. Priya Sharma W/o of Late Shri Sanjay Sharma
2.
Master Nischal Sharma, S/o of Late Shri Sanjay Sharma
3.
Miss Mansi Sharma D/o of Late Shri Sanjay Sharma
4.
Master Chirag Sharma S/o of Late Shri Sanjay Sharma
Respondents no.2 to 4 through their Mother and Natural Guardian Respondent no.1
All at : 215A, Nijatam Nagar, Jalandhar, Punjab
…Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner (s)
:
Mr. Neeraj Gupta, Advocate
Pronounced on: 2nd November, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
By this common order, above noted revision petitions are being disposed of as common
question of law and facts are involved.
2.
Facts in brief are that respondents/complainants filed complaints under section 12 of the
Consumer Protection Act, 1986 (for short ‘Act’) pleading that respondent no.1 is the wife and
respondents no.2 to 4, are the children of Sh. Sanjay Sharma, who was running a sweet shop
at Bansawala Bazaar, Jalandhar. He had taken a Marriage Endowment/Educational Annuity Plan
with profit along with accidental benefit, bearing policy no.131706510 for a sum of
Rs.2.00 lacs and also Jeevan Chhaya policy bearing No.131915231 for a sum of Rs.2.00 lacs. On
24.03.2005, Sh. Sanjay Sharma developed some pain in the stomach and was admitted in DMC
& Hospital, Ludhiana and died on 24.03.2005. Respondent no.1, vide letter dated 05.07.2003
informed the petitioner regarding death of her husband and requested it to settle the death claim
under the above policies. However, petitioner, vide letters dated 27.10.2005 and 23.11.2005,
repudiated the death claim of late Sanjay Sharma, illegally on the ground that deceased was
suffering from diabetes and was a chronic alcoholic for the last 10-20 years and he did not
disclose these facts at the time of taking the policies.
3.
Respondent no.1 made a representation against the repudiation letter dated 27.10.2005 and
requested the Petitioner to withdraw the same and to afford an opportunity of hearing. Petitioner,
vide letter dated 17.04.2006, declined the said representation. It is stated that before issuing the
said policies, the agent/surveyor acting on behalf of the petitioner had satisfied himself qua the
health of Sh. Sanjay Sharma-deceased. Thus, there was no concealment on the part of the
insured. Finally, legal notice dated 31.05.2006 was also sent, but of no use. It was prayed that
petitioner be directed to pay the claim amount along with interest and compensation to the tune
of Rs.3,70,000/- along with interest @ 18% p.a.
4.
In its written statement, petitioner took preliminary objection that the life assured at the time
of taking the policies has suppressed the material facts and gave wrong answers in the proposal
form. The duration of the policy was one year and eight months and it was reported that the life
assured was in the habit of taking alcohol and was addicted to it. It is alleged that as per Form
no.3816 issued by the DMC & Hospital, Ludhiana, it reported diagnosis of acute pancreatitis
K/L/O of DMX 2 to 3 years and history of alcohol intake 10 to 20 years. As per
report, insured was admitted in the hospital with complaint of pain in the abdomen and
vomiting. Further, as per history given by the said hospital in Form no.3784, it transpired that
alcoholic intake 10 to 20 years 500 M.L. K/L/O of DMX 2 to 3 years of regular medicines and
the history was reported by the patient himself. Thus, petitioner rightly repudiated the claim of
policy no.131706510 and other policy no.131915231 and decision was conveyed to the
respondent no.1, vide registered letter dated 27.10.2005. Appeal filed by the respondents before
the Zonal Officer (C.R.C.), New Delhi, was also dismissed and the decision was conveyed, vide
letter dated 17.04.2006. There is no deficiency in service on the part of the petitioner.
5.
District Consumer Disputes Redressal Forum, Jalandhar (for short ‘District Forum ‘) vide
its order dated 29.2.2008, allowed the complaints and quashed the repudiation letter and directed
the petitioner to honour the policy and release all the benefits including interest and bonus to the
nominees at the stipulated rate as per terms and conditions of the policy. Further, respondents
were awarded interest @ 9% per annum from the date of repudiation, till payment and also
awarded cost of Rs.3,000/-.
6.
Aggrieved by the orders of District Forum, petitioner filed appeals before the State
Commission which vide its impugned order, dismissed the appeals of the petitioner.
7.
Hence, this revision.
8.
It has been contended by learned counsel for petitioner that contract of insurance is a
contract of utmost good faith. In the present case, the insured has suppressed the material facts
about his health and habits in the proposal form at the time of taking of the policy. The
suppression of material information itself violates the terms of the contract. Under these
circumstances, impugned order is liable to be set aside.
9.
District Forum in its order has held;
“In this case, case of the complainant is covered U/s 45 Sub Clause 2 of Life
Insurance Act only and the OPs were bound to prove that insured was suffering from
pre-existing disease before taking policy and he deliberately made the false statement
with intention to defraud the Insurance Company.
Therefore, in this case, the Insurance Company was bound to prove that insured
had received treatment in diabetes mellitus or he was being aware from the suffering of
the disease before purchase of the policy. In this case documents 3816 and 3784
produced by the OPs, Ex.O-6 and Ex.O-7 produced by the OPs relates to the treatment
much after the policy and there is no medical record or affidavit of the doctor that
insured had taken treatment before start of the policy. Therefore, in this case, the OPs
have failed to produce the direct evidence of treatment before start of the policy.”
10.
The State Commission while upholding the decision of District Forum, observed;
“14. Admittedly policy no.131706510 was for Marriage/ EducationalAnnuity etc. and it was
accepted on 15.07.2003. The deceased life assured Sh. Sanjay Sharma developed pain in
the stomach and was admitted in DMC & Hospital, Ludhiana on 24.03.2005 and cause of
death given was acute severe pancreatitis and shock. He was diagnosed as acute
pancreatitis K/L/O of DMX 2 to 3 years, history of alcohol intake 10 to 20 years. The onus
was on the appellant to prove that the decease life assured was suffering from such
diseases prior to taking of the policy in question. The appellant tendered the affidavit
Ex.OW1 of Sh. S.L. Dhupar, Manager, who has stated on oath as per the reply filed.
Ex.OW2 is the affidavit of Sh. R.K. Sharma, Manager, who has deposed that as per medical
record, life assured was suffering from acute pancreatitis K/L/O of DMX 2 to 3 years
and as per the record, the life assured had the history of alcohol intake 10 to 20 years.
Ex.OW3 is the affidavit ofDr. Raj Kumar Vagal. He has also deposed that as per the record,
Sh. Sanjay Sharma was admitted in the hospital on 22.03.2005 and at the time of
admission, the hospital maintained the record and Sh. Sanjay Sharma was discharged from
the hospital on 23.03.2005. Form no.3816 was duly filled in as per the record maintained
by the hospital and Form no.3816 is correct as per the record maintained by the hospital.
Ex.O5 is the certificate of Identity and Burial or Cremation and in columns no.6,7 and 11,
what was diagnosed and case summary, is given by one Rajiv of DMC & Hospital,
Ludhiana which is signed by the Professor, Department of Surgery, DMC & Hospital,
Ludhiana and is countersigned by the Medical Superintendent of DMC & Hospital, . Ex.O7
is the certificate of hospital treatment wherein in columns no.6 and 7, diagnosis are given
and in column no.11 (history of illness as per the record), it is mentioned that patient was
not admitted before this time. Ex.O8 is the death certificate. Ex.O9 is Agent’s Confidential
Report and Ex.10 is the policy in question and Ex.11 is the letter dated 27.10.2005,
repudiating the claim of the respondent no.1 Smt. Priya Sharma. Ex.12 is the medical
attendance certificate and it was given by Dr. Sagar Sabharwal. The appellant has not
examined any of the doctors or the persons, who wrote the history or the person, who gave
the history. The appellant has also examined Sh. Pawan Kumar, Head Clerk, Medical
Record Department, DMC & Hospital, Ludhiana. He has deposed that he has brought the
record pertaining to patient Sh. Sanjay Sharma and he was admitted in their hospital on
24th March, 2005 in emergency department and was treated by Dr. Rajeev Arora and he
died on the same day. LIC Form No.3816 was filled up by Dr. Rajeev Arora and signed
byDr. Kuldeep Singh which is countersigned by the Medical Superintendent of the hospital.
Similarly, Form No.3784 was filled up by Dr. Sabharwal and the information recorded is
correct. In his cross examination, he deposed that the record is not in his handwriting and
the same was not prepared by him. He does not know regarding the deceased and the
treatment which was given to Sh. Sanjay Sharma in their hospital. He cannot tell
personally as to for how many years, deceased Sh. Sanjay Sharma was suffering from any
alleged disease. Neither the deceased nor his wife Smt. Priya Sharma narrated the history
regarding the health of deceased Sanjay Sharma in his presence. He further admitted that
in Form No.3816 in column no.5(c), it is mentioned by the hospital regarding the health of
Sh. Sanjay Sharma narrated by his wife Smt. Priya Sharma and in contradiction to this
statement in Form no.3784, it has been mentioned in column no.7 (c) that the history of
deceased
was
narrated
by
the
patient
himself.
He
admitted
that Dr. Sagar Sabharwal and Dr. Rajeev Arora both are working as Senior Residents in the
hospital. Dr. Kuldeep Singh is still in the hospital. He has not worked under any of the
doctors under reference, as his duty is confined only to maintain the record of the patients
in the record room.
15. Thus, from the entire evidence led by the appellant, it is clear that the relevant piece
of evidence has not come on record, to prove that the deceased life assured was
suffering
from
pre-existing
disease
at
the
time
of
taking
the
policy.
Neither Dr. Sagar Sabharwal nor Dr. Rajeev Arora, who are still working in DMC &
Hospital,
Ludhiana
as
Senior
Residents,
was
examined.
As
per
witness Pawan Kumar, Dr. Kuldeep Singh is still working in the hospital, but he has not
been examined. The witness examined by the appellant is of no help to the appellant, as
he knows nothing about the assured or any disease/pre-existing disease suffered by him
because he is only maintaining the record.”
11.
State Commission further observed;
“In this case, there is no evidence on record to prove that the deceased life
assured was suffering from any pre-existing disease at the time of purchasing the policy.
As discussed above, the onus lay heavily on the appellant to prove that the deceased life
assured suppressed the material facts and even the doctor of the appellant, who examined
the life assured at the time of taking the policy, has also not been examined and how it
can be expected that a competent doctor examining the person before the purchase of
policy, will not be able to detect that the person filling the proposal form is not suffering
from such disease which exists much prior to the date of taking of the policy. There is no
evidence to prove that the deceased was ever admitted or took any treatment from any
hospital or the doctor regarding the alleged pre-existing disease. The District
Forum has arrived at a correct conclusion and there is no ground to interfere in the
same."
12.
As per settled law, the onus to prove that insured was suffering from pre-existing disease
is on the petitioner. Petitioner has admittedly not examined any doctor to prove this fact that
insured was suffering from any pre-existing disease at the time of taking the policy. Had the
Doctor been examined, then respondents would have got the opportunity to examine the
petitioner’s witnesses and to demolish the petitioner’s defence.
13. In Tarlok Chand Khanna v/s. United India Insurance Company Ltd. I(2012) CPJ 84
(NC) this Commission has observed;
“The onus to prove that the Petitioner was suffering from a pre-existing disease as
per settled law is on the respondent. We note that the respondent has not produced any
credible documentary evidence/expert medical opinion in support of its case. The
medical opinion dated 16.3.2003 of Dr. Neel Kanth Sharma cited in support is of little
evidentiary value because he is not a medical expert being an M.B.B.S doctor and on
the panel of physicians of the Respondent/Insurance Company. His letter is also not
backed by any affidavit nor was he ever cross-examined. Further, it is not disputed
that the insured had been taking mediclaimpolicy right from 1996 and nowhere has it
been recorded that she had any medical condition including the problem of the knees,
by the Respondent’s doctor who examined her. Thus, there is no record produced by
the Respondent to indicate that any such disease existed and that it was, therefore, preexisting disease was on the Respondent which as stated above, it has failed to do.”
14.
It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very
limited. This Commission can interfere with the order of the State Commission where such State
Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material
irregularity.
15.
Recently, Supreme Court in Gurgaon Gramin Bank Vs. Smt. Khazani & Anr., Civil Appeal
No.6261 of 2012 decided on 4.9.2012, has observed ;
“12. We are of the view that issues raised before us are purely questions of facts
examined by the three forums including the National Disputes RedressalCommission
and we fail to see what is the important question of law to be decided by the Supreme
Court. In our view, these types of litigation should be discouraged and message should
also go, otherwise for all trivial and silly matters people will rush to this Court.”
16. In view of the above facts it has not been established by the petitioner that insured had any
pre-existing disease which would justify repudiation of the claim.
17.
For the reasons stated above and particularly in the absence of any credible documentary
or other evidence produced by the petitioner on whom was the onus to prove the reasons for
repudiation, both these revision petitions stand dismissed with cost of Rs.5,000/- (Rupees five
thousand only) each.
18. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer
Legal Aid Account” of this Commission, within four weeks from today.
19.
In case, cost is not deposited within the prescribed period, petitioner shall be liable to pay
interest @ 9% p.a., till realization.
20. Pending applications, if any, stand disposed of.
21. List on 14.12.2012 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1924
OF 2011
(From the order dated 27.4.2011 in First Appeal No.702/2010
of the State Commission, Chhattisgarh, Raipur)
Nirmal Singh S/o Shri Jagdish Singh, R/o Tatibandh, Raipur (C.G.)
2nd Address: C/o B.N. Road Lines, Lift & Sift Complex, Ring Road No.2,
Gondwara, Raipur (C.G.)
….Petitioner
Vs.
The Oriental Insurance Company Ltd. Through: Senior
Divisional Manager Division Office No.2, Chawla Complex,
Devendra Nagar Road, Raipur (C.G.)
...Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
Mr. R.K. Bhawnani, Advocate
For the Respondent
:
Mr. Rahul Sharma, Advocate
Pronounced on: 5th November, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner by way of present revision has challenged order dated 27.4.2011, passed by
State Consumer Disputes Redressal Commission, Raipur (for short, ‘State Commission’).
2. Brief facts are that petitioner/complainant being the owner of Truck No.C.G.17-H/8111, had
insured the same with respondent/O.P. under Policy No.61602 for period from 22.06.2007 to
21.06.2008, having Insured value of Rs.7,00,000/-. Said vehicle met with an accident on
12.07.2007 resulting in its extensive damage due to collusion with another truck. Intimation
about loss caused to the truck, was sent to the respondent, which appointed an Investigator/
Surveyor, who conducted spot survey of the site of accident. Intimation of accident was also
given to the Police. Petitioner averred that claim form along with relevant documents was
subsequently filed with respondent which entrusted M/s Sunil & Company for assessment of loss
caused to the vehicle. Petitioner cooperated with the Surveyor in assessment of loss and also
provided him relevant bills, who submitted his report to the respondent on 31.10.2007. Petitioner
averred that he had suffered loss of Rs.5,79,137/-, whereas respondent without any proper
reason assessed the loss as Rs.3,10,000/-only. It is further alleged by the petitioner that on
21.7.2008 he wrote a letter to the respondent and raised objection that the total loss in the vehicle
is of Rs.5,79,137/-. Even thereafter, respondent has sanctioned Rs.3,10,000/- and in this way this
amount was not accepted by the petitioner. Further, petitioner in his letter has clearly stated that
since he has suffered heavy loss in the vehicle and financial also, therefore by keeping his rights
reserved, he is accepting the said amount under protest. Since, respondent did not settle the
complete amount of loss as per the bills submitted by him, it amounted to deficiency in service
and unfair trade practices. Thus, petitioner prayed that respondent be directed to pay balance
claim of Rs.2,79,137/- alongwith compensation of Rs.1,00,000/- for mental agony and costs of
the proceedings.
3. Respondent, while resisting the complaint, averred that it had entrusted M/s Sunil &
Company for assessment of loss caused to the vehicle, which after inspecting the vehicle on
01.08.2007, submitted its report. Said surveyor initially had assessed the estimated loss of
Rs.4,50,000/- and finally assessed the loss as per actual bills. Respondent averred that Surveyor
in its final report dated 31.10.2007 had assessed salvage value of Rs.7,500/-, which was
subsequently reassessed for Rs.15,000/-. Further, as per final assessment of Surveyor, a
discharge voucher for Rs.3,10,000/- was sent to the petitioner on 27.06.2008, who executed the
same independently under full and final settlement of claim. Hence, respondent settled the claim
for Rs.3,10,000/- and as such it had not committed any deficiency in service.
4. District Consumer Disputes Redressal Forum, Raipur (for short ‘District Forum’), vide its
order dated 2.11.2010, allowed the complaint and directed the respondent to pay a sum of
Rs.2,69,137/- to the petitioner along with interest @ 6% p.a. from the date of filing of the
complaint i.e. 31.10.2008 and also to pay compensation of Rs.5,000/- for mental agony with cost
of litigation Rs.1,000/-.
5.
Aggrieved by the order of the District Forum, petitioner filed an appeal before the State
Commission, which vide its impugned order, modified the order of District Forum and passed
the following directions;
(i)
The appellant will pay Rs,36,430/- (Rupees Thirty Six Thousand Four Hundred Thirty only) in lieu
of the amount as awarded in the impugned order.
(ii)
Other part of the order of Learned District Forum will remain unaltered.
6.
Dissatisfied with the order of the State Commission, petitioner has filed the present
petition.
7.
I have heard the learned counsel for the parties and have gone through the record.
8.
It is contended by learned counsel for the petitioner that State Commission has not gone
through the documents and affidavit filed by the petitioner and has passed the order which is
against law.
9.
Further, State Commission overlooked the important fact that all the bills were produced
before the surveyor and the respondent, but same were not accepted by them. The said bills were
presented before the District Forum which after considering all the facts have awarded the
balance amount of Rs.2,69,137/-. The State Commission on imaginary ground reduced the
amount without any reason.
10.
It is further contended that the State Commission rejected the various items claimed by the
petitioner without any reason and has not even considered the amount which was spent by the
petitioner. Therefore, the order of the State Commission deserves to be modified.
11.
On the other hand, it has been contended by learned counsel for the respondent that
amount of Rs.3,10,000/- has been sanctioned as per the surveyor’s report. Further, discharge
voucher was signed by the petitioner voluntarily and without any force or pressure and principle
of estoppel will apply in this case. The present complaint filed by the petitioner is an afterthought and there is no ambiguity in the impugned order.
12.
The State Commission in its impugned order has held as under;
“Undisputedly, the questioned vehicle was insured with the appellant
company, and its accident claim was settled for Rs.3,10,401/- as per surveyor’s report
and after collecting discharge voucher from the respondent”
13. As per record, respondent vide its letter dated 14.7.2008 (page 62 of the paper book)
informed the petitioner that his claim have been approved for Rs.3,10,000/- and he was requested
to sign the discharge voucher. In response to this letter, petitioner vide his letter dated 21.7.2008,
stated that sum of Rs.3,10,000/- offered by respondent is not acceptable to him. However, since
his vehicle has suffered the damage and he has suffered financial loss, subject to his rights, he is
willing to accept that amount.
14.
In response to petitioner’s letter dated 21.7.2008, the respondent sent him letter dated July
28, 2008, relevant portion of which reads as under;
“The discharge voucher sent to you has however not been returned duly
signed by your side. In absence of which the company can not proceed further to
make payment towards the subject claim.
The sum arrived at is most reasonable as it is solely based on the bills of
repairs submitted by you, and the company being indemnifier can only be liable to
indemnify the actual loss (supported with bills) suffered by the insured. You should
therefore have no objection regarding acceptance of the amount assessed by the
company in full and final satisfaction of the claim.
You are, therefore, requested to send the discharge voucher duly signed as
acknowledgement of acceptance of amount, to enable the company to settle the claim
as early as possible.”
15.
Thus, it is manifestly clear that respondent vide its letter dated 28.7.2008, again
brought to the notice of the petitioner that sum of Rs.3,10,000/- would be towards full and
final settlement. The petitioner, knowingly and willingly signed the discharge voucher in
full and final settlement of his claim. Now, petitioner is estopped from repudiating the
discharge voucher duly singed by him.
16. 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”.
17.
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 uponthem 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. An “offeree” cannot be permitted
to
change
his
mind
after
the
unequivocal
acceptance
of
the
offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only
amount to acceptance if it is clear that the offeree did the act with the intention
(actual or apparent) of accepting the offer. The decisions which we have noticed
above also proceed on this principle. Each case must rest on its own facts. The courts
must examine the evidence to find out whether in the facts and circumstances of the
case the conduct of the “offeree” was such as amounted to an unequivocal
acceptance of the offer made. If the fact of the case disclose that there was no
reservation in signifying acceptance by conduct, it must follow that the offer has been
accepted by the conduct. On the other hand, if the evidence discloses that the
“offeree” had reservation in accepting the offer, his conduct may not amount to
acceptance of the offer in terms of Section 8 of the Contract Act”.
18. In the present case, there is nothing on record to show that petitioner was compelled by
the respondent 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.3,10,000/- as far as back in the year 2008, has been enjoying
the aforesaid money for more than four 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 the 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.
19.
Thus, there is no merit in the present petition and same is accordingly dismissed with
cost Rs.5,000/- (Rupees Five Thousand only).
20.
Petitioner is directed to deposit the cost by way of demand draft in the name of
“Consumer Legal Aid Account” of this Commission, within four weeks from today.
21.
In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then
he shall also be liable to pay interest @ 9% p.a., till realization.
22.
List on 14th December, 2012 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.1790 OF 2012
(Against the order dated 02.12.2011 in First Appeal No.313/2011 of the State Commission,
Haryana)
Suresh Kumar S/o Sh. Tika Ram R/o VPO Kiloi, District Rohtak Haryana
Also at Panchi Road, Opposite Dhankar Nursing Home, Gandhi Nagar,
Ganaur, District Sonepat Haryana
……….Petitioner
Versus
National Insurance Company Ltd. Having its Regional Office
at SCO 337-340 Sector 35-B, Chandigarh Through its duly
constituted attorney Mrs. Rajvinder Kaur, Asstt. Manager
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Anil Hooda, Advocate
PRONOUNCED ON: 05.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The revision petition has been filed against order of the Haryana State Consumer
Disputes Redressal Commission in FA No.313 of 2011. The revision petition has been filed with
a delay of 28 days for which an explanation has been offered in the application
for condonation. However, a perusal of the application shows that it neither mentioned the
quantum of delay nor does it contain reasonable explanation for it. The total explanation is
contained in the following few paragraphs of the application:“2.
That the impugned order was passed on 28.12.2011 in the above said
matter. The counsel engaged by the petitioner before the State Commission did not
intimate about the order dated 02.12.2011 so the petitioner was not aware of the order
dated 02.12.2011. It took time to collect documents from various courts and to engage
counsel before this Hon’ble Commission. So there is delay in filing the present
petition.
3.
That the delay in filing the petition is neither intentional nor deliberate but
due to the reason stated above.”
Reading of the above, gives no idea when the petitioner or his counsel came into knowledge
about the passing of the impugned order of 28.12.2012. Similarly, it gives no idea of the
quantum of delay which is attributable to collection of documents and engaging of a counsel. In
short the application carries no explanation at all of the delay. The revision petition is therefore,
liable to be dismissed on the ground of delay alone.
2.
Coming to the merits, the matter pertained to an insurance claim for a truck which met an
accident on 7.3.2006. The claim of the Complainant/revision petitioner was repudiated by the
National Insurance Company on 2.4.2007. Consumer complaint against this repudiation was
instituted before the District Forum, Sonepat on 24.12.2009.
3.
The District Forum observed that there was negligence and deficiency of service on the
part of the OP/Insurance Company as on the one hand it had repudiated the claim of the
Complainant on 2.4.2007 and on the other relied upon the report of the Surveyor for
determination of quantum of loss, despite the fact that it was filed subsequent to the
repudiation. The repudiation as already noted had been conveyed on 2.4.2007 when the report of
the surveyor was received on 19.1.2008. The District Forum therefore, allowed the claim of the
Complainant.
4.
In appeal, the State Commission observed that:“Surveyor
and
Loss
Assessor
of
the
Insurance
Company
namely Shri. K.S. Hans, inspected the vehicle at Kirpal Motors, Sonepat. During the
investigation it was revealed that at the time of accident, the truck in question was being
plied without route permit and fitness certificate and for that reason the claim submitted
by the complainant with respect to the damage of his truck was repudiated on
2.4.2007.”
5.
Further, considering that the cause of action arose when the claim was repudiated on
2.4.2007, the State Commission also concluded that the complaint, which was filed on
24.12.2009, was hopelessly barred by time. State Commission had also held that while the
accident had taken place on 7.3.2006, the Complainant had informed the insurance company
after a gap of ten days on 17.3.2006. This delay amounted to violation of Condition 1 of the
insurance policy and was therefore, fatal to the claim of the Complainant.
6.
We have carefully perused the records and heard Mr Anil Hooda, Advocate for the revision
petitioner. The revision petition seeks to challenge the order of the State Commission on the
solitary substantive ground that the State Commission was wrong in holding the complaint to be
time barred. Learned counsel also limited his arguments to the ground of delay. It is contended
that the consumer complaint, filed on 24.12.2009, is within the permissible period of two years
from the date of the final report of the surveyor i.e. 19.1.2008.
7.
We do not see any merit in this contention of the revision petitioner. Once his claim under
the policy was repudiated by the insurance company, he had nothing else to wait for from the
insurer. In other words, the cause of action had already arisen on the date of repudiation i.e. on
2.4.2007.
8.
In the result, we do not find any error in the impugned order, which could justify
intervention of this Commission under Section 21 (b) of Consumer Protection Act, 1986. The
revision petition is held to be without any merit. In the result, the petition is dismissed on the
grounds
of
limitation
as
well
as
merit. The
order
of
Haryana
Disputes Redressal Commission in FA No.313 of 2011 stands confirmed.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
S./-
State
Consumer
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3925 OF 2012
(Against the order dated 22.08.2012 in First Appeal No. 386 of 2012 of the
Orissa State Consumer Disputes Redressal Commission, Cuttack )
Punjab National Bank
B.O. at Badrama,
P.S. Jamankira,
Tehsil Kuchinda Distt.
Sambhalpur (Orissa)
Through its Branch Manager
... Petitioner
Versus
Mrs. Kiran Agarwal
S/o Sh. Ashok Kumar Agarwal
R/o Rengalbeda,
P.O. Bhojpur,
P.S. Kuchinda
Distt. Sambhalpur (Orissa)
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. U.C. Mittal, Advocate
Pronounced on : 5th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The first appeal filed by the petitioner was dismissed by the State Commission on the
ground that it was inordinately delayed by more than six months.
2.
Aggrieved by that order, the petitioner has approached this Commission.
3.
We have heard the learned counsel for the petitioner and perused the application
for condonation of delay filed before the State Commission.
4.
The District Forum delivered the verdict on 12.12.2011. The application dated 6.7.2012
put up before State Commission explains the delay in paras 2 and 3 of the application which are
reproduced as follows:“2.
That there is delay in filing appeal, reason being obtaining the approval from the law
division H.O., New Delhi. Circle Office, Bhubaneswar to prefer appeal against the impugned
judgment got delayed. The appellant/petitioner lacks power to take decision to move to the
higher forum and as because there was delay in getting approval, the appeal could not be filed in
time.
3. That though order has been passed on 12.12.2011 but it could not be pronounced in the above
date and the advocate for the appellant always contacted the office regularly and could not trace
out the order passed by the court below and in the month of last part of December 2011 and
January 2012 the advocate for the appellant contacted the Office and the order has not been
communicated to him but surprisingly the order dt. 12.12.2011 was communicated to the
appellant and which was received on 02.02.2012 and thereafter, after receiving the order on
02.02.2012 the appellant contacted the circle office at Bhubaneswar and Head Office at New
Delhi. So due to some office procedure the above appeal has not been filed in time.”
5.
Learned counsel for the petitioner vehemently argued that he wanted to produce some
documents pertaining to the period from 11.5.2012 onwards but the State Commission did not
give them opportunity to produce the documents and went on to pronounce the judgment and
dismissed the appeal in limini.
6.
All these arguments are bereft of merits. It is clear that the State Commission found that
the appellant has made a lame excuse and therefore, it rightly dismissed the case in limini. All
the above said facts and circumstances do not constitute the sufficient reason. It is now well
settled that the departmental and procedural delays cannot be given enough weight. Moreover, it
is the duty of the litigant-bank to enquire their case on each and every hearing. It is well settled
that Qui facit per alium facit per se, negligence of a litigant’s agent is negligence of the litigant
himself and is not sufficient cause for condoning the delay. See M/s Chawala & Co. vs. Felicity
Rodrigues, 1971 ACJ 92.
7.
The facts of this case is emboldened by the following authorities.
8.
In the celebrated authority reported 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”.
9.
In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was
sought to be explained on the ground that the counsel did not inform the appellant in time, was
not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office
and enquired about the case, especially when the case was regarding deposit of arrears of rent.
The statute also prescribes a time bound programme regarding the deposit to be made.
10.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellant in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
11.
In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer
that he did not inform the client about the progress of the case nor did he send any letter, was
disbelieved while rejecting an application to condone delay.
12. See also the law laid down in Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil
Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 and in Office of the
Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL (Web)
132 (SC).
In the result, we hereby dismiss the revision petition in limini.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3911 OF 2012
(Against the order dated 30.04.2010 in First Appeal No. 209 of 2006 of the
Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)
Selvi
W/o Nadarajan
Mullencheri,
Mulavancode Taluk,
Kanyakumari District
Tamil Nadu
... Petitioner
Versus
1. The Branch Manager,
Life Insurance Corporation of India
Kuzguthurai, Kanyakumari District
Tamil Nadu
2. The Senior Divisional Manager,
Life Insurance Corporation of India,
Parvathavarthini Street,
Palayamkottai, Tirunelveli,
Tamilnadu
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. S. Gowthaman, Advocate
Pronounced on : 5th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The appeal was preferred by the appellant-complainant before the State Commission. The
State Commission dismissed the first appeal vide its order dated 3.4.2010. The relevant portion
of the order is reproduced as follows:“No representation for the appellant. As seen from the notes paper which disclose that always
the petitioner is absent. Previous hearing also, the appellant was not present, and therefore to
give a chance, the case is posted today, but today also the appellant is not present and there is
no representation also, thereby showing the appellant is not interested in prosecuting the
case. Therefore no useful purpose will be served in keeping the appeal on file. Hence the appeal
is dismissed for default.”
2.
Aggrieved by that order, the revision petition has been filed. The petitioner has explained
the delay in para 3 of the application for condonation of delay. Para 3 runs as under:“3.The impugned order was passed on 30.04.2010 and the counsel for the petitioner had
obtained a copy of the same and has couriered it to the petitioner and informed her
accordingly. However, unfortunately the order copy has got missed in the transits. The counsel
for the petitioner was of the opinion that the order was within the knowledge of the petitioner,
but petitioner after waiting for one and half years got apprehensive and enquired about her case
to the counsel for the petitioner. Then the counsel for the petitioner informed her about the
order dated 30.04.10 passed dismissing for default as the counsel was waiting for the final
hearing. Thereafter the petitioner insisted for perusing the case in the State Commission by
moving an application for restoration of the above said order. Then the counsel took three month
time as he had to search the case papers from the disposed of bundles. Therefore he was able to
trace the bundle by month of February 2012 and then he came to understand that the law has
changed and only this Hon’ble Commisison alone has got the power to restore the First Appeal
of the petitioner. Then the counsel for the petitioner contacted the advocate at Delhi and
requested to move the present petition. Therefore, in these happening the delay of almost two
years has occurred.”
3.
We have heard the learned counsel for the petitioner. He submits that he should be given
an opportunity of being heard. The argument advanced by learned counsel for the petitioner is
lame of strength. The petitioner as well as his counsel was aware of the impugned order. The
petitioner has tried to create a concocted story. The proof of courier or receipt of dispatching the
copy was not obtained. It is surprising to note that the petitioner waited for one and a half years
to know the status of his case. It was the duty of the petitioner to go to the office of his Advocate
and enquire about the case. The litigant must post himself regarding the day to day hearing. The
above said facts clearly go to show the negligence and inaction on the part of the petitioner. He
has given a fragile excuse. The delay under the circumstances cannot be condoned. The
following authorities apply to this case on all fours.
4.
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”.
5.
In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was
sought to be explained on the ground that the counsel did not inform the appellant in time, was
not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office
and enquired about the case, especially when the case was regarding deposit of arrears of rent.
6.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellants in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
7.
In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer
that he did not inform the client about the progress of the case nor has he sent any letter, was
disbelieved while rejecting an application to condone delay.
8.
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.”
9.
See the law laid down in Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil
Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.201, in Office of the Chief
Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL (Web) 132
(SC) and in
“Mahindra
Holidays
&
Resorts
India
Ltd.
Versus Vasantkumar H. Khandelwal & Anr.” [Revision petition No. 1848 of 2012 decided
on 21.05.2012].
10.
Since the petitioner has failed to establish sufficient ground for condonation of delay, the
revision petition is dismissed in limini.
………Sd/-……………….
(J. M. MALIK, J.)
PRESIDING MEMBER
………Sd/-………………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3925 OF 2012
(Against the order dated 22.08.2012 in First Appeal No. 386 of 2012 of the
Orissa State Consumer Disputes Redressal Commission, Cuttack )
Punjab National Bank
B.O. at Badrama,
P.S. Jamankira,
Tehsil Kuchinda Distt.
Sambhalpur (Orissa)
Through its Branch Manager
... Petitioner
Versus
Mrs. Kiran Agarwal
S/o Sh. Ashok Kumar Agarwal
R/o Rengalbeda,
P.O. Bhojpur,
P.S. Kuchinda
Distt. Sambhalpur (Orissa)
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. U.C. Mittal, Advocate
Pronounced on : 5th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The first appeal filed by the petitioner was dismissed by the State Commission on the
ground that it was inordinately delayed by more than six months.
2.
Aggrieved by that order, the petitioner has approached this Commission.
3.
We have heard the learned counsel for the petitioner and perused the application
for condonation of delay filed before the State Commission.
4.
The District Forum delivered the verdict on 12.12.2011. The application dated 6.7.2012
put up before State Commission explains the delay in paras 2 and 3 of the application which are
reproduced as follows:“2.
That there is delay in filing appeal, reason being obtaining the approval from the law
division H.O., New Delhi. Circle Office, Bhubaneswar to prefer appeal against the impugned
judgment got delayed. The appellant/petitioner lacks power to take decision to move to the
higher forum and as because there was delay in getting approval, the appeal could not be filed in
time.
3. That though order has been passed on 12.12.2011 but it could not be pronounced in the above
date and the advocate for the appellant always contacted the office regularly and could not trace
out the order passed by the court below and in the month of last part of December 2011 and
January 2012 the advocate for the appellant contacted the Office and the order has not been
communicated to him but surprisingly the order dt. 12.12.2011 was communicated to the
appellant and which was received on 02.02.2012 and thereafter, after receiving the order on
02.02.2012 the appellant contacted the circle office at Bhubaneswar and Head Office at New
Delhi. So due to some office procedure the above appeal has not been filed in time.”
5.
Learned counsel for the petitioner vehemently argued that he wanted to produce some
documents pertaining to the period from 11.5.2012 onwards but the State Commission did not
give them opportunity to produce the documents and went on to pronounce the judgment and
dismissed the appeal in limini.
6.
All these arguments are bereft of merits. It is clear that the State Commission found that
the appellant has made a lame excuse and therefore, it rightly dismissed the case in limini. All
the above said facts and circumstances do not constitute the sufficient reason. It is now well
settled that the departmental and procedural delays cannot be given enough weight. Moreover, it
is the duty of the litigant-bank to enquire their case on each and every hearing. It is well settled
that Qui facit per alium facit per se, negligence of a litigant’s agent is negligence of the litigant
himself and is not sufficient cause for condoning the delay. See M/s Chawala & Co. vs. Felicity
Rodrigues, 1971 ACJ 92.
7.
The facts of this case is emboldened by the following authorities.
8.
In the celebrated authority reported 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”.
9.
In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was
sought to be explained on the ground that the counsel did not inform the appellant in time, was
not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office
and enquired about the case, especially when the case was regarding deposit of arrears of rent.
The statute also prescribes a time bound programme regarding the deposit to be made.
10.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellant in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
11.
In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer
that he did not inform the client about the progress of the case nor did he send any letter, was
disbelieved while rejecting an application to condone delay.
12. See also the law laid down in Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil
Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 and in Office of the
Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL (Web)
132 (SC).
In the result, we hereby dismiss the revision petition in limini.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 130 OF 2012
[Against the order dated 29.09.2011 in First Appeal No. 198 of 2007 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula]
National Controlling Equipment Industries
65, Luxmi Vihar, Near Sector-10
Village Jandi, Ambala City
…
Petitioner
…
Respondent
Versus
National Insurance Co. Ltd.
Through its Divisional Manager
106, Railway Road, Ambala Cantt
Before :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For the Petitioner
: Mr. Imtiaz Ahmad, Advocate
Pronounced on : 5th November, 2012
ORDER
PER S.K. NAIK, MEMBER
1.
This revision petition by the complainant seeks to challenge the order dated 29th of
September,
2011
of
the
Haryana
State
Consumer
Disputes RedressalCommission, Panchkula (State Commission for short) passed in First Appeal
No. 198 of 2007. By this order the State Commission has set aside the order dated 15.06.2007 of
the District Consumer Disputes Redressal Forum, Ambala (District Forum for short) passed in
Complaint No. 189 of 2006 and dismissed the complaint. The District Forum vide its order had
held that the claim of the petitioner/complainant was genuine and that he had suffered a loss of
Rs.4,46,700/- and had directed the respondent/Insurance Company to pay the said amount along
with interest @ 12% per annum from the date of the claim and in addition pay a sum of
Rs.2000/- as compensation on account of harassment and Rs.1000/- as cost.
2.
Brief facts of the case are that the petitioner/complainant had obtained a loan against
hypothecation of goods from Central Bank of India, Ambala City. In order to secure any risk to
its loan amount, the said Bank had obtained an insurance policy to cover any incidence of theft
for the hypothecated goods/articles for the period 30thof December, 2003 to 29th of December,
2004. Unfortunately, there was an incident of theft in the premises during the intervening night
of 01.02.2004 and 02.02.2004 (wrongly stated as 31.01.2004 and 02.02.2004) and according to
the petitioner/complainant goods worth Rs.4,46,700/- were stolen. An FIR was lodged with the
concerned Police Station on 03.02.2004 and intimation in this regard too was given to the
respondent/Insurance Company, who thereupon appointed Duggal Gupta and Associates, the
surveyors, to assess the loss. The said surveyor after verifying the goods reported that the loss
was only to the tune of Rs.14,798/-. Even this meager amount was not paid to the
petitioner/complainant on the pretext of the petitioner/complainant not giving a letter of
subrogation. Aggrieved by this attitude of the respondent/Insurance Company, a complaint was
filed before the District Forum, who, on contest by the parties and after considering their
submissions,
passed
the
award
as
already
stated
above. Aggrieved
thereby
the
respondent/Insurance Company filed appeal before the State Commission, who has set aside the
District Forum’s order and resultantly the complaint too has been dismissed. The complainant
now, in turn, has filed the revision petition with the prayer to set aside the order of the State
Commission and restore the award passed in his favour by the District Forum.
3.
We have heard the learned counsel for the petitioner/complainant. His main contention is
that the State Commission has blindly believed the report of the surveyor, who stated that the
goods were purchased from a sister concern. According to him, there was no evidence to support
this
averment. Besides,
respondent/Insurance
if
the
Company
documents
should
were
have
either
taken
forged
suitable
or
action
fabricated,
the
against
the
petitioner/complainant. His further contention is that the State Commission ought to have taken
into consideration the list of stolen goods/articles of stocks supplied to the police on the next day
of lodging the FIR and that should have been believed.
We have considered the learned counsel’s argument only to be rejected for the simple
4.
reason that the State Commission has thoroughly examined the facts, circumstances, background
and the report of the surveyor, which has been extensively quoted in its order, and has correctly
relied upon the report to hold that the authenticity of the purchases from a sister concern of the
insured were doubtful. The list of stolen goods/articles was not furnished to the police at the first
instance and the bills, which had been submitted, were procured after the occurrence of the theft.
5.
In view of the above, we do not find any illegality, irregularity or any jurisdictional error
in the order passed by the State Commission and the revision petition is, accordingly, dismissed.
Sd/( R. C. JAIN, J. )
PRESIDING MEMBER
Sd/(S.K. NAIK)
(MEMBER)
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2795 OF 2012
[Against the order dated 01.06.2012 in F.A. No. 32 of 2012 of the State Consumer
Disputes Redressal Commission, U.T. Chandigarh]
Japji Kaur Cheema
D/o Shri H.S. Cheema
R/o H.No. 1126, Sector 8-C
…
Chandigarh
Petitioner
Versus
1. ICICI Home Finance Co. Ltd.
SCO 129-130, Sector-9
Chandigarh
2. ICICI Home Finance Co. Ltd.
ICICI Bank Towers
Bandra-Kurla Complex
Mumbai
3. ICICI Prudential Life Insurance Co. Ltd.
ICICI Pru Life Tower
1089, Appa Saheb Maratha Marg
Prabhadevi, Mumbai
Old Address: 4th Floor, Stanrose House
Appa Saheb Marathe Marg
…
Prabhadevi, Mumbai
Respondents
BEFORE :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For the Petitioner
: Mr. Vishal Ahuja, Advocate
Pronounced on 5th November, 2012
ORDER
PER S.K. NAIK, MEMBER
1.
This revision petition is directed against the order dated 1st of June, 2012 of the State
Consumer Disputes Redressal Commission, U.T. Chandigarh (for short the State Commission)
passed in First Appeal No. 32 of 2012. By the said order the State Commission has set aside the
order of the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (for short the
District Forum) passed in favour of the petitioner/complainant, thereby dismissing her complaint.
2.
Facts of the case, in brief, are that the petitioner/complainant had obtained a housing loan
from respondent no.1/ICICI Home Finance Co. Ltd., which was foreclosed by paying the
foreclosure charges. However, at the time of sanctioning the loan, the petitioner/complainant
had obtained a life insurance policy allegedly as a mandatory requirement to cover the
sanctioned loan amount against any contingency and had paid a sum of Rs.2,68,000/- towards
the one time premium. The policy was to cover a period of 20 years. Subsequently, the
petitioner/complainant was refunded a sum of Rs.19,474/- out of the said premium amount
perhaps due to an excess charge levied on her.
3.
When the entire loan amount was foreclosed after about a period of 8 months from the date
of disbursement of the loan amount, the petitioner/complainant sought the refund of the amount
of premium paid by her. Respondent no.3/ICICI Prudential Life Insurance Co. Ltd., however,
refunded only a sum of Rs.1,49,605.09 against Rs.2,48,253/- (appears to have been wrongly
calculated since Rs.2,68,000 – Rs.19,474 comes to Rs.2,48,526/-) as per clause 3(b)(ii) of the
policy, which prescribed the formula for the refund of the surrender value. As against the course
adopted by respondent no.3/Insurance Company, the say of the petitioner/complainant is that
since she had foreclosed the loan within a period of 8 months from the date of its disbursement
as against the period of 20 years for which the insurance was valid, respondent no.3/Insurance
Company was entitled to deduct proportionate premium for the said period which came to only
Rs.8275/- and therefore the deduction of Rs.98,647.91 was not justified.
4.
The District Forum was convinced with this line of argument of the petitioner/complainant
and had directed respondent no.3/Insurance Company to refund the amount of Rs.90,372.91,
which they had deducted, with interest @ 12% per annum from the date of filing of the
complaint till its realization, besides payment of a sum of Rs.10,000/- as costs. The said order of
the District Forum was challenged in appeal by respondent no.3/Insurance Company before the
State Commission, which going by clause 3(b)(ii) of the policy relied upon by the Insurance
Company set aside the order of the District Forum and dismissed the complaint. This has given
rise to the complainant approaching this Commission to invoke our supervisory jurisdiction
under Section 21(b) of the Consumer Protection Act, 1986.
5.
We have heard Mr. Vishal Ahuja, learned counsel for the petitioner/complainant and have
perused the records of the case. The foreclosure of the loan obtained by the
petitioner/complainant from respondents no.1 & 2/ICICI Home Finance Co. Ltd. by paying the
foreclosure charges is not in dispute. The only allegation of the petitioner/complainant is against
respondent no.3/ICICI Prudential Life Insurance Co. on the point of refund of surrender value of
the insurance premium. Learned counsel for the petitioner/complainant contends that since the
petitioner had availed the insurance cover only for a period of 8 months, where-after she had
discharged the entire loan amount and surrendered the policy, the Insurance Company should
have refunded the premium amount after deducting only the proportionate amount of premium,
which comes to Rs.8275/- and not the heavy amount of Rs.98,647.91, which is a clear deficiency
in service on their part.
6.
We have noted the argument of learned counsel for the petitioner/complainant only to be
rejected for the simple reason that the terms incorporated in the policy are agreement between
the parties for all intents and purposes and the parties are bound by them. Subsequent to entering
into such agreement, none of the parties can go behind the terms of such agreement or allege that
the conditions were not fair. The State Commission has dealt with this aspect in detail and has
stated as under :“11.
…… The parties were governed by the terms and conditions contained in this policy
document. Clause 3(b)(ii) of this policy document reads as under :‘In case of the full prepayment of the loan or restructuring of the loan resulting in full
prepayment or transfer of the Loan to another Financial Institution/Company/Bank, which is not
a subsidiary or branch of the Bank, the Life cover shall cease and the Surrender Value shall
become payable as long as the same is at least Rs.250/-. The Surrender Value is computed
as below :-
70% of the Premium Paid * outstanding terms of Life Cover
Total premium of Life Cover’
12.
The authenticity of this document, was not at all challenged, by the complainant, during
the pendency of the complaint. …”
7.
Contentions now raised seek to challenge this clause of the policy, which is not permissible
in law. We, therefore, find that the State Commission has correctly set right the erroneous view
adopted by the District Forum. The order of the State Commission being in conformity with the
settled principle and law on the terms of the contract being binding on the parties needs no
interference.
8.
The revision petition is, accordingly, dismissed.
Sd/( R. C. JAIN, J. )
PRESIDING MEMBER
Sd/-
(S.K. NAIK)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3749 OF 2012
[Against the order dated 07.09.2012 in First Appeal No. 1094 of 2012 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur]
Babitaa Wadhwani
D/o Late Shri Ghanshyam Das Wadhwani
31/62/6, Varun Path, Mansarovar
Jaipur, Rajasthan
…
Petitioner
…
Respondent
Versus
Director
Akashdeep Teachers Training College
Agarwal Farm
Jaipur, Rajasthan
Before :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For the Petitioner
: Petitioner-in-person
Pronounced on : 5th November, 2012
ORDER
PER S.K. NAIK, MEMBER
1.
Dissatisfied with the award of Rs.15,000/- and in addition a cost of Rs.4000/- ordered by
the District Consumer Disputes Redressal Forum, Jaipur (District Forum for short), which was
subsequently confirmed by the Rajasthan State Consumer Disputes Redressal Commission,
Jaipur (State Commission for short) on the complainant’s appeal; the complainant has filed this
revision petition seeking enhancement of the award/compensation to Rs.3,60,000/- and in
addition another Rs.50,000/- for mental agony and Rs.5000/- for legal expenses.
2.
Heard the petitioner, who has appeared in person. Her main contention is that she was
harassed by the respondent college firstly on the pretext of conforming to a dress code and to pay
a sum of Rs.2000/- whereas the actual cost of the dress was only Rs.250/-. She protested against
the unreasonable demand because of which she was subjected to further harassment in the form
of denying her the issue of mark-sheet even after she had qualified in the examination. She
further submits that the respondent put pressure on her to take back her complaints, which she
had filed before the Human Right Commission. She further submits that because of the delayed
supply of the mark-sheet, she was not in a position to apply for a job immediately after
qualifying the examination, as a result of which she not only missed the opportunity of getting a
suitable job but also in the process suffered a loss of Rs.3,60,000/-. She contends that the
amount of Rs.15,000/- awarded by the District Forum is too meager and the State Commission
without considering the contentions has simply concurred with the order passed by the District
Forum.
3.
We have gone through the records of the case and have considered the contentions raised
by the petitioner in person. Suffice it to say that the District Forum vide its detailed order has
analyzed the facts and circumstances of the case and considered her contentions. In our view,
the petitioner/complainant is seeking compensation only on hypothetical grounds, inasmuch as
she claims that she would have got a job which would have ensured her a salary of Rs.30,000/per month. This is too remote a claim, for which compensation under the Consumer Protection
Act, 1986 cannot be allowed. Thus, we do not find any merit on her submissions. Besides, this
being a case of concurrent finding, we are not inclined to interfere with the order passed by
the Fora below in exercise of our limited jurisdiction under Section 21(b) of the Act.
4.
The revision petition is, accordingly, dismissed.
Sd/( R. C. JAIN, J. )
PRESIDING MEMBER
Sd/(S.K. NAIK)
(MEMBER)
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2984 OF 2012
[Against the order dated 06.06.2012 in F.A. No. 157/2010 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula]
Bhupinder Singh
S/o Shri Dariya Singh
R/o Village Hoshiarpura
Tehsil Safidon, District Jind
Haryana
…
Petitioner
Versus
1. M/s Karta Ram Rameshwar Dass
Through its Proprietor Dayanand HUF
Through its Karta Dayanand
S/o Rameshwar Dass
R/o Old Anaj Mandi, Jind
Haryana
2. Dayanand
S/o Shri Rameshwar Dass
Proprietor Dayanand HUF
Through its Karta Dayanand
S/o Shri Rameshwar Dass
R/o Old Anaj Mandi, Jind
Haryana
3. Dayanand
S/o Shri Rameshwar Dass
Partner M/s Karta Ram Rameshwar Dass
R/o Old Anaj Mandi, Jind
Haryana
…
Respondents
BEFORE :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For the Petitioners
: Mr. Gautam Godara Advocate
Pronounced on 5th November, 2012
ORDER
PER S.K. NAIK, MEMBER
1.
This revision petition has been filed by the original complainant Bhupinder Singh against
the concurrent findings and orders dismissing his complaint firstly by the District Consumer
Disputes Redressal Forum, Jind (for short the District Forum) in Complaint No. 123 of 2004 on
15th of December, 2009 and subsequently on his appeal by the Haryana State Consumer
Disputes Redressal Commission, Panchkula (for short the State Commission) in First Appeal No.
157 of 2010 on the 6th of June, 2012.
2.
Alleging that the petitioner/complainant had purchased 40 packets of weedicide ‘Leader’ @
Rs.672/- per packet, 20 packets of weedicide ‘Topic’ @ Rs.690/- per packet and 29 packets of
‘Foret’ @ Rs.200/- per packet, thus paying a sum of Rs.46,280/- to M/s Karta
Ram Rameshwar Dass of Jind on 16th of January, 2002, and sprayed the weedicide on his
agricultural land. Subsequently, he found that the weedicide ‘Leader’ was of substandard quality
as a result of which his wheat crops got damaged. His representation to the authorities such as
SDO and DDA of Agriculture Department evoked no response and, therefore, he sent some
samples to Shri Ram Institute for Industrial Research, Delhi on 5th of May, 2003 for laboratory
test. The said institute clearly stated that the packets contained totally fake substance and not
any weedicide. Even thereafter the authorities failed to take any action in the matter and he had
to report the matter to the police who on the directions of the Hon’ble Punjab & Haryana High
Court registered an FIR in the matter. Even thereafter the police did not take any action and filed
a cancellation report. Contending that the petitioner/complainant suffered a crop loss of
Rs.5,67,000/- as no wheat crop could grow on his agricultural land, he filed a consumer
complaint before the District Forum which was dismissed.
3.
Aggrieved thereupon the petitioner/complainant filed appeal before the State Commission
which too has been dismissed.
4.
Learned counsel for the petitioner/complainant contends that both the fora below have
ignored the report of the laboratory test undertaken by the renowned Shri Ram Institute for
Industrial Research, which was very material, and have erroneously discarded the report on the
ground of sample not being in sealed condition. On the observation of the fora below that the
petitioner/complainant absented himself at the time of the inspection of the field by the Deputy
Director (Agriculture), learned counsel submits that the petitioner/complainant was not informed
about the date and time of the visit.
5.
We have heard the learned counsel for the petitioner/complainant and have carefully
perused the records of the case. Firstly, we observe that it is a case of concurrent findings and
orders of the two fora below and our jurisdiction under Section 21(b) of the Consumer Protection
Act, 1986 is rather limited, as has been held by the Hon’ble Supreme Court in the case
of Mrs. Rubi (Chandra) Dutta v. M/s United India Insurance Co. Ltd. [II (2010) CPJ 19
(SC)], wherein the Apex Court has held as under :“23. 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” .
6.
Besides, it is from the records that the sample for laboratory test was referred to Shri Ram
Institute for Industrial Research by the petitioner/complainant himself and, therefore, it cannot be
said that this will have the same effect as a reference made by a consumer fora under Section
13(1)(c) of the Consumer Protection Act, 1986. Obviously, it was not in a sealed packet and the
content thereof which was subjected to the test could not be said with authenticity to be the same
weedicide which the complainant had purchased from the respondent/opposite party.
7.
Further, absence of the petitioner/complainant at the time of the inspection of his field by
the experts from the Agriculture Department and their finding that there was “satisfactory
control of phalaris minor” goes against the allegation of the petitioner/complainant. In our view,
if the petitioner/ complainant was really aggrieved by the damage to his crop due to usage of
substandard weedicide, he would have himself pursued the matter with regard to the visit of
agriculture expert (Deputy Director) and ascertained the date and time of his visit and be present
on
the
site. The
conduct
of
the
petitioner/complainant
overall
does
not
inspire
credibility. The fora below have committed no illegality, irregularity much less any
jurisdictional error in dismissing the complaint.
8.
The revision petition is, accordingly, dismissed.
Sd/( R. C. JAIN, J. )
PRESIDING MEMBER
Sd/(S.K. NAIK)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3402 OF 2012
(From the order dated 21.06.2012 in Appeal No.36/2010 of the Goa State Consumer Disputes
Redressal Commission, Panaji)
Shri Dilip Nayak
Resident of Yogiraj, Plot No.9,
Ambaji, Housing Board,
Fatorda
… Petitioner/Complainant
Goa
Versus
The Goa Housing Board
Through its Managing Director
Alto Betim, Porvorim,
Bardez,
… Respondent/Opposite party
Goa.
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner
:
Mr. Dilip Nayak, In person
PRONOUNCED ON 5th November, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed against the order dated 21.06.2012 passed by the Goa
State Consumer Disputes Redressal Commission, Panaji (in short, ‘the State Commission’) in
Appeal No. 36/2011 – Goa Housing Board Vs. Shri Dilip Nayak by which while allowing appeal
set aside order of the District Forum and dismissed the complaint.
2.
Brief facts of the case are that opposite party/respondent advertised Plots No. 7 to 12 for
sale by public auction to be held on 15.6.2004. The auction was conducted in sequence. Plots
No. 7 and 12 were corner plots. Petitioner-complaint purchased Plot No. 9 for Rs.2600/- per sq.
mt. and Plot No. 12 admeasuring 336 sq. mts. was sold to one Venancio Furtado @ Rs.2150/per sq. mt. The petitioner did not participate in the auction of Plot No. 12, as he had already
purchased Plot No. 9 of 255 sq. mt. It was further alleged that later on area of Plot No. 9 was
reduced to 285.65 sq. mts. Had area been reduced at the time of auction, he would have put his
bid for corner Plot No. 12 which was sold at lesser rate and in this way by reducing area of Plot
No. 12, the respondent has committed illegality malafidely, hence, complainant claimed refund
of difference of price in Plots No. 12 and 9 along with interest. Opposite party-respondent filed
reply and submitted that area was reduced on the request of officials of SGPDA to have a smooth
curve on the corner plot to avoid accidents and prayed for dismissal of complaint. District
Forum after hearing both the parties allowed the complaint and directed opposite party to refund
difference of rate in two Plots No. 9 and 12 along with interest. On appeal by the respondent,
order of District Forum was set aside and complaint was dismissed.
3.
Heard the petitioner in person and perused record.
4.
It is an admitted fact that there is no deficiency of service pertaining to Plot No. 9 which
was purchased by petitioner in auction. He has alleged deficiency in respect of reducing area of
Plot No.12 after auction, but admittedly he has not participated in the auction of Plot No.12 and
in such circumstances, he is not a consumer in respect of Plot No.12 and learned State
Commission has rightly held that as the complainant was not a consumer in respect of Plot No.
12, the complaint was not maintainable. Merely by reducing the area of plot after auction under
compelling circumstances, no deficiency can be attributed qua the petitioner and only purchaser
of Plot No.12 could have complained against the opposite party. The complaint is totally
misconceived and learned State Commission has not committed any error in allowing appeal and
setting aside the order of the District Forum and in dismissing complaint with cost.
5.
Consequently, the revision petition filed by the petitioner against respondent is dismissed
with no order as to costs.
Sd/-
..……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2430 OF 2012
(Against the order dated 05.01.2012 in First Appeal No. A/05/595 of the
Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
Shri Kishore Ramchandra Bhide
243/6289, Gulmohar,
Pant Nagar,
Ghatkopar ( E), Mumbai-400 075
... Petitioner
Versus
1. M/s Habitat India Agro Development
Pvt. Ltd., Jiwan Sahakar,
Sir P.M. Road,
Mumbai-400 001
2. Green Acres Horticultural Development
Cooperative Society Ltd.
Dolkhamb Tal, Shahapur,
District Thane
3. S.W. Sangamnehri
Chairman/Director,
Habitat India Agro Development
Pvt. Ltd. Jiwan Sahakar,
Sir P.M. Road, Mumbai-400 001
BEFORE:
... Respondent
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. C.P. Deogirikar, Advocate
For the Respondents
: Mr. Dilip Annasaheb Taur, Advocate
Pronounced on : 6th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Shri Kishore Ramchandra Bhide, petitioner/complainant is the Member of Green Acres
Horticultural Development Cooperative Society Limited, opposite party No. 2/respondent No. 2.
Respondent No. 2 was established for development of Horticulture and promoting overall growth
of
agricultural
activities. The
society
had
purchased
agricultural
land
at DolkhamTal, Shahpur Distt. Thane and plot No. 7 at survey No. 88, was allotted to the
complainant. The society was to construct the farm house belonging to the complainant. Since
the stay was granted against the society by the authority, therefore, the society could not
construct the said farm house.
2.
The complainant has filed this case with the prayer that the amount paid by him in the sum
of Rs.2,18,500/-, out of total consideration of Rs.3,30,950/- alongwith interest @12% per annum,
be given to him. The District Forum dismissed the complaint. Being aggrieved by the order of
District, Forum, an appeal was preferred before the State Commission which dismissed the
same.
3.
The District Forum dismissed the complaint on two counts. Firstly, the society was not in
a position to construct the house due to stay order. Secondly, it was observed that considering
the nature of the activities for which allied services of the society were hired, it is a commercial
purpose being a horticulture business.
4.
Learned counsel for the petitioner argued with vehemence that the above said farm house
is being purchased for residential purpose, which would be used seasonally and to store
fertilizers and transacting the cultivation of fruits and vegetables. It was admitted by the learned
counsel for the petitioner that the petitioner has got a separate residential house.
5.
We find it extremely difficult to countenance this contention. We have perused the
complaint. The relevant paras of the complaint are reproduced as follows:
“The respondent No. 2 society is categorized as Agricultural society. The complainant states
that respondnet No. 2 socieity has purchased huge land at Dolkham Tal. Shahpur Dist. Thane for
achieving its object and in turn has proposed to develop it for horticultural, forestry and
agricultural cultivation. A scheme accordingly was launched by the respondent No. 2 socieity to
divide the land into several plots and allot it to its members upon certain terms and
conditions. The complainant herein is member of the respondent No. 2 society and in
accordance with its scheme entered into an agreement with the said society on 10-5-1989. In
accordance with the said agreement. The Society has allotted a plot admeasuring one acre to the
complainant herein upon certain terms and conditions which are set out in the agreement dated
10.5.1989. The complainant craves leave to refer to any rely upon the said agreement dated 105-1989.”
“The complainant is self-employed, a qualified Engineer.”
6.
Although, the petitioner stated that he is a consumer, yet, he has not mentioned that he is
purchasing this farm house for self-employment or for earning his livelihood. It is rather clear
that this farm house is being purchased for earning profits. The petitioner is already employed.
7.
The Supreme Court has discussed the term ‘consumer’ in the celebrated authority reported
in Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583wherein it was
held:
“The National Commission appears to have been taking a consistent view that
where a person purchases goods “with a view to using such goods for carrying on
any activity on a large scale for the purpose of earning profit”, he will not be a
‘consumer’, within the meaning of Section 2 (d) (i) of the Act. Broadly affirming
the said view and more particularly, with a view to obviate any confusion – the
expression “large scale” is not a very precise expression – Parliament stepped in
and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993.
The explanation excludes certain purposes from the purview of the expression
“commercial purpose” – a case of exception to an exception. Let us elaborate: a
person who buys a typewriter or a car and uses them for his personal use is
certainly a ‘consumer’ but a person who buys a typewriter or a car for typing
others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be
using the typewriter/car for a commercial purpose. The explanation however
clarifies that in certain situations, purchase of goods for “commercial purpose”
would not yet take the purchaser out of the definition of expression of expression
‘consumer’. If the commercial use is by the purchaserhimself for the purpose of
earning his livelihood by means of ‘self-employment’, such purchaser of goods is
yet a ‘consumer’. In the illustration given above, if the purchaser himself works
on typewriter or plies the car as a taxi himself, he does not cease to be a
consumer. In other words, if the buyer of goods uses them himself, i.e. by selfemployment, for earning his livelihood, it would not be treated as a “commercial
purpose” and he does not cease to be a consumer for the purposes of the Act. The
explanation reduces the question, what is a “commercial purpose”, to a question
of fact to be decided in the facts of each case. It is not the value of the goods that
matters but the purpose to which the goods bought are put to. The several words
employed in the explanation, viz, “uses them by himself”, “exclusively for the
purpose of earning his livelihood” and “by means of self-employment” make the
intention of Parliament abundantly clear, that the goods bought must be used by
the buyer himself, by employing himself for earning his livelihood. A few more
illustrations would serve to emphasise what we say. A person who purchases an
auto-rickshaw to ply it himself on hire for earning his livelihood would be a
consumer. Similarly, a purchaser of a truck who purchases it for plying it as a
public carrier by himself would be a consumer. A person who purchases a lathe
machine or other machine to operate it himself for earning his livelihood would
be a consumer. (In the above illustrations, if such buyer takes the assistance of
one or two persons to assist/help him in operating the vehicle or machinery, he
does not cease to be a consumer). As against this, a person who purchases an
auto-rickshaw, a car or a lathe machine or other machine to be plied or operated
exclusively by another person, would not be a consumer”.
A person cannot be said to be consumer if he purchases the second house.
8.
The revision petition is without merit and the same is, therefore, dismissed.
………Sd/-……………….
(J. M. MALIK, J.)
PRESIDING MEMBER
………Sd/-………………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3973 OF 2012
(Against the order dated 19.07.2012 in First Appeal No. 346 of 2009 of
the Jharkhand State Consumer Disputes Redressal Commission, Ranchi)
Sukhvinder Singh
S/o Mulukh Singh
R/o Junkundan Pathak,
P.O. & P.S. Chirkuna
District Dhanbad
Jharkhand
... Petitioner
Versus
1. Classic Automobile
Shashtri Nagar,
P.O. Dhanbad,
Jharkhand
2. Tata Motors Ltd.
Registered office at
Bombay House, 24,
Homi Modi Street,
Mumbai, Maharashtra
... Respondents
REVISION PETITION NO. 3974 OF 2012
(Against the order dated 19.07.2012 in First Appeal No. 350 of 2009 of the
Jharkhand State Consumer Disputes Redressal Commission, Ranchi )
Sukhvinder Singh
S/o Mulukh Singh
R/o Junkundan Pathak,
P.O. & P.S. Chirkuna
District Dhanbad
Jharkhand
... Petitioner
Versus
1. Tata Motors Ltd.
Registered office at
Bombay House, 24,
Homi Modi Street,
Mumbai, Maharashtra
2. Classic Automobile
Shashtri Nagar,
P.O. Dhanbad,
Jharkhand
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Hasan Anzar, Advocate
Pronounced on : 6th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
This order shall decide both the revision petitions filed by Sukhvinder Singh, the car
owner. According to him, there was manufacturing defect in his newly purchased
Indigo Dicor car on 12.02.2008 from Classic Auto Mobile Authorised Dealer, OP-1, of TATA
Motors Ltd., OP-2. It is alleged that the car has manufacturing defect due to over heating of the
car. Since those defects were not removed or the new car was not replaced, therefore, a
complaint was filed before the District Consumer Forum.
2.
The District Consumer Forum directed that Classic Auto Mobile Authorised Dealer would
replace the vehicle of the complainant by new one with the consultation of Tata Motors, opposite
party of the same price alongwith Rs.20,000/- as compensation or cost of Rs.5,000/- to be paid
by the opposite party to the complainant. It further held that both the opposite parties are jointly
and severally liable for the said damage.
3.
Aggrieved by this order, the opposite parties filed first appeals before the State
Commission. The State Commission accepted the appeals on the ground that the lower forum
did not consider the service record and placed reliance on oral submissions. The State
Commission opined that in such a case, the opinion of an automobile expert was essential. It
was also observed that the car was running more than 10000 kms. In 5 months’ time, over
heating of car engine appears unlikely.
4.
We have heard the learned counsel for the petitioner at the time of admission of this
petition. He has invited our attention towards two authorities of this Commission reported in the
case of Nachiket P. Shirgaonkar vs. Pandit Automotive Ltd. & Anr. II(2008) CPJ 308
(NC) and Kinetic Motor Co. Ltd. &Anr. Vs. Shiv Charan Negi IV (2007) CPJ 167.
5.
In order to prove that there was a defect in the car of the complainant, the petitioner has
invited our attention towards annexure P-4, service history whichmentions :
“Complaints (Complaint Code, Complaint Description, Repeat complaint(Y/N), Customer
Voice
A1, engine overheating, N, Over heating
D9, Type wear high, N,
Jobs (Job code, Job Description, Remarks, Billing Type, Subcontracted (Y/N), Status)
203000, thermostat remove & install-renew gasket, THERMOSTATE VALVE ASSY CHANGE,
WARRANTY-3003230-SHASTRINGR, N, Invoiced
401040, front wheel alignment, check and adjust, PAID-3003230-SHASTRINGR, N,
Invoiced”
6.
The District Forum has placed reliance only on the affidavit of the respondent. To our mind
this much evidence is exiguous. The service history only reveals that there was overheating
which defect was removed. The above stated authorities hardly dovetail with the facts of this
case. There is no evidence except P-4 that the vehicle became defective again. The above said
judgments are not applicable to the present case. The observation made by the State
Commission assumes importance. The report of expert was essential or some other evidence
showing manufacturing defect should have been adduced. The mere fact that the vehicle was
taken to the service station for one or two times does not ipso fact prove the manufacturing
defect. Due to lack of evidence, the value of the petitioner’s case evanesces.
7.
Both the revision petitions are ill-founded and therefore, the same are dismissed in limini.
RP/3974/2012
……………Sd/-………….
(J. M. MALIK, J.)
PRESIDING MEMBER
………Sd/-………………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2780
OF 2011
WITH
(IA NO.1 OF 2011, FOR STAY)
(From the order dated 29.04.2011 in Appeal No. 2453/2005
of the State Commission,
Haryana, Panchkula)
PARMOD KUMAR MALIK
S/O SHRI LAXMI NARAYAN MALIK
RESIDENT OF H.NO.511, SECTOR – 19,
FARIDABAD (HARYANA)
.… Petitioner
Versus
1.
HARYANA URBAN DEVELOPMENT AUTHORITY
THROUGH ITS ESTATE OFFICER/ADMINISTRATOR
GURGAON (HARYANA)
2.
THE CHIEF ADMINISTRATOR
HUDA, PANCHKULA
(SERVICE TO BE EFFECTED THROUGH
ESTATE OFFICER, HUDA, GURGAON)
3.
THE ESTATE OFFICER,
HUDA, SECTOR – 12, FARIDABAD
(HARYANA)
BEFORE:
.… Respondents
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Madhurendra Kumar, Advocate
Pronounced on : 8th November, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Aggrieved
by
order
dated
29.4.2011,
passed
by
Haryana
State
Consumer
Disputes Redressal Forum, Panchkula (short, “State Commission”) petitioner/complainant had
filed the present revision.
2.
Brief facts are that petitioner had applied for allotment of 325 sq.mtrs. plot in Sector 12-A
Gurgaon vide his application dated 29.10.1981 accompanied with draft which was registered at
Sr. No.2067.
3.
The grievance of petitioner before District Consumer Disputes Redressal Forum, Faridabad
(short, “District Forum”) was that respondents/opposite parties did not tell him about the status
of his application despite repeated visits to their office. Hence, respondents did not include his
application
while
conducting
draw
of
lots
of
Sector
–
12-A,
Gurgaon. When petitioner approached the respondents, he was assured that he would be
allotted some other alternative plot. However, the same has not given to him nor the earnest
money deposited by him was refunded. Thus, alleging it a case of deficiency in service on the
part of the respondents, petitioner sought direction to the respondents to hand over possession of
some alternative plot in Sector – 57, Gurgaon at the same rate at which he was to be allotted plot
in Sector 12-A, Gurgaon. Further direction was sought to pay interest @ 18% per annum on the
deposited amount from the date of deposit till actual payment ; to pay compensation of
Rs.70,000/- on account of mental agony and harassment and Rs.5,500/- as litigation expenses.
4.
Respondents in their written statement took preliminary objections that, petitioner is not a
consumer
and
the
complaint
is
barred
by
limitation. They
further
took
the
plea that District Forum, Faridabad had no jurisdiction to entertain the complaint, as the plot was
applied at Gurgaon. On merits, respondents hasstated that the petitioner remained un-successful
in draw of lots held for allotment of plots in Sector 12-A, Gurgaon. Thus, denying any kind of
deficiency in service on the part, they prayed for dismissal of the complaint.
5.
District Forum, vide its order dated 5.9.2005, allowed the complaint and passed the
following order ;
“1. The respondents are ordered to allot a plot of 325 sq.mtrs. to the complainant in
Sector 12-A, Gurgaon, if any plot is lying un-allotted and vacant in this sector, on the
similar price, which was fixed, when the applications were demanded in the year 1981
and the complainant has applied for the same. In the case, the area of the plot is found
increased or decreased, the price of the same be also charged or to pay on the similar
pattern.
2.
The respondents are also ordered to pay interest @ 12% p.a. on the amount which
was deposited by the complainant along with application to therespondents w.e.f. its
deposit till the delivery of the plot now to be allotted to the complainant. This whole
amount along with principle amount of Rs.5,817.50 to be adjusted towards the price of
the plot now to be allotted to the complainant. It is, however, also ordered that in case
any plot is not found un-allotted or vacant in Sector – 12A, Gurgaon, then allot an plot on
the similar price to the complainant in any other developed sector Gurgaon.
3.
The respondents are also ordered to pay Rs.20,000/- on account of mental agony
and Rs.2,000/- as litigation expenses to the complainant.”
6.
Aggrieved by the order of the District Forum, respondent filed an appeal. State
Commission, allowed the appeal, vide its impugned order.
7.
Being aggrieved by the impugned order, petitioner has filed this revision.
8.
I have heard learned counsel for the petitioner and have gone through the record.
9.
The case of the petitioner is that the scheme for residential plot was advertised by the
Respondent/Authority, Panchkula, but petitioner has collected the application form from
Faridabad. As such, cause of action has arisen in Faridabad.
10.
Other contention is that respondents have withheld the earnest money of the petitioner for
several years, until they refunded the same in July, 2005 and that too, after filing of the
complaint by the petitioner. Respondents never intimated the petitioner regarding draw of lots
and its venue, at any point of time nor refunded the earnest money till the filing of the consumer
complaint. Therefore, the cause of action is a continuing one. Thus, the complaint has been filed
within the prescribed time. In support, learned counsel has relied upon the following judgments ;
(i)
Housing Board, Haryana Vs. Inderjit Garg,
(RP No.3263 of 2011) decided by this Commission on 29.2.2012 ;
(ii)
Mangal Chand Pawan Kumar Vs. Oriental Insurance Co. Ltd. & Ors.
II (2010) CPJ 118 (NC) and
(iii) Royal Jordanian Airlines & Ors. Vs. Nanak Singh & Ors.
III (2010) CPJ 175 (NC)
11.
Short question for determination is as to whether, petitioner has filed the consumer
complaint within the period of limitation or not.
12.
State Commission, in this regard has observed ;
“On behalf of the appellants-opposite parties three fold arguments have been raised
by Shri Raman Gaur, Advocate. Firstly, that the complainant had applied for allotment of plot
in the year of 1981 and the instant complaint was filed on 10.5.2005. Secondly, the
complainant had applied at Gurgaon whereas the complaint was filed at Faridabad and the
District Forum, Faridabad had no territorial jurisdiction to entertain and try the
complaint. Lastly, that merely by applying for allotment of a plot by depositing the earnest
money, the complainant cannot be termed as a “Consumer” unless the plot is allotted to
him.
We find force in the contention raised by Shri Raman Gaur, learned counsel appearing on
behalf of the appellants-opposite parties. Undisputedly, the complainant had submitted his
application to the Estate Officer, HUDA, Gurgaon on 29.10.1981 and filed the instant
complaint on 10.5.2005 i.e., after more than 23½ years. As per the provisions of Section 24A
of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986), a complaint
can be filed within two years from the date of cause of action which in the instant case firstly
had accrued to the complainant on 29.10.1981 when he had applied for allotment of plot in
Sector 12-A, Gurgaon. It is also admitted by the complainant that he visited the opposite
parties several times and also had written a letter dated 19.4.1989 to the opposite parties to
know the status of his application but the opposite parties did not supply any
information. Thus, from the date of cause of action which had accrued to the complainant in
the year 1981 when he applied for allotment of plot and then in the year 1989 when he had
written a letter to the opposite parties to know the status of his application, the instant
complaint was hopelessly barred by limitation. There is no explanation on behalf of the
complainant for not filing the complaint within two years from the date of cause of action. The
plea of the complainant that the opposite parties had assured him to allot an
alternative plot, is not tenable in the eyes of law as it lacks evidence. While dealing with such
acontrovery, the Hon’ble Supreme Court in case cited as State Bank of India Vs. B.S.
Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, wherein it has been
held that :“8. It would be seen from the aforesaid provision that it is peremptory in nature and
requires consumer forum to see before it admits the complaint that it has been filed within
two years from the date of accrual of cause of action. The consumer forum, however, for
the reasons to be recorded in writing may condone the delay in filing the complaint if
sufficient cause is shown. The expression, `shall not admit a complaint' occurring in
Section 24A is sort of a legislative command to the consumer forum to examine on its own
whether the complaint has been filed within limitation period prescribed thereunder. As a
matter of law, the consumer forum must deal with the complaint on merits only if the
complaint has been filed within two years from the date of accrual of cause of action and
if beyond the said period, the sufficient cause has been shown and delay condoned for the
reasons recorded in writing. In other words, it is the duty of the consumer forum to take
notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the
consumer forum decides the complaint on merits, the forum would be committing an
illegality and, therefore, the aggrieved party would be entitled to have such order set
aside”.
In a recent judgment cited as V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes 2011
CTJ 1 (SC) (CP) the Hon’ble Supreme Court has held that :“Section 24A (1) contains a negative legislative mandate against admission of a
complaint which has been filed after two years from the date of accrual of cause of
action. In other words, the consumer forums to not have the jurisdiction to entertain a
complaint if the same is not filed within two years from the date on which the cause of
action has arisen. This power is required to be exercised after giving opportunity of
hearing to the complainant, who can seekcondonation of delay under section 24A (2) by
showing that there was sufficient cause for not filing the complaint within the period
prescribed under section 24A(1). If the compliant is per se barred by time and the
complainant does not seek condonation of delay under section 24A (2), the consumer
forums will have no option but to dismiss the same.”
The instant case is fully covered by the authoritative pronouncements in State Bank of
India
Vs.
B.S.
Agricultural
Industries
(supra) and V.N. Shrikhande (Dr.)
Vs.
Anita SenaFernandes (supra).
The next question for consideration is that the District Forum, Faridabad had no
territorial jurisdiction to entertain and try the complaint as the plot was applied by the
complainant at Gurgaon. In this regard, reference is made to case law cited as Sonic
Surgical Vs. National Insurance Company Ltd. 2010 CTJ 2 (SC) (CP), wherein
theHon’ble Supreme Court has held that :“Incidence of fire in the appellant’s godown at Ambala – complaint claiming
compensation from the respondent allowed by the State Commission, Union Territory,
Chandigarh – National Commission set aside the said order accepting the appeal of the
respondent on the ground that the State commission, Union Territory had no jurisdiction
to entertain and adjudicate the complaint – Hence, the present appeal – Admittedly no
cause of action arose at Chandigarh – Inasuance policy taken at Ambala, fire broke out
in the godown at Ambala, and the claim for compensation also made at Ambala – cause
of action arose in 1999 and the complaint regarding the same filed in 2000 –
Amendment to Section 17(2) not to apply as the amended section came into force with
effect from 15.3.1003 – Contention that the respondent – insurance company having a
branch office at Chandigarh, the compliant could have been filed in Chandigarh under
the amended Section 17 (2) rejected as unacceptable – it would have led to absurd
consequences of bench hunting, meaning thereby that even if a cause of action has
arisen in Ambala, then too the complainant can file a complaint in Tamil Nadu or
Guwahati or anywhere in India – cause of action having arisen at Ambala, the State
Commission, Haryana alone to have jurisdiction to entertain the complaint – Impugned
order of the National Commission agreed with – Appeal dismissed.”
In para no.9
and
10
of
the
above
said
judgment
in Sonic Surgical’s case
(supra),the Hon’ble Supreme Court has held that;
“9. ………It will lead to absurd consequences and lead to bench hunting. In our opinion,
the expression ‘branch office’ in the amended Section 17 (2) would mean the branch
office where the cause of action has arisen. No doubt this would be departing from the
plain and literal words of Section (2) (b) of the Act but such departure is sometimes
necessary (as it is in this case) to avoid absurdity.
10. In the present case, since the cause of action arose at Ambala, the State Consumer
Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the
complaint.”
The facts of the instant case are fully attracted to Sonic Surgical case (supra) in
view of the facts narrated above. Merely, that there is office of HUDA at Faridabad, does
not give any right to the complainant to file complaint at Faridabad and thus the complaint
was not entertainable before the District Forum, Faridabad.
Lastly, it is admitted case of the parties that no plot was allotted to the
complainant. Merely, that the complainant had applied for plot does not give him any right
to be considered as a ‘consumer’ unless the plot was allotted to him. Reference in this
regard is made to case law cited as Punjab Urban Planning and Development Authority
and another versus Krishan Pal Chander, 2010 CTJ 415 (CP) (NCDRC) wherein
the Hon’ble Apex Court has held that :“The filing of application for allotment of a flat/plot grants the proposed allottee only
a right to be considered for allotment. He becomes a ‘consumer’ under the Consumer
Protection Act only after he is allotted a flat/plot.”
The facts of the instant case are fully attracted to Krishan Pal Chander’s case (supra).
In view of our aforesaid discussions it is established that the complaint was hopelessly
barred by limitation in view of Section 24A of the Consumer Protection Act, 1986, District
Forum, Faridabad was not having jurisdiction to entertain and decide the compliant as the
plot was applied at Gurgaon and also that the complainant is not the consumer of the
opposite parties because no plot was allotted to him. The District Forum has not considered
all these legal aspects of this case and thus committed grave error in allowing the complaint
by passing the impugned order which is not sustainable in the eyes of law.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside and
the complaint is dismissed.”
13.
As per averments made in the complaint, petitioner had applied for allotment of the plot in
the year 1981. However, in the entire complaint, petitioner has nowhere stated as to when the
cause of action arose. After 1981, petitioner remained in deep slumber till 1989. Thereafter, he
woke up only in the year 2005, when he filed the second complaint before the District Forum.
Thus, on the face of it, the complaint filed before the District Forum was hopelessly time
barred. District Forum, throwing the law of limitation, especially Section 24A of the Act, to the
winds, entertained the hopelessly time barred complaint illegally. This act of District Forum was
patently wrong and without jurisdiction. State Commission, under these circumstances, rightly
dismissed the complaint of the petitioner and accepted the appeal of the respondents.
14.
None of the judgments cited by learned counsel for the petitioner are applicable to the facts
of the present case.
15.
The impugned order passed by the State Commission is perfectly valid and no illegality or
irregularity has been committed by it, in passing the impugned order. The present petition being
without any legal basis is meritless and same is dismissed with cost of Rs.10,000/-.
16.
Petitioner is directed to deposit the costs by way of demand draft for a sum of Rs.10,000/-
in the name of “Consumer Legal Aid Account”, within four weeks from today.
17.
In case, petitioner fails to deposit the said cost within the prescribed period, he shall also be
liable to pay interest @ 9% p.a., till realization.
18.
List the matter for compliance on 14.12.2012.
……………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4691 OF 2010
(From the order dated2.1.2010 in Appeal No.2236/2006
of the State Commission, Panchkula, Haryana)
Rakesh Gupta
S/o Shri Tara Chand Gupta
123, Housing Board Colony,
Gurgaon – 122 001
…Petitioner
Vs.
Haryana Urban Development Authority
Haryana, Sector 14, Gurgaon
Through the Estate Officer, Gurgaon
Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner (s)
Pronounced on:
:
In person
8th November, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
In this revision petition there is challenge to order dated 2.11.2010, passsed by State
Consumer Disputes Redressal Commission, Panchkula (short ‘State Commission’).
2.
The facts as emerges from record are that petitioner/complainant had earlier also filed a
complaint before the District Consumer Disputes Redressal Forum, Gurgaon (short ‘District
Forum’) which was decided on 16.5.2003, in which the matter in issue was the same which are
the subject matter of the present case. In the earlier complaint, petitioner has challenged the
charging
of
extension
fee. The
District
Forum,
allowed
refund
of
Rs.5,000/-
only alongwith interest from the date of deposit. In the second complaint filed by the petitioner,
the District Forum has observed that petitioner is estopped from filing the second complaint on
the same subject matter between the parties. It also observed that petitioner himself has delayed
the payment of extension fee and now he cannot take benefit of his own wrong.
3.
In its previous order, the District Forum has held that petitioner is a transferee and it was
the liability of the transferor to pay the extension fee as well as the outstanding dues before the
transfer of the plot in the name of the petitioner. The petitioner being a transferee has no right to
challenge the dues, charges demanded by the respondent from the transferor and accordingly,
second complaint filed before the District Forum was dismissed, vide its order dated 5.7.2006.
4.
Aggrieved by order dated 5.7.2006, petitioner filed an appeal before the State
Commission, which was dismissed vide the impugned order.
5.
Hence, this revision.
6.
As per impugned order, the question for consideration before the State Commission was as
to whether petitioner can challenge the demand of extension fee raised by the respondent with
respect
to
the
plot
which
was
purchased
by
the
petitioner
from
the
original allottee Ramesh Chander Grover and was subsequently transferred in the name of
petitioner, vide re-allotment letter No.362 dated 14.1.2003.
7.
State Commission in its impugned order has observed;
“It is the admitted case of the parties that at the time of re-allotment, petitioner has
accepted the terms and conditions of the re-allotment letter issued to the originalallottee and
therefore petitioner is bound to pay the extension fee demanded by the respondent.
It is well settled law that the Consumer Fora have no jurisdiction to go into the
correctness of the demand made by the appellants-opposite parties on account of “composition
fee”
as
well
as
“extension
fee”. Reference
may
be
made
to
case
law
cited
as HUDA Vs. Sunita (2005) 2 Supreme Court Cases 479, wherein the Hon’bleSupreme Court
has held as under;
“5.
On the National Commission’s own reasoning and the interpretation of provisions of law
with which we agree, this appeal deserves to be allowed. In our opinion, the National
Commission having held that it has no jurisdiction to go into the correctness of the
demands made by HUDA ought to have set aside the orders of the District Forum and the
State Commission setting aside the demand of “composition fee” and “extension
fee”. We therefore, allow this appeal upholding the order of the National
Commission. We set aside the order of the District Forum and the State Commission to
the extent of quashing the demand of “composition fee” of Rs.53,808/- and “extension
fee” of Rs.6,300/-.”
Further reference may be made to case law of the Hon’ble National Commission cited
as Punjab Urban Planning & Dev. Authority & Anrs. Vs. Prem Singh Mann 2008(2) CPC
247, wherein it has been held that;
“Consumer Protection Act, 1986- Section 21(b)-Housing Service-Non-construction feeDemand of fee for not raising construction in time was raised by petitioner- Demand was
quashed by District Forum against which appeal was dismissed giving rise to present
revision-Order of Fora below cannot be upheld as question of validity of demand does not
come under consumer jurisdiction-Order set aside-Complainant is free to approach any
appropriate authority for redressal of grievance.”
The
instant
case
is
fully
covered
by
the
authoritative
pronouncement
of
the Hon’ble Supreme Court as well as the Hon’ble National Commission cited supra. As the
controversy involved between the parties is with respect to the extension fee, therefore the same
cannot be questioned by filing the complaint under the Consumer Protection Act, 1986.
Keeping in view the facts and circumstances of the case and case law cited above, we
hardly find any ground to differ with the view taken by the District Consumer Forum in
dismissing the complaint.”
8.
It is an admitted fact that petitioner is re-allottee of the plot in question. Thus, he was
fully aware of the terms and conditions on which the original allottee has been allotted the plot
by the respondent. Accordingly, petitioner being re-allottee is bound to comply with the terms
and conditions of the original allotment. Petitioner cannot be permitted to challenge the original
terms and conditions with regard to the plot in question. Under these circumstances, I find no
reason to disagree with the findings given by both the fora below.
9.
In view of the concurrent findings of facts given by fora below, no jurisdiction or legal
error has been shown to call for interference in the exercise of power under section 21 (b) of the
Act. Both the fora have given cogent reasons in their order which do not call for any
interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.
10.
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.”
11.
Recently, Supreme Court in Gurgaon Gramin Bank Vs. Smt. Khazani & Anr., Civil
Appeal No.6261 of 2012 decided on 4.9.2012, has observed ;
“12. We are of the view that issues raised before us are purely questions of facts
examined by the three forums including the National Disputes RedressalCommission
and we fail to see what is the important question of law to be decided by the Supreme
Court. In our view, these types of litigation should be discouraged and message
should also go, otherwise for all trivial and silly matters people will rush to this
Court.”
12.
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, the
present petition is hereby dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only).
13.
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’ of this Commission, within four weeks, failing which,
petitioners shall be liable to pay interest @ 9% p.a. till realization.
14.
List for compliance on 14.12.2012.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4060 OF 2012
(Against the order dated 26.07.2012 in First Appeal No. 687 of 2012 of the
M. P. State Consumer Disputes Redressal Commission, Bhopal )
Chandaprabhu Homes Private Limited
Through its Director Ramesh Chandra Jain
Registered office at 16, Ware House Road,
Siyaganj, Indore (M.P.)
... Petitioner
Versus
Anil Jain
S/o Shri Maganlalji Jain
878, Janta Quarters, Nanda Nagar,
Indore, (M.P.)
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Anjani Kumar Singh, Advocate
Pronounced on : 8th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The filing of the appeal before the State Commission was delayed by 445 days i.e. barred
by time by one year, two months and nineteen days. The State Commission dismissed the appeal
on this ground.
2.
Aggrieved by that order, the present revision petition has been filed. The petitioner-
opposite party has also placed on the record the copy of condonationapplication filed before the
State Commission. His counsel also argued that his case on merits is very strong. The
complainant, who has got shares cannot be said to be consumer. It is alleged that during the
period of termination the other Directors of the company while working in cahoots with his
relatives, Anil Jain, the complainant, received application for allotment of shares in back date
and issued receipt for money and filed a complaint before the consumer fora, Indore. The
Directors of the Company did not contest the case effectively and filed reply in favour of the
complainant and on the said basis, the learned Consumer Forum passed an order on 13.12.2010
directing the allotment of the shares to the complainant. The Company Law Board quashed the
order on 29.12.2011 and took the decision treating the petitioner as Director of the Company.
The meeting was called on 23.1.2012 but the said order was not brought to the knowledge of the
petitioner. The petitioner came to know about the said order passed therein and received the
copy of the order on 23.2.2012. The meeting of Board of Directors was called on 3.3.2012 and
an oral request was made to file an appeal against the said order, which was refused by other
Directors of the company with mala fide intention. The petitioner issued notice dated 2.3.2012
to the other Directors of the company and sought consent for filing the appeal and if consent was
not given, mentioning to keep petitioner’s right open to file an appeal and as such the appeal
before the first appellate court was filed. It was prayed that delay should be condoned in the
circumstances.
3.
We see no force in these arguments. We are not to decide the case on merits. The intricate
question regarding the maintainability of appeal by the petitioner or whether complainant is a
consumer or not and other relative questions are not being touched. First of all, the limitation
point has to be decided. There is inordinate delay of 445 days in filing the appeal before the State
Commission. The dispute between the Directors inter se cannot save the limitation. The finding
of the State Commission in para 3 and 4 of the judgment which are reproduced as follows cannot
be faulted.
“3. It is stated that the present Directors of the Company had been ousted by the respondents,
who took charge of the company as its Directors and it was only on 29.12.2011 that the present
Directors were reinstated as Directors in the Company that the case was processed for filing this
appeal.
4. It is not disputed, the Company was existence all through and there was a change of Directors
only. Merely on account of reinstatement of the present Directors, it cannot be said that there
was a justifiable cause to file the appeal after one year, two month and nineteen days. Even
otherwise, the Company being in existence,could have taken steps to file the appeal. No ground
is made out for condonation of delay. The appeal is dismissed as time barred.”
4.
This view is emboldened by the following authorities.
5.
In Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bona
fide, it had taken all possible steps
within its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the party
by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd
Edition, 2005]”
6.
In the celebrated authority reported 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”.
7.
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.”
8.
The revision petition is barred by time and therefore, the same is dismissed on this ground.
……………Sd/-………….
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 295 OF 2012
(From the order dated 05.03.2012 in Complaint Case no. 27 of 2011 of the Madhya Pradesh
State Consumer Disputes Redressal Commission, Bhopal)
With
IA nos. 1, 2 & 3 of 2012
(Stay, Delay and Permission to file additional documents)
K B Sport Wear Goods World Wide
Through its Proprietor Irfan Khan
Son of Late Ajmat Khan
Naka Chandrabadani
Appellant
Lashkar, Gwalior
Madhya Pradesh
versus
The New India Assurance Co. Ltd
Through its Regional Manager
Regional Office, Jeevan Bhima Building
City Centre, Gwalior
Respondent
Madhya Pradesh
BEFORE:
HON’BLE MR. JUSTICE K S CHAUDHARI
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA
MEMBER
For the Appellant
Mr Garvesh Kabra, Advocate
Pronounced on 8th November 2012
ORDER
SURESH CHANDRA
The challenge in this appeal is to the order dated 05.03.1992 passed by the Madhya
Pradesh State Consumer Disputes Redressal Commission, Bhopal, (in short, ‘the State
Commission’) in complaint case no. 27 of 2011.
2.
Briefly stated, the factory of the appellant/complainant was gutted in a fire in respect of
which he made a claim for a total sum of Rs.45 lakh with the respondent/opposite party. During
the pendency of its complaint before the State Commission, there was a settlement in which the
respondent insurance company paid Rs.18,92,900/- on the explicit condition in writing by the
appellant/complainant that it was in full and final settlement of its claim. Later on, the
appellant/complainant filed an application under Order 6 Rule 17 of the CPC and section 151
thereof praying for amendment of the claim to the effect that the amount paid in full and final
settlement is less than the amount claimed in the complaint, therefore, the insurance company be
directed to pay the total amount of Rs.45 lakh as claimed in the complaint. It was submitted by
the appellant that it was trying to amend the complaint because he was starving but earlier it had
become imperative for him to accept the amount of Rs.18,92,900/- and hence, the balance
amount be paid to him with interest.
3.
The State Commission after hearing the parties did not agree with the prayer of the
petitioner for amending the complaint and dismissed the application for amendment and also the
complaint vide its impugned order.
4.
We have heard Mr. Garvesh Kabra, learned counsel for the appellant and perused the
record.
5.
While dismissing the amendment application and the complaint, the State Commission
recorded the following reasons, which read as under:
“It is not the case of the complainant that it was on account of any coercion or fraud or
misrepresentation that he was made to write that the amount was being accepted in full and final
settlement. The learned counsel for the complainant has invited our attention to the judgment of
the Supreme Court in United India Insurance vs Ajmer Singh Cotton and General Mills
and Ors, [II 1999 CPJ 10 (SC)] to the effect that execution of discharge in acceptance of
insurance claim does not estop from making further claim on account of mere execution of
discharge voucher, consumer is not deprived from preferring claim with respect to deficiency in
service or consequential benefits arising out of amount paid in default of service rendered.
Consumer has however, to prove that discharge was obtained by fraud and misrepresentation,
undue influence or the like. In the present case the ground urged is that on account of total
destruction of the factory in fire, the complainant had no means for his subsistence and
therefore, he signed the voucher. This can hardly constitute misrepresentation from the side of
the opposite party”.
6.
We agree with the view taken by the State Commission in its impugned order. Learned
counsel for the appellant has not alleged any coercion, fraud or misrepresentation in respect of
acceptance of the amount of Rs.18,92,900/- by the appellant, offered by the insurance company
in full and final settlement. In such a situation, the view taken is in line with the decision of the
Apex Court (Supra).
7.
In the circumstances, the appeal of the appellant/complainant stands dismissed in limine and
the impugned order of the State Commission is confirmed, with no order as to cost.
Sd/…………………………………..
[ K S Chaudhari, J ]
Sd/………………………………..
[ Suresh Chandra ]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION No. 3856 OF 2011
(From the order dated 06.09.2011 in First Appeal no. 937 of 2010 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
[Standard Chartered Bank
9 – 10, Bahadur Shah Zafar Marg
Petitioner
New Delhi
versus
Himanshu Sharma
Son of Shri Dinesh Sharma
Resident of 1-E-45, Subhash Colony
Respondent
Near Khandelwal College
Shastri Nagar, Jaipur
BEFORE:
HON’BLE MR. JUSTICE K S CHAUDHARI
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA
MEMBER
For the Petitioner
Mr Ajay A Monga, Advocate
For the Respondent
Mr J P Sharma, Advocate with
Mr R S Dangayach, Advocate
Pronounced on 8th November 2012
ORDER
SURESH CHANDRA
This revision petition has been filed by the petitioner Bank which was the opposite
party before the District Consumer Disputes Redressal Forum – II, Jaipur (in short, ‘the District
Forum’) against the order dated 06.09.2011 passed by the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’), in appeal no. 937 of
2010.
2.
The
facts
leading
to
filing
of
the
present
revision
petition
are
that
the
respondent/complainant was issued a credit card bearing no.5543-7873-8068-7140 in November
2005 by the petitioner Bank. Alleging arbitrary and unilateral imposition of late
charges/penalties in his card account, the respondent/complainant filed a consumer complaint
against the petitioner Bank for deficiency in service and unfair trade practice before the District
Forum. On being noticed, the petitioner resisted the complaint denying the allegation of the
deficiency in service or unfair trade practice on their part. On appraisal of the evidence adduced
by the parties and after hearing them, the District Forum allowed the complaint by directing the
petitioner to refund the amount of Rs.396.29 with 9% interest to the complainant within two
months besides payment of an amount of Rs.50,000/- towards mental agony and cost of
Rs.2,500/-.
3.
Aggrieved by the order of the District Forum, the petitioner challenged the same before the
State Commission by filing an appeal which came to be dismissed by the State Commission vide
its impugned order.
4.
We have heard Mr Ajay A Monga learned counsel for the petitioner and Mr J P Sharma,
learned counsel for the respondent and perused the records.
5.
It is submitted by the learned counsel for the petitioner that the impugned order has been
passed by the State Commission in violation of principles of natural justice. He pointed out that
on the face of it the State Commission has passed a brief order without giving any reasons what
so ever in support of the view taken by it while dismissing the appeal, but only by stating that
there is no infirmity in the order of the District Forum. He further submitted that the State
Commission did not even advert to the grounds and the pleas raised by the petitioner in its memo
of appeal and a perusal of the order would show that there is no discussion at all on the
exorbitant amount of compensation which was challenged by the petitioner. He, therefore,
argued that such an order cannot be sustained in the eye of law and the matter needs to be
considered in the light of the specific grounds raised by the petitioner Bank with reference to the
allegations contained in the complaint.
6.
It is to be noted that the respondent/complainant had also filed an appeal before the State
Commission for seeking enhancement of the compensation awarded by the District Forum. The
State Commission dismissed both the appeals by a common impugned order. While dismissing
the appeal of the petitioner the State Commission simply observed that considering the facts and
circumstances of the case, there is no infirmity in the order of the District Forum and the same
are based on the pleadings of the parties in which no interference is required. Regarding the
appeal of the respondent/complainant, the State Commission has said that keeping in view the
facts and circumstances of the case, in its view the compensation awarded by the District Forum
is appropriate and hence, no basis for enhancing the same. It is thus clear that the impugned
order passed by the State Commission is cryptic and non-speaking since no reasons have been
given for the view taken by the State Commission while dismissing the appeal of the petitioner.
In such a situation, we are constrained to set aside the impugned order and remit the matter back
to the board of the State Commission for fresh decision on merits after giving due opportunity of
hearing to the parties and deciding the appeal by passing a speaking order.
7.
The revision petition stands allowed in terms of these directions and parties are directed to
appear before the State Commission on 13th December 2012.
Sd/…………………………………..
[ K S Chaudhari, J ]
Sd/………………………………..
[ Suresh Chandra ]
Satish
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2219 OF 2012
(From the order dated 31.10.2011 in Appeal No. 1074/2009 of the
State Consumer Disputes Redressal Commission, Andhra Pradesh)
The Andhra Pradesh Eastern Power
Distribution Co. Ltd. (APEPDCL)
Represented by:P.V.V. Satyanarayana,
Working as: Superintending Engineer,
Operation Circle, A.P.E.P.D.C.L., Narsipatnam,
… Petitioner
Visakhapatnam, Andhra Pradesh
Versus
P.V.S.L. Ganesh
Proprietor of Solo Digital Colour Lab.,
PVR Complex, Opposite: RTC Complex,
Narsipatnam, Visakhapatnam,
… Respondent
Andhra Pradesh
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mr. Dharmendra Kumar, Advocate
For the Respondent :
Pronounced on :
Mr. Sanjay Kumar, Maria, Advocate
November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
There is delay of 121 days in filing this revision petition. The petitioner has moved the
application for condonation of delay. The said delay has been explained in paras No. 2, 3 & 4 of
the said application, which are reproduced as under:“2.
That the impugned order was passed on 31st October 2011, however the same was allegedly
dispatched by the State Commission, Hyderabad on 08th November 2011 but the revisionist
had received the impugned order from the SLA Hyderabad on 21/3/2012.
3.
That as stated in the foregoing para, the appellant had in fact received the said impugned
order dated 31st October 2011 passed in F.A. NO. 1074/2009 by the Andhra Pradesh State
Consumer Disputes redressal Commission, at Hyderabad on 21st March 2012 only.
4.
That although there is no delay in preferring the present revision petition after the receipt of
the impugned order on 21/3/2012, yet as an abundant precaution, the revisionist is preferring
the present application for condonation of delay, if any. The Hon’ble Commission may
condone the delay if any in the interest of justice on the above explained ground.”
2.
It is clearly apparent that this application was not properly drafted. The arguments by the
learned counsel for the petitioner do not match with these averments. Learned counsel for the
petitioner contended that advocate had received the certified copy but the delay was caused due
to sending the same at a late stage. Such like pleas can be taken at any time by any litigant. It
must be borne in mind that the impugned order was delivered on 31.10.2011. The order was
pronounced in the Court itself on the same very day in the presence of both the counsel for the
parties. The impugned order’s certified copy was prepared on 08.11.2011 but it was received on
23.03.2012. It is clear that the filing of this case was inordinately delayed. The petitioner has
put up a fragile excuse, which does not satisfy us. The case is hopelessly barred by time. The
following authorities neatly go to dovetail this view.
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.
In “Mahindra Holidays & Resorts India Ltd. Versus Vasantkumar H. Khandelwal &
Anr.”, Revision petition No. 1848 of 2012 decided on 21.05.2012, by this Commission, by the
Bench headed by Hon’ble Mr. Justice Ashok Bhan, the delay of 104 days was not condoned.
5.
See also Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 SC 1221 and Office of
the Chief Post Master General & ors. Vs. Living Media India Ltd. & Anr., 2012 SLPL
(Web) 132 (Supreme Court).
6.
7.
Consequently, this case is dismissed as barred by time.
We have also perused this case on merits. The case of the respondent/petitioner has no legs
to stand. The complainant is a tenant in a shop room in PVR complex. He is running Solo
Digital Colour Lab. for his livelihood. The complainant paid the electric charges in respect of
the said services to his landlord. However, Andhra Pradesh Eastern Power Distribution Ltd. Co.,
OP disconnected power to the said service connection on 05.01.2009.
8.
The main submission raised by the counsel for the opposite party/petitioner was that the
complainant is not a consumer. The consumer is the landlord, who is the registered consumer of
the electricity. The complainant has got no privity of contract with the OP department.
9.
We are unable to clap significance with these feckless arguments. Our view is fortified by
the following authorities.
10. In Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private
Limited (2009) 3 SCC 240, it was held that:“29. Under Section 2(1)(o) of the 1986 Act, “service” means service of any description which
is made available to potential users and includes the provision of facilities in connection with
supply of electrical or other energy.
30.
“Deficiency” under 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 by a person in pursuance of a
contract or otherwise in relation to any service”.
31.
As indicated in the definition of “service”, the
provision of facilities in connection with supply of electrical energy is a service. Supply of
electricity by the Board or for that matter KPTC to a consumer would be covered under
Section 2(1)(o) being “service” and if the supply of electrical energy to a consumer is not
provided in time as is agreed upon, then under section (2)(I)(g), there may be a case for
deficiency in service.”
11.
In Ashit Kumar Palit v. West Bengal Steel Electricity Distribution Company Ltd. &
Ors. 2008- (CWI)-GJX-0011-Calcutta, it was held that:“The term ‘consumer’ has not been defined in the said Regulations but in view of Regulation
2.2 thereof, it would have the same meaning assigned to it in the new Act. Definition of
consumer in the new Act is as under:
“consumer means any person who is supplied with electricity for his own use by a licensee or
the Government or by any other person engaged in the business of supplying electricity to the
public under this Act or any other law for the time being in force and includes any person
whose premises are for the time being connected for the purpose of receiving electricity with
the works of a licensee, the Government or such other person, as the case may be.”
12.
It is thus clear that the complainant is the potential user of the electricity in question. He
should have been given a notice before taking action against him. If such cases are permitted, in
that event every landlord while working in cahoots with the electricity board will get the
electricity of tenant disconnected. The ratio of above said cases applies to this case to a hair.
13.
It is also brought to our notice that the District Forum has already passed interim order in
favour of the complainant wherein his electricity stood installed after considerable time. Under
these circumstances, the compensation granted by the District Forum in the sum of Rs.
1,50,000/- besides costs of Rs. 3,000/-, directing the OP-2 to continue the power supply and
upheld by the State Commission is sans flaw.
14.
Viewed from any angle it is found that the revision petition is ill conceived and as such
the same is dismissed with costs of Rs. 10,000/-, which will be deposited with the Consumer
Legal Aid Account of this Commission within a period of four weeks, failing which, the
Registrar of this Commission to recover it as per Law.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(VINAY KUMAR)
MEMBER
Jr/8
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2219 OF 2012
(From the order dated 31.10.2011 in Appeal No. 1074/2009 of the
State Consumer Disputes Redressal Commission, Andhra Pradesh)
The Andhra Pradesh Eastern Power
… Petitioner
Distribution Co. Ltd. (APEPDCL)
Versus
P.V.S.L. Ganesh
Proprietor of Solo Digital Colour Lab.
… Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
For the Respondent :
Mr. Dharmendra Kumar, Advocate
Mr. Sanjay Kumar, Maria, Advocate
The enclosed order is sent herewith for your kind perusal. If approved, the same may be
listed for pronouncement.
…………………………….
(J.M. Malik, J.)
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR,
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1939 OF 2012
(Against the order dated 02.03.2012 in First Appeal No. 1244 of 2010 of the
M. P. State Consumer Disputes Redressal Commission, Bhopal )
Director,
Maa Chamunda Cold Storage
Through its Director Shri Ajay Singh
S/o Late Shri Girwar Singh Thakur
49, Sadashiv Nagar, Civil Lines,
Dewas, M.P.
... Petitioner
Versus
Harinarayan
S/o Shri Shivnarayan
Agriculturist
R/o Dudhali, Tehsil Tarana
District Ujjain, M.P.
... Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
For the Respondent
: Mr. Ritesh Khare, Advocate
: Mr. Jayant R. Vipal, Advocate
Mr. Anand Adhikari, Advocate
Pronounced on : 7th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The case of the complainant-respondent is this. He had kept 505 bags of potatoes,
weighing
314
quintals
and
15 kgs. valued at
Rs.2,51,201
in
the
cold
storage, Maa Chamunda Cold Storage, petitioner-opposite party. The petitioner charged Rs.10
per bag as storage charges. The balance was to be paid at the time of taking back potato bags. It
is alleged that when he went to take back the potatoes in August, 2008, he found that majority of
the potatoes had decayed and some potato bags were missing from the lot. He complained that
he should be compensated for the loss but his request fell on deaf ears. Consequently, he filed a
complaint with the District Forum with the prayer that he be granted compensation amounting to
Rs.2,51,320/- plus Rs.48,680/- towards mental agony, total being Rs. 3 lakhs.
2.
The District Forum dismissed the complaint. The District Forum was pleased to hold:
“5. It is an admitted fact that on 23.08.2008, Chagan Lal, brother of the father of the
complainant received 310 bags from different rack number and their dispatch receipt has been
produced. From which it is clear that had the potato been perished, applicant would not have
received the potato. Affect of temperature of cold storage takes place on all the bags of potatoes
stored therein. It is submitted by the respondent that the bags of potatoes stored in his cold
storage were not misplaced, when the remaining bags of potatoes were not picked up by the
applicant, respondent sold out 195 bags of potatoes in Mandi on 07.09.2008, receipt whereof is
No. 393. Bags of potatoes were sold in STC PTC.
6. It is apparent after taking into consideration the above fact that complainant did not pick up
the potatoes kept in the cold storage deliberately and the potatoes were stored at right
temperature. Respondent on 07.09.2008 sold out all those bags in the Mandi which were not
received back by the complainant and by doing so, respondent has not committed any deficiency
in service.”
3.
Aggrieved by that order, complainant preferred an appeal before the State
Commission. The State Commission reversed the order passed by the District Forum and
granted compensation in the sum of Rs.1.5 lakh.
4.
We have heard learned counsel for the parties. In his affidavit, the petitioner-opposite
party submits that as a matter of fact, 1005 bags of potatoes were kept in the cold storage for the
period from February 2008 to July, 2008 by the complainant and his uncle. The complainant
took 310 bags on 23.8.2008 vide receipt No. 353. The complainant’s uncle also informed the
opposite party that the complainant would come and pick up the remaining bags on
29.8.2008. The complainant came and took away 501 bags vide receipt No. 379. He assured the
opposite party that the remaining 195 bags would be removed on the next very date. Since he
did not come back to take 195 bags, therefore, the petitioner-opposite party sold in the mandi.
5.
It is crystal clear that the contributory negligence on the part of both the parties stands
established. Learned counsel for the petitioner has invited our attention towards receipt dated
5.3.2008. At the back of this receipt, it clearly, specifically and unequivocally mentioned the
dates for keeping the goods. It was stated that he season would commence from February to
July. It also mentioned that Rs.10/- as advance was obtained and rest of the charges would be
taken at the time of release of the goods. This clearly goes to show that the goods were not
removed till the end of August, 2008. There cannot be any conflictions on the point that the
potatoes are of perishable nature. This cannot be kept in the cold storage for a very long
time. The complainant should have removed 195 bags of potatoes immediately during the month
of August, 2008. However, the needful was not done despite coming to know that the potatoes
had started decaying. Negligence is attributable to him in this regard.
6.
However, it is also not understood as to why did the opposite party sell the potatoes without
informing the complainant before doing so. He should have sent a notice to the respondent. The
record reveals that the opposite party received the legal notice on 5.9.2008 and sold the bags in
the market to its later date without informing the complainant.
7.
The complainant himself admits in his reply that he has consigned 195 bags of potatoes in
the cold storage. The complainant had filed an affidavit of Chagan Lal alongwith the appeal
whereby Mr. Chagan Lal categorically denied the fact that he had withdrawn 310 bags of
potatoes on 23.8.2008 vide receipt No. 353 and he has further denied that he has never informed
the
petitioner
that
the
respondent
would
come
to
pick
up
balance
bags
of
potatoes. Mr. ChaganLal has given affidavit Ex. P-1 before this Commission.
8.
The affidavit of Chagan Lal does not add another twist to the tale. The facts already
stands elucidated. It was the bounden duty of the complainant to remove the potatoes in the
month of July. Even if the potato market was not picking up during those days, the complainant
should have paid the charges and made a request to keep the same for further period.
9.
It is difficult to fathom on what basis the State commission granted compensation in the
sum of Rs.1.5 lakhs. No receipt or any other document saw the light of the day. The
complainant did not pay the charges for cold storage. To the same effect is story coming out
from the mouth of opposite party. The opposite party could not explain for how much
consideration it had sold the potatoes. Suppression of facts is the best way to get rid of the
liability. The complainant admits that only 195 bags were left. Its value is less than half claimed
by the complainant. There is contributory negligence as well. The potatoes had started
decaying. After mulling over all these facts and circumstances, we reduce the compensation from
Rs.1.50 lakh to Rs.60,000/- which will carry interest at the rate of 6% from the date of filing the
instant complaint before the learned District Forum till its realization.
The revision petition stands disposed of accordingly.
……………Sd/-………….
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………
(VINAY KUMAR)
MEMBER
Naresh/reserved
ner (s)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2534 OF 2012
(Against the order dated 02.3.2012 in First Appeal No. 24 of 2011 of the
State Consumer Disputes Redressal Commission, Panchkula)
Virender Kumar,
Son of Lakhmi Chand,
Resident of 1608/04, Nehru Colony,
Near Radha Swami Satsang Bhawan,
Rohtak,
Haryana
…
Petitioner (s)
…
Respondent (s)
Haryana
Versus
The New India Assurance Co. Ltd.,
Through its Divisional Manager,
313, Model Town, Delhi Road,
Rohtak
Now at present:
Through Authorized Signatory Regional Office,
SCO No. 36-37, Sector-17-A,
Chandigarh
BEFORE :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
…
Mr. Arvind Garg, Advocate
DATED: 7th NOVEMBER, 2012
ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER
Aggrieved by the order dated 02.3.2012 passed by the Haryana State Consumer Disputes
Redressal Commission, Panchkula (for short the ‘State Commission’) in First Appeal No. 24 of
2011, Virender Kumar, the original complainant in the complaint before the District Forum has
filed the present petition purportedly under Section 21(b) of the Consumer Protection Act, 1986
(for short the ‘Act’). The appeal before the State Commission was filed by the New India
Assurance Co. Ltd. against the order dated 03.12.2010 passed by the District Consumer Disputes
Redressal Forum, Rohtak, by which order the said District Forum had allowed the complaint of
the complainant with the direction to the Insurance Company to pay the IDV of the vehicle i.e. to
pay Rs. 5,17,750/- only along with interest @ 9% per annum from the date of the filing of the
complaint till its realization and a sum of Rs. 2,250/- as litigation charges with the stipulation
that the amount shall be paid within one month from the date of decision, failing which the
awarded amount shall carry interest @ 12% per annum w.e.f. 03.01.2011 onwards till its
realization. In appeal, the State Commission has reversed the said finding and order of the
District Forum and has in turn dismissed the complaint, primarily on the ground that the
complainant had committed breach of Clause-1 of the terms and conditions of the policy, which
inter-alia enjoined upon the complainant / insured to give in writing immediate intimation about
the loss or damage caused to the insured vehicle on account of theft or accident, which breach
disentitled the complainant to seek indemnification of the loss caused to the complainant on
account of theft of his insured vehicle, his Eicher Canter bearing registration No. HR-46B-4468.
2.
The facts and circumstances, which led to the filing of the complaint are amply noted in the
orders of the fora below and need no repetition at our end. The insurance claim lodged by the
complainant in regard to the theft of his insured vehicle No. HR-46B-4468 was repudiated by the
insurance company, primarily on the ground that the complainant violated the terms and
conditions of the policy, inasmuch as although, the vehicle was allegedly stolen on 25.7.2006 but
FIR was lodged on 05.8.2006 and the insurance company was informed about the theft of the
vehicle only on 10.8.2006. The complaint was also resisted by the insurance company on the
same ground on which the claim was earlier repudiated.
3.
We have heard Mr. Arvind Garg, Advocate learned counsel representing the petitioner-
complainant and have considered his submissions. He tried to assail the impugned order mainly
on the ground that the view taken by the State Commission is erroneous and has resulted into
great hardship to the petitioner-complainant inasmuch as he has been non-suited on the ground
that undue delay was occasioned in lodging the FIR and giving intimation about the theft of the
vehicle to the insurance company. As regards the delay in lodging the FIR with the concerned
police station, the learned counsel has invited our attention to a GD report dated 25.7.2006
purportedly lodged by the complainant with the police post incharge, PGIMS, Rohtak in regard
to the theft of his vehicle. He submits that after the complainant has made the said report to the
police, it was for the police to have recorded the FIR immediately, which the concerned police
authorities delayed and registered the FIR only on 05.8.2006 for which delay the petitioner
cannot be held responsible. In regard to the delay in giving the intimation about the theft of the
vehicle to the insurance company, he submitted that the intimation was given to the concerned
officer of the insurance company verbally on the date of the theft of the vehicle but the said
officer declined to take notice of such intimation and advised the complainant-petitioner to give
intimation in writing along with the copy of the FIR. That copy of the FIR was made available
to the complainant only on 05.8.2006 and thereafter, the complainant gave the intimation to the
concerned officer of the insurance company along with the copy of the FIR. He strongly
contended that in the given facts and circumstances, it cannot be said that the petitionercomplainant has violated the terms and conditions of the policy.
4.
We have given our anxious consideration to the above submissions. The question as to
whether the insured can be said to have committed the breach of the terms and conditions of the
policy in giving intimation after some delay i.e. delay of two days of the theft of an insured
vehicle has been considered by this Commission in First Appeal No. 321 of 2005 titled as ‘New
India Assurance Company Limited Versus Trilochan Jane’ decided on 09.12.2009, where on
taking note of delay of two days, Commission held as under:
“Learned counsel for the respondent, relying upon the Judgment of Hon’ble Supreme
Court in National Insurance Company Limited Versus Nitin Khandelwal reported in (2008) 11
SC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The
said judgment was in a totally different context. In the said case, the plea taken by the Insurance
Company was that the vehicle though insured for personal use was being used as a taxi in
violation of the terms of the Policy. The plea raised by the Insurance Company was rejected and
it was observed that in the case of theft breach of condition is not germane. In the present case,
the respondent did not care to inform the Insurance Company about the theft for a period of 9
days, which could be fatal to the investigation. The delay in lodging the FIR after two days of the
coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the
meantime, the car could have travelled a long distance or may have been dismantled by that time
and sold to kabadi (scrap dealer).
In our view, the State Commission erred in holding that the respondent/ complainant had
reported the theft of the vehicle to the appellant-Insurance Company within a reasonable
time. We are not going into the other question regarding violation of Condition No.5 of the
Insurance Policy as we have non-suited the respondent/complainant on the first ground.”
5.
In the case in hand, the delay in lodging the FIR and giving intimation to the insurance
company was about 10 days and 15 days respectively and therefore, applying the ratio of the
above noted case, the State Commission was fully justified in taking the view it has taken. In our
view, the impugned order passed by the State Commission does not suffer from any illegality,
material irregularity, much less any jurisdictional error, which warrants interference of this
Commission in exercise of its revisional jurisdiction.
The Revision Petition as such is dismissed in limine.
..………………..……….
(R. C. JAIN, J.)
PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3499 OF 2012
(Against the order dated 29.06.2012 in Complaint No. 24 of 2012 of the
U.P. State Consumer Disputes Redressal Commission, Lucknow )
Bank of Baroda, a body corporate
constituted under the Banking
Companies (Acquisition & Transfer of
Undertakings) Act, 1970 having its
Head Office at Mandvi, Baroda and
Asset Recovery Management
Branch inter alia, at 1st Floor, V-23,
Vibhuti Khand, Gomti Nagar,
Lucknow 226 010 U.P.
... Petitioner
Versus
M/s Geeta Foods through its sole
Proprietor Mr. Diwakar Chaudhary
S/o Mr. Ved Prakash Choudhary
R/o Village Gopal Kheda
Mohanlalganj
Lucknow, 227305, U.P.
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
For the Respondent/Caveator
: Mr. Arun Aggarwal, Advocate
: Ms. Tahseen Naz, Advocate
Pronounced on : 8th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
This order shall decide the revision petition filed in respect of an interim order passed by
learned State Commission. The said cryptic order runs as follows:“Complaint presented against Bank of Baroda Narhi Branch Lucknow. The Learned Counsel
for the complainant argued that the complainant had taken loan from the opposite party for self
employment and he had from time to time been repaying the same. Present complaint the
opposite party bank has already issued a notice dated 02.06.2012 for auction of the property.
Till further orders the notice dated 02.06.2012 is stayed with the directions that the opposite
party bank would not take coercive steps against the complaint.
The complaint be listed for hearing on 20.07.2012.”
2.
The complainant, M/s Geeta Foods is a proprietorship concern. It took loan from the Bank
of Baroda, opposite party. The complainant waddled out of the commitments and did not pay off
the loan. His account was classified ‘NPA’ under the provisions of SARFAESI Act, 2002. The
opposite party bank issued notice under Section 13(2) on 15.1.2010. A sum of Rs. 2,09,01,253/is due and recoverable in respect of the cash credit facility and Rs.41,96,331/- in respect of
WCDL (Recession package) alongwith interest w.e.f. 1.1.2010. A copy of the notice under
Section 13(2) of the SARFAESI Act, 2002 has been placed on record. The Bank further issued
notice dated 26.4.2010 which was published in two newspapers. The respondent filed an
application under Section 17(1) of SARFAESI Act, 2002 before the Debts Recovery Tribunal on
6.5.2010. The said application was replied by the petitioner which is still pending before the
learned Debts Recovery Tribunal. It is contended that under the circumstances, the order passed
by the State Commission is not tenable.
3.
We have heard learned counsel for the parties. Learned counsel for the respondent
vehemently argued that in accordance with the RBI directions, they had filed a proposal before
the opposite party-Bank on 20.1.2009. The said proposal has not yet been answered. In support
of her case, it is notworthy that she neither produced the notification issued by the Reserve Bank
of India nor did she show to the court that the said notification was ever violated. She did not
produce the copy of the proposal filed by the complainant before the opposite party-Bank. She
has placed reliance on the judgments of this Commission reported in Smt. Geeta Devi
vs. MahanagarTelephone Nigam Ltd. 1986-2006 CONSUMER 10453 (NS), Deva Ram and
another vs. Ishwar Chand and another AIR 1996 SC 378, Ashok Kumar Yadav v. Noble
Designs Pvt. Ltd. AIR 2006 CALCUTTA 237, Bijedra Kumar and Ors. Vs. Basant Kumar
AIR 1994 ALLAHABAD 81 and Shri Ram Tiwary and another vs. Bholi Devi and another
AIR 1994 Patna 76.
4.
We are of the considered view that these authorities have no application to the facts of this
case. It is difficult to fathom as to why the bank was restrained from proceeding further in
accordance with law. The Bank is acting under the SARFAESI Act, 2002. If the complainant
has got any grouse, he can proceed and lodge a complaint with the Debts Recovery
Tribunal. The State Commission cannot arrogate to itself the power already vested with the
Debts Recovery Tribunal.
5.
The State Commission cannot stay the SURFAESI Act as such. It is surprising to note
how the banks would recover the money from their debtors if such like orders are permitted to
prevail. In order to bring the case under the Consumer Protection Act, it is incumbent upon the
complainant to show that there is deficiency on the part of the bank. No such deficiency in
service has been alleged. The Bank is proceeding in accordance with law. Under the
circumstances, the order passed that the bank would not take coercive steps against the
complainant appears to be illegal. No deficiency on the part of the bank was ever alleged. The
State Commission has got hardly any jurisdiction to try this case. It cannot restrain the Debts
Recovery Tribunal from proceeding against the complainant as per law. Consequently, we set
aside the order passed by the State Commission, vacate the stay and give the permission to the
petitioner-Bank to take coercive methods against the complainant as permitted by law only. The
parties are directed to appear before the State Commission on 3.12.2012 for further proceedings.
The revision petition stands disposed of.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 526 OF 2012
(Against the order dated 22.12.2011 in Revision Petition No.950/2009
of the State Commission, Punjab, Chandigarh)
Ram Parkash
S/o Shri Shiv Ram
Retd. Head Cashier of
State Bank of Patiala
Sant Ram Advocate Street
Mansa (Pb) - 151505
…….Petitioner
Versus
M/s Sarwan Mal Des Raj
Through its sole-proprietor
Tarsem Chand,
Commission Agent,
Shop No.71,
Old Anaz Mandi,
Mansa - 151505
.........Respondent
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
Mr. Ram Prakash, In person
Pronounced on : 9th November, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
By way of present revision petition, there is challenge to order dated 22.12.2011, passed
by Punjab State Consumer Disputes Redressal Commission, Chandigarh (for short, ‘State
Commission’) in Revision Petition No. 950 of 2009.
2.
Brief facts are that petitioner had deposited Rs.20,000/-, Rs.15,000/- and Rs.10,000/-
through cheques No.429989, 958119 and 958121 dated 26.11.1997, 30.1.1999 and 4.3.1999,
respectively with the respondent/o.p.’s firm on its allurement and assurance to earn interest @
12% per annum. The said cheques were debited to petitioner and his wife’s joint account
no.24804 with State Bank of Patiala, Main Branch, Mansa. Respondent had paid interest to him
on 31st March of every year. Respondent supplied the statement of account to the petitioner
showing the balance of Rs.1,23,729/- payable to him on 31.3.2008, but of no use. Petitioner
requested many time to the respondent to release the payment of Rs.78,797/- on account of
interest payable upto 31.3.2008 on his deposit of Rs.45,000/- but respondent only made
assurances to make the payment. Legal notice dated 17.9.2008 was served which was received
by the respondent on 19.9.2008. Thereafter, petitioner filed a complaint on the ground of
deficiency in service and prayed that respondent be directed to pay Rs.45,000/- as principle sum,
Rs.94,000/- as interest with further interest from 21.4.2009 till the date of payment.
3.
The respondent filed an application dated 4.6.2009 before the District Forum for dismissal
of the complaint on the ground that petitioner who had sought recovery of the amount of loan
advanced to him and for payment of interest is not maintainable, as petitioner neither falls within
the definition of “Consumer” nor any “service” was taken from the respondent. The complaint
was not maintainable before the District Forum as the same was also barred by limitation.
4.
District Forum, vide its order dated 25.6.2009, dismissed the complaint being not
maintainable. However, petitioner was given liberty to seek remedy before the Civil Court or any
other authority and to seek condonation of delay during the period his complaint remained
pending before it, as permissible under section 14 of the India Limitation Act, 1963.
5.
Aggrieved by the order of District Forum, petitioner filed revision before the State
Commission which dismissed the same, vide the impugned order.
6.
I have heard the petitioner who has argued his case himself and gone through the record.
7.
It is argued by the petitioner that District Forum admitted the application of the respondent
and dismissed the complaint of the petitioner without getting any reply. As such the orders
passed by the fora below are illegal.
8.
District Forum in its order has observed;
“8. In our opinion, the argument advanced by the learned counsel for the opposite party, is not
devoid of merit, because the Act is not a general law for all the remedies. It has been
enacted, by this legislature for protection of Consumers, as defined in the Act, who avail or
hire the service, for consideration, as per definitions of ‘consumer’ and ‘service’ given
therein. Therefore, in order to succeed, in a complaint, in the Consumer Fora, complainant
must show, that he is ‘consumer’ and has availed or hired services of the opposite party, for
consideration. As projected in the earlier part of the order, the complainant has sought,
recovery of amount deposited by him, with the opposite party alongwith interest, as such he
cannot be said, to have hired or availed any service of the opposite party, for consideration,
from any stretch of imagination, where he, as per his own version, has deposited the specific
amount, with the opposite party, in order to earn profits in the shape of interest. Since the
complainant, has not secured any ‘service’ of the nature, defined in Section 2(1) (o) of the
Act, therefore, we are constrained to hold, that he cannot be termed as ‘Consumer’ within
the purview of definition, given in Clause (d) of the said provision. Being fortified, by the
ratio of judgments, relied upon, by the counsel for the applicant, we have no option, but to
hold, that complaint is not maintainable in the Consumer Fora, as per the scheme of the Act.
As such, the complaint deserves, to be dismissed, on the ground of maintainability alone”.
9.
Whereas, State Commission in its impugned order observed;
“10. We have perused the detail of accounts mentioned by the revisionist in para-10 of the
complaint, wherein he received the cheques for the years 1997,1999 and the last cheques no.
721823 dated 07.06.2000 was received on account of interest from the respondent.
Thereafter, the revisionist himself kept on adding the interest till 31.3.2009, but there is no
acknowledgement or any proof of any interest received by the revisionist from the
respondent. The cause of action arose lastly on 07.06.2000 to the revisionist and the present
complaint was filed on 09.04.2009 i.e. after about nine years. From the year 2000 to 2009,
the revisionist has not bothered to file the complaint within two years or to serve any notice
and the revisionist served a notice on 17.09.2008 upon the respondent, but that does not
extend the period of limitation. There is no acknowledgement nor after 2000, the respondent
paid any interest on the said amount and without there being any acknowledgement or any
payment of interest on behalf of the respondent, the period of limitation cannot be extended
from the year 2000 to 2009 and mere calculations made by the revisionist himself in no way
extend the limitation or the cause of action as there is nothing on record to prove the
continuity of the cause of action.
“11 As such, there is no merit in the revision petition and the same is dismissed as barred by
limitation and there was no cause of action at the time of filing the complaint. There is no
ground to interfere in the order under revision and the same is dismissed”.
10.
Short question which arise for consideration is as to whether complaint filed by the
petitioner before the District Forum was within the period of limitation as prescribed under the
Consumer Protection Act, 1986 (for short, ‘Act’). It would be fruitful to reproduce the relevant
averments made in the complaint with regard to the date of transaction. Para 5 to 7 of the
complaint read as under;
“5
That the complainant received a sum of Rs.6,000/- as interest payment from the OP
through Cheque No. 721823 issued in complainant’s favour drawn on SBOP Mansa
which was credited by the Bank to complainant’s account No. 24804 on 7.6.2000.
6 That the complainant supplied a statement of account to the opposite party in which a sum of
Rs.1,23,797/- was shown as outstanding as on 31.3.2008 against the OP.(Copy of
account is enclosed as Annexure-I)
7. That the complainant has not received any response from the OP until now in respect of the
statement of account supplied to the OP on 1.4.2008 ”.
11.
From above averments made in para 5 of the complaint, it is manifestly clear that sum of
Rs.6,000/- as interest received by the petitioner was credited to his account on 7.6.2000. Further,
as per petitioner’s own case he supplied statement of account as on 31.3.2008 to the respondent,
in which sum of Rs.1,23,797/- was being shown outstanding against the respondent. Thus, after
the year 2000, no transaction has taken between the parties. Further, there is no
acknowledgement on behalf of the respondent after the year 2000. Thus, the limitation shall start
from the year 2000.
12.
Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National
Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the
observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481
(SC) (CP) = JT 2009 (4) SC 191, as under:
“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)
= JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:
“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires
consumer forum to see before it admits the complaint that it has been filed within two years
from the date of accrual of cause of action. The consumer forum, however, for the reasons
to be recorded in writing may condone the delay in filing the complaint if sufficient cause
is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of
a legislative command to the consumer forum to examine on its own whether the complaint
has been filed within limitation period prescribed thereunder. As a matter of law, the
consumer forum must deal with the complaint on merits only if the complaint has been filed
within two years from the date of accrual of cause of action and if beyond the said period,
the sufficient cause has been shown and delay condoned for the reasons recorded in
writing. In other words, it is the duty of the consumer forum to take notice of Section 24A
and give effect to it. If the complaint is barred by time and yet, the consumer forum decides
the complaint on merits, the forum would be committing an illegality and, therefore, the
aggrieved party would be entitled to have such order set aside.”
In para No.13, it has been held by the Hon’ble Supreme Court
“The term “cause of action” is neither defined in the Act nor in the Code of Civil
Procedure, 1908 but is of wide import. It has different meanings in different 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. 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”.
11.
On the point of recurring cause of action reference may be made to the observation made
by the Hon’ble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P.
and Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ;
“10. The concept of recurring cause of action arising in a matter of this nature is difficult to
comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar
Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is
complete cannot be recurring cause of action as in the present case. When the workers
demanded that they should be allowed to resume work and they were not allowed to
resume work, the cause of action was complete. In such a case the workers going on
demanding each day to resume work would not arise at all. The question of demanding to
allow to do work even on refusal does not stand to reason”.
12.
Recently, Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC) has observed ;
“It is also apposite to observe that while deciding an application filed in such cases for
condonation of delay, the Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act, 1986 for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the
consumer disputes will get defeated if this Court was to entertain highly belated
petitions filed against the orders of the consumer foras”.
13.
Under these circumstances, the complaint filed by the petitioner before the District
Forum, was hopelessly barred by limitation, since the same was filed only in the year 2009, that
is, much beyond the period of limitation. Admittedly, no application for condonation of delay
was filed. Hence, there is no merit in the present petition nor there is any ambiguity or infirmity
in the impugned order passed by the State Commission.
14.
The present revision petition, thus stand dismissed.
15.
No order as to cost.
.…………………………J
(V.B.GUPTA)
PRESIDING MEMBER
Sonia/SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 114 OF 1999
1.
Smt. Tilat Chaudhry,
Wife of Shri Nihal Azmat Chaudhry,
Resident of C-66, Sector-J, Aliganj,
Lucknow – 226024 (Uttar Pradesh)
2.
Nihal Azmat Chaudhry,
Son of Sri Wajahat Ali,
Resident of C-66, Sector-J, Aliganj,
Lucknow – 226024 (Uttar Pradesh)
…
Complainant (s)
Versus
1.
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi – 110 029,
Through its Director / Incharge
2.
Dr. (Prof.) T.K. Chaterjee,
Department of Surgery,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi – 110 029.
…
Opposite Party (ies)
BEFORE :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For the Complainant (s)
…
Mr. Nihal Chaudhry, in person for
complainant
For the Opposite Party (ies)
…
DATED: 09th NOVEMBER, 2012
Mr. Anchit Sharma, Advocate
ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER
The above named complainants have filed this complaint alleging medical negligence
and deficiency in service on the part of the opposite party-Hospital and Doctor in the treatment
of complainant No.1-Smt. Tilat Chaudhry and have claimed compensation of Rs. 30,58,923/from them under various heads.
2.
In nut shell, the case of the complainants is that complainant No.1 is the wife of
complainant No.2. They are ordinarily based in Lucknow. In February, 1997, the complainant
had complaint of pain in her abdomen and after consultation with local doctors and radiological
and other investigations, she was diagnosed as having stones in the Gall Bladder and was advised
surgery for the same. Going by the high reputation of opposite party No.1-All India Institute of
Medical Sciences, the complainants approached the said hospital in March, 1997 and after the
complainant No.1 was examined by certain doctors, she was advised to undergo laparoscopic
cholecystectomy, which would normally require hospitalization of 3-4 days in all. On 25.3.1997,
the complainant No.1 was admitted in AIIMS in the private ward of AIIMS after paying the
requisite charges and laparoscopic cholecystectomy was conducted on her in the morning of
27.3.1997 by opposite party No.2-Surgeon. As it took unusually long time to conduct the
procedure, the complainant No. 2 became suspicious. Complainant No.1 was shifted to her room
only in the morning hours of 28.3.1997 when it was noticed that her entire abdomen had been
stitched. When the Complainant No.2 wanted to enquire from O.P. NO.2, he snubbed
him. According to the complainants problem of complainant No.1 increased and new troubles
erupted after operation. She was discharged from the hospital on 04.4.1997 in a very bad
condition with fever, excessive pain, shivers, vomiting etc. From the discharge summary
received by the complainant, it was revealed that some injury was caused to the bile duct during
laparoscopic procedure and to repair the same, the abdomen of the complainant No.1 was opened
and false excuse was given for covering up the said mistake, which was caused due to the
negligence and carelessness of opposite partyNo.2 and other assisting doctors. It is alleged that
not only that the injury to the bile duct was caused but it was not repaired promptly and properly,
which resulted into further complications. After her discharge from the opposite party No.1hospital, the complainant No.1 consulted other doctors at Delhi, Patna and Lucknow who tried to
treat the complainant No.1 through medicines at a huge cost. Even then, the level of Alkaline
Phosphate increased in the body of complainant No.1 as was found after Neuclear Medicine test
at Sanjay Gandhi Post Graduate Institute of Medical Sciences,Lucknow (fort short ‘SGPGIMS’)
and it was found that there was blockade in the body of the complainant No.1, which prevented
free passage of bile and raised alkaline phosphate which was due to the faulty repair of the bile
duct injury. Despite taking treatment at various medical centers, there was not much
improvement in the condition of complainant No.1 and she was advised to undergo second
surgery, which could pose a risk to her life. It is alleged that due to residual defect / disability,
the family life of the complainant has also been ruined and the complainants are unable to
perform their duties and pursue their social and political activities. Complainants have therefore,
claimed a compensation of Rs. 30,58,923/- under the following heads:
1. Expenses at AIIMS:
(i) Payment of bill
:
Rs. 11,785.00
(ii) Purchase of medicine and
Things of surgical need around
:
Rs. 30,000.00
:
Rs. 35,000.00
2. Expenses incurred in tests, medicines,
Fees of doctors etc. at Delhi, Patna and
Lucknow between two operations
3. Expenses in SGPGI, Lucknow during
Second operations:
(i)
Payment of bills
(ii)
Purchase of medicines and
:
Things used in surgery around
Rs. 17,138.00
:
Rs. 30,000.00
4. Expenses incurred in tests and medicines
After the operation of SGPGI till date around
Rs. 10,000.00
5. Expenses incurred in travelling, conveyance
And miscellaneous expenses around
:
Rs. 25,000.00
6. Expenses incurred in travelling
Abroad
:
Rs. 2,00,000.00
7. Compensation for deprivation from
Leading normal life in past and future
And reduction of life expectancy of
Complainant No.1 due to two operations
During short time
:
Rs. 15,00,000.00
8. Compensation for mental agony
Suffered by complainants and physical
Pain and sufferings
:
Rs. 10,00,000.00
9. General compensation
:
Rs. 2,00,000.00
______________
Total
Rs. 30,58,923.00
______________
3.
On being noticed on the complaint, the opposite parties contested the complaint by
filing a joint / common reply raising preliminary objections about the maintainability of the
complaint on the ground that the opposite parties have not obtained any services charges from
the complainants. It is sought to be explained that the amount charged by opposite party No.1
was towards private room, special diet and other clinical diagnoses on subsidized rates. It is
stated that the opposite party No.1-Institute is of National importance, having laudable objects
and reasons established to impart professional competence among medical practitioners and to
provide teaching facilities of high standard in imparting medical treatment to the persons
suffering from severe complicated deceases. It is also stated that the complaint is liable to be
rejected in view of the applicability of legal maxim ‘Volenti non fit injuria’. On merits, it is not
denied that the laparoscopic cholecystectomy was conducted by opposite party No.2 on the
complainant No.1 at opposite party No.1-hospital and that during the course of the procedure an
injury was occasioned to the bile duct of complainant No.1. However, it is sought to be
explained that the alleged injury (defect) is incidental and commonly accepted phenomena to
such surgeries, which was assented to by complainant No.2 and therefore, no liability can
be enfastened on the opposite parties. The complaint is stated to have been filed with ulterior
motive and after the limitation period as prescribed under Section 24-A of the Consumer
Protection Act, 1986. In this regard, it is pleaded that the surgery was conducted on the
complainant No. 1 on 27.3.1997 and she was discharged from the opposite party No.1-hospital
on 4.4.1997 and therefore the complaint filed in July, 1999, is barred by limitation. It is
however, denied that there was any negligence or carelessness on the part of the opposite party
No.2-Surgeon in conducting the surgery of the complainant No.1 and on the other hand, it is
maintained that opposite party No.2 is a renowned and experienced surgeon. As regards the
procedure, it is pleaded that the opposite party No.2 operated complainant No.1 with utmost care
and ability and that while removing the stones from the gall bladder through laparoscopic
procedure the surgeon encountered with a situation when it became eminent for him to convert
the
laparoscopic
procedure
into
open
/
conventional
cholecystectomy
procedure.
Asregard the consequential blockade of bile, it is stated that this also is a phenomena whereby
the Billo-enteric anastomosis gets obstructed after repair, this related to the nature of healing of
the complainant and had nothing to do with the skill of the doctor. It is explained that the level
of Alkaline Phosphate was normal on 03.4.1999 i.e. a day before she was discharged from
opposite party No.1-hospitalon 4.4.1997. It is denied that the opposite parties are liable for any
medical negligence or deficiency in treatment of complainant No.1 or liable to pay any
compensation for the same much less the compensation sought by the complainants.
4.
In the rejoinder, the complainants have controverted the objections and pleas raised in
the reply of the opposite parties in regard to the maintainability of the present complaint before
the consumer fora and have generally reiterated and maintained the averments and allegations
already made in the complaint.
5.
To substantiate their claim, complainants have mostly relied upon the documentary
evidence i.e. the record of the diagnosis and medical treatment of complainant No.1 at O.P.
No.1-AIIMS
and
subsequent
treatment,
which
the
complainant
received
at
SGPGIMS, Lucknow and hospital at Patna etc. Besides the complainants have filed their
affidavits, from the side of the opposite parties, affidavits of Dr. D.K. Sharma, Medical
Superintendent, AIIMS has also been filed on behalf of the opposite party No.1-Hospital besides
the affidavit of O.P. No. 2, Dr. T.K. Chatopadhyay, Prof. & Head Department of G.I. Surgery,
AIIMS, New Delhi has been filed. Complainant had also served a set of interrogatories on the
opposite parties which were duly replied by them.
6.
We have carefully gone through the entire evidence and material produced on record and
have heard complainant No.2 in person on behalf of the complainants and Mr. Anchit Sharma on
behalf of the opposite parties and have considered their respective submissions. As noted above,
it is not disputed and even otherwise it is established from the medical record and the discharge
summary of complainant No.1 from O.P. No.1-Hospital that CBD injury was caused during the
procedure of laparoscopic cholecystectomy and procedure was converted to open
cholecystectomy upon detection of the CBD injury. Whether the CBD injury is a known
complication of laparoscopic cholecystectomy procedure or it was caused due to lack of care /
negligence on the part of the operating surgeon (O.P. No.2) and his team assisting doctors is the
material question, answer to which would decide the fate of the present complaint. According to
the complainants, CBD injury was caused due to negligence of the operating surgeon and
assisting doctors at the time of conducting the said procedure. For this, we may first consider the
various observations / findings as recorded in the operation notes and the discharge summary of
complainant No.1:
ALL INDIA INSTITUTE OF MEDICAL SCIENCES, NEW DELHI – 110029
Name Mrs.Talat Choudhary
Status
Age
52
Sex
:F
Marital
CR No.495592
Service: Surgery –III
Ward : Pvt.II Bed : 203
Post-Operative Diagnosis
Cholelithiasis
Post-operative Diagnosis
-do-
Operative Procedure Proposed
Laproscopic
Occupation
Major
Cholecystectomy
Operative Procedure Executed
Religion
Routine
Minor
Laparoscopy – converted to open cholecystectomy +
Roux-en-y
Hepaticojejunostomy
Surgeon – Prof. T.K.Chaterjee
Assistant -1 Dr. Rajender Prasad
Dr.Gopal /
Anaesthetist – Dr. Lokesh
Anaesthetic : GA
Material
forwarded
to
pathology
Department
for
Examination
Skin Preparation
Savlon + Betadine
Assistant 2-
Dr.Devender
Nurse
Findings Record of all organs GB distended : single stone in GB while dissecting the
GB, the bile ooze detected – converted to Open –
Examined
CBD injury detected
Procedure includes
Incision
Ligatures
Specimen removed
Drainage
Part prepared and draped
Sponage count
Portis inserted in the standard fashion
Closure
Lapraoscopic dissection done. While dissecting bile
Blood loss
ooze detected
Operating time
Converted to open cholecystectomy
CBD injury detected
Roux-en-Y hepaticojunostomy done using vicryl 4 /0
Jejunojejunostomy done in 4 layers using vicryl 3/0
Hemostasis achieved
Chest tube drains put
Abdomen closed by using prolene No1
Skin clips applied.
SURGERY UNIT – III
ALL INDIA INSTITUTE OF MEDICAL SCIENCES
DISCHARGE SUMMARY
Follow up on Friday at 2.00 p.m. in R.No. I.V.Floor OPD Block
Name :
Talat Choudhary
No.495592
Age
52
Sex
:
F
FUC No.
Address : 169 Zakir Marg, Okhla Road,
New Delhi – 25
D.O.A. : 25/3/97
D.O.O.: 27/3/97
CR
D.O.D.4/4/97
DIAGNOSIS :
Cholelithiasis
ADVICE
T.Flexon 1 – SOS
T.Rantac 150 mg – HS x 10 days
To Report SOS
To Attend Surgery-III FUC on Friday 2.00 p.m.
To Attend Gynae OPD for Cystocele and uterine prolapse
HISTORY & PHYSICAL FINDINGS : Pain (Rt) Hypochondrium x 2 yrs. Retrosternal
burning x 2 yrs. Patient asymptomatic before 2 yrs when she developed pain right HC.
Pricking nature, mild – moderate, few minutes, increased frequency in last 2 months. Now
almost daily. H/o retrosternal burning sensation x 2 yrs mold to moderate increased after
heavy / spicy meals
Diagnosed – cystocele = Uterine Prolapse X 2 months ago
O/E
- Vitals –WNL, GPE-NAD, Chest /CVS-NAD, Abdomen-NAD
OPERATIVE PROCEDURE & FINDIGNS:
Laparoscopic – converted to open cholecystectomy + Hepaticojejunostomy under
GA on 27/3/97
Finding : normal size gallbladder with unclear ductal anatomy – led to CBD injuryconverted to open & Roux en Y Hepaticojejunostomy done.
HOSPITAL COURSE :
Uneventful. NG Removal PODI, Passed flatus POD3, orally
allowed POD3 Passed Stools POD4, Drain out POD6, sutures out POD8. On discharge,
patient afebrile, taking fully orally, wound healthy. LFT-WNL.
7.
From the above notes and discharge summary, it is manifest that the CBD injury was
caused and detected during the Laparoscopic dissection procedure and therefore, the said
procedure was converted into open cholecystectomy to correct / rectify the said complication
i.e. Roux en YHepatiicojejunostomy was done in 4 layers using vicryl 3/0 and Hemostasis
achieved.
8.
At this stage it is pertinent to note that going by the main plea of the complainant that
given the condition of the complainant No.1, the opposite parties should not have resorted to the
laparoscopic procedure and that CBD injury was caused due to non-visualization of the ductal
anatomy of the complainant No.1 during the laparoscopic cholecystectomy procedure and since
the CBD injury during the laparoscopic procedure was not denied from the side of the opposite
parties, this Commission, with a view to sort out the controversies thought it advisable to obtain
the opinion from an independent medical expert body. Normally, this Commission had been
obtaining the opinion of the Medical experts of All India Institute of Medical Sciences in other
cases of medical negligence but since in the case in hand, the AIIMS and its doctor were parties
and the allegations of medical negligence and deficiency in service in the treatment were made
against them, this Commission vide an order dated 16.1.2012 referred the matter to the Director
General of Health Services, Government of India, New Delhi for constituting a Medical Board
from the relevant discipline(s) not less than three in number and not belonging to AIIMS for the
purpose of examining the matter and giving its expert opinion in the case in hand on the above
aspect. In terms of the direction of this Commission, the DGHS constituted a Board of four
Medical Experts viz:
(i) Dr. O.P. Pathania, Professor, Department of Surgery,
LHMC & Smt. S.K. Hospital, New Delhi – 110 001;
(ii) Dr. Manju Sharma, Member, Consultant, RML Hospital, New Delhi;
(iii) Dr. Archana Aggarwal,
Consultant,
Department
of
Head,
Department
Radiodiagnosis,
VMMC
& Safdarjung Hospital, New Delhi;
(iv)
Dr. Gulshan Jit Singh,
Consultant
&
of
Surgery,
VMMC
& Safdarjung Hospital, New Delhi.
The Board constituted by the DGHS after going through the entire record of the medical
treatment and gave their opinion as under:
“Summary:
Mrs. Talat Choudhary, 52 years Female was admitted on 25.3.1997 vide CR No. 495592 in
Surgical Unit III AIIMS, New Delhi. She was operated on 27.3.1997. laparoscopic
cholecystectomy was started which was converted to open cholecystectomy on detecting CBD
injury (due to unclear anatomy) and Roux en YHepaticojejunostomy was done. Post-operative
stay
was
uneventful. Tc 99m
scan
done
on
03.4.1997
at
AIIMS
showed
patent Hepaticojejunostomy (page 3 of the document provided shows the date as 03.4.1997, page
19 shows the date as 03.3.1997 and page 16 does not mention any date on the test report
provided). Patient was discharged on 4.4.1997.
Patient had persistently raised Serum Alk. Phosphatase but Ultrasound abdomen & CT abdomen
done at Patna on 10.6.1997 was not showing any evidence of biliary stasis.
Patient was investigated at SGPGI, Lucknow, HIDA scan done on 04.7.1997 revealed evidence
of stenosed biliary enteric anastomosis (page 12 shows the report however there is some
overwriting in the report marked X, may be checked with the original for confirmation) for which
Redo Surgery was done on 05.7.1997. Patient was discharged on 23.7.1997. Post-operative
HIDA scan was done on 18.8.1997 showed patent anastomosis.
Observations:
Laparoscopic Cholecystectomy for Gall stone disease is a preferred mode of treatment. CBD
injury is a known complication of Laparoscopic as well as open Cholecystectomy. Conversion to
open Cholecystectomy upon suspicion/detection of CBD injury is a standard procedure as and
when indicated.
On perusal of operative records of AIIMS, injury to the CBD in this patient was
recognized intraoperatively and approximately laparoscopic procedure was converted to open
procedure and remedial corrective measure in the form of Roux en Y Hepaticojejunostomy was
performed which is a standard operative procedure for such complication. Tc 99 m scan done
on 03.04.1997 at AIIMS showed patent anastomosis.
Conclusion:
Committee is of the opinion that Laparoscopic Cholecystectomy was converted to open
cholecystectomy and appropriate corrective measures (Hepaticojejunostomy) for the CBD injury
were successfully taken. At no stage any evidence of negligence is forthcoming on the perusal of
relevant medical records made available to the committee.”
9.
To elicit the detailed information and other clarifications, a set of as many as 34
interrogatories was served on the opposite parties with the leave of the Commission and the same
have been duly replied by the opposite parties. Some of the interrogatories and their replies are
germane to decide whether there was any lack of care on the part of the operating surgeon and
his team. For the facility of reference we would extract the relevant interrogatories and their
replies:
“1.
Interrogatory No.4 – When did you first perform an operation by Laparoscopy technique? How
many surgery cases exclusively by Laparoscopic method were carried out by you personally
before this case? And is there any record of it?
Reply: Laparoscopic Cholecystectomy was introduced in late 1980s and was soon adopted at
AIIMS. The exact number of surgery exclusively by laparoscopic method, by OP No.2 before the
case in question is difficult to ascertain for want of specific records.
2.
Interrogatory No.5 - How much total time was actually consumed in the surgery of complainant
on 27.3.1997. And is there any record of it?
Reply: Even though it is difficult to say anything with certainty at this time. However, on the
basis of documents on record it appears that the surgery in question was started at 9.15 A.M.
and came to an end at 12.15 P.M. This is on the basis of conterminous records. The copy of the
Anesthetists in the OT records is attached as Annexure OP-1.
3.
Interrogatory No.8 - In how many cases before this case, while performing laparoscopic
cholecystectomy, common bile duct injury was caused by you.
Reply: Prior to the case at hand no bile duct injury was reported by any one in amongst the
surgeries performed by the OP No.2.
4.
Interrogatory No.9 - Do you agree that in the discharge summary or at least in the operation
note a mention is supposed to be made of abnormality if any found in anatomy of any patient?
Reply: Yes, the discharge summary of the present complainant does mention abnormality found
in the anatomy of the patient.
Interrogatory No. 10 - Whether you agree “That positive identification of anatomy before any
5.
structure is legated, divided or dissected is must and mandatory in Laparoscopic
Cholecystectomy?
Reply:
During any surgery either open or laparoscopic, structures are identified before being
legated and divided.
6.
Interrogatory No.11 - Will it amount to negligence and carelessness if injury to bile duct is
caused during process of hole making itself?
Reply: That injury to bile duct during process of hole making itself, is not in itself negligence
and/or carelessness.
7.
Interrogatory No. 12 - What do you have to say that on observing any complication a careful
surgeon is supposed to convert to conventional method and not persist with Laparoscopic
method?
Reply:
That immediately on observing any complication any surgeon is supposed to convert
the procedure to conventional method. As soon as bile leak was noted in the present patient, the
procedure was converted to an open procedure.
8.
Interrogatory No. 14 - Which of the following reasons given on your behalf you think is the
actual reason for the causing of bile duct injury?
(iv)
(v)
(i)
Unclear ductal anatomy as referred in ‘discharge summary’
(ii)
Undue brittleness of tissues referred in para 19 of written reply
(iii)
Chronic Cholecysitis of patient ‘referred in para 2 of affidavit.
Anatomy of cystic duct not clearly identifiable ‘referred in para 2 of the affidavit’
Chronic Cholecystitis reaction is higher and more severe due to which identification of anatomy
becomes difficult ‘referred in para 6 of affidavit’
(vi) Inflammation (referred in para 6 of affidavit)
Reply:
The factors raised in interrogatory 14 (from i to vi) are known factors of bile duct
injury. At times more than one factor are present in a given cases. The contributory or
independent value of each is difficult to ascertain.
9.
Interrogatory No.16 - Is oozing of bile not a clear indication that bile duct injury had already
been caused? What do you have to say?
Reply:
The answer depends on the quantity of oozing of bile and there cannot be strict formula
for that. However, as soon as bile like was detected the laparoscopic procedure was converted
to an open conventional method.
10.
Interrogatory No.17. - Whether you had properly and positively identified the anatomy before
cutting in this case. It is correct to say that if there is no positive identification of anatomy as in
the present case it would not have been advisable to go for Laparoscopic Cholecystectomy.
Reply: During laparoscopic manoeuvre nothing was cut. However, dissection was attempted
to clarify the anatomy. It is at this stage bile like was detected.
11.
Interrogatory No.19 - At what stage of surgery the Bile Duct injury was caused –
during hole cutting, or after dissection started, what do you have to say?
Reply: During laparoscopic manoeuvre nothing was cut. However, dissection was attempted
to clarify the anatomy. It is at this stage bile like was detected.
12.
Interrogatory No.20 - What steps had you taken to identify hepatic, cystic and bile ducts? Were
hepatic and bile ducts identifiable?
Reply: That during open surgery all these ducts were identified.
13.
Interrogatory No.24 - Please refer to para 7 of affidavit that decision to convert is taken by
surgeon on operation table. Whether in totality of circumstances and situation the decision to
convert to conventional method was taken too late.
Reply: As soon as bile leak was noted a decision to convert was taken without wasting any
time. There is no question of the decision to convert being late.
14.
Interrogatory No. 30. - If as mentioned in paras 13, 15 and 17 of your written reply shrinkage of
the passage in bile duct created by you was on account of peculiar healing characteristics of the
patient. Can you explain why such shrinkage did not occur after surgical correction of bile
passage at SGPGIMS Lucknow in the operation subsequently performed?
Reply: The fact that the surgeon at SGPGIMS noted raised alkaline phosphates is suggestive
and indicative of shrinkage of the passage. This fact confirms and justify the reasoning of the
OP given in the written reply.
15.
Interrogatory No. 31 - In para 10 of written reply it is stated that “as soon” as possibility of the
bile duct injury was realized OP No. 2 immediately converted to open procedure.” Do you mean
to say that conversion as done before the bile duct injury was caused?
Reply: The reference of para 10 of written reply is misreading thereof. The contents
of para 10 of the written reply is reiterated. The decision to convert the procedure was as a
sequel to the bile leak, which could have been for different reasons and not necessarily for bile
duct injury.
16.
Interrogatory No. 32 – In para 13 of the written reply you have tried to absolve yourself of
responsibility by putting blame on healing characteristics of the complainant, what do you have
to say that after surgical correction done at SGPGIMS, Lucknow, after the operation done by
you, the suffering of the complainant described in para 12 to 15 of complaint ended up to great
extent, and no further surgical correction as required with the same healing characteristics.
Reply: The interrogatory under response has already been replied as above. The fact that the
surgeon at SGPGIMS noted raised alkaline phosphates is suggestive and indicative of shrinkage
of the passage. This fact confirms and justify the reasoning of the OP given in the written reply.
17.
Interrogatory No. 33 - Is it true that in surgery negligently done through Laparoscopic technique
by you, first the bile duct of the complainant was injured and then the repair done by you in
surgery
through
conventional
method
was
also
negligently
done
and
was
not
successful. Complainant had to undergo lot of sufferings and necessitated a second surgery
within 3 ½ months of your surgery to save her life.
Reply: It is absolutely incorrect that either the surgery was done negligently or the repair
thereof was deficient in any manner. The findings after the surgery at SGPGIMS confirms and
justify the reasoning of the OP given in the written reply.”
10.
Complainant No.2, then submitted that the reply to the interrogatories would show that due
care was not exercised by the operating surgeon to visualize the anatomy of the complainant No.
1 before embarking upon the procedure of laparoscopic cholecystectomy. Indeed his submission
is that the non-visualization of the duct anatomy was the main cause which led to the CBD
injury. In support of his submissions he heavily relied upon the opinions contained in certain
medical text i.e. Laparoscopic Surgery of the Abdomen by Bruce V. MacFadyen, Jr., MD &
Others (published by Springer), wherein the Authors of the said book have said so in regard to
the General Principles, Adequate Exposure, Dissection and Maintenance of Hemostasis,
Identification of the Anatomy etc., by observing as under:
General Principles:
………..
4.
Positive identification of the anatomy before any structure is ligated or divided.
Adequate Exposure:
…..The surgical dictum that you can only operate on what you can see remains a guiding
principle of laparoscopic surgery…..
Dissection and Maintenance of Hemostasis
….. Laparoscopy is a visual procedure and what you cannot see you cannot safely dissect….
Identification of the Anatomy
….. Absolute identification of the anatomy of the portahepatis and triangle of Calot before
ligation of any structure is the only safe way to reduce the risk of inadvertent injury,
particularly to the common bile duct…..
11.
At this stage it will be useful to note the circumstances in which, the incidence of CBD
injury
are
indicated
by
other
Authors
of
the
Medical
Text
books. In
the
book Sleisenger and Fordtran’s Gastrointestinal and Liver Disease Edited by Mark Feldman,
Lawrence S. Friedman and Marvin H. Sleisenger, 7th Edition – Section titled under the heading
“Complications Following Laparoscopic cholecystectomy” it has been laid down:
“Laparoscopic cholecystectomy has laregely replaced “open” surgical cholecystectomy
because laparoscopic cholecystectomy results in shorter hospital stay, faster recovery and lower
overall morbidity rate. Unfortunately, the frequency of complications resulting from the bile
duct injury has increased with the advent of laparoscopic cholecystectomy. Bile Duct injury,
which was observed in 0.1% of open cases, may occur inas many as 0.2% to 0.5% of
laparoscopic cases. In addition, laparoscopic bile duct injuries tend to be more severe and more
difficult to treat than biliary injuries produced by open surgery.
Bile duct injury that occurs during laparoscopic cholecystectomy results in two basic
problems
biloma formation and (2) biliary obstruction caused by stricture
formation. Patients may present with pain and fever from a biloma of jaundice because of
biliary obstruction. Bile leaks result from incomplete clipping of the cystic duct or laceration or
transection of central or peripheral bile ducts. Failure to recognize variant bile duct anatomy,
particularly an aberrant low insertion of a segmental right duct, is a common cause of bile duct
transection. Strictures tend to occur in the common hepatic duct owing to thermal injury to the
hilum from cautery and dissection probes. Strictures or obstruction can also result from
inadvertent ligation of aberrant ducts.
The initial work-up of patients with presumed bile duct injury includes cholangiography to
assess the biliary anatomy and a cross-sectional imaging study such as CT or US
toinvestiage the presence and location of biloma. Cholangiography is performed via an
endoscopic approach when possible. Billiary tract disruption results in decompression of the
bile
duct
and
the
ducts
may
actually
be
decreased
in calibure,
making
percutaneous cannulation difficult or even hazardous. When endoscopic cannulation of the duct
is not possible or when contrast material cannot be directed into the intrahepatic ducts, PTC
may be necessary. In patients with possible laparoscopic cholecystectomy injury, it is
particularly important toopacify all the intrahepatic ducts by cholangiography. Inadvertent
ligation or peripheral ducts may result in incomplete opacification of the biliary tree, which is
difficult to notice immediately.
The treatment of bile duct injury following laparoscopic cholecystectomy depends on the
nature and extent of injury. Small to moderate bile duct leaks at the cystic duct stump or
peripheral ducts may be cured with non-operative therapy alone, but large leaks or transection
of the main ducts often requires surgery. The treatment of small bile duct leaks includes
percutaneous drainage of large or symptomatic bilomas coupled with a biliary drainage
procedure to divert bile from the site of injury. The drainage catheter is initially placed into
thebiloma under
US
or
CT
guidance
and
then
the
collection
is
evacuated. External biloma drainage is continued until biliary output through the drain
ceases. Billiary diversion is usually achieved endoscopically by sphincterotomy and placement
of a temporary plastic endoprosthesis. Although the leak may require several stent changes to
achieve complete closure, most leaks will close within six weeks.
Strictures after laparoscopic cholecystectomy may occur after an uneventful operation and
may not be recognized until many months to several years after surgery. The treatmentofthese
strictures is usually surgical – creation of a Roux-en Y hepaticojejunostomy. In slected patients
who cannot undergo this surgery because of severe medical problems or cirrhosis with portal
hypertension, non-operative management by means of balloon dilation and placement of a
metallic endoprosthesis may be appropriate. Lillemore and colleagues reported a success rate
of 100% in the treatment of the bile duct strictures using a combination of surgery and
percutaneous dilation. However, the cost of treating these patients was quite high, with mean
cost of $51,000/-.”
12.
What amounts to medical negligence on the part of a medical professional has been
considered by the Hon’ble Supreme Court and Foreign Courts in number of its decisions. In this
connection reference may be made to the celebrated and oftenly cited Queen’s Bench Division
in Bolam V Frirn Hospital Management Committee Hospital Management Committee (1957)
1
WLR
582,
(Queen’s
Bench
Division),
Spring
Meadows
Hospital
& Another V.Harjol Ahluwalia & Anr. (1998) 4 SCC 39 / Indian Medical Association Vs.
V.P. Shantha & Ors.
(1995)
6
SCC
651,
Dr. Laxman Balkrishna Joshi
V.
Dr. Trimbak Bapu Godbole and Another, AIR 1969 SC 128 / Savita Garg (Smt.) Vs. Director,
National Heart Institute (2004) 8 SCC 56 / Malay Kumar Ganguly Vs. Sukumar Mukherjee
Doctors & Ors. 2009 CPJ 17 (SC) / Martin F D’Souza Vs. Ishfaq – I (2009) CPJ 32 (SC)
13.
We do not wish to burden this opinion by referring to all those decisions in
detail. Certainly we would like to take into account the legal position which emerges from the
said decisions. The Hon’ble Supreme Court on consideration of the above referred Foreign and
Indian decisions in the case of KusumSharma & Others Vs. Batra Hospital (2010 CPJ) culled
out the following principles:
“Negligence is the breach of a duty exercised by omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable man
would not do.
ii. Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
iii. The medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very highest nor
a very low degree of care and competence judged in the light of the particular
circumstances of each case is what the law requires.
iv. A medical practitioner would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field.
v. In the realm of diagnosis and treatment there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
vi. The medical professional is often called upon to adopt a procedure which involves
higher element of risk, but which he honestly believes as providing greater chances of
success for the patient rather than a procedure involving lesser risk but higher
chances of failure. Just because a professional looking to the gravity of illness has
taken higher element of risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.
vii. Negligence cannot be attributed to a doctor so long as he performs his duties with
reasonable skill and competence. Merely because the doctor chooses one course of
action in preference to the other one available, he would not be liable if the course of
action chosen by him was acceptable to the medical profession.
viii. It would not be conducive to the efficiency of the medical profession if no Doctor
could administer medicine without a halter round his neck.
ix. It is our bounden duty and obligation of the civil society to ensure that the medical
professionals are not unnecessary harassed or humiliated so that they can perform
their professional duties without fear and apprehension.
x. The medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurizing the medical
professionals/hospitals particularly private hospitals or clinics for extracting uncalled
for compensation. Such malicious proceedings deserve to be discarded against the
medical practitioners.
xi. The medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the patients.
The interest and welfare of the patients have to be paramount for the medical
professionals”.
14.
On a consideration of the above noted authoritative opinions of the Medical experts and
bearing in mind the legal position, there cannot be any denial of the position that the CBD injury
is a well-known complication of the laparoscopic cholecystectomy procedure and frequency of
such complications has increased with the advent of laparoscopic cholecystectomy. It is much
higher, say almost double or four times than in the case of open / conventional
cholecystectomy. Therefore it must be presumed that the incidence of CBD injury is a wellknown risk when a patient undergoes a laparoscopic cholecystectomy procedure. In other words,
the same cannot be correlated as the act of negligence or carelessness on the part of the operating
surgeon. In a case where a patient has incidentally suffered CBD injury during the laparoscopic
procedure cannot by itself be presumed to be a result of negligence in all such cases. However,
that does not mean that a surgeon conducting the laparoscopic cholecystectomy procedure would
be immune even if the CBD injury has been caused due to his negligence / lack of care in
performing the said procedure. In the case in hand, the complainants are mostly harping upon
the situation that the anatomy of the complainant No.1 was not fully and properly visualized
before she was booked for laparoscopic cholecystectomy procedure for the removal of the stone
from the gallbladder. In other words, the complainant wants to suggest that the operating
surgeon has overlooked the said situation. This argument does not cut much ice because in the
present case, the complainants have failed to show that complainant No.1had any abnormal /
unusual anatomy on the face of which procedure of laparoscopic cholecystectomy was counter
indicative or the operative surgeon should have gone only for conventional / open
cholecystectomy procedure even to begin with. From a perusal of the Notes of Surgery, it does
not appear that the operating surgeon encountered with such a situation. Rather it would show
that the surgeon had to convert the procedure of laparoscopic cholecystectomy into open
cholecystectomy, when it was noticed that there was oozing of the bile. Merely because the
laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot
be said that the laparoscopic cholecystectomy procedure adopted by the surgeon was counter
indicative in the case of the complainant No.1. We therefore hold that no negligence can be
attributable to the opposite parties on that count.
15.
As regards, the procedure of laparoscopic cholecystectomy and the procedure adopted to
correct the CBD injury, no fault can be found with the same as has been opined by the body of
medical experts (supra). Once it is shown that due medical protocol was followed, no case of
medical negligence is made out against the opposite parties.
16.
As regards the subsequent and persisting problems, which complainant No.1 claims to have
suffered even after her discharge from the opposite party No.1-Hospital, suffice it to say that
such post-operative problems after such a complication were normal and had subsided after the
complainant No.1 took treatment at certain other medical centers. In any case, the complainant
No.1 was discharged from the hospital on 04.4.1997, in a satisfactory condition and she did not
revert back to the said hospital for consultation about the subsequent problems, which she had to
face, may be for the reason that the complainants had lost faith in the treatment given by the
opposite parties. On that count also, it is also not possible to fix any liability on the opposite
parties.
17.
Thus on a consideration of the entirety of the facts and circumstances of the present case, the
evidence and material brought on record, the opinion of expert body and the view of the wellknown Authors in different medical text books, the irresistible conclusion is that the
complainants have failed to establish their case about the medical negligence and / or deficiency
in service against the opposite parties in the treatment of complainant No.1. The complaint
being devoid of any merits is accordingly dismissed, leaving the parties to bear their own costs.
..………………..……….
(R. C. JAIN, J.)
PRESIDING MEMBER
.………………………
(S.K. NAIK)
MEMBER
SB/2
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2565 OF 2012
with
I.A. NO.01 of 2012 (For condonation of delay)
( I.A. NO.02 of 2012 (For Stay)
(From the order dated 10.1.2012 in Appeal No.1025/2010
of the State Commission, Punjab)
1.
Swaranjeet Kaur
W/o Virsa Singh
2.
Adarshpreet Singh
S/o Virsa Singh Rakesh Gupta
Both R/o Village Mamdot, Tehsil and
District Ferozepur
…Petitioners
Vs.
1.
Amar Singh aged 45 years son of Gurdit Singh
R/o ‘Village Chak Ghubai (Taran Wali)
Tehsil and District Ferozepur
2.
Punjab School Education Board
S.A.S. Nagar (Mohali),
Punjab through its Chairman
BEFORE:
….Respondents
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner(s)
:
Mr. Narender Singh Yadav, Advocate
Pronounced on: 9th November, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
In this revision petition there is challenge to order dated 10.1.2012 passed by the State
Consumer Disputes Redressal Commission, Punjab (short ‘State Commission’).
2.
Respondent no.1/complainant filed complaint under Section 12 of the Consumer Protection
Act, 1986 (for short ‘Act’) against the petitioners no.1 and 2 (O.P. No.1&2) and respondent
no.2/O.P.No.3 on the allegations that respondent no.1’s son, namely, Kuldeep Singh was
studying in Matric and appeared in Matriculation examination held by respondent no.2 in March,
2007 through Govt. Senior Secondary School, Mamdot and was declared ‘fail’ in March,
2007. Petitioner
no.1
in
the
capacity
of
principal
of Adarsh Senior
Secondary
School, Mamdot along with his son, petitioner no.2 contacted and told respondent no.1 that they
are running a private school which is recognized by respondent no.2 and the examinations are
held through ‘Open School Scheme’ and his son can successfully pass 10th class examination
through their Open School, if the respondent no.1 gets admitted his son in their school. On their
assurance, respondent no.1 got admitted his son in their School with Roll No.21, Add no.381 in
July, 2007 for session 2007-08. Petitioner no.1 & 2 charged Rs.600/- as admission fee and
Rs.200/- per month as fee as well as Rs.3,000/- for examination fee for the session 2007-08. Son
of the respondent no.1 received admit card of examination of Open School in March, 2008 with
Roll No.2046427, Examination Centre-C.K. High School, Ferozepur. The son of respondent no.1
appeared in March, 2008 in the examination in the centre C.K. High School, Ferozepur and
waited for his result for a long time. Thereafter, respondent no.1 contacted petitioner no.1 & 2,
but they did not give any satisfactory reply. In the meanwhile, respondent no.1 came to know
about the result through PSEB Gazette of Examination, March, 2008(Open School). Against the
roll number of his son, “result declared cancelled” was mentioned. Respondent no.1 contacted
petitioners no.1 & 2 and told about the result declared, but they assured him that they will
enquire the status of result from respondent no.2. But thereafter did not give any satisfactory
response. Respondent no.1 himself enquired from respondent no.2 and came to know that his
son was declared ‘pass’ in the examination of March, 2008 and on 13.10.2009, respondent no.1
moved an application to the chairman of respondent no.2, to issue certificate of his son. The
application was marked to Sh. Jagjit Singh Sohal, to enquire into the matter and after inquiry,
respondent no.2 told respondent no.1, that some amount is due towards AdarshSenior Secondary
School, Mamdot and for that reason, respondent no.2 cannot issue certificate to him and refused
to issue the certificate. Respondent no.1 again contacted and requested petitioners no.1 & 2 to
declare the result and to issue certificate and asked them to pay entire expenses and to
compensate his son for causing loss of two years of study. But the petitioners refused to issue
certificate. Thus, petitioners by not issuing the result and the certificate, ruined two golden years
of study of the son of respondent no.1 and he also suffered harassment and mental agony. It was
prayed in complaint that petitioners be directed to declare the result and issue certificate of the
son of the respondent no.1 and further to pay Rs.5.00 lacs as compensation in all.
3.
Petitioners no.1 & 2 did not contest the complaint before the District Forum and were
proceeded against ex parte.
4.
In the reply filed on behalf of respondent no.2, preliminary objections were taken that
respondent no.1 is not a consumer and respondent no.2 is not a service provider and the
complaint is not maintainable. The respondent no.1 has no locus standi to file the present
complaint, as there is no deficiency in service on the part of respondent no.2. The answering
respondent had allotted and issued Roll No.2046427 to the son of the respondent no.1, for
appearing in the Matriculation Examination held in March, 2008 from C.K. High
School,Ferozepur, through Open School System. The son of the respondent no.1 did not mention
the old roll number of his previous examinations to get the benefit of carry forward scheme and
also did not deposit the late fee as required by the answering respondent and for those reasons
answering respondent cancelled his result along with other seven candidates. Thereafter,
petitioner no.1 & 2 deposited Rs.14,000/- as late fee on 15.12.2009, vide receipt no.832585 and
the result of the son of the respondent no.1 was declared from ‘cancelled’ to ‘pass’, after taking
the orders from the competent authority on 22.01.2010 and the certificate of the son of the
respondent no.1 along with other seven candidates was sent to petitioners no.1 & 2 on
25.01.2010 by registered post no.582381. There is no deficiency in service on the part of the
answering respondent.
5.
District Forum, Ferozpur (short ‘District Forum ‘) vide its order dated 25.3.2010, allowed
the complaint and passed the following directions;
“9.
In view of the above discussion, we have come to the conclusion that the opposite
party no.1 and 2 are not only negligent and guilty of deficiency in service, they have also
adopted unfair trade practice towards the complainant. The opposite party No.1 has not
deposited the amount of late fee with the O.P. No.3 Punjab School Education
Board. Two valuable academic years of the complainant’s son have been lost due to
fault on the part of opposite party No.1 and 2. So, this complaint is partly allowed
against the opposite party No.1 and 2 with Rs.20,000/- (Twenty thousand) as
compensation on account of loss of two academic years of Kuldeep Singh and Rs.2,500/as litigation expenses. The opposite party Nos.1 and 2 are directed to collect the
certificate from the concerned C.K. High School through whom the admission
of Kuldeep Singh was arranged by the O.P. Nos.1 and 2 and to hand over the said
certificate to the complainant.”
6.
Aggrieved by the order of District Forum, respondent no.1 filed an appeal for
enhancement. State Commission, vide impugned order partly accepted the appeal of respondent
no.1 and modified the order of the District Forum and passed the following directions;
“The compensation of Rs.20,000/- awarded by the District Forum is enhanced to
Rs.1,00,000/- (Rupees One Lac) and the litigation expenses are enhanced to Rs.10,000/(Rupees Ten Thousand). Respondents no.1 & 2 are directed to pay the above amounts to
the appellant/complainant within two months from the receipt of copy of the order,
failing which the appellant will be entitled to 9% interest per annum from the date of
complaint till realization”.
7.
This is how the matter has reached before this Commission.
8.
I have heard the learned counsel for petitioner and gone through the record.
9.
Alongwith present revision, an application for condonation of delay of 65 days have been
filed. As per Office noting there is no delay, since impugned order was received by the
petitioner only on 11.6.2012, whereas present revision petition has been filed on
13.7.2012. Under these circumstances, there is no delay, hence the application for condonationof
delay is disposed of being infructuous.
10.
Now, coming to the merits of the case, the main plea taken by the petitioners in their
grounds of revision is that petitioners ought to have been served by publication
before being proceeded ex parte. Further, petitioner no.1 is a Anganwadi worker and therefore
she could not hold the position of principal of the school. Respondent no.1 has failed to produce
any evidence to show that petitioner no.1 was the principal of the school. Moreover, petitioner
no.2 is a student. Therefore, he could not have managed the affairs of the school particularly
when he himself was pursuing his studies.
11.
“6.
District Forum in its order has observed;
As per averments of written statement filed by the opposite party No.3 Punjab
School Education Board, the Adarsh Sr. Sec. School Mamdot, being run by O.P. No.1 and 2
failed to deposit the late fee and also the roll number of the student Kuldeep Singh whereby
he appeared in Matriculation Exam in March-2009 was not disclosed. So, the result
of Kuldeep Singh alongwith seven other candidate was cancelled. The O.P. No.1 and 2
deposited Rs.14,000/- as late fee with Board on 15.12.2009 vide receipt No.832585 and the
result of the complainant was declared from cancelled to pass with the orders of competent
authority on 22.1.2010 and certificate of complainant and seven other students have been
dispatched to the O.P. No.1 and 2 on 25.1.2010 vide registered No.585381. The affidavit
Ex R1 in support of written statement of O.P. No.3 Board has been also filed by Sh.
Suresh Tandon, Vice-Chairman/Secretary, Punjab School Education Board. Ex R2 is the
copy of letter dated 25.1.2010 whereby the certificates of 9 students have been dispatched
to the concerned school.
7.
The complainant has placed on file the copy of fee card of Kuldeep Singh as Ex C2.
ExC3 is the copy of result card of Kuldeep Singh in respect of Matriculation Exam held in
March -20089 whereby the complainant’s son was declared fail under roll number 097646.
Ex C4 is the copy of admit card/Roll Number and Ex C5 is copy of result Gazsette page 435
wherein against roll number 2046427, Kuldeep Singh’s result, the word cancelled has been
mentioned.
8.
The opposite party No.1 and 2 remained absent despite service and have failed to
come present and to rebut the allegations leveled by the complainant. The evidence of the
complainant goes un-rebutted.”
12.
The State Commission while enhancing compensation in its impugned order has observed;
“19. The act and conduct of respondents no.1 & 2 is depreciable, as they have not
bothered to contest the complaint before the District Forum and the present appeal,
despite the notice given to them. The result of the son of the appellant,
namely Kuldeep Singh was cancelled, because respondents no.1 & 2 did not deposit the
requisite fee with respondent no.3 and ultimately, the same was deposited on
15.12.2009, as is clear from receipt no.832585 vide which Rs.14,000/- were deposited as
late fee by respondents no.1 & 2. The negligent and the callous attitude of the
respondents no.1 & 2 is very clear, as they did not bother to deposit the requisite
amount with respondent no.3 in spite of the fact that they had received the same from the
appellant well in advance and played with the career of the son of the appellant along
with seven other candidates. Loss of two academic years is enormous loss in one’s life
and the sufferings caused cannot be compensated, because the time once gone cannot be
brought back. The only panacea for the same is to award sufficient compensation to the
sufferer and warning to the guilty, so that such acts are not repeated.
20.
The District Forum has rightly observed that respondents no.1 & 2 are not only
negligent and guilty of deficiency in service, but they have also adopted unfair trade
practice towards the appellant. The District Forum has not awarded the adequate
compensation to compensate the loss which the son of the appellant suffered, as well as
the litigation expenses and both are required to be enhanced.”
13.
Since, both these petitioners were proceeded ex parte before the District Forum as well as
before the State Commission, it goes on to show that petitioners had no defence in the present
matter. The evidence led by respondents no.1 has gone urebutted. There is no reason to disbelief
the complainant’s case.
14.
It also transpires from the record that present petitioners did not challenge the order of the
District Forum at all. It was respondent no.1 who had filed (F.A. No. 1025 of 2010) for
enhancement before the State Commission.
15.
Petitioners even did not contest the appeal for enhancement filed by the respondent
no.1. Thus, before the State Commission also petitioners were ex parte. Further, respondent
no.2 also did not appear before the State Commission.
16.
Thus, petitioners being ex parte before the District Forum, had no defence at all. Now at
this stage, petitioners cannot be permitted to take a new plea that they cannot be held responsible
for withholding the result of the son of respondent no.1 Moreover, there is no rebuttal to the
evidence led by respondent no.1.
17.
Another interesting aspect of the present case is that petitioners have nowhere mentioned
in the entire revision petition as to on which dates they came to know about the order passed by
the District Forum as well as that of the State Commission. It clearly shows that petitioners were
very careless and negligent in contesting the present litigation. Thus, a valuable right has
accrued to respondent no.1 in this case. By filing the present revision petition, the only intention
of the petitioners is not to comply with the order passed by the forabelow and to deprive the
respondent no.1 from getting fruits of the award passed by the fora below.
18. Since, State Commission has given detailed and reasoned order which does not call for any
interference nor it suffer from any infirmity or erroneous exercise of jurisdiction, the present
petition is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
19.
Petitioners are directed to deposit the cost by way of demand draft in the name of
‘Consumer Legal Aid Account’ of this Commission, within four weeks, failing which they shall
be liable to pay interest @ 9% p.a. till realization.
20.
Pending applications, if any, stand disposed of.
21.
List for compliance on 14.12.2012.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2951 OF 2011
(From the order dated 16.2.2011 in F.A. No.648/2009 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Rahul Tanwar
R/o Tosham Bye Pass Road,
New Shiv Mandir, Dabar Colony,
Bhiwani,
… Petitioner-Complainant
Haryana
Versus
Oriental Insurance Co. Ltd.
Model Town, Rohtak
Through its Senior Divisonal Manger,
Bhiwani,
Harayana.
… Respondent-opposite party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
For the Respondent
: Mr. Samar Vijay Singh, Advocate
: Mr. S.L. Gupta, Advocate
PRONOUNCED ON 9th NOVEMBER, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed against the order dated 16.2.2011 passed by the
learned Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State
Commission’) in F.A. No.648/2009 – Oriental Insurance Co. Ltd. Vs. Rahul Tanwar by which
while accepting appeal order of learned District Forum was set aside and complaint was
dismissed.
2.
Brief facts of the case are that complainant’s Motor cycle bearing No. HR 16 D 7296 was
insured by Opposite party-respondent for the period from 20.10.2004 to 19.10.2005. On
13.2.2005, complainant/petitioner’s Motor cycle was stolen and FIR was lodged on
18.1.2005. Opposite party was also informed regarding theft of the Motor cycle and claim was
submitted, but as the claim was repudiated, complainant filed complaint. Opposite party
submitted reply and alleged that FIR was lodged after 6 days and as complainant did not submit
documents within time, claim was repudiated. Learned District Forum after recording evidence
and hearing both the parties allowed complaint and directed opposite party to pay Rs.36,000/along with interest and Rs.2200/- as litigation charges. Appeal filed by the opposite party was
allowed by the State Commission against which this petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that opposite party was informed about theft
immediately, but FIR could be lodged with the Police Station after 5 days and in such
circumstances, learned State Commission has committed error in dismissing complaint, hence,
petition may be allowed and order of District Forum may be restored. On the other hand, learned
Counsel for the respondent submitted that learned State Commission has not committed any
error in dismissing complaint as complainant failed to inform to the opposite party immediately
after theft.
5.
It is admitted fact that complainant lodged FIR on 18.1.2005 whereas Motor cycle was
stolen on 13.1.2005. As far information to the opposite party is concerned, complainant has
simply stated in his complaint that opposite party was informed regarding theft of the Motor
cycle and complainant visited office of the opposite party many times regarding claim.
Complainant has not mentioned any specific date on which information was given to the
opposite party. Learned Counsel for the petitioner could not show any letter written to opposite
party depicting information regarding theft of Motor cycle. In such circumstances, it cannot be
inferred that complainant informed opposite party regarding theft of motor cycle immediately or
even before lodging FIR in the Police station. Learned State Commission has rightly dismissed
complaint as complainant failed to inform the opposite party well in time, hence, there was
violation of terms and conditions of the insurance policy.
Learned Counsel for the petitioner placed reliance on (2008) II SCC 259 – National
6.
Insurance Co. Ltd. Vs. Nitin Khandelwal in which it was held that where insured vehicle has
been stolen, claim cannot be repudiated by Insurance Company on the ground that at the time of
theft vehicle was used as a taxi whereas vehicle was insured as private vehicle. This citation is
not applicable to the facts and circumstances of the present case because as per terms and
conditions of the policy, it was obligatory on the part of complainant to intimate opposite party
regarding theft of vehicle immediately and as complainant failed to inform or place any written
information on record, learned State Commission has not committed any error in allowing appeal
and dismissing complaint.
7.
Consequently, petition filed by the petitioner is dismissed with no order as to cost.
Sd/.……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
Sd/..……………………………
( SURESH CHANDRA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 179 OF 1994
1.
C. Venuprasad
General Manager (Operations)
Premier Vinyl Flooring Ltd.
C-2, Commercial Centre
Safdarjung Development Area
New Delhi-110016
2.
Radha Venuprasad
W/o C. Venuprasad
B-54, Gulmohar Park
New Delhi-110049
3.
Ram Venuprasad
S/o C. Venuprasad
56, Seethammal Road
Alwarpet
Chennai-600018
4.
Govind Venuprasad
S/o C. Venuprasad
56, Seethammal Road
Chennai-60018
5.
Roy Short
R/o The Green, Long Itchington
Rugby, Warwickshire
CV 23 8 PH England
6.
Sylvia Clive Short
W/o Roy Short
R/o The Green, Long Itchington
Rugby, Warwickshire
CV 23 8 PH England
7.
Sotiriadis Themistoklis
R/o 11, Hrodou Attikou
Athens 10674
Greece
8.
Efthymia Sotiriadis
W/o Sotiriadis Themistoklis
R/o 11, Hrodou Attikou
Athens 10674
Greece
9.
Sotirios Sotiriadis
S/o Sotiriadis Themistoklis
R/o 11, Hrodou Attikou
Athens 10674
Greece
10.
Sunil K. Sreedharan
D/2, Padma Apartments, Thekaveedu Lane
Off YMCA Road
Calicut-673001 (Kerala)
..... Complainant (s)
Versus
M/s Narangs International Hotel Pvt. Ltd.
Regd. Office : The Ambassador, Churchgate
Mumbai-400020
...... Opp. Party (ies)
ORIGINAL PETITION NO. 2 OF 1996
M/s Narangs International Hotel Pvt. Ltd.
Regd. Office at Ambassador Hotel
Churchgate, Mumbai - 400020
Versus
OTIS Elevator Co. (India) Ltd.
..... Complainant (s)
Head Office at Rehem Mansion
1, 42, SBS Road
Mumbai-400039
...... Opp. Party (ies)
BEFORE:
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
Appearance in OP/179/1994
For the Complainant (s)
: Ms. Arijita Kakati, Advocate with
Ms. Arundhati, Advocate
For the Opposite Party (ies) : Mr. Sanjiv Sen, Advocate with
Ms. Shuchi Singh, Advocate &
Mr. Varun Kumar, Advocate
Appearance in OP/2/1996
For the Complainant (s)
: Mr. Sanjiv Sen, Advocate with
Ms. Shuchi Singh, Advocate &
Mr. Varun Kumar, Advocate
For the Opposite Party (ies) : Ms. Misha, Advocate with
Mr. Yajur Sharma, Advocate
Pronounced on : 9th November, 2012
ORDER
PER S.K. NAIK, MEMBER
1.
Failure of proper upkeep and maintenance of the lifts in the Ambassador Hotel, Mumbai,
owned and managed by M/s Narangs International Hotel Pvt. Ltd. is at the center of controversy
in these two complaints. In OP No. 179 of 1994, complainants no. 1 to 10 were guests of the
hotel. Their twofold allegations are that during the stay of complainants no. 1 to 9 in the
Ambassador Hotel, on the 28th of February, 1994 there was a breakdown of power supply from
0030 hours till 0645 hours without any alternate arrangement of back up power supply, as a
result of which they had to pass through a harrowing time and had to spend a restless night. As
if this was not enough, on the same day while travelling in the lift from the lobby to the
revolving restaurant on the 12th floor, complainants no. 2, 3, 5, 6, 7 and 10 got stuck/trapped
midway between the 11th and 12th floor for two and a half hours, which was traumatic and the
rescue operation was harrowing. Alleging gross deficiency in service, those who were trapped
inside the lift and their relatives who were anxiously waiting outside and watching the sluggish
rescue operation have filed OP No. 179 of 1994 seeking compensation of Rs.43,00,000/- from
the OP Hotel.
2.
Since the alleged deficiency primarily centered around the failure of the lift, the hotel in
turn has filed OP No. 2 of 1996 against the OTIS Elevator Co. (India) Ltd., who had installed the
lifts and had been entrusted with the task of maintenance on payment of consideration. Thus,
while the ten guests of the hotel, target the hotel for the gross deficiency in service and have
claimed damages/compensation, the hotel by filing OP No. 2 of 1996 has tried to pass on the
blame/deficiency to the OTIS Elevator Company (India) Ltd. Thus, these two complaints are
closely linked and, therefore, we proceed to decide them by this common order.
3.
Facts of the case are that in OP No. 179 of 1994, complainants no. 1 to 9 while on a visit to
Mumbai in connection with a wedding in the family of a common friend were lodged in the
Ambassador Hotel during the last week of February, 1994. While staying there, on the 28th of
February, 1994 there was a breakdown of power supply from 0030 hours to 0645 hours. There
being no alternate back up power arrangement, all of them had to spend restless night and
complainant no. 2 had an attack of asthma as a result thereof. The matter was brought to the
notice of the management, including in writing. However, what precipitated the indignation was
what followed the same day i.e. on 28th of February, 1994. At 1230 hours complainants no. 2, 3,
5, 6, 7 and 10 got into the lift at the lobby level to go for lunch in the revolving restaurant on the
12th floor. The lift moved up for a while and came to an abrupt halt with a jerk between the
11th and 12th floor entrapping all of them. Attempt by the opposite party hotel to rescue the
entrapped lift passengers was not only belated but very crude and it took two and a half hours for
them to be taken out of the cabin of the lift by physically pulling them out one after the other
through a hole which was made by ripping open/cutting the iron grill at the top of the cabin. The
process involved a constant hammering of the iron grills/parts resulting in the glass panels inside
the lift breaking into pieces falling on those entrapped. The atmosphere was intensely
claustrophobic and abhorrent. Alleging that the two and a half hours of agony and trauma was as
a result of gross deficiency in service, the complainants have filed OP No. 179 of 1994 seeking
the following reliefs:I
Compensation for deficiency in service on 28.2.94 from
1230 hrs to 1500 hrs as detailed in paragraphs 5(iii) to (x)
ante in respect of
a) Complainants 2, 3, 5, 6, 7 and 10 trapped in the lift
@ Rs. Five lakhs each
b) Complainants 1, 4, 8 and 9 who were outside and whose
Rs.30,00,000/-
family member(s) was/were trapped @ Rs. two lakhs
each
II
Rs.8,00,000/-
Compensation for deficiency in service on 28.2.94 from
0030 hrs to 0645 hrs as detailed in paragraph 5(ii) ante in
respect of complainants 1 to 9, the occupants of Rooms
405, 202 and 211 @ Rs.50,000 each
Rs.4,50,000/-
III Costs for getting the matter adjudicated under the
4.
Consumer Protection Act @ Rs.5,000/- each
Rs.50,000/-
TOTAL
Rs.43,00,000/-
During the pendency of OP No. 179 of 1994, M/s Narangs International Hotel Pvt. Ltd.
filed OP No. 2 of 1996 against the OTIS Elevators Co. (India) Ltd. with whom they had entered
into a maintenance contract for the proper maintenance of the lifts, which was the focus of
deficiency suffered by its guests. M/s NarangsInternational Hotel Pvt. Ltd. in their complaint
have alleged that the lift was installed by the OTIS Elevators Co. (India) Ltd. and they had been
entrusted with the task of annual maintenance under a contract and on account of the failure on
their part to maintain it properly that the lift got stuck causing hardships to their guests and they,
therefore, prayed for holding the OTIS Elevators Co. (India) Ltd. grossly negligent/deficient in
rendering service and have sought a compensation as under :1.
Rs.5.00 Lacs each for six guests entrapped for 2 and half
hours from 1200 hrs 30 min. to 15 hours on 28/02/1994 in
the lift
2.
Rs. 2.00 Lacs each to the four relatives and friends for
mental agony
3.
Rs.30,00,000.00
Rs.8,00,000.00
Rs.50,000 towards cost to 10 guests for having the matter
adjudicated under the Consumer Protection Act (Rs.5000
each)
4.
Rs.50,000.00
Legal expenses incurred by the complainants in OP No.
179 of 1994 and the present complaint
Rs.2,00,000.00
TOTAL
5.
Rs.40,50,000.00
By the time M/s Narangs International Hotel Pvt. Ltd. filed their complaint (OP No. 2 of
1996) against OTIS Elevators Co. (India) Ltd. in 1996, the pleadings with regard to
complaint/OP No. 179 of 1994 had already been completed. However, in view of the allegation
of negligence on part of OTIS Elevators Co. (India) Ltd. alleged by M/s Narangs International
Hotel Pvt. Ltd., it took quite some time to complete the pleadings, which included examination
and cross examination of the witnesses by M/s Narangs International Hotel Pvt. Ltd. and the
OTIS Elevators Co. (India) Ltd.
6.
In OP No. 179 of 1994, affidavits by way of evidence were filed by complainants no. 1 to 6
and 10. With regard to complainants no. 7 and 8, it was requested on their behalf that since
complainant no. 7 had undergone a surgery, their affidavits filed along with the complaint be
treated as their evidence. On behalf of the opposite party-M/s Narangs International Hotel Pvt.
Ltd., affidavits of their Executive Engineer, the Chief Engineer and the General Manager have
been filed.
7.
In OP No. 2 of 1996, on behalf of the complainant-M/s Narangs International Hotel Pvt.
Ltd, affidavits of three persons i.e. their Executive Engineer, the Chief Engineer and the General
Manager have been filed while on behalf of opposite party-OTIS Elevators Co. (India) Ltd.
affidavits by way of evidence have been filed by Mr. C.C. Johnson, examiner of OTIS Elevators
Co. (India) Ltd., Mr. B.R. Jadhav, customer service executive and Mr. A.R. Aundhkar, sales
executive.
8.
Since all the affidavits by way of evidence were read together, complainants no. 1 to 4 and
10 and three persons, who had filed affidavits from the side of opposite party in OP No. 179 of
1994 were cross examined. Complainants no. 5 to 9 being foreign nationals were not produced
for cross-examination. In OP No. 2 of 1996, apart from three witnesses of the complainantM/s Narangs International Hotel Pvt. Ltd., two out of the four officers of OP-OTIS Elevators Co.
(India) Ltd., who had filed the affidavits, were also cross-examined.
9.
Learned counsel for the complainants in OP No. 179 of 1994 has contended that
complainants no. 1 to 9 had preferred to stay in the hotel expecting that they would receive the
best comfort of a star hotel commensurate with the tariff charged by the hotel but to their dismay
at 0030 hours 28th of February, 1994 the power supply suddenly went off and they had to fend
for themselves with great deal of discomfort until the morning. The opposite party hotel had no
alternate/ back up power supply and when complained about it, they explained it away by saying
that there were frequent breakdown/power cuts from the source of supply and the local laws did
not permit the owners of the hotel to install generators as an alternative. Learned counsel
contends that the least the opposite party hotel ought to have done was to have informed them
about the power cut in advance so that they would have been mentally prepared to face the
situation. The attitude of the opposite party hotel thus cannot but be said to be indifferent and
casual. In any case, when a tariff has been charged for AC accommodation, disruption of such
facility amounted to withdrawal of that promised facility leading to deficiency in service.
10.
The incident of failure of power supply apart, learned counsel has referred to the incident
of malfunctioning of the lift on 19th of February, 1994, 25th of February, 1994 and 26th of
February, 1994, which was also brought to the notice of the opposite party hotel, which
obviously had no impact as the subsequent incident of 28th of February, 1994 proved when the
six complainants no. 2, 3, 5, 6, 7 and 10 were entrapped for two and a half hours from 1230
hours onwards. It has been contended that the episode clearly proves that they were not only
negligent but ill-equipped and not capable of handling an emergency. Do’s and don’ts stickers
issued by the OTIS Elevators Co. India Ltd. were not displayed in the hotel. Action plan for
release of the passengers from the lift in case of emergency issued by Otis Elevators Co. (India)
Ltd. to opposite party hotel was not available with them. While the lift got stuck at 1230 hours,
the records shows that the first call to OTIS Elevators Co. (India) Ltd. was made at 1355 hours
keeping the passengers in utter suspense and agony. Apart from the six passengers stuck in the
lift, four of the complainants close relatives were in extreme anxiety crying for help but except
for some crude attempts nothing serious was being done for early rescue of those stuck inside the
lift. While it was mentally agonizing for those outside the lift, those inside were passing through
a trauma which is beyond imagination.
11.
It has further been contended by the learned counsel that the OP Hotel cannot escape from
its liability on the pretext of the failure on part of their contractor i.e. OTIS Elevators Co. (India)
Ltd. to maintain the elevators in proper condition. In support of this contention, learned counsel
has relied upon a judgment of Privy Council in Wong Mee Wan V. Kwan Kin Travel
Services Ltd. & Ors. [1995 (4) All ER 745]. On the point of compensation, she has referred to
the judgment in the case of Kailash Kumar V. Shankar & Co. [1992(2) CPT 443(444-45)] and
the provisions of Section 14(1)(d) and 14(1)(e) of the Consumer Protection Act, 1986 and has
prayed that for the gross negligence, the complaint deserves to be allowed with the relief as
prayed for with heavy cost.
12.
On the other hand, learned counsel for the OP Hotel has contended that the blame squarely
rests on the OTIS Elevator Co. (India) Ltd., who is a reputed elevator manufacturer. They had
not only installed the lift but had the renewal maintenance contract for over the years. Their
responsibility and accountability cannot be overlooked on their plea of some foreign material
having been found in the gear oil for the simple reason that the gear box is a sealed unit and the
special type of gear oil is supplied by the OTIS Elevator Co. (India) Ltd. themselves. Their own
employee Mr. Johnson in his evidence has stated that foreign material could have entered either
from outside or it could even be the result of some wear and tear/breakdown of gear/worn
shaft. To blame the hotel staff with the allegation of tampering of gear box, therefore, cannot be
sustained. It must have been the adulterated gear oil which was supplied by the OTIS Elevator
Co. (India) Ltd., which would have caused the damage to the gear inside the box.
13.
Counsel further contended that pursuant to the contract of annual maintenance, they had
discharged their responsibility. No register/logbook of regular maintenance of the lifts was ever
produced to prove that the hotel was ever pointed out any lapse on its part or any advisory
given. What would have been the clinching evidence with regard to the so called foreign
material in the gear oil should have come from an analysis of the contaminated gear oil which
was, however, not subjected to any laboratory test. Even though there is a reference to the OTIS
Elevator Co. (India) Ltd. having ordered an investigation into the incident, the said report dated
5th of April, 1994 has not been brought on record. In their attempt to pass the blame onto the
engineering staff of the Hotel, they have falsely alleged that the engineering staff of the hotel had
mishandled/tampered with the machine of the lift in an unauthorized manner, which is not
true. The fact remains that whatever action was authorized as per the action plan in case of
emergency only was resorted to by the engineering staff to handle the contingency. To the
contrary, the hotel staff was continuously trying from 1240 hours onwards to inform the OTIS
Elevator Co. (India) Ltd. about the incident but there was no response on the telephone from
their side. As per record, for the first time the call matured at 1329 hours. Their staff thereafter
took some time to reach the hotel and even they failed to move the lift even an inch from the
place where it was stuck and, therefore, the Fire Brigade was called to help rescuing the
entrapped passengers. It has been submitted that there was no deficiency on part of the
Hotel. The blame for the entire episode, the learned counsel contends, rests on the OTIS
Elevator Co. (India) Ltd., who were deficient in rendering the service of maintenance and,
therefore, their complaint no. 2 of 1996 be allowed with cost.
14.
The say of the OTIS Elevator Co. (India) Ltd. is that no doubt they had a maintenance
contract with the Hotel but with regard to the incident of 28th of February, 1994, they received
the information at 1355 hours and their staff reached the hotel within ten minutes. To their
surprise, they found that the cranking handle had been bent in the process of someone forcefully
trying to manually operate the machine unauthorizedly. Subsequent investigation, according to
him, revealed that the cause of seizure of the lift was presence of foreign material in the gear box
oil. Obviously, some untrained and unqualified hotel staff, in their anxiety to operate the lift, had
interfered with the system. According to him, on earlier occasions also Mr. Johnson of the hotel
had opened the gear box to use the break release system. It has further been contended that there
was a plethora of correspondence on record repeatedly telling the hotel management about the
wrongdoing of the hotel staff about misuse of the lift spaces, machine room and throwing of
waste material in the lift starting from August, 1993. The hotel management was being warned
of all these but nothing was done. It is claimed that they have been doing their maintenance
work diligently and competently. The OTIS Elevator Co. (India) Ltd., therefore, cannot be held
deficient and the onus, if any, is on the hotel for being deficient as all their actions were
unauthorized resulting in the mishap of 28th of February, 1994.
15.
At the outset, it may be noted that the entrapped guests of M/s Narangs International Hotel
Pvt. Ltd. and their relatives filed the complaint (OP No. 179 of 1994) on 5th of August, 1994
whereas M/s Narangs International Hotel Pvt. Ltd. filed their complaint (OP No. 2 of 1996) on
5th of January, 1996. Interestingly, in their complaint they have prayed for exactly the same
amount of compensation claimed by the entrapped guests in OP No. 179 of 1994 and have
further stated that in the event of any compensation being awarded to the complainants in OP
No. 179 of 1994 i.e. to the entrapped passengers and their relatives, the same be directed and
ordered to be reimbursed to them i.e. M/s Narangs International Hotel Pvt. Ltd. by the Opposite
Party i.e. OTIS Elevators Co. (India) Ltd. Obviously, this belated complaint was filed by
M/s Narangs International Hotel Pvt. Ltd. only as a cover to the complaint filed by the entrapped
passengers and their relatives in their effort to pass the blame and burden to the OTIS Elevators
Co. (India) Ltd., as we shall see in our discussion later.
16.
Coming to OP No. 179 of 1994, we find that the complainants have alleged gross
deficiency in service on part of the OP Hotel on the following grounds :(i)
Firstly, during their stay in the Hotel there was no power supply in the rooms from 0045 hours to
0630 hours on 28th of February, 1994, which caused great deal of inconvenience and
discomfort. The complainants were never informed that there were frequent breakdowns of
power supply nor was there any alternative arrangement. An elderly lady suffered an attack of
asthma because of the prolonged disruption of power supply. Tariff charged for AC rooms in
such circumstance had no justification. It was worse than staying in a non-AC room.
(ii) The same day while proceeding for lunch to the revolving tower on the 12th floor complainants no.
2, 3, 5, 6, 7 and 10 got entrapped in the lift between the 11th and 12th floor as the lift suddenly
stopped moving at about 1230 hours. It took the authorities two and a half hours to finally
rescue the entrapped passengers with the help of Fire Brigade who had to cut the iron grills with
the use of heavy cutting machine, which traumatized the entrapped complainants.
(iii)
That even prior to this incident, there had been frequent breakdowns of the lift on the 29 th of
January, 1994, 19th of February, 1994, 24th of February, 1994, 25th of February, 1994 and 26th of
February, 1994, about which no serious cognizance was taken to ensure that the lift was repaired
and made operational free of any risk. The attitude of the OP Hotel was totally callous. The OP
Hotel, therefore, cannot advance the plea that it was the OTIS Elevator Co. (India) Ltd., who
alone was responsible for the incident. Repeated malfunctioning of the lift ought to have alerted
the OP Hotel and persisted with the OTIS Co. to set them right which was never done.
(iv) The staff of the OP Hotel to whom the rescue operation was delegated were neither trained nor
competent to deal with such a situation. It appears that they had been tinkering with temporary
breakdowns of the lift by manually operating the lift from the machine room by opening the
cover of gear box without informing the OTIS staff. Hoping, perhaps that this time too they
would be able to handle the situation and in their anxiety to rescue the guests they undertook the
exercise themselves. We say so because while the lift was stuck on 1240 hours, the first call to
the OTIS staff was made at 1325 hours. Obviously, the hotel staff had tried their hand to carry
out an exercise to rescue the entrapped passengers and only when they found the situation
beyond their competence that the OTIS people were summoned. We do not subscribe to
the defence of the OP Hotel that any telephone call was made immediately after the
incident. Their own evidence does not support this contention. Their staff Mr. John Joseph was
a diploma holder in air conditioning and refrigeration and had no training of lift maintenance and
Mr. Sapan Kumar Sarkar, the chief executive engineer, was only a marine mechanical engineer
and had not received any specialized training with regard to handling of lifts. The log book with
regard to periodical maintenance was not being maintained properly.
17.
In short, the OP Hotel was squarely negligent in not ensuring the proper maintenance of the
lifts and further not taking the prompt/immediate/timely steps to rescue the entrapped
complainants clearly amounts to deficiency in service. This view is based on the preponderance
of evidence on the record and to avoid burdening this order, we may only refer to the crossexamination of Mr. John Joseph and Mr. Sapan Kumar Sarkar (page 38 Vol.II, page 228 Vol. I
and page 62 of Vol.II). That Mr. John Joseph and the staff had been fiddling with the lifts on
certain occasions flows from his admission that in undertaking the exercise to rescue the
entrapped passengers he relied only on his common sense (page 52 Vo. II). In their defence, the
OP Hotel has also taken a plea that since they had an annual maintenance contract with the OTIS
Elevator Co. (India) Ltd., lapse, if any, and the liability should be on them i.e. the OTIS
Co. This aspect will be dealt with when we discuss the OP No. 2 of 1996 of the OP Hotel, in
which the OTIS Elevator Co. (India) Ltd. is the OP but suffice it to say that irrespective of the
hotel having engaged the services of the OTIS Co. as their contractor to look after the
maintenance of the lifts, the OP Hotel as a service provider had the independent primary duty to
ensure that the lift was properly maintained and safe for the users all the 24 hours of a day. We
are, therefore, clearly of the view that the accountability and responsibility of the OP Hotel
cannot in any way be mitigated/minimized just because they had a contract with the OTIS
Elevator Co. (India) Ltd.
18.
Learned counsel for the OP Hotel during his lengthy argument has made an attempt to raise
objection with regard to the maintainability of the complaint by a group of unrelated
complainants and has further contended that the complaint was filed as a counterblast to the
denial of certain concessions/rebate sought for by the complainants for the period of their stay
and further that the complaint was not maintainable for the reason also that the complainants had
not paid the tariff from their own account but were the guests of the company who had booked
the rooms for their stay. We outrightly reject these contentions as the complainants had stayed in
the Hotel as their guests to avail their services and clearly they were ‘consumers’ within the
meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and the OP Hotel was a
‘service provider’. It is the normal expectation of any guest selecting a star hotel for their stay to
expect the best of treatment and facility without any let or hindrance since such star hotels charge
a hefty amount of tariff. In this regard, contrary to their expectation, the guests were trapped
inside the cabin of the lift from 1230 hours to 1500 hours followed by breaking open the tops of
the lift when there was constant hammering and pounding, thereby breaking the glass panel
falling inside the lift. The experience must have been that of great mental agony and
trauma. What is, however, strange is that despite the episode, the OP Hotel in its written version
has taken the plea that “the guests use all facility and service at their own risk”. We deprecate
this course adopted by OP Hotel to escape their liability irrespective of whether it is stated in
their house rule or otherwise.
19.
Learned counsel for the OP Hotel has also tried to make out a case of the complaint being a
counterblast to the denial of concessions/discount asked for by the complainants on the pretext of
power breakdown during the early hours of 28th of February, 1994. Much has been made out of
a note of grievance recorded by ShriVenuprasad, one of the complainants, on the stationery of
Hotel stating therein that there was total power failure in the Hotel which lasted from 0130 hours
to 0645 hours resulting in some of his guests shifting to other hotels. It was a suggestion made
therein that the guests in room nos. 801, 504, 403, 401 and 205 be not charged one day’s room
rent and the others be awarded a discount of half a day’s rent. Learned counsel has contended
that the complaint has been filed as a result of the hotel not permitting the discount/waiver of the
tariff. We reject this contention as the OP Hotel cannot blow hot and cold in the same breath,
inasmuch as they have also advanced a plea that since the guests were not to pay the hotel tariff
from their own pocket but the rooms were booked on behalf of the company. This argument will
not help mitigate the deficiency in service. On the contrary, we find that the OP Hotel itself has
sent a cheque of Rs.9126.25 to Mr. Venuprasad to contend it to be against full and final
settlement of the accounts and simultaneously expressing the hotel’s deep regret for the
inconvenience caused to him and the other members of the group. The letter has been signed by
none else than the General Manager Mr. Sanjeev Kapoor. We note that the said cheque was
returned by Mr. Venuprasad. This act of a refund of some amount with expressing their regret
indirectly amounts to an admission of their failure to provide the requisite service.
20.
Insofar as compensation is concerned, learned counsel for the OP Hotel has vehemently
argued that the complainants are not entitled to the compensation sought for as no loss as such
has been incurred by them and in that regard, he has cited the following judgments
of Hon’ble Supreme Court :(i)
Union Bank of India V. Seppo Rally OY And Another [(1998) 8 SCC 357];
(ii) Ravneet Singh Bagga V. KLM Royal Dutch Airlines And Anr. [(2000) 1 SCC 66]; and
(iii) Consumer Unity & Trust Society, Jaipur V. Chairman & Managing Director, Bank
of Baroa, Calcutta And Anr. [(1995) 2 SCC 150].
21.
We have perused the said judgments and find that the facts of the said cases have no
applicability to the facts of the present case and in any case Hon’bleSupreme Court in the case
of Ghaziabad Development Authority V. Balbir Singh [(2004) 5 SCC 65] on the subject of
compensation has held as under :“The word ‘compensation’ is again of very wide connotation. It has not been defined in the
Act. According to dictionary it means, ‘compensating or being compensated; thing given as
recompense;. In legal sense it may constitute actual loss or expected loss and may extend to
physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the
Commission has been vested with the jurisdiction to award value of goods or service and
compensation it has to be construed widely enabling the Commission to determine compensation
for any loss or damage suffered by a consumer which in law is otherwise included in wide
meaning of compensation. The provision in our opinion enables a consumer to claim and
empowers the Commission to redress any injustice done to him. The Commission or the Forum
in the Act is thus entitled to award not only value of the goods or services but also compensate a
consumer for injustice suffered by him.”
22.
Insofar as determining the quantum of compensation is concerned, we find that only six
complainants i.e. complainants no. 2, 3, 5, 6, 7 and 10 were trapped inside the lift for two and a
half hours and had suffered the mental agony and trauma for which they are entitled to the
compensation. In our view, a lump sum amount of Rs.2,00,000/- to each one of the six
entrapped complainants appears to be just and proper in the facts of this case. In addition, the
OP Hotel should pay a sum of Rs.10,000/- towards the cost of litigation.
23.
Now coming to the complaint of M/s Narangs International Hotel Pvt. Ltd. i.e. OP No. 2 of
1996, the case made out by the complainant Hotel is that since they had a running maintenance
contract with the OP OTIS Elevator Co. (India) Ltd., the responsibility for the alleged
deficiency/malfunctioning squarely rested on the OTIS Co. and they have absolutely no liability.
24(i).
In support of their contention, learned counsel for the complainant Hotel has referred
to the judgment of Kings Bench Division in Haseldine Vs. C.A. Daw and Son, Limited CA
1941, which reads as under :
“The invitor is bound to take that kind of care which reasonable prudent man in his
place would take neither more nor less. The landlord or a block of flats, as occupier of
the lifts, does not profess as such to be either an electrical skill he cannot rely on his own
judgement, and the duty of care towards his invitees required him to obtain and follow
good technical advice. If he did not do so, he would, indeed, be guilty of negligence. To
hold him responsible for the misdeeds of his independent contractor would be to make
him insure the safety of his lift. That duty can only arise out of contract, as in the case of
an employer’s duty towards his employed which in certain cases may make him
responsible for the structural fitness of the premises where they are to work.
In the present case the landlord was ignorant of the mechanics of his hydraulic lifts and
it was his duty to choose a good expert, to trust him, and then to be guided by his
advice. I think that he realized his duty and wholly discharged it, so far as the safety of
others was concerned, for he chose a first class firm of lift engineers and trusted them,
and over a long period of years and in connection with many lifts be found them
trustworthy. His contract with them did not include alterations or repairs, but it called
for regular reports.
The engineers evidently had a very high reputation and wide practice as lift engineers,
and I can see no ground whatever for doubting that the landlord took every reasonable
precaution in trusting to their examining the lift with care and reporting to him if there
was any indication of danger. The landlord thus duly performed his whole duty of care
to be plaintiff and others using the lift, even if they were his invitees, by contracting with
the engineers and then leaving the expert problems, of which he was ignorant, entirely to
his experts who possessed the requisite knowledge. If he did not fail in his duty to an
invitee, a fortiori he did not fail if the plaintiff was a mere licensee.”
24(ii).
A careful reading of this judgment presupposes that the Hotel has to prove that it
has taken reasonable care as flowing from the facts of a case. In the case in hand, not only there
is a total failure on part of the staff of complainant Hotel to take reasonable care but the facts
with regard to unauthorised handling and tampering with the lift by untrained/unqualified hotel
staff, not reporting of earlier breakdowns and forcible attempt to handle the lift controls are writ
large. The previous history and correspondence exchanged between the complainant Hotel and
the OTIS Elevator Co. (India) Ltd. had clearly established that the lifts were not in perfect
running condition and required urgent repairs to which not enough seriousness was accorded by
the complainant Hotel. Obviously, the judgment cited by the learned counsel would not,
therefore, fit into the facts of the present case to bail out the complainant Hotel in any manner.
24(iii).
In this regard, we are inclined to agree with the submission made by the learned
counsel for the complainants in OP No. 179 of 1994 that a person is as much liable for the acts of
its independent contractor as for his own acts i.e. “if a person agrees to offer services, he cannot
escape his liability by raising a plea of delegation of the performance thereof to a third
party”. This view finds support from the judgment of the Privy Council in Wong Mee Wan V.
Kwan Kin Travel Services Ltd. (supra), in which it has been held as under :-
“The fact that the supplier of services may under the contract arrange for some or all of them to
be performed by others does not absolve the supplier from his contractual obligation. He may
be liable if the service is performed without the exercise of due care and skill on the part of the
sub-contractor just as he would be liable if the sub contractor failed to provide the service or
failed to provide it in accordance with the terms of the contract. The obligation undertaken is
thus, if the person undertaking to supply the service performs them himself, that he will do so
with reasonable skill and care, and that if, where the contract permits him to do so, he arranges
for others to supply the services, that they will be supplied with reasonable skill and care”.
25.
In our earlier discussion, it has been noted that the lift had malfunctioned on a number of
previous occasions and the Hotel staff had unauthorisedly handled the emergencies. On the day
of the incident i.e. on 28th of February, 1994 while the lift stopped functioning at 1230 hours, the
call register of the complainant Hotel itself shows that the first call was made to OTIS Co. at
1341 hours (page 250-151 of the paper-book in OP No. 179 of 1994). This apart, the letters of
Mr. and Mrs. Short dated 8th of March, 1994 addressed to the Hotel also stated that the frantic
efforts of the entrapped passengers in the lift “received very poor response for long”
and“confusion was discernible”. This is also borne out from the letter of Govind Venuprasad,
which stated “Despite my requests to inform the elevator maintenance firm, the men on the spot
they were insistent on handling the job themselves. Their attempt were to put it mildly-crude and
illogical”.
26.
On the plea of the complainant Hotel that the gear box was a sealed equipment and the gear
oil could be replenished/replaced only by their own staff, we are inclined to believe
the defence of the OTIS Co. that when the elevator was stuck on the 24th of February, 1994 and
26th of February, 1994, the Hotel staff had handled the equipment without informing the OTIS
staff and in the process had opened the gear box to release the break system. Maybe, in the
process the Hotel staff would have put some lubricating material into the system or may have
handled the machine in a crude and rough manner resulting in some inner parts
getting brittled inside. We find that Mr. John, in his cross-examination, has denied that he ever
opened the gear box but has admitted that only the gear box cover has been opened to release the
break in case of certain situation. Since it is contended that there is no need to open the gear box
cover in order to release the break system, we do not find any substance in the contention of the
complainant Hotel that their staff was totally innocent with regard to the handling of the lift
machine at their own level resulting in the malfunctioning.
27.
Further, the negligence of the complainant Hotel is apparent from the correspondence the
OTIS Elevator Co. (India) Ltd. had with them vide their letter dated 4thof December, 1993
followed
by
subsequent
communication
dated
16th of
February,
1994
(extracted
below). Through these letters, the OTIS Elevator Co. (India) Ltd. had brought to the notice of
the complainant Hotel the number of problems faced by them from the staff of the hotel
continuously over a period of time. The staff had been misusing the elevators. In the latter
communication, it was clearly pointed out that the OTIS Elevators Co. (India) Ltd. would need
approximately 3 weeks’ time to carry out the necessary work of renewing the wiring of
the hoistway and the car and had requested the hotel to decide three weeks’ period for the
shutdown. This advice of the OTIS Co. to the complainant Hotel clearly brings out that the lifts
perhaps were very old and required thorough repair/replacement of certain important
components, for which obviously the use of the lifts had to be stopped for a prolonged
period. The evidence on record does not show that the hotel took any serious note of this advice
perhaps because their business was running smoothly without any serious incident/mishap and
perhaps also because there were no protests from the side of the guests.
“December 4, 1993
Mr. Sanjeev Kapoor
General Manager
The Ambassador Hotel
Churchgate
BOMBAY-400 020
Sub: MAINTENANCE OF OTIS LIFTS AT AMBASSADOR HOTEL, BOMBAY
Ref: Your letter No. SK/MF/AMBO/93 dated November 19, 1993
Dear Sir,
Your letter under reference addressed to our Managing Director, Mr. R.R. Bajaaj, was directed
to me for initiating appropriate remedial measures. At the outset, kindly accept my apologies for
the delayed response to your various complaints and the resultant inconvenience you are
subjected to.
Immediately on receipt of your letter, I have reviewed the subject of maintenance of the elevators
with the Area Executive and Supervisor, Messers A.A. Brananzaand B.R. Jadhev respectively,
who were instructed to investigate the problems and report to me.
I understand that Mr. Jadhev and the Route Examiner, Mr. C.C. Johnson had subsequently met
your Chief Engineer, Mr. Sarkar, on 26th November, 1993, and the contents of your letter were
discussed in detail, which I would like to summarise as under :-
1. Provisions of Emergency Lighting in car:
Our Repair Order (52T9833B) was received from you on 24th August 1993, materials procured
on 11th October 1993 and the work executed on 23rdOctober 1993. This was checked by
Mr. Sarkar, on 25th October 1993.
2. Intercom System of GE :
Though the intercom system has been working, this has been dysfunctional from the car to the
lobby receipt desk due to the fact that the cable from thehoistway to the lobby reception master
was damaged and needed replacement which was to be arranged and work executed by you.
Unfortunately, our repated appeals to have this work done at your end do not appear to have any
positive response from your end, with the result the work remains unfinished.
3. Annunciator System on S.E:
There has been a perennial problem of misuse of hall buttons resulting in damage to the
annunciator wires. Repairs are carried out from time to time after obtaining Service Orders
from you – the most recent one being 52T980B completed in Sept. ‘ 93. However, the
annunciator could not be put in operation as the damaged wires were to be replaced for which,
no shutdown of the elevator was available. In view of your difficulty in shutting down the
elevators during day time, we have now decided to carry out the repair work during night and,
our estimate in this respect is expected to reach you by 4th of December 1993.
4. Broken Ropes of S.E:
It was not the rope which is reported to have broken but the selector tape – the cause of which
was traced to a place of rag which got stuck in the tape. This is not uncommon at site, as dusters,
beer bottles etc. are found thrown in the elevator shafts, hindering routine maintenance and
giving rise to the problems which had in the past resulted in major breakdowns. I am advised
that this was brought to the notice of your Chief Engineer on several occasions but, he is unable
to control the problem.
You will no doubt appreciate that the situations as explained above, mainly stem from misuse of
the elevators, are not conducive to uninterrupted elevator service. However, we reiterate our
commitment to render satisfactory operation of the elevators at all times, particularly in view of
the fact that yours is a prestigious Hotel. I have already instructed the attending technicians, to
ensure that top priority is accorded on your elevators and that repairs, replacements, when
warranted, are undertaken expeditiously.
Yours faithfully,
OTIS ELEVATOR COMPANY (INDIA) LIMITED
Sd/N.D. Remedios
SERVICE MANAGER
…”
“February 16, 1994
Mr. Sanjeev Kapoor
General Manager
The Ambassador Hotel
Churchgate
BOMBAY-400 020
Dear Sir,
Sub: MAINTENANCE OF OTIS LIFTS AT AMBASSADOR HOTEL, BOMBAY
This has reference to the discussion the undersigned had with you on 4.2.94, wherein you had
pointed out certain items of work that need attention: The points raised by you are listed below:
SERVICE ELEVATOR, M/C NO. EO288
The annunciator of the Service elevator is not functioning.
This, as you pointed out, was brought to our attention in Aug ’93, however it would not be
incorrect to point out that we had written to you on 4.12.93 vide letter BSD:ME3216/RS
informing you that on account of the nonavailability of a shutdown during the day, we were
unable to carry out the work.
We had also sent to you, a quotation for carrying out the work by night in our estimate
B2ME3216/BR:1/12, for which there was no response.
As you have stated that you are now entering a lean period this is to inform you that we would
need a shutdown for approx. 3 weeks, to carry out the work, as it is necessary to renew the
wiring of the hoistway and the car; for this an estimate will follow shortly.
With regards to your request that routine maintenance be carried out on the Service elevator on
any two fixed days in the month, we suggest that it should be onthe 2nd and 4th Saturdays of every
month between 9am and 12 noon; it will be our endeavor to meet this schedule.
If for any reason, we are unable to do so, we will keep you informed.
… ELEVATORS : M/C. NOS. E3216/7
Your complaint about the non-working of the indicator lamps of the hallbuttons of the guest
elevators.
This is an ongoing piece of work and the fused lamps are replaced as and when required.
The reference made by your good-self regarding the defective emergency bell for the guest
elevators has been noted and the defective unit will be replaced by 20.2.94.
Regarding your desire to provide brass claddings on all the landing doors, we request that you
inform us what thickness of brass sheet you intend to provide, also how you plan to fix this brass
cladding on the doors, and as a result of fixing the brass cladding, how much will the door
thickness increase.
Only after receiving this information will we be in a position to inform you, if it is feasible for
you to go ahead with your plan.
DUMWAITER, M/C NO. E9861
Your suggestion that the dumbwaiter be provided with a cardoor to avoid spillage of utensils is
being studied by us and we will revert to you shortly.
During the discussion it was pointed out by you, that the intercom from the car to the lobby
master is not working and as explained to you the cable from thehoistway to the lobby master is
damaged and needs to be replaced by your goodselves, as soon as the cable is replaced, we will
check and put the intercoms into operation.
Assuring you of our best services at all times.
Yours faithfully,
OTIS ELEVATOR COMPANY (INDIA) LIMITED
Sd/A.A. BRANGANZA
AREA EXECUTIVE”
(emphasis added)
28.
When we consider the evidence including the cross-examination of the witnesses on record
and take into account the facts that the OP OTIS Co. had been repeatedly advising the
complainant Hotel to accept the estimates of repair and agree to shutdown of the lifts spreading
over a period of 3 weeks and the complainant Hotel in their commercial interest not paying any
heed to the request of the OP OTIS Co., we find no case of negligence on part of the OP OTIS
Co. We say so because the complainant Hotel being the main service provider ought to have
acted promptly and ensured the repair/replacement of their own lifts. It appears that the
complainant Hotel had developed an indifferent attitude and inertia appears to have set in so long
as their business was going on albeit not fully satisfying the service to their customers. Their
complaint, therefore, has no merit and, accordingly, deserves to be dismissed.
29.
To summarize, we, therefore, hold that the complaint (OP No. 179 of 1994) with regard to
six entrapped complainants no. 2, 3, 5, 6, 7 and 10 partly succeeds and the OPM/s Narangs International Hotel Pvt. Ltd. is directed to pay Rs.2,00,000/- to each one of the six
entrapped passengers along with Rs.10,000/- as cost within a period of six weeks from today,
while the complaint of M/s Narangs International Hotel Pvt. Ltd. (OP No. 2 of 1996) fails and is,
accordingly, dismissed with no order as to cost.
Sd/( R. C. JAIN, J. )
PRESIDING MEMBER
Sd/(S.K. NAIK)
(MEMBER)
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 141 OF 1999
PHOOLAN WANTI
SHYAM SUNDAR AHUJA
GURDEEP SACHDEVA
... COMPLAINANT NO. 001
... COMPLAINANT NO. 002
... COMPLAINANT NO. 003
PARAMJIT SINGH SACHDEVA
... COMPLAINANT NO. 004
AMARJEET KAUR
... COMPLAINANT NO. 005
GURDEEP SINGH SACHDEVA
... COMPLAINANT NO. 006
GURDEEP SINGH SACHDEVA
... COMPLAINANT NO. 007
SARWAN KUMAR
... COMPLAINANT NO. 008
GEETA
... COMPLAINANT NO. 009
OM PRAKASH
... COMPLAINANT NO. 010
RAJBIR SINGH CHAUHAN
... COMPLAINANT NO. 011
RAMAKANK SHARMA
... COMPLAINANT NO. 012
HARBANS LAL
... COMPLAINANT NO. 013
HARISH CHUG
... COMPLAINANT NO. 014
RAM CHANDER
... COMPLAINANT NO. 015
KAILASH ARORA
... COMPLAINANT NO. 016
SHAKUNTLA (DEAD)THROUGH LR
... COMPLAINANT NO. 017
PREM PARKASH
... COMPLAINANT NO. 018
PREM CHAND
... COMPLAINANT NO. 019
SEWA RAM
... COMPLAINANT NO. 020
PARSHOTAM DASS
... COMPLAINANT NO. 021
SITA DEVI (DEAD) THROUGH LR
JAI PAL
... COMPLAINANT NO. 022
... COMPLAINANT NO. 023
SAHIB DAYAL
... COMPLAINANT NO. 024
MEHAR INGH (DEAD) THROUGH LR ... COMPLAINANT NO. 025
HARI CHAND (DEAD) THROUGH LR ... COMPLAINANT NO. 026
ISHWER DEVI
... COMPLAINANT NO. 027
ISHWER GROVER (DEAD)THROUGH LR.. COMPLAINANT NO.28
LEKH RAJ
... COMPLAINANT NO. 029
NARAIN DASS
... COMPLAINANT NO. 030
ATTAR CHAND
... COMPLAINANT NO. 031
JAGMOHAN SARUP
... COMPLAINANT NO. 032
BISHAMBER DASS
... COMPLAINANT NO. 033
HARI KISHAN
... COMPLAINANT NO. 034
PRAM PARKASH
... COMPLAINANT NO. 035
RAM CHAND (DEAD) THROUGH LR
... COMPLAINANT NO. 036
KRISHAN LAL (DEAD) THROUGH LR ... COMPLAINANT NO. 037
NARENDER SINGH
... COMPLAINANT NO. 038
FAQIR CHAND (DEAD) THROUGH LR ... COMPLAINANT NO. 039
KEWAL KRISHAN MAHNA
GOVIND LAL
SANTOK SINGH
... COMPLAINANT NO. 040
... COMPLAINANT NO. 041
... COMPLAINANT NO. 042
ASHA NAND
... COMPLAINANT NO. 043
RAJ RANI
... COMPLAINANT NO. 044
RAM PIARI (DEAD) THROUGH LR
... COMPLAINANT NO. 045
RAM DITTA KHURANA (DEAD)
THROUGH LR
… COMPLAINANT NO. 046
ISHWER LAL
... COMPLAINANT NO. 047
RAJ KUMAR
... COMPLAINANT NO. 048
BAL SINGH
... COMPLAINANT NO. 049
SOM NATH
... COMPLAINANT NO. 050
SHANTI DEVI
... COMPLAINANT NO. 051
RAMJI DASS MUNJHAL
... COMPLAINANT NO. 052
INDER PAL
... COMPLAINANT NO. 053
KRISHNA GROVER
... COMPLAINANT NO. 054
JIA LAL PAL
... COMPLAINANT NO. 055
RAMESH CHANDER
... COMPLAINANT NO. 056
BHAG SINGH
... COMPLAINANT NO. 057
RANBIR SINGH
... COMPLAINANT NO. 058
RAM CHAND SEWAK (DEAD)
THROUGH LR
VEENA SALUJA
... COMPLAINANT NO. 059
... COMPLAINANT NO. 060
RAJ PAL SINGH (DEAD) THROUGH LR... COMPLAINANT NO. 061
AJUB ALI
... COMPLAINANT NO. 062
NOOR JAHAN BEGUM (DEAD)
THROUGH LR
... COMPLAINANT NO. 063
SATISH KUMAR (DEAD) THROUGH LR.. COMPLAINANT NO. 064
RAJ KUMARI
ISHWER PRUTHI
KRISHAN LAL
HAMELU SINGH
... COMPLAINANT NO. 065
... COMPLAINANT NO. 066
... COMPLAINANT NO. 067
... COMPLAINANT NO. 068
RAMESH KUMAR
... COMPLAINANT NO. 069
KRISHAN LAL
... COMPLAINANT NO. 070
OM PRAKASH
... COMPLAINANT NO. 071
SUKHWINDER SINGH
... COMPLAINANT NO. 072
GIAN CHAND
... COMPLAINANT NO. 073
SABHU DIN (DEAD) THROUGH LR
... COMPLAINANT NO. 074
GURBAKSH LAL
DAYANAND SHARMA
... COMPLAINANT NO. 075
... COMPLAINANT NO. 076
KASHMIRI LAL (DEAD) THROUGH LR ... COMPLAINANT NO. 077
SUDERSHAN SHARMA
... COMPLAINANT NO. 078
NARAIN DEVI GROVER
... COMPLAINANT NO. 079
JAGDISH LAL
... COMPLAINANT NO. 080
HARISH KUMAR NARANG
RAM PAUL
... COMPLAINANT NO. 081
... COMPLAINANT NO. 082
GAJU DIN
... COMPLAINANT NO. 083
PHOOLA RAM
... COMPLAINANT NO. 084
TILAK RAJ VERMA
... COMPLAINANT NO. 085
PANNU RAM
... COMPLAINANT NO. 086
VIMLA RANI
... COMPLAINANT NO. 087
SUBHASH CHANDER
... COMPLAINANT NO. 088
RANDIR
... COMPLAINANT NO. 089
TULSI DASS
... COMPLAINANT NO. 090
JAGSISH CHANDER (DEAD)
THROUGH LR
... COMPLAINANT NO. 091
ARJUN DEV
... COMPLAINANT NO. 092
GHANWER DASS
... COMPLAINANT NO. 093
OM PRAKASH
... COMPLAINANT NO. 094
RAMJI LAL
... COMPLAINANT NO. 095
OM SACHDEVA
... COMPLAINANT NO. 096
VINOD BUDHIRAJA
... COMPLAINANT NO. 097
KAMLA RANI
... COMPLAINANT NO. 098
RAM SARUP (DEAD) THROUGH LR
... COMPLAINANT NO. 099
HANS RAJ PARUTHI
... COMPLAINANT NO. 100
CHELA RAM
... COMPLAINANT NO. 101
MANOHAR LAL
... COMPLAINANT NO. 102
MANGH RAJ
... COMPLAINANT NO. 103
BHIWANI DASS
... COMPLAINANT NO. 104
DHARAM DEV (DEAD) THROUGH LR ... COMPLAINANT NO. 105
SATYA RANI
... COMPLAINANT NO. 106
PREM PRAKASH
... COMPLAINANT NO. 107
TIRATH DASS
... COMPLAINANT NO. 108
SUMAN LATA SHARMA
OM PRAKASH GIRI
SHANKUNLATA SHARMA
ATTAR CHAND
HARISH CHANDRA SHARMA
JIA LAL
SANAT KUMAR
... COMPLAINANT NO. 109
... COMPLAINANT NO. 110
... COMPLAINANT NO. 111
... COMPLAINANT NO. 112
... COMPLAINANT NO. 113
... COMPLAINANT NO. 114
... COMPLAINANT NO. 115
RAM KISHORE VATS
... COMPLAINANT NO. 116
JAGAT RAM
... COMPLAINANT NO. 117
GHANSHYAM DASS
JYOTI PRAKASH
DEVI DAYAL SHARMA
... COMPLAINANT NO. 118
... COMPLAINANT NO. 119
... COMPLAINANT NO. 120
RAM SARUP PANDEY
... COMPLAINANT NO. 121
GORDHAN DASS
... COMPLAINANT NO. 122
RAM BHAJ
OM PRAKASH
MANILALA
SOMNATH VERMA
... COMPLAINANT NO. 123
... COMPLAINANT NO. 124
... COMPLAINANT NO. 125
... COMPLAINANT NO. 126
GUGGAN RAM (DEAD) THROUGH LR … COMPLAINANT NO. 127
SUKHDEV
... COMPLAINANT NO. 128
NAGDA RAM
... COMPLAINANT NO. 129
HARISH CHANDER
... COMPLAINANT NO. 130
JAI SINGH
... COMPLAINANT NO. 131
KARTAR SINGH
... COMPLAINANT NO. 132
HOSIYARI DEVI
... COMPLAINANT NO. 133
PRAKASH MALIK
... COMPLAINANT NO. 134
SATYA VIR SINGH MALIK
... COMPLAINANT NO. 135
JAI NARAIN GOOLIA
... COMPLAINANT NO. 136
CHANDER BHAN
... COMPLAINANT NO. 137
HARBANS LAL SUNEJA
... COMPLAINANT NO. 138
NARESH KUMAR
... COMPLAINANT NO. 139
RAM SINGH (DEAD) D) THROUGH LR ... COMPLAINANT NO. 140
OM PRAKASH
... COMPLAINANT NO. 141
ABNESH CHANDER
... COMPLAINANT NO. 142
SANTOSH KUMARI
... COMPLAINANT NO. 143
SATYA DEVI
... COMPLAINANT NO. 144
BHIM SINGH (DEAD) THROUGH LR
... COMPLAINANT NO. 145
YASHPAL
... COMPLAINANT NO. 146
SHRI CHAND
... COMPLAINANT NO. 147
HEM RAJ
... COMPLAINANT NO. 148
MANGE RAM
... COMPLAINANT NO. 149
GEETA RAM
... COMPLAINANT NO. 150
SURJEET KUMAR
... COMPLAINANT NO. 151
JAI BHAGWAN
... COMPLAINANT NO. 152
JAGMINDER
... COMPLAINANT NO. 153
PRITMO DEVI
... COMPLAINANT NO. 154
HEM CHAND
... COMPLAINANT NO. 155
BISHAN DAS (DEAD) THROUGH LR
... COMPLAINANT NO. 156
INDERJEET
... COMPLAINANT NO. 157
PRITHVI SINGH
... COMPLAINANT NO. 158
RAMBIR
... COMPLAINANT NO. 159
PRADEEP KUMAR
... COMPLAINANT NO. 160
JAI KUMAR
... COMPLAINANT NO. 161
ISHAM SINGH
... COMPLAINANT NO. 162
RAJBIR
... COMPLAINANT NO. 163
SOMPAL
... COMPLAINANT NO. 164
GOPI RAM (DEAD) THROUGH LR
KALU RAM (DEAD) THROUGH LR
... COMPLAINANT NO. 165
... COMPLAINANT NO. 166
OM PRAKASH
... COMPLAINANT NO. 167
REKHA RANI
... COMPLAINANT NO. 168
RAMJI LAL
KANTA DEVI (DEAD) THROUGH LR
OM PRAKASH
JARNAIL SINGH
GOPAL DAS
KRISHAN LAL MATA
RITA KUMARI
... COMPLAINANT NO. 169
... COMPLAINANT NO. 170
... COMPLAINANT NO. 171
... COMPLAINANT NO. 172
... COMPLAINANT NO. 173
... COMPLAINANT NO. 174
... COMPLAINANT NO. 175
BHAGWAN DAS (DEAD) THROUGH LR... COMPLAINANT NO. 176
HARI CHAND
... COMPLAINANT NO. 177
VINOD KUMAR
... COMPLAINANT NO. 178
PUSHPA RANI
... COMPLAINANT NO. 179
OM PRAKASH
... COMPLAINANT NO. 180
SOMA RANI
... COMPLAINANT NO. 181
ASHOK KUMAR SAPRA (DEAD)
THROUGH LR
... COMPLAINANT NO. 182
GULSHAN KUMR
... COMPLAINANT NO. 183
RAJ KUMARI
... COMPLAINANT NO. 184
KASHMIRI LAL
... COMPLAINANT NO. 185
KASHMIRI LAL
... COMPLAINANT NO. 186
YUGDUTT VERMA (DEAD)
THROUGH LR
... COMPLAINANT NO. 187
JAIPAL (DEAD) THROUGH LR
… COMPLAINANT NO.188
JAGMAL SINGH
... COMPLAINANT NO. 189
HANS RAJ
... COMPLAINANT NO. 190
KAMLESH KUMARI
... COMPLAINANT NO. 191
RAMESH KUMAR
…COMPLAINANT NO. 192
MANOJ KUMAR (DEAD) THROUGH LR ...COMPLAINANT NO. 193
KARTA RAM
... COMPLAINANT NO. 194
LEELA RANI
... COMPLAINANT NO. 195
NEELAM KUMARI
…COMPLAINANT NO. 196
KAMLA DEVI
... COMPLAINANT NO. 197
PREMI DEVI (DEAD) THROUGH LR
…COMPLAINANT NO. 198
BALWANT SINGH
... COMPLAINANT NO. 199
MANI RAM
... COMPLAINANT NO. 200
NATHA RAM
... COMPLAINANT NO. 201
CHANDER WATI
... COMPLAINANT NO. 202
OM PRAKASH (DEAD) THROUGH LR … COMPLAINANT NO. 203
SANTOSH
... COMPLAINANT NO. 204
SATYA DEV (DEAD) THROUGH LR
… COMPLAINANT NO.205
SHYAM SINGH
... COMPLAINANT NO. 206
RASID KHAN
... COMPLAINANT NO. 207
MANGE RAM
... COMPLAINANT NO. 208
SHAKUNTLA
... COMPLAINANT NO. 209
PARAMJEET
... COMPLAINANT NO. 210
PRAKASH KAUR (DEAD) THROUGH LR.. COMPLAINANT NO. 211
JOGINDER KAUR
... COMPLAINANT NO. 212
SUKHWINDER KAUR
... COMPLAINANT NO. 213
HANS RAJ
... COMPLAINANT NO. 214
PRAKASH KAUR (DEAD) THROUGH LR.. COMPLAINANT NO. 215
OM PRAKASH (DEAD) THROUGH LR ... COMPLAINANT NO. 216
JASBIR KAUR
MADAN LAL
HARBANS SINGH
LALITA GANDHI
... COMPLAINANT NO. 217
... COMPLAINANT NO. 218
... COMPLAINANT NO. 219
... COMPLAINANT NO. 220
BIHARI LAL NAGPAL (DEAD)
THROUGH LR
... COMPLAINANT NO. 221
ASHOK KUMAR
... COMPLAINANT NO. 222
SURESH PAL
... COMPLAINANT NO. 223
AMARJEET KAUR
... COMPLAINANT NO. 224
ASHOK KUMAR
... COMPLAINANT NO. 225
JOGINDER SINGH
... COMPLAINANT NO. 226
UMESH CHANDER
... COMPLAINANT NO. 227
PURANCHAND
... COMPLAINANT NO. 228
LILAWATI
... COMPLAINANT NO. 229
SUMITRA DEVI
... COMPLAINANT NO. 230
SHAVITRI DEVI
... COMPLAINANT NO. 231
DHARAM SINGH
... COMPLAINANT NO. 232
MANI RAM
... COMPLAINANT NO. 233
MAMTA RANI
... COMPLAINANT NO. 234
RAM BAI (DEAD) THROUGH LR
... COMPLAINANT NO. 235
SUGRIV
... COMPLAINANT NO. 236
HARI SINGH RANA (DEAD)
THROUGH LR
SHAKUNNTLU RANI
JAGAT RAM
... COMPLAINANT NO. 237
... COMPLAINANT NO. 238
... COMPLAINANT NO. 239
PREM RAO
... COMPLAINANT NO. 240
CHANDO RANI (DEAD) THROUGH LR ... COMPLAINANT NO. 241
OM PRAKASH (DEAD) THROUGH LR ... COMPLAINANT NO. 242
BABU RAM MORIA
... COMPLAINANT NO. 243
SIYARAM GOD
... COMPLAINANT NO. 244
KANHI
... COMPLAINANT NO. 245
MAHABIRI DEVI
... COMPLAINANT NO. 246
RAM SINGH
... COMPLAINANT NO. 247
RAJINDER KUMAR
... COMPLAINANT NO. 248
RAJINDER KAUR
... COMPLAINANT NO. 249
DHUNI CHAND
... COMPLAINANT NO. 250
GOPAL KRISHAN DUTTA
... COMPLAINANT NO. 251
DEVI (DEAD) THROUGH LR
... COMPLAINANT NO. 252
RAJINDER KUMAR
... COMPLAINANT NO. 253
JAGDISH LAL (DEAD) THROUGH LR ... COMPLAINANT NO. 254
TULSI DAS
... COMPLAINANT NO. 255
BALIHAR SINGH
... COMPLAINANT NO. 256
GURMIT SINGH
... COMPLAINANT NO. 257
VINOD KUMAR
... COMPLAINANT NO. 258
MOHAN LAL (DEAD) THROUGH LR
SVITRI
MAHMOOD HUSSAIN
... COMPLAINANT NO. 259
... COMPLAINANT NO. 260
... COMPLAINANT NO. 261
BISHAMBER DAYAL (DEAD)
THROUGH LR
... COMPLAINANT NO. 262
ANITA RANI
... COMPLAINANT NO. 263
PURAN MAL
... COMPLAINANT NO. 264
KISHAN CHAND
CHAJU RAM (DEAD) THROUGH LR
... COMPLAINANT NO. 265
... COMPLAINANT NO. 266
JIWAN RAM
... COMPLAINANT NO. 267
KALAWATI
... COMPLAINANT NO. 268
MOHINDER
... COMPLAINANT NO. 269
SHRI NIWASH
... COMPLAINANT NO. 270
ASHA SHARMA
... COMPLAINANT NO. 271
JUGAL SHARMA
... COMPLAINANT NO. 272
CHANDER KANT SHARMA
... COMPLAINANT NO. 273
ASHOK SINGLE
... COMPLAINANT NO. 274
VIDYA NAND
... COMPLAINANT NO. 275
VIDYA NAND
... COMPLAINANT NO. 276
SHAYM LAL
... COMPLAINANT NO. 277
SUNDER LAL
... COMPLAINANT NO. 278
KRISHNA DEVI (DEAD) THROUGH LR
GOPAL DASS
... COMPLAINANT NO. 279
... COMPLAINANT NO. 280
GOBIND LAL
... COMPLAINANT NO. 281
FATHA SINGH
... COMPLAINANT NO. 282
JASBIR SINGH
... COMPLAINANT NO. 283
PREM KUMAR
... COMPLAINANT NO. 284
ASHOK KUMAR
... COMPLAINANT NO. 285
PISHORI LAL (DEAD) THROUGH LR ... COMPLAINANT NO. 286
PUNA SINGH
... COMPLAINANT NO. 287
VEERBHAN
... COMPLAINANT NO. 288
PREETAM LAL
... COMPLAINANT NO. 289
NANAK CHAND
... COMPLAINANT NO. 290
KEWAL KRISHAN
... COMPLAINANT NO. 291
NARAIN DEVI
... COMPLAINANT NO. 292
LAL CHAND KAPOOR
... COMPLAINANT NO. 293
SHAYM LAL SHARMA
... COMPLAINANT NO. 294
RAM LAL MALHOTRA
... COMPLAINANT NO. 295
HARDWARI
... COMPLAINANT NO. 296
GOPAL MALHOTRA
... COMPLAINANT NO. 297
ATTAR CHAND TOMAR
... COMPLAINANT NO. 298
HARI SINGH
... COMPLAINANT NO. 299
ANAND
... COMPLAINANT NO. 300
PALE RAM
... COMPLAINANT NO. 301
RAM DHARI GOSWAMI
... COMPLAINANT NO. 302
MADAN LAL
... COMPLAINANT NO. 303
SAI DASS
... COMPLAINANT NO. 304
MULAKH RAJ
... COMPLAINANT NO. 305
RAM CHAND
... COMPLAINANT NO. 306
MOHAN SINGH
... COMPLAINANT NO. 307
MAMAN RAM
JAWALA SINGH
... COMPLAINANT NO. 308
... COMPLAINANT NO. 309
BHULLAN SINGH
... COMPLAINANT NO. 310
SAVITRI DEVI
... COMPLAINANT NO. 311
SAVITRI DEVI
... COMPLAINANT NO. 312
BHIR SINGH
... COMPLAINANT NO. 313
SURESH KUMAR
... COMPLAINANT NO. 314
DHARA
... COMPLAINANT NO. 315
SUBHASH MALIK
... COMPLAINANT NO. 316
KARAN SINGH
... COMPLAINANT NO. 317
SHASHI BALA
... COMPLAINANT NO. 318
INDERJEET
... COMPLAINANT NO. 319
GORJA RANI
... COMPLAINANT NO. 320
INDERPAL HARIJAN
... COMPLAINANT NO. 321
SOMDUTT
... COMPLAINANT NO. 322
KUSHAM LATA
... COMPLAINANT NO. 323
VIKAS KUMAR
... COMPLAINANT NO. 324
RAGHBIR SINGH
... COMPLAINANT NO. 325
LALI DEVI
... COMPLAINANT NO. 326
ANIL KUMAR
... COMPLAINANT NO. 327
CHAMELI DEVI
... COMPLAINANT NO. 328
RAM DAS SAINI
... COMPLAINANT NO. 329
MALKHAN SINGH
... COMPLAINANT NO. 330
KARAN SINGH
... COMPLAINANT NO. 331
RAI SINGH
... COMPLAINANT NO. 332
KARAN SINGH
... COMPLAINANT NO. 333
CHETRO DEVI
... COMPLAINANT NO. 334
GULAB SINGH
... COMPLAINANT NO. 335
Versus
Janpriya Finance & Industrial
Investment (India) Limited
Through: Its Board of Directors,
Sh. Tara Prakash Bhattacharjes,
Shanti Ranjan Dass &
Mr. Debabrapa Ghatak,
45, Shekspear Sarini,
… Opposite Party (s)
Calcutta (West Bengal)
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE
For the Complainants
MR.
VINAY
KUMAR,
: Mr. Balbir Singh Gupta, Advocate
MEMBER
For the Opposite Party
: Mr. J. M. Babri, Advocate
PRONOUNCED ON 19th NOVEMBER, 2012
ORDER
JUSTICE J.M. MALIK
1.
The key question swirls around the question, “whether this complaint is barred by time”. It
is to be seen whether the present complaint was filed within the leeway prescribed by Section
24A of the Consumer Protection Act. If it is not filed within time whether the explanation given
by the complainant under Section 5 of the Limitation Act is lucid or lame.
2.
The averments made in the application for condonation of delay are as follows. Jana Priya
Finance and Industrial Investment (I) Limited with its head office at 113 Park Street Calcutta,
West Bengal, Opposite Party in this case, opened its 176 branches throughout India and started
collecting funds from general public. They also opened branches at Karnal as well as
Panipat. They used to collect the funds and open bank accounts in the name of the opposite
party. Receipts were also issued by the head office at Calcutta. On maturity, they used to make
the
payment
of
maturity
amount
alongwith
interest. This
process
continued
till
1988. Thereafter, out of blue, they stopped making payments, regularly. As many as 335
complainants did not get their maturity amounts with interest despite several requests made to
OP. The legal notice sent to the OP also did not ring the bell. Ultimately the instant complaint
by all the abovementioned consumers was filed before this commission on 11.5.1999.
3.
One Prafulla Chandra Jaina filed suit no. 529 of 1992 in the Hon’ble High Court of Calcutta on
the plea that there was mismanagement in the OP company. The Hon’ble High Court of Calcutta
vide its order dated 23.03.1993 ordered that the whole work of the aforesaid company to be
centralized in the head office at 113, Park Street, Calcutta. The Hon’ble High Court also stayed all
the proceedings against Jana Priya Finance and Industrial Investment (I) Limited. The relevant
portion of the order dated 23.03.1993 is reproduced as follows:“(9) In order to centralize the working of the respondent no. 1 for administrative
conveniences, the entire work should be centralized in the office situated in the premises
no. 113, Park Street, Calcutta, so that the activities of the respondent no. 1 can be
revived as early as possible.
(10) One year time is given to comply with all the statutory requirements for the
revival and other activities of the respondent no. 1, statutory or non-statutory. There
shall be a stay of all proceedings of any nature and description against the respondent
no. 1 for a period of one year. In any event no proceeding be commenced against the
respondent no. 1 without prior leave of this Court.”
4.
The opposite party in Dainik Punjab Kesari dated 13.04.1994 advertised that:“Please note that the Division bench of the Hon’ble High Court at Calcutta was
pleased to pass an order on 30th March, 1994 directing all Depositors including those
who have filed proceedings before the various CONSUMER FORUMS to submit their
claim directly to the Company by 30th April, 1994 to enable the Company to prepare final
scheme for making payment to the Depositors. Please further note that the Claim if any,
submitted after 30th day of April, 1994 will not get its place in the Scheme of Payment.
In the premises, the Depositors are requested to submit their claim directly to the
Companys Regd. Office at 113, Park Street, Calcutta-700016 in terms of the said Order
passed by the Hon’ble Division Bench within 30th day of April, 1994.”
The above said paper has been filed on the record, which has been admitted by the opposite
party in its reply.
5.
All the records were sent to Calcutta. Vide its order dated 11.11.1997, the Hon’ble High Court
of Calcutta passed the following order:“The court: Mr. B. R. Chakraborty, the Auditor appointed in terms of the order of
this Court earlier, is directed to scrutinise the claims of the petitioners herein within a
period of three months from the date of communication of this order and in the event of
any recommendation for payment by Shri Chakraborty, the company is directed to make
such payment. Be it recorded that Sri Chakraborty would be at liberty to obtain the
views of both the claimants as well as that of the company before passing any such
direction on to the company. In the event the Auditor feels it expedient to call for certain
documentary evidence, he would be at liberty to do so and parties are directed to furnish
the same with utmost expedition. The payments to be made by the company shall have to
be effected directedly to the depositors against proper discharge.
The interim orders already passed stand confirmed. The application stands
disposed of as above.
By reason of earlier orders of payment to the plaintiffs in the suit as also the added
parties, question of keeping the appeal or suit pending does not and cannot arise. As
such, the appeal being No. 818 of 1992 as also the suit being No. 529 of 1992 upon
treating the same as on the day’s list, stand disposed of alongwith the application for
stay. The undertakings in terms of prayer (a) of the stay petition stand discharged.
This order is being passed having due regard to the factum that the company,
Janapriya Finance & Industrial Investment (India) Ltd. is now discharging its functions
in accordance with the orders passed by this Court from time to time.
Liberty to apply.
All parties including the Auditor are to act on a signed copy of this dictated order
on the usual undertakings.
Sd/- Umesh Chandra Banerjee
11.11.1997.
6.
Sd/- Sidheshwar Narayan.”
In the meantime, the opposite party offered highly slashed amount for example Phoolanwanti
was offered an amount of Rs. 572/- against her maturity amount of Rs. 5,000/-, Gurdeep Singh was
offered Rs. 520/- against his claimed amount of Rs. 4,000/-, Paramjeet Singh was offered Rs. 728/against his claim of Rs. 4,000/- etc. The complainants numbering 335 did not accept the said offer
and filed the claims in the National Consumer Disputes Redressal Commission, New Delhi on
11.05.1999. As per Hon’ble High Court’s order, the claim of the 335 complainants were to be
scrutinized by the auditor on 16.12.04. An amount of Rs. 90,440/- was deposited in the National
Commission by the opposite party as per the Chartered Accountant report and M.D. report. In the
complaint, it is avered that the maximum amount of the investors pertained to the small
investors/complainants who could not get their maturity amount realized from the company and it
was impossible for all the small investors to file their recovery suit in the court of Calcutta as
expenses for going to Calcutta and filing the suit was obviously more than what was likely to be
realized by each of the investors individually. The stay was vacated by the Calcutta High Court on
11.11.1997 and the complaint was filed within 2 years thereafter.
7.
When the case was fixed for final disposal before this Commission (Predecessor Bench) on
06.09.2011, the Hon’ble Commission raised an objection of two years limitation for filing the
cases. Though, according to the complainants the same point was not raised by the opposite
party. (This is a wrong plea.) The dates of maturity of the complainants expired in September, 1991
and September, 1992. This application for condonation of delay was filed in the court on
07.09.2011.
8.
The above said application was contested by the opposite party. They admitted that public
notice was published in Dainik Punjab Kesari on 13.04.1994. It is explained that in para no. 5 of the
preliminary objection, opposite party took specific objection regarding the limitation. The cause of
action of each complainant had arisen during the period 1988 to 1994. The complaint was filed on
17.05.1999. Consequently, the case of the petitioner is barred by time. It is explained that the
petitioner can exclude the time in computing the limitation period to the extent of 4 years 7 months
and 18 days i.e. with effect from 23.03.1993 to 11.11.1997. In case, two years period is also included
the total period comes to 6 years 7 months and 18 days. Complaint was filed on 17.05.1999. It is
submitted that as per the submissions of the complainants only those cases which are within
limitation in which the date of maturity is 01.10.1992 or thereafter are recovered under the limitation
and not all the cases of 335 complainants are covered. It is contended that the public notice in
Dainik Punjab Kesari on 13.04.1994 is not an acknowledgment of law within the meaning of Section
18 of the Limitation Act. Section 18 talks about the effect of acknowledgment in writing before
expiring the prescribed period for suit. There is no written acknowledgement and the suit is
hopelessly barred by time. Only complainants no. 1 to 13 have submitted their claim and offers of
payment was made to them. The said offered amount can only be recoverable regarding which there
is no complaint of any breach. It is explained that 89 complainants out of 335 present complainants
had already approached the concerned District Forum and had obtained the awards in their favour.
9.
In the written statement the following averments were made. This Commission vide its
order dated 07.01.1997 ordered that since the Hon’ble High Court of Calcutta was already seized
of the matter and had appointed a Chartered Accountant for the specific purpose of entertaining
all the claims as against the opposite party scrutinizing them and making payment to such of the
claimants whose claims were found to be supported by adequate material, it is not proper for this
Commission to embark upon a concurrent adjudication into the contentions put forward in this
revision. The complainants were directed to put forward their respective claims before the
Chartered Accountant appointed by the Hon’ble High Court of Calcutta and produce all
materials before him to substantiate their respective claims and if he is satisfied about the bona
fides of the claimants, payment of the amount found due to the claimants being made.
10. Again each individual complainant has a separate claim against the opposite party and each
one individual complainant has to prove and substantiate his own individual claim on merits.
11.
It was admitted that contents of para 10 of the complaint are a matter of record. This para
pertains to the advertisement dated 13.04.1994. It was explained that the advertisement dated
13.04.1994 did not cover the false, fabricated and duplicate claims of the depositors. The payment
was to be made after due verification and recommendation of the auditor (Chartered Accountant)
appointed by the Hon’ble High Court of Calcutta. The present complaint is barred by principle of
subjudice and res adjudicata. The present complaint is hopelessly barred by time.
FINDINGS
12.
First of all, we will decide the question of acknowledgement, which is purported to have been
made on 13.04.1994. The counsel for the petitioner vehemently argued that the opposite party has
never admitted that it had made acknowledgement on 13.04.1994.
13.
The Opposite party in its written statement has admitted that this public notice was given by
them. They have also admitted in so many words that the genuine claims of the investors are to be
paid off. Since the Hon’ble High Court has given the investors liberty to take back the investment,
therefore question of res judicata or subjudice does not arise. Consequently, there lies no rub in
assuming that the original paper furnished to the newspaper were signed by the opposite party or its
agent. The opposite party did not dispute this fact. Consequently, it has to be assumed that the
period of 2 years was further extended with effect from 13.04.1994. There can be no conflictions on
this point as well because these facts were admitted in the written statement itself and are legally
sound.
14.
Now, let us turn to the initial period, that is the crucial one. The time of limitation in this case
starts from 13.04.1992 i.e. 2 years before time of limitation was extended by 2 years. Consequently,
the maturity date which expired after 13.04.1992 is within time but the maturity date which expired
prior to 13.04.1992 is barred by time. It stands proved that some of the claims are within time and
other claims are barred by time. We will discuss whose cases are within time and whose cases are
barred by time, in the following paras.
15.
We again advert to the advertisement dated 13.04.1994, the limitation stood extended to
13.04.1996 i.e. by two another years. However, due to the above said stay granted by Hon’ble High
Court, the complainant could not file the complaint before the Consumer Court. The argument
advanced by the learned counsel for the respondent was that vide order dated 23.03.1993, the
complainant should have sought relief from the Hon’ble High Court to proceed against the opposite
party.
16.
We see no force in these arguments. It appears that the stay continued till
11.11.1997. Although, the interim order was confirmed vide order dated 11.11.1997, yet the Auditor
General
was
appointed
and
the
company
was
directed
to
make
payment
to
its
depositors/investors. Auditor General was given the authority to probe this case. In other words, the
stay stood vacated for the disbursal of the amount to the depositors. The order was pronounced on
11.11.1997, consequently we find considerable force in the arguments advanced by the complainants
that due to the above said stay granted by the Calcutta High Court they could not file the
complainant till 11.11.1997. The time started running from 11.11.1997 and the complaint was filed
on 11.05.1999 i.e. within time for those investors whose maturity did not expire till 13.04.1992. By
no strech of imagination, it can be said that it was incumbent upon the creditors to seek the relief of
proceeding against the O.P. under all the circumstances. The language of the order in this context is
very clear, i.e.
“In any event no proceeding be commenced against the respondent no. 1 without
prior leave of this court”.
17.
We hereby give the list of:-
(A) Those promoters whose amount stand already settled and does not come within the purview of
this Commission:PHOOLAN WANTI
... COMPLAINANT NO. 001
HARISH CHUG
... COMPLAINANT NO. 014
RAM CHANDER
... COMPLAINANT NO. 015
KAILASH ARORA
... COMPLAINANT NO. 016
SHAKUNTLA (DEAD)THROUGH LR
... COMPLAINANT NO. 017
PREM PARKASH
... COMPLAINANT NO. 018
PREM CHAND
... COMPLAINANT NO. 019
SEWA RAM
... COMPLAINANT NO. 020
PARSHOTAM DASS
... COMPLAINANT NO. 021
SITA DEVI (DEAD) THROUGH LR
JAI PAL
SAHIB DAYAL
... COMPLAINANT NO. 022
... COMPLAINANT NO. 023
... COMPLAINANT NO. 024
MEHAR INGH (DEAD) THROUGH LR ... COMPLAINANT NO. 025
HARI CHAND (DEAD) THROUGH LR ... COMPLAINANT NO. 026
ISHWER DEVI
... COMPLAINANT NO. 027
ISHWER GROVER (DEAD)THROUGH LR... COMPLAINANT NO.28
LEKH RAJ
... COMPLAINANT NO. 029
NARAIN DASS
... COMPLAINANT NO. 030
ATTAR CHAND
... COMPLAINANT NO. 031
JAGMOHAN SARUP
... COMPLAINANT NO. 032
BISHAMBER DASS
... COMPLAINANT NO. 033
HARI KISHAN
... COMPLAINANT NO. 034
PRAM PARKASH
... COMPLAINANT NO. 035
RAM CHAND (DEAD) THROUGH LR
... COMPLAINANT NO. 036
KRISHAN LAL (DEAD) THROUGH LR ... COMPLAINANT NO. 037
NARENDER SINGH
... COMPLAINANT NO. 038
FAQIR CHAND (DEAD) THROUGH LR ... COMPLAINANT NO. 039
KEWAL KRISHAN MAHNA
GOVIND LAL
SANTOK SINGH
... COMPLAINANT NO. 040
... COMPLAINANT NO. 041
... COMPLAINANT NO. 042
ASHA NAND
... COMPLAINANT NO. 043
RAJ RANI
... COMPLAINANT NO. 044
RAM PIARI (DEAD) THROUGH LR
... COMPLAINANT NO. 045
RAM DITTA KHURANA (DEAD)
THROUGH LR
… COMPLAINANT NO. 046
ISHWER LAL
... COMPLAINANT NO. 047
RAJ KUMAR
... COMPLAINANT NO. 048
BAL SINGH
... COMPLAINANT NO. 049
SOM NATH
... COMPLAINANT NO. 050
SHANTI DEVI
... COMPLAINANT NO. 051
RAMJI DASS MUNJHAL
... COMPLAINANT NO. 052
INDER PAL
... COMPLAINANT NO. 053
KRISHNA GROVER
... COMPLAINANT NO. 054
JIA LAL PAL
... COMPLAINANT NO. 055
RAMESH CHANDER
... COMPLAINANT NO. 056
BHAG SINGH
... COMPLAINANT NO. 057
RANBIR SINGH
... COMPLAINANT NO. 058
RAM CHAND SEWAK (DEAD)
THROUGH LR
VEENA SALUJA
... COMPLAINANT NO. 059
... COMPLAINANT NO. 060
RAJ PAL SINGH (DEAD) THROUGH LR.. COMPLAINANT NO. 061
AJUB ALI
... COMPLAINANT NO. 062
NOOR JAHAN BEGUM (DEAD)
THROUGH LR
... COMPLAINANT NO. 063
SATISH KUMAR (DEAD)
THROUGH LR
... COMPLAINANT NO. 064
RAJ KUMARI
... COMPLAINANT NO. 065
ISHWER PRUTHI
KRISHAN LAL
HAMELU SINGH
RAMESH KUMAR
... COMPLAINANT NO. 066
... COMPLAINANT NO. 067
... COMPLAINANT NO. 068
... COMPLAINANT NO. 069
KRISHAN LAL
... COMPLAINANT NO. 070
OM PRAKASH
... COMPLAINANT NO. 071
SUKHWINDER SINGH
... COMPLAINANT NO. 072
GIAN CHAND
... COMPLAINANT NO. 073
SABHU DIN (DEAD) THROUGH LR
... COMPLAINANT NO. 074
GURBAKSH LAL
DAYANAND SHARMA
... COMPLAINANT NO. 075
... COMPLAINANT NO. 076
KASHMIRI LAL (DEAD) THROUGH LR ... COMPLAINANT NO. 077
SUDERSHAN SHARMA
... COMPLAINANT NO. 078
NARAIN DEVI GROVER
... COMPLAINANT NO. 079
JAGSISH LAL
... COMPLAINANT NO. 080
HARISH KUMAR NARANG
RAM PAUL
... COMPLAINANT NO. 081
... COMPLAINANT NO. 082
GAJU DIN
... COMPLAINANT NO. 083
PHOOLA RAM
... COMPLAINANT NO. 084
TILAK RAJ VERMA
... COMPLAINANT NO. 085
PANNU RAM
... COMPLAINANT NO. 086
VIMLA RANI
... COMPLAINANT NO. 087
SUBHASH CHANDER
... COMPLAINANT NO. 088
RANDIR
... COMPLAINANT NO. 089
TULSI DASS
... COMPLAINANT NO. 090
JAGSISH CHANDER (DEAD)
THROUGH LR
... COMPLAINANT NO. 091
ARJUN DEV
... COMPLAINANT NO. 092
GHANWER DASS
... COMPLAINANT NO. 093
OM PRAKASH
... COMPLAINANT NO. 094
RAMJI LAL
OM SACHDEVA
... COMPLAINANT NO. 095
... COMPLAINANT NO. 096
VINOD BUDHIRAJA
... COMPLAINANT NO. 097
KAMLA RANI
... COMPLAINANT NO. 098
RAM SARUP (DEAD) THROUGH LR
... COMPLAINANT NO. 099
HANS RAJ PARUTHI
... COMPLAINANT NO. 100
MANILALA
... COMPLAINANT NO. 125
(B) Those promoters whose case is barred by time:GURDEEP SACHDEVA
... COMPLAINANT NO. 003
PARAMJIT SINGH SACHDEVA
... COMPLAINANT NO. 004
AMARJEET KAUR
... COMPLAINANT NO. 005
GURDEEP SINGH SACHDEVA
... COMPLAINANT NO. 006
GURDEEP SINGH SACHDEVA
... COMPLAINANT NO. 007
SARWAN KUMAR
... COMPLAINANT NO. 008
GEETA
... COMPLAINANT NO. 009
OM PRAKASH
... COMPLAINANT NO. 010
RAJBIR SINGH CHAUHAN
... COMPLAINANT NO. 011
HARBANS LAL
... COMPLAINANT NO. 013
CHELA RAM
... COMPLAINANT NO. 101
SUMAN LATA SHARMA
OM PRAKASH GIRI
SHANKUNLATA SHARMA
ATTAR CHAND
HARISH CHANDRA SHARMA
JIA LAL
SANAT KUMAR
... COMPLAINANT NO. 109
... COMPLAINANT NO. 110
... COMPLAINANT NO. 111
... COMPLAINANT NO. 112
... COMPLAINANT NO. 113
... COMPLAINANT NO. 114
... COMPLAINANT NO. 115
RAM KISHORE VATS
... COMPLAINANT NO. 116
JAGAT RAM
... COMPLAINANT NO. 117
GHANSHYAM DASS
... COMPLAINANT NO. 118
JYOTI PRAKASH
DEVI DAYAL SHARMA
... COMPLAINANT NO. 119
... COMPLAINANT NO. 120
RAM SARUP PANDEY
... COMPLAINANT NO. 121
GORDHAN DASS
... COMPLAINANT NO. 122
RAM BHAJ
... COMPLAINANT NO. 123
OM PRAKASH
... COMPLAINANT NO. 124
SOMNATH VERMA
... COMPLAINANT NO. 126
GUGGAN RAM (DEAD) THROUGH LR … COMPLAINANT NO. 127
SUKHDEV
... COMPLAINANT NO. 128
NAGDA RAM
... COMPLAINANT NO. 129
HARISH CHANDER
... COMPLAINANT NO. 130
JAI SINGH
... COMPLAINANT NO. 131
JAI NARAIN GOOLIA
... COMPLAINANT NO. 136
NARESH KUMAR
... COMPLAINANT NO. 139
SANTOSH KUMARI
... COMPLAINANT NO. 143
SATYA DEVI
... COMPLAINANT NO. 144
YASHPAL
... COMPLAINANT NO. 146
SHRI CHAND
... COMPLAINANT NO. 147
MANGE RAM
... COMPLAINANT NO. 149
GEETA RAM
... COMPLAINANT NO. 150
SURJEET KUMAR
... COMPLAINANT NO. 151
JAI BHAGWAN
... COMPLAINANT NO. 152
JAGMINDER
... COMPLAINANT NO. 153
PRITMO DEVI
... COMPLAINANT NO. 154
HEM CHAND
... COMPLAINANT NO. 155
BISHAN DAS (DEAD) THROUGH LR
… COMPLAINANT NO. 156
INDERJEET
... COMPLAINANT NO. 157
PRITHVI SINGH
... COMPLAINANT NO. 158
RAMBIR
... COMPLAINANT NO. 159
JAI KUMAR
... COMPLAINANT NO. 161
ISHAM SINGH
... COMPLAINANT NO. 162
RAJBIR
... COMPLAINANT NO. 163
SOMPAL
... COMPLAINANT NO. 164
GOPI RAM (DEAD) THROUGH LR
KALU RAM (DEAD) THROUGH LR
RAMJI LAL
KANTA DEVI (DEAD) THROUGH LR
… COMPLAINANT NO. 165
… COMPLAINANT NO. 166
... COMPLAINANT NO. 169
… COMPLAINANT NO. 170
OM PRAKASH
... COMPLAINANT NO. 171
GOPAL DAS
... COMPLAINANT NO. 173
KRISHAN LAL MATA
RITA KUMARI
... COMPLAINANT NO. 174
... COMPLAINANT NO. 175
BHAGWAN DAS (DEAD) THROUGH LR… COMPLAINANT NO. 176
HARI CHAND
... COMPLAINANT NO. 177
VINOD KUMAR
... COMPLAINANT NO. 178
PUSHPA RANI
... COMPLAINANT NO. 179
OM PRAKASH
... COMPLAINANT NO. 180
SOMA RANI
... COMPLAINANT NO. 181
KASHMIRI LAL
... COMPLAINANT NO. 185
KASHMIRI LAL
... COMPLAINANT NO. 186
YUGDUTT VERMA (DEAD)
THROUGH LR.
… COMPLAINANT NO. 187
NEELAM KUMARI
… COMPLAINANT NO. 196
MANI RAM
... COMPLAINANT NO. 200
NATHA RAM
... COMPLAINANT NO. 201
CHANDER WATI
... COMPLAINANT NO. 202
OM PRAKASH (DEAD) THROUGH LR … COMPLAINANT NO. 203
SANTOSH
... COMPLAINANT NO. 204
SATYA DEV (DEAD) THROUGH LR
… COMPLAINANT NO. 205
SHYAM SINGH
... COMPLAINANT NO. 206
RASID KHAN
... COMPLAINANT NO. 207
MANGE RAM
... COMPLAINANT NO. 208
SHAKUNTLA
... COMPLAINANT NO. 209
PARAMJEET
... COMPLAINANT NO. 210
PRAKASH KAUR (DEAD) THROUGH LR.. COMPLAINANT NO. 211
JOGINDER KAUR
... COMPLAINANT NO. 212
SUKHWINDER KAUR
... COMPLAINANT NO. 213
HANS RAJ
... COMPLAINANT NO. 214
PRAKASH KAUR (DEAD) THROUGH LR.. COMPLAINANT NO. 215
OM PRAKASH (DEAD) THROUGH LR … COMPLAINANT NO. 216
JASBIR KAUR
MADAN LAL
HARBANS SINGH
LALITA GANDHI
... COMPLAINANT NO. 217
... COMPLAINANT NO. 218
... COMPLAINANT NO. 219
... COMPLAINANT NO. 220
BIHARI LAL NAGPAL (DEAD)
THROUGH LR
… COMPLAINANT NO. 221
AMARJEET KAUR
... COMPLAINANT NO. 224
ASHOK KUMAR
... COMPLAINANT NO. 225
JOGINDER SINGH
... COMPLAINANT NO. 226
UMESH CHANDER
... COMPLAINANT NO. 227
PURANCHAND
... COMPLAINANT NO. 228
LILAWATI
... COMPLAINANT NO. 229
SUMITRA DEVI
... COMPLAINANT NO. 230
SHAVITRI DEVI
... COMPLAINANT NO. 231
DHARAM SINGH
... COMPLAINANT NO. 232
MANI RAM
... COMPLAINANT NO. 233
MAMTA RANI
… COMPLAINANT NO. 234
RAM BAI (DEAD) THROUGH LR
… COMPLAINANT NO. 235
SUGRIV
... COMPLAINANT NO. 236
HARI SINGH RANA (DEAD)
THROUGH LR
SHAKUNNTLU RANI
… COMPLAINANT NO. 237
... COMPLAINANT NO. 238
JAGAT RAM
... COMPLAINANT NO. 239
PREM RAO
... COMPLAINANT NO. 240
CHANDO RANI (DEAD) THROUGH LR … COMPLAINANT NO. 241
OM PRAKASH (DEAD) THROUGH LR … COMPLAINANT NO. 242
SIYARAM GOD
... COMPLAINANT NO. 244
KANHI
... COMPLAINANT NO. 245
MAHABIRI DEVI
... COMPLAINANT NO. 246
RAJINDER KUMAR
... COMPLAINANT NO. 248
RAJINDER KAUR
... COMPLAINANT NO. 249
DHUNI CHAND
... COMPLAINANT NO. 250
GOPAL KRISHAN DUTTA
... COMPLAINANT NO. 251
DEVI (DEAD) THROUGH LR
… COMPLAINANT NO. 252
RAJINDER KUMAR
... COMPLAINANT NO. 253
JAGDISH LAL (DEAD) THROUGH LR … COMPLAINANT NO. 254
TULSI DAS
... COMPLAINANT NO. 255
BALIHAR SINGH
... COMPLAINANT NO. 256
GURMIT SINGH
... COMPLAINANT NO. 257
VINOD KUMAR
... COMPLAINANT NO. 258
MOHAN LAL (DEAD) THROUGH LR
SVITRI
MAHMOOD HUSSAIN
… COMPLAINANT NO. 259
... COMPLAINANT NO. 260
... COMPLAINANT NO. 261
BISHAMBER DAYAL (DEAD)
THROUGH LR
… COMPLAINANT NO. 262
ANITA RANI
... COMPLAINANT NO. 263
PURAN MAL
... COMPLAINANT NO. 264
KISHAN CHAND
... COMPLAINANT NO. 265
CHAJU RAM (DEAD) THROUGH LR
… COMPLAINANT NO. 266
JIWAN RAM
... COMPLAINANT NO. 267
KALAWATI
... COMPLAINANT NO. 268
MOHINDER
... COMPLAINANT NO. 269
SHRI NIWASH
... COMPLAINANT NO. 270
ASHA SHARMA
... COMPLAINANT NO. 271
JUGAL SHARMA
... COMPLAINANT NO. 272
CHANDER KANT SHARMA
... COMPLAINANT NO. 273
ASHOK SINGLE
SHAYM LAL
SUNDER LAL
... COMPLAINANT NO. 274
... COMPLAINANT NO. 277
... COMPLAINANT NO. 278
KRISHNA DEVI (DEAD) THROUGH LR
GOPAL DASS
… COMPLAINANT NO. 279
... COMPLAINANT NO. 280
GOBIND LAL
... COMPLAINANT NO. 281
FATHA SINGH
... COMPLAINANT NO. 282
JASBIR SINGH
... COMPLAINANT NO. 283
PREM KUMAR
... COMPLAINANT NO. 284
ASHOK KUMAR
... COMPLAINANT NO. 285
PISHORI LAL (DEAD) THROUGH LR … COMPLAINANT NO. 286
PUNA SINGH
... COMPLAINANT NO. 287
VEERBHAN
... COMPLAINANT NO. 288
PREETAM LAL
... COMPLAINANT NO. 289
NANAK CHAND
... COMPLAINANT NO. 290
KEWAL KRISHAN
... COMPLAINANT NO. 291
NARAIN DEVI
... COMPLAINANT NO. 292
LAL CHAND KAPOOR
... COMPLAINANT NO. 293
SHAYM LAL SHARMA
... COMPLAINANT NO. 294
RAM LAL MALHOTRA
... COMPLAINANT NO. 295
HARDWARI
... COMPLAINANT NO. 296
GOPAL MALHOTRA
... COMPLAINANT NO. 297
ATTAR CHAND TOMAR
... COMPLAINANT NO. 298
HARI SINGH
... COMPLAINANT NO. 299
ANAND
... COMPLAINANT NO. 300
PALE RAM
... COMPLAINANT NO. 301
RAM DHARI GOSWAMI
... COMPLAINANT NO. 302
MADAN LAL
... COMPLAINANT NO. 303
SAI DASS
… COMPLAINANT NO. 304
MULAKH RAJ
... COMPLAINANT NO. 305
RAM CHAND
... COMPLAINANT NO. 306
MOHAN SINGH
... COMPLAINANT NO. 307
MAMAN RAM
JAWALA SINGH
... COMPLAINANT NO. 308
... COMPLAINANT NO. 309
BHULLAN SINGH
... COMPLAINANT NO. 310
SAVITRI DEVI
... COMPLAINANT NO. 311
BHIR SINGH
... COMPLAINANT NO. 313
SURESH KUMAR
... COMPLAINANT NO. 314
DHARA
... COMPLAINANT NO. 315
SUBHASH MALIK
... COMPLAINANT NO. 316
ANIL KUMAR
... COMPLAINANT NO. 327
CHAMELI DEVI
... COMPLAINANT NO. 328
GULAB SINGH
... COMPLAINANT NO. 335
(C) Those promoters whose case is within time:
SHYAM SUNDAR AHUJA
RAMAKANK SHARMA
MANOHAR LAL
... COMPLAINANT NO. 002
... COMPLAINANT NO. 012
... COMPLAINANT NO. 102
MANGH RAJ
... COMPLAINANT NO. 103
BHIWANI DASS
... COMPLAINANT NO. 104
DHARAM DEV (DEAD) THROUGH LR ... COMPLAINANT NO. 105
SATYA RANI
... COMPLAINANT NO. 106
PREM PRAKASH
... COMPLAINANT NO. 107
TIRATH DASS
... COMPLAINANT NO. 108
KARTAR SINGH
... COMPLAINANT NO. 132
HOSIYARI DEVI
... COMPLAINANT NO. 133
PRAKASH MALIK
... COMPLAINANT NO. 134
SATYA VIR SINGH MALIK
... COMPLAINANT NO. 135
CHANDER BHAN
… COMPLAINANT NO. 137
HARBANS LAL SUNEJA
... COMPLAINANT NO. 138
RAM SINGH (DEAD) THROUGH LR
… COMPLAINANT NO. 140
OM PRAKASH
... COMPLAINANT NO. 141
ABNESH CHANDER
... COMPLAINANT NO. 142
BHIM SINGH (DEAD) THROUGH LR
… COMPLAINANT NO. 145
HEM RAJ
... COMPLAINANT NO. 148
PRADEEP KUMAR
... COMPLAINANT NO. 160
OM PRAKASH
... COMPLAINANT NO. 167
REKHA RANI
... COMPLAINANT NO. 168
JARNAIL SINGH
... COMPLAINANT NO. 172
ASHOK KUMAR SAPRA (DEAD)
THROUGH LR
GULSHAN KUMR
… COMPLAINANT NO. 182
... COMPLAINANT NO. 183
RAJ KUMARI
... COMPLAINANT NO. 184
JAIPAL (DEAD) THROUGH LR
… COMPLAINANT NO. 188
JAGMAL SINGH
... COMPLAINANT NO. 189
HANS RAJ
KAMLESH KUMARI
RAMESH KUMAR
... COMPLAINANT NO. 190
... COMPLAINANT NO. 191
… COMPLAINANT NO. 192
MANOJ KUMAR (DEAD) THROUGH LR… COMPLAINANT NO. 193
KARTA RAM
... COMPLAINANT NO. 194
LEELA RANI
... COMPLAINANT NO. 195
KAMLA DEVI
... COMPLAINANT NO. 197
PREMI DEVI (DEAD) THROUGH LR
… COMPLAINANT NO. 198
BALWANT SINGH
... COMPLAINANT NO. 199
ASHOK KUMAR
... COMPLAINANT NO. 222
SURESH PAL
BABU RAM MORIA
... COMPLAINANT NO. 223
... COMPLAINANT NO. 243
RAM SINGH
... COMPLAINANT NO. 247
VIDYA NAND
... COMPLAINANT NO. 275
VIDYA NAND
... COMPLAINANT NO. 276
SAVITRI DEVI
... COMPLAINANT NO. 312
KARAN SINGH
... COMPLAINANT NO. 317
SHASHI BALA
... COMPLAINANT NO. 318
INDERJEET
... COMPLAINANT NO. 319
GORJA RANI
... COMPLAINANT NO. 320
INDERPAL HARIJAN
... COMPLAINANT NO. 321
SOMDUTT
... COMPLAINANT NO. 322
KUSHAM LATA
... COMPLAINANT NO. 323
VIKAS KUMAR
... COMPLAINANT NO. 324
RAGHBIR SINGH
... COMPLAINANT NO. 325
LALI DEVI
RAM DAS SAINI
MALKHAN SINGH
KARAN SINGH
RAI SINGH
… COMPLAINANT NO. 326
... COMPLAINANT NO. 329
... COMPLAINANT NO. 330
... COMPLAINANT NO. 331
... COMPLAINANT NO. 332
KARAN SINGH
... COMPLAINANT NO. 333
CHETRO DEVI
... COMPLAINANT NO. 334
18.
The learned counsel for the opposite party vehemently argued that the case by as many as 335
complainants is not maintainable. He submitted that cause of action are different, dates of payment
and dates of maturity are different and as such each complaint should have filed a separate
complaint.
19.
We are unable to locate substance in these arguments. Section 2(1)(b)(iv) of The Consumer
Protection Act, 1986 permits the complainants to file such complaint and it runs as follows:“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;]”
20.
Each consumer in this case has got the same interest. Consequently, this complaint is
maintainable.
21.
In the result we allow the complaints filed by those persons, which fall within the category (C)
mentioned above. The amount will carry interest at the rate of 10% p.a. from the date of deposit till
its recovery. Petitioners are also awarded litigation charges in the sum of Rs. 3 lakh. It must be
borne in mind that the complainants were deprived of their hard-earned money for a period of more
than two decades.
22.
It has also come to our notice that some amount is already deposited. The said amount be paid
to the decree holders proportionately. Single authorised person/complainant by all the
complainants. Loan already received by the complainants from the OP from their FDR’s shall be
adjusted/deducted. The amount already deposited shall not carry interest because the same had
already been deposited in the FDR. The FDR amount will be paid to the complainants. The Learned
Registrar will calculate the amount as ordered by this Commission. He is at liberty to fix the date on
Saturdays with the consent of the parties. His fee is fixed as Rs. 25,000/- to be paid by the parties
(Complainants and OP) in equal share.
.…..…………………………
(J. M. MALIK)
PRESIDING MEMBER
……………………………...
(VINAY KUMAR)
MEMBER
PSM/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.1905 OF 2012
(Against the order dated 19.08.2011 in Appeal No.888 of 2009 of the State Commission, Uttar
Pradesh)
Lucknow Development Authority
Through its Secretary,
6, Jagdish Chand Bose Marg,
Lucknow (U.P.)
……….Petitioner
Versus
Ram Babu Mehrotra
R/o 164-C DDA Flats,
Motiyakhan,
New
Delhi
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Shuaib- Uddin, Advocate
For Mr. Shakil Ahmad Syed,
Advocate
For the Respondent/Caveator: Mr. Vishal Chadha, Advocate
PRONOUNCED ON: 19.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
This revision petition is filed by Lucknow Development Authority against the order of the
UP State Consumer Disputes Redressal Commission in Appeal No.888 of 2009. The State
Commission has allowed the appeal of the Complainant/ Ram Babu Mehrotra against the order
of District Forum-II, Lucknow.
2.
At the very outset, of the impugned order, the State Commission has observed that:“This appears to be second round of litigation between the appellant and the
LDA. The complainant filed two companies nos. 735/2000 and 786/2004. The present
appeal has been preferred against the judgment dated 28.04.2009 of the District
Consumer Forum-II, Lucknow, whereby the complaint was dismissed on the ground that
the judgment dated 09.07.2001 passed in complaint case no.735/2000 was not complied
with by the complainant.”
3.
The matter pertains to allotment of house to the Complainant in 1999 by
the Lucknow Development Authority. The payment for it was spread over the period 12.4.1999
to 18.6.2001. Allegedly by June, 2001 he had paid a sum of Rs.138,910/-. However, the
possession of the house was not handed over to him till the date of the complaint. On the other
hand, OP/LDA had contended that the full amount has not been deposited by the
Complainant. Physical possession could be given only after he has deposited the entire amount
and had executed the agreement.
4.
Complaint No.735/2000, as seen from the record, was decided by the District Forum on
9.7.2001 holding that—
“The complainant is directed that if he wants to get the allotment of the flat in
question from the Respondents, then in that event, he should deposit the entire
instalments as agreed together the prescribed late fee in accordance with the rules of
the Authority, otherwise, he should take back his money from the Authority as per
rules. In continuation of the same, the respondents/opposite party is also directed that
in the even the complainant gives an application to it for taking his money back, then it
should give his money to him in accordance with rulesalongwith other formalities within
a period of one month”
5.
In the subsequent Complaint No.786 of 2004, it was prayed that:-
“1. Till a definite date within the time limit physical possession may be granted;
2. In future the opposite party on which date gives the physical possession to the plaintiff till
that date on the whole deposited amount 21% interest may be granted because from
the allottee on depositing the instalment in delay L.D.A. itself is recovering 21% interest.
3. Unseeing the interests of the plaintiff by the opposite party, for deficiency in service, in
making delay in giving the possession along with the damages be awarded in the interest of
justice and order may kindly be passed in favour of the plaintiff.”
6.
The District Forum dismissed the complaint with the following observations:“As in the present complaint once on the same facts the complaint has been
disposed of and the parties have already been directed therefore again on the basis of
same dispute the complaint could not be filed. As a result the first comply with the
directions of the previous order. The complaint of the complainant is not maintainable
and is liable to be dismissed.”
7.
In the impugned order, the State Commission has taken note of payments received by
LDA, on 2.12.2004 and on 6.3.2007 i.e. subsequent to the decision in complaint No. 735/1000,
from the Complainant, which were not taken into consideration by the District Forum, in its
order of 28.4.2009. The State Commission has therefore, come to a conclusion that the first
order of the District Forum dated 9.7.2001 had been fully complied with by the
Complainant. Accordingly, the appeal was allowed with costs and registration of the house
no.3/438 in Vastu Khand, Gomti Nagar, Phase-2, Lucknow in his favour has been ordered. In
this behalf, the revision petition states:“The Hon’ble State Commission was of the view that the appellant complied the
order dated 9/7/2001 of the district forum in complaint No.735 of 2000 and the appeal
was allowed and the judgment dated 28/4/2009 of the district forum was quashed.”
8.
We have perused the records and heard learned counsel on behalf of the two parties. The
revision petition has been filed with delay.
We find from the application for condonation of
this delay of 176 days claims that this time was spent in seeking recall of the order of 19.8.2011.
But the application does not show the date when the recall application was filed. It merely states
that the concerned miscellaneous application was dismissed by the State Commission on
3.4.2012. Significantly, even in the appeal proceedings before the State Commission, the
revision petitioner/LDA had chosen to remain unrepresented, despite issue of notice.
9.
In another para the petition states that it had sought early hearing of their application for
recall of the impugned order. But, their counsel could not appear due to health reason. It is
stated “That the counsel for the respondent/LDA could not appear on 19.08.2011, due to his ill
health and the ex-parte order was passed and the appeal was disposed of on merits.” We are
unable to accept this argument in explanation of the delay as, in any case, a review against the
impugned order did not lie before the State Commission. This cannot be a ground
for condonation of delay in filing the revision petition. Therefore, the revision petition is liable to
be dismissed on the ground of delay alone.
10.
On the facts, the revision petition mentions that an amount of Rs.1,78,000/- was fixed as
the cost of the house no.3/438 in Vastu Khand allotted to the Complainant. It also states that after
the District Forum order 9.7.2001, the Complainant had paid Rs.128910/-. The balance
remained to be paid with penal interest. As against this, the State Commission has observed
that:-
“According to the statement of accounts duly furnished by the LDA, the
complainant deposited numerous instalments as shown in the statement of accounts
Annexure-30. These deposits were made after date of judgment dated 9.7.2001. A total
sum of Rs.1,64,615/- was deposited by the complainant and as is recited in this
statement of accounts cum demand notice of the LDA dated 01.12.2004 the complainant
was asked to deposit a sum of Rs.6,335/-. The complainant complied with the said
demand notice and deposited the amount vide challan no.77 dated 2.12.2004. This
deposit, demand notice and the statement of accounts were completely ignored by the
officials of the LDA. They appear to have further scrutinized the liability of the
complainant and arrived at a conclusion vide their further demand notice of 28.02.2007
that still a sum of Rs.7,972/- was outstanding against the complainant. This demand
notice too was carried out and videchallan no.76 dated 6.3.2007 (Annexure-33) the
complainant deposited the said amount of Rs.7,972/-. It is obvious that these deposits
were not taken into consideration by the Forum below when the appellant’s complaint
was dealt with and dismissed on 28.4.2009.”
The revision petition fails to explain the above categorical observation in the impugned order,
which would clearly show that the LDA has already received Rs.178922/- from the Complainant.
Therefore, we are of the view that the revision petition fails on merits as well.
11.
Accordingly, the revision petition is held to be barred by limitation and also devoid of
merit. The same is therefore, dismissed with no order as to costs.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………….
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4006 OF 2012
(From the order dated 13.03.2012 in Complaint No. C-285/2011 of the State Consumer Disputes
Redressal Commission, New Delhi)
Rajeev Arora, CMD of
M/s Proview Construction Ltd.
Registered office at: 190, Saini Enclave,
… Petitioner
Vikas Marg, Delhi-110092
Versus
Manoj Kumar,
S/o Shri S.L. Ram
R/o B-203, SPS Residency,
Indrapuram, District Ghaziabad,
… Respondents
U.P.
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mohammad Ikram, Advocate
Pronounced on : 19th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Manoj Kumar, complainant filed a complaint before the State Commission against Sh.
Rajeev Arora, CMD, OP on 01.11.2011. The OP was preceded against ex-parte due to his nonappearance on 13.03.2012. Order passed by the State Commission i.e. impugned order dated
13.03.2012 runs as follows:“None present for the OP despite service of notice under the registered
post. Acknowledge receipt is on record. The case will precede ex-parte against OP.
Fixed 28th May, 2012 for filing complainants evidence.”
2.
The service of the OP for 13.03.2012 was not denied. The case of the petitioner/OP is that
proxy counsel appeared on 28.05.2012 and filed Vakalatnama and the case was adjourned for
18.09.2012. But due to inadvertent mistake, the Steno pasted order sheet on Internet mentioning
the next date of hearing as 28.09.2012 instead of 18.09.2012. On 28.09.2012, OP reached the
Court and there it transpired that the case was listed on 18.09.2012 and adjourned to final exparte arguments on 27.11.2012. It also transpired that as a matter of fact the OP was preceded
against ex-parte on 13.03.2012 on account of non-appearance. In the Revision petition, it is
prayed that the ex-parte order should be set-aside and the OP should be allowed to participate
and defend the case on merits in the interest of justice.
3.
The petitioner/OP has also moved an application for condonation of delay. It is stated that
he was not aware of the order dated 13.03.2012 before 28.09.2012. It is also alleged that the
previous counsel did not inform the OP whether any ex-parte order was passed against
him. Consequently the non-appearance of the OP is neither intentional nor deliberate on
13.03.2012.
4.
We have heard the counsel for the petitioner. There is inordinate delay in moving this
application of 130 days. Even the name of the previous counsel was not disclosed. No
complaint was made against the said counsel. No explanation is coming as to why the previous
counsel did not inform the OP that he was proceeded against ex-parte. Learned counsel for the
appellant admitted that the service on the OPs was effected in the month of January 2012. The
petitioner did not appear before the State Commission deliberately on 13.03.2012. He slept over
the matter and approached the court on 18.09.2012. It is not possible that State Commission
would have given such a long date. The petitioner has failed to explain the day to day delay
from the date of service till 19.10.2012 when this revision petition was filed. The explanation
given by him in the application for condonation of delay makes neither head nor tail. The namby
pamby pleas raised in the application leads the Court nowhere. The version that even on
18.05.2012 the proxy counsel could not come to know that petitioner was proceeded against exparte is not worthy of belief.
In a recent judgment in reference “Mahindra Holidays & Resorts India Ltd. Versus
5.
Vasantkumar H. Khandelwal & Anr.”, Revision petition No. 1848 of 2012 decided on
21.05.2012, by this Commission, by a Bench headed by Hon’ble Mr. Justice Ashok Bhan,
President, it was observed that under the Consumer Protection Act, the District Forum is
supposed to decide the complaint within a period of 90 days from the date of filing and in case
some expert evidence is required to be led then within 150 days. In the said judgment, the delay
of 104 days was not condoned. The same analogy will apply to the respondent.
6.
“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.”
7.
In the above circumstances, we find that the revision petition filed by the petitioner is
hopelessly barred by time. His only purpose is to delay the case for which purpose we will not
allow him to succeed. The revision petition is, therefore, dismissed. However, it is made clear
that in the ex-parte proceedings, the petitioner can always join the proceedings and argue the
case on the basis of complaint itself.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(VINAY KUMAR)
MEMBER
Jr/10
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO.299 OF 2001
ATN Packaging Private Limited
A Company registered under the Indian
Company’s Act, 1956 as Private Limited
Company and having its Registered office
At 24-25, Khetani Industrial Estate, Bail
Bazar,
Kurla
Mumbai-
400
070
……….Complainant
Versus
The United India Insurance Co. Ltd.
A Company incorporated under Act 57 of
1972, belonged to Government of India and
Having its registered office at Madras and
Regional Office and Division Office, which
Issued the policy, is as Rohit Chamber,
Janmabhumi
Marg,
001
Fort,
Mumbai
400
.........Opp
osite party
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: Mr. Santosh Paul, Advocate with
Ms. Bagati, Advocate
For the Opposite party :
Mr. R.N. Zadoo, Advocate
PRONOUNCED ON: 20.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
In this complaint petition the proceedings before this Commission have witnessed
interesting and significant developments. In 2010, three Miscellaneous Applications were filed
by the complainant, seeking permission to file additional documents. These documents were
obtained by the complainant, several years after this consumer complaint was filed. Therefore,
Shri R N Zadoo, learned counsel for the OP/United India Insurance Co. Ltd, opposed the prayer
on the ground that the evidence of the parties had already been led and the case had been listed
for final hearing. On the other hand, learned counsel for the Complainant Shri Santosh Paul
pressed for acceptance of these miscellaneous applications, stressing that these documents are
very relevant to decide the controversy. Learned counsel for the OP/Insurance Co. sought
time to file his objections but failed to file the same. The Commission allowed the prayer of
the Complainant. Counsel for the OP later informed this Commission that he did not wish
to file any evidence in rebuttal.
2.
As per the Complaint petition of 2001, the case of the Complainant was that it was a
private limited company in the business of packaging. In order to protect the movable and
immovable properties of the Company, an insurance policy was taken from the OP in 1999. On
30.6.2000 the period of operation of the policy was coming to an end and it needed to be
renewed from 1.7.2000. For this purpose a cheque, numbered 181456 for the renewal amount of
Rs.34962/, was allegedly sent on 30.6.2000. The petitioner was telephonically informed that due
to fall of water on it, the cheque had become defaced. Therefore, another cheque number 939257
drawn on State Bank of India was sent to the bank, on the same day. Allegedly, this subsequent
cheque was duly acknowledged by the bank, by putting their rubber seal on the face of the
covering letter. The rubber seal is dated 30.6.2000, but carries no signature/ initial of the
recipient.
3.
Following heavy rains on 12 and 13 of July, 2000 many parts of Mumbai were
flooded. The flood water entered the factory of the Complainant and allegedly damaged the
plant and machinery very badly. The Insurance Company appointed a Surveyor to assess the
loss, who was given full cooperation by the Company. However, the claim of the Company was
repudiated by the OP on 16.3.2001. The letter of repudiation stated that:“We observe from the File that the subject loss has taken place on 12.07.2000
when there was no Policy in force. However, this office, in order to ascertain the extent
of loss, deputed an independent Surveyor only for the purpose of arriving at the exact
loss due to flood.
You have originally taken a Policy covering your properties under Policy
No.409/99 issued by us which expired on 01.07.2000. This Policy was not renewed and
therefore there is no Policy Contract. In the absence of the Contract of Insurance, we
are unable to entertain your claim; we are therefore treating this claim as ‘No Claim’
which please note.”
4.
Aggrieved by the repudiation, petitioner company filed this complaint with the following
prayers:a. The Opposite Parties be ordered and directed to pay by award of this Hon’ble Forum a Sum of
Rs.42,74,529.00 [Rupees Forty Two Lakhs Seventy Four Thousand Five Hundred Twenty Nine
Only.]
b. The Opposite Parties be ordered and directed to pay interest at 18% p.a. from 16-12-2000, the
date on which loss is finally assessed and consent is obtained from the Petitioners by the
surveyors after discussion with the insurance company till payment.
c. The Opposite Party be ordered and directed to pay sum of Rs.25,000/- for mental torture and
harassment and also Rs.1,00,000/- being fees to Advocate and Rs.50,000/- for expenses.
d. Such other and further order as this Hon’ble Court deem fit and proper.”
5.
Responding to the above, a detailed affidavit was filed by Shri P.K. Arora, Deputy
Manager, of the OP/Insurance Company. The receipt of cheque for the premium amount was
categorically denied. It was alleged that the existing policy had expired on 1.7.2000 and it was
not renewed. Therefore, no insurance policy was in force on 12.7.2000, when the loss
occurred. In paragraph 4 of the affidavit, it is stated that:“It is submitted that the Complainant has not paid nor deposited any premium
amount to Insure any of his property after 1-7-2000 with the Opposite Party. The
opposite Party be put to the strict proof to prove the submissions made in para No.4 of
the complaint. The consisting normal practice/rule with the Opposite Party is that when
ever any person deposits the premium Cheque or Cheque amount, at the same time
proper receipt is issued by the Opposite Party. The said receipt contains proper initial
of the concerned official who receives any such documents/Cheque etc. and the number
of the entry. It is incorrect that the Opposite Party accepted the Cheque and the
covering letter and has ever issued any receipt, as has been alleged in para No.4 of the
Complaint. It is incorrect that the cheque No.181456 dt. 30-6-2000 drawn on Dena
Bank was presented before the Opposite Party upto 9-3-2001. It is here submitted that
Sh. Mehrnoosh H. Dubesh Development Officer on 9-3-2001 sent Cheque No.181456
dt.30-6-2000 which had water stain/defaced one, the said Cheque was given for
Complainant in Aug. 2000, the said Cheque was immediately returned to him because
the Cheque was time barred and invalid because of water stain. It is incorrect that an
Cheque 939257 drawn on State Bank of India was ever presented by the Complainant to
the Opposite Party. It is incorrect that any concerned official of the Opposite party has
received Letter Ex-A.”
6.
In reply to the above contention about the manner in which letters/cheques are received by
the OP/Insurance Company, the Complainant has filed his counter-affidavit of rejoinder on
5.5.2003. Along with this, he has produced copies of several letters received by the OP from
different parties between 4.5.2000 and 11.10.2003. In all these letters, the acknowledgment is
only the rubber seal of the OP carrying the relevant date and without any signature of the
recipient. These documents have been produced as Exhibit- M.
7.
It is evident from the above, that the entire dispute in this case revolves around answer to
the question whether the insurance company had received the cheque for renewal of the policy
before the expiry of the policy or not?
8.
For an answer to the above question, we have carefully perused the records and the
evidence submitted on behalf of the two parties and heard their respective counsels, at length. Sri
Santosh Paul for the complainant extensively based his arguments on the documents filed in
2010, through three Miscellaneous Applications. On the other hand, Sri RN Zadoo, learned
counsel for the OP/insurance company did not challenge any of these documents and confined
his submissions to the original response of the OP.
9.
Learned counsel for the complainant has relied upon the additional documents, obtained
through recourse to right to information, for substantiating his claim that—
a. “The first cheque given on 30.6.2000 towards renewal premium was reportedly defaced.
Therefore, another cheque was delivered on the same day.
b. The second cheque for renewal of the policy was received and acknowledged by the OP company
but not encashed by the latter”.
10.
Report of Surveyor, Y J Daruwala dated 15.1.2001 (filed by the complainant with
MA/285/2010), shows at the beginning that he was directed on 18.7.2000 by OP to assess the
loss. He made several visits to the premises and had meetings with the Complainant and
completed the assessment. But, his report says that:“In the meanwhile Division Office No.9 had been requested to furnish the relevant
policy since the assessment had almost been completed.
After repeated requests, on 5th September, 2000 I was finally orally informed by Mr.
Jhabak, Divisional Manager, that the policy for the earlier period had not been
renewed. He requested me to await instructions from the Regional Office.
I received a letter dated 4th October, 2000 from Regional Office-I, Mumbai requesting
that Survey Report be released as follows:
.....assess the loss (both on market Value and Reinstatement Value basis) without
considering underinsurance/depreciation and compulsory excess. The loss assessment
should be purely based on actual physical loss sustained by the Insured. However, you
may mention the rate of depreciation to be deducted, assuming that the policy was
issued on Market Value basis.
The loss has been assessed accordingly.”
A copy of this letter of 4.10.2000 was produced by the complainant with MA/285/2010. This
letter, signed by Sir I K Mathur, Manager of the United India Insurance Co., relies upon a
letter of the complainant himself—and not on any internal decision of the Insurance
Company not to renew the policy--- informing that the policy had not been renewed.
11.
The question that arises at this point is why could the OP/insurance company not inform
the surveyor in July 2000 itself that the policy had not been renewed. Part of the answer to the
question why the Surveyor was kept waiting for an answer till 4.10.2000, comes from the inter
office correspondence produced by the Complainant with MA/285/2010. One of the documents
is the CLAIM NOTE of the fire department of the OP/Company dated 11.3.2002. It is signed by
the following three officers:1. Latha Sitaraman, Divisional Manager.
2. L. Parmeswarn, Asst. Manager
3. Ms. P.C. Tilekar, Asst. Admtve. Officer.
12.
The content of this note is very revealing when it says:“Around the 2nd week of August2000, a defaced cheque was found by one of our
Officers; he enquired about the cheque with all the Development Officers whether the
cheque was belonging to any of the business which they brought. But, no Development
Officer could identify the cheque. It was only when the news about the missing cheque
was spread, and that too after the occurrence of the referred claim, the defaced cheque
was brought to light.”
13.
It is strange that this note of 11.3.2002 (signed by three senior officers of the OP insurance
company), makes no mention of the name of the concerned Development Officer, Mehernosh H
Dubash. His affidavit evidence before this Commission says—
“On 9.3.2001, I sent cheque No.181456 dated 30.6.2000 to D.O. concerned
which was water-stained/defaced; the same cheque was given by complainant to me in
August 2000. I told the complainant that the said cheque cannot be encashed because it
is water-stained and to take back such cheque but they failed to take the cheque back
upto 9.3.2001 as such on the said date 9.3.2001 sent the cheque to Divisional Office of
United India Insurance Co., Rohit Chambers, Janmabhoomi Marg, Foret, Mumbai400001.”
The same position is taken by the OP in the affidavit evidence of their Divisional Manager Mr S
Gopalakrishnan“It is submitted that Shri Mehernosh H. Dubash, Development Officer, on
9.3.2001 sent cheque No.181456 dated 30.6.2000 which was water-stained/defaced
one. The said cheque was given by complainant to him in August 2000, the said cheque
was immediately returned to him because the cheque was time-barred, invalid,
irrelevant.”
Thus, as per the affidavit evidence filed on behalf of the OP, this cheque was given by the
complainant to Mr Dubash in August 2000. Counsel for the complainant drew our attention to
the letter of Mr Dubash himself addressed on 9.3.2001 to the Senior Divisional Manager,
United India Insurance Co. which clearly says that this cheque for Rs 34962, drawn on
Dena Bank, “being the premium for ATN packaging.Ltd. which was handed over to me in
mutilated condition from Mr Dilip Shukhla HO (D) on or around 1st week of August 2000.”
It is therefore, very strange that the CLAIM NOTE hides the fact that—
a. “one of its signatories, Smt. Latha Sitaraman, had returned the defaced cheque to the sender, M
H Dubash, Development Officer on 16.3.2001 saying that “this is not relevant to us at this
juncture.”
b. It does not explain which officer had found the cheque in August 2000.
c. There is no explanation what had happened between August 2000 and March 2001.
d. There is no explanation why the claim was repudiated on 16.3.2001 when on the same day the
defaced premium cheque was returned to the Development Officer asking him to explain why
“he had kept the cheque with him for such a long time.”
e. There is no explanation why this note does not mention that the defaced cheque was actually
given to Mr Dubash by one Mr Dilip Shukla of HO (D) in/around 1st week of August 2000.
f.
On the main question whether renewal premium was paid or not, the Note merely states that the
department neither received the second cheque as claimed by the insured nor did it call for any.”
As already noted, the counsel for the OP has chosen not to file any objections to these
documents. He merely argued that the case of the complainant is based on forged documents.
This is a plea taken in the written response to the complainant. However, the Counsel could not
point to any evidence produced on behalf of the OP/Insurance Co. in support of this contention.
14.
In this context, the internal Note of 5.3.2001 signed by Mr P.Subramanian, Administrative
Officer,(filed by the complainant with MA/531/2010) gives extremely valuable information on
the developments since 30.6.2000. The relevant paras read—
“The above insured was having original Fire Policy No.409/99 expiring on 01.07.2000.
It is reported that they had sent premium cheque No.181456 dated 30.6.2000 for
Rs.34962/- towards renewal. The said cheque was found to be defaced by water; so a
fresh cheque No.939257 dated 30.6.2000 for the same amount, drawn on State Bank of
India, was presented by the Insured to this Office. However, the Policy was not renewed
by this Office as this cheque was also not traced out.
In the meanwhile, the Insured by FAX dated 14.7.2000 (received by this Office on
17.7.2000) intimated about the Flood loss. From the Claims Dept., a letter was sent to
the Insured stating that the Policy was not renewed and asking for the proof of
submission of renewal cheque to this Office. In response to this, they had submitted a
copy of their letter dated 30.6.2000 addressed to our office enclosing a revised premium
cheque No.939257 dated 30.6.2000 for Rs.34962/- (a copy of their letter forwarding the
cheque is in the File).”
His note ends with the recommendation that a decision can be taken after verifying all the facts.
But, no evidence has been led on behalf of the OP to show what inquiry or verification was done
which led to repudiation of the claim, ten days later on 16.3.2001.
15.
CONCLUSIONS
In the foregoing paras we have carefully examined the evidence brought out through the
correspondence and internal records of the OP company submitted by the complainant through
three Miscellaneous Applications in 2010. As already observed, the OP has chosen not to file
any objections to challenge their content. Considering them together with the evidence already
led by the two sides, we arrive at the following conclusions—
1. The primary burden of proof of the complainant has been discharged by establishing that the
renewal premium was paid by cheque No. 939257 drawn on the State Bank of India on
30.6.2000. This is borne out by the following --
a. The rubber seal of the OP on the covering letter of the same day constitutes the
acknowledgement. Additional documents produced by the complainant fully disprove the
contention of the OP that the rubber seal should have carried the signature of the receiving
official.
b.
No evidence is produced by the OP in support of its allegation of forgery.
c. On behalf of the complainant, affidavit evidence of its employee Mr Ravi Ankush Chofekar,
filed on 5.5.2003, says that he had himself delivered the cheque and the letter at United India
Insurance Co office on 30.6.2000. Other than a bland denial in the affidavit of Mr S
Gopalakrishnan, this has not been challenged by the OP.
d. Repeated reference in the records of the OP (produced by the complainant) to discovery of the
defaced cheque of the same amount and same date, itself supports the claim of the complainant
that another cheque was delivered on the same day, as the first was reportedly defaced.
2. Even after the Surveyor directly raised the question whether the policy had been renewed, there
is no evidence of any effort on the part of the OP to find out whether the renewal premium had
been received and if yes, in what manner.
3. In his affidavit evidence of 28.10.2003, M H Dubash, claims that the defaced cheque was given
to him by the complainant in August 2000. This assertion is in direct contradiction of the claim
in his letter of 9.3.2001. As per this letter, the cheque was handed over to him “in mutilated
condition from Mr Dilip Shukhla HO (D) on or around 1st week of August 2000.” This written
assertion destroys the credibility of his affidavit and thereby acceptability of the claim of the OP,
that the defaced cheque was given by the complainant in August 2000.
4.
Appointment of the surveyor and his assessment of the loss are a matter of record. Discovery of
the defaced cheque is equally a matter of record of the OP. In this background, non production of
any evidence that the OP had inquired into the claim of the complainant about delivery of the
second cheque on 30.6.2000, cannot be overlooked. What makes it worse is that despite a full
inquiry being recommended by its own officer (P Subramanian, Administrative Officer) the
senior functionaries of the insurance company went ahead with the decision to repudiate the
claim.
5. No evidence has been led by the OP to explain the basis for repudiation, except repeated
assertions that premium had not been received. The affidavit evidence of Mr S Gopalakrishnan
Divisional Manager of the OP insurance company, carries a categorical denial of receipt of
cheque No. 939257 drawn on the State Bank Of India, on 30.6.2000 towards renewal premium.
The affidavit also claims that the complainant was given proper opportunity to prove that he had
ever given the premium cheque to the Opposite Party.
The veracity of these claims is destroyed
by OP’s own internal record. As already noted, the NOTE of 5.3.2001 sent by Administrative
Officer, P Subramanian, refers to the this very cheque and states in the opening para that it
was received but the policy was not renewed as the cheque was lost. Therefore, towards the end,
his note recommends “if the premium has been collected but not accounted for by our office due
to omission at our end, a suitable decision has to be taken for processing the claim”.
16.
In the light of the details considered in the foregoing paragraphs, we hold that it is
established by the evidence on record that the cheque No. 939257 drawn on the State Bank of
India towards renewal premium was received in the OP/insurance company on 30.6.2000. If the
OP, for whatever reason, failed to encash it, the responsibility for non-receipt of the amount
therein, will rest with the OP and not with the complainant. For the same reason, we also hold
that repudiation of the claim was not justified and amounts to deficiency of service on the part of
the OP.
17.
Consequently, Original Petition No.299 of 2001 is allowed. OP/United India Insurance
Company Limited is directed to pay to the Complainant/ATN Packaging Pvt. Ltd. the amount as
per the assessment of loss made by the Surveyor, after adjusting depreciation and compulsory
excess. This shall also carry interest at 9% per annum from the date of the Complaint. The
entire sum shall be paid by the OP within three months. Failing this, interest shall be paid at 12%
for the period of delay. No order as to costs.
.…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
………………………….
(VINAY KUMAR)
S./-
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3624 OF 2012
(From the order dated 09.09.2010 in First Appeal No. 3812 of 2010 of the Karnataka
State Consumer Disputes Redressal Commission Bangalore)
WITH
IA/1/2012 (Delay)
Shri S.J. Narayana Swamy
S/o Shri Bharanaiah,
R/ at Door No. 1669,
9th Cross, Ashokapuram,
Chamaraja Mohalla,
… Petitioner
Mysore, Karnataka
Versus
The Commissioner,
Mysore Urban Development,
Authority, J.C.B. Road,
… Respondent
Mysore City, Karnataka
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE MR.
SURESH CHANDRA, MEMBER
: Mr. C.B. Gurudev, Advocate
PRONOUNCED ON 20th NOVEMBER, 2012
ORDER
PER SURESH CHANDRA, MEMBER
This Revision Petition has been filed by S.J. Narayana Swamy who is the original
complainant against the order dated 09.09.2010 passed by the Karnataka State Consumer
Disputes Redressal Commission, Bangalore (‘State
-2Commission’ in short) in appeal No. 3812/2010 by which the State Commission dismissed the
appeal filed by the petitioner against the order of the District Forum at the stage of admission
itself because of delay of 211 days in filing that appeal.
2.
At the outset, it is observed that this revision petition has been filed with a delay of 337
days beyond the prescribed period. The petitioner has filed an application seekingcondonation of
delay in question. We have perused the application in which it has been submitted that the delay
in question was caused because after the dismissal of the appeal of the petitioner by the State
Commission on 09.09.2010, initially the petitioner approached the Hon’ble High Court of
Karnataka by filing writ petition no. 16325 of 2011 which was dismissed as withdrawn on
25.05.2011. Thereafter, the petitioner also approached the Apex Court by filing a SLP which
was also dismissed on 23.04.2012. It is claimed by the petitioner that in the meanwhile he was
suffering from ‘Chikangunya’ disease from 19th May till September, 2011. No certificate in
respect of the illness has, however, been submitted. In any case, considering the fact that the writ
petition filed by the petitioner was later withdrawn by him and the SLP was also dismissed by
the Apex Court on 23.04.2012 and yet he has filed this Revision Petition on 24.09.2012, it is
clear that the petitioner has not been diligent in filing this revision petition within the time
prescribed and has taken far too long to approach this Commission in the matter. Reasons for the
-3delay are not satisfactory. We, therefore, are not inclined to condone the inordinate delay of 337
days in filing this revision petition and it is liable for dismissal on this ground alone. However,
we have looked into the merits as well.
3.
Briefly stated, the petitioner was allotted a plot by the respondent/OP measuring 60 x 40
feet in Mysore for a sum of Rs.1,00,000/- but the petitioner paid only Rs.1350/-. The
respondent/OP asked the petitioner to pay the remaining amount with interest within 30 days
from the date of communication and to obtain the sale deed failing which the amount of the
initial deposit would be forfeited. Inspite of a reminder from the respondent, the petitioner was
not in a position to pay the amount. Subsequently, the petitioner approached the Government to
consider his request for allotment and the Government wrote a letter to the respondent to
consider the request of the petitioner and to allot a site if the same had not been allotted to any
other person. The respondent ordered re-allotment of the site already allotted to him
earlier. According to the petitioner, the respondent did not give effect to its own order passed on
21.04.2006 and, therefore, alleged deficiency in service and filed a consumer complaint before
the District Forum. The District Forum dismissed the complaint vide its order dated 04.01.2010
holding that the petitioner could not establish any deficiency in service on the part of the
respondent and also that the complaint itself was barred by limitation. Aggrieved by the order of
the District Forum the petitioner
-4filed an appeal before the State Commission which dismissed the same at the stage of the
admission as stated above.
4.
We have heard Mr. C.B. Gurudev, learned counsel for the petitioner and perused the
record. Both the District Forum and State Commission have held that the complaint filed by the
petitioner was barred by limitation since according to the admitted position, the cause of action
arose during the year 2006 whereas the complaint was filed on 04.11.2009. Keeping in view the
settled legal position in this regard, we do not find any infirmity with the impugned order and
hence do not see any reason to interfere with the same. The revision petition accordingly stands
dismissed both on the ground of the delay in filing the revision petition and the complaint being
barred by limitation with no order as to costs.
…………………………
(K.S. CHAUDHARI, J.)
PRESIDING MEMBER
…………………………
(SURESH CHANDRA)
MEMBER
hj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3624 OF 2012
(From the order dated 09.09.2010 in First Appeal No. 3812 of 2010 of the Karnataka
State Consumer Disputes Redressal Commission Bangalore)
WITH
IA/1/2012 (Delay)
Shri S.J. Narayana Swamy
S/o Shri Bharanaiah,
R/ at Door No. 1669,
9th Cross, Ashokapuram,
Chamaraja Mohalla,
… Petitioner
Mysore, Karnataka
Versus
The Commissioner,
Mysore Urban Development,
Authority, J.C.B. Road,
Mysore City, Karnataka
… Respondent
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE MR.
SURESH CHANDRA, MEMBER
For your kind perusal. If approved, the order will be listed for pronouncement.
…………………………
(SURESH CHANDRA)
MEMBER
29.10.2012
HON’BLE MR. JUSTICE K.S. CHAUDHARI
PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2054 OF 2012
(Against the order dated 27.12.2011 in First Appeal No. 2049 of 2004 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
1. Haryana Urban Development Authority
Through its Estate Officer, HUDA Sonipat
2. Administrator,
Haryana Urban Development Authority,
….. Petitioners
Rohtak
Versus
Indira W/o Amrish Kumar,
Resident of House No. 42, Green Park
Hisar, Haryana
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. R. S. Badhran, Advocate
For the Respondent
: Mr. Himanshu Upadhyay, Advocate
Pronounced on : 20th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The State Commission dismissed the first appeal preferred by the opposite
parties/petitioners on the ground that it was delayed by 347 days. The State Commission placed
reliance
on
the
judgment
of
this
Commission
reported
in Union
of
India
vs.
Vijay Laxmi reported in 2006(1) CPC 61 (NC) and the judgments of the Apex court in State
of
Nagaland
vs. Lipokao and ors.
reported
in
2005(2)
RCR
(Criminal)
414 and D. Gopinathan Pillai vs. State of Kerala and another reported in (2007) 2 SCC 322.
2.
Aggrieved by that order, the petitioner has filed the present revision petition which is
further delayed by 36 days. Learned counsel for the petitioner did not care to file the application
for condonation of delay produced before the State Commission. However, the impugned
order mentions :
“As regards the ground taken in the first application it would transpire that totally vague and
ambiguous assertion has been made. The only reason stated in the application
forcondonation of delay is “procedural/departmental delay”. But the appellant has miserably
failed to mention the date-wise movement of the file from one table to another table. The same is
position of the affidavit of Sh. Sujan Singh, HCS, Estate Officer, HUDA, Sonepat, which is also
silent with respect to the date-wise movement of the file. Even otherwise, there is a delay of 347
days in filing the appeal, whereas appellant has sought the condonation of delay of only 20 +
152 = 172 days, and in this way a period of more than 174 days remains unexplained.”
3.
Now we turn to the application for condonation of delay in filing the above noted “revision
petition”. It is explained that the State Commission announced the order on 27.12.2011 and the
copy of the order was issued on 19.1.2012. After receiving the copy of the order from the office
of Estate Officer, Sonipat, the case was examined by the Legal Branch. The whole process was
time consuming. Thus, there is delay in filing the revision petition.
4.
We have heard the learned counsel for the petitioners. Learned counsel for the petitioners
contended that the opportunity of being heard should be granted to the petitioners. He argued that
the petitioners deal with public money and such like delay should be condoned.
5.
We are unable to clap any significance to these arguments. Instead of touching the heart
of the problem, learned counsel for the petitioner has chosen to skirt it. It is now well settled that
the departmental and procedural delay are not to be condoned. There can be some ground which
must constitute sufficient ground under Section 5 of the Limitation Act. It is also surprising to
note that when the case was decided by the State Commission on the ground of its being time
barred, no alarm bells were rung. The petitioners should have filed the revision petition
immediately. It is clear that the petitioners have not learnt a lesson from the orders passed by the
Apex Court as well as by this Commission.
6.
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”.
7.
In Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010, it was held:
“The party should show that besides acting bona
fide, it had taken all possible steps
within its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the party
by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd
Edition, 2005]”
8.
In
other
case,
titled
as “Mahindra
Holidays
&
Resorts
India
Ltd.
Versus Vasantkumar H. Khandelwal & Anr.” [Revision petition No. 1848 of 2012 decided on
21.05.2012], the Bench of this Commission headed by Hon’ble Mr. Justice Ashok Bhan, has
rejected the explanation that the file was moving from table to table to get the permission to file
that appeal. It was further held that under the Consumer Protection Act, 1986, the District Forum
is supposed to decide the complaint within a period of 90 days from the date of filing and in case
of some expert evidence is required to be led then within 150 days. The said Bench dismissed the
revision petition on the ground that it was delayed by 104 days.
9.
Recently in Office of the Chief Post Master General & Ors. Vs. Living Media India
Ltd. & Anr. 2012 STPL (Web) 132 (SC), the Apex Court was pleased to hold:
“13. In our view, it is the right time to inform all the
government bodies, their agencies and
instrumentalities that unless they have reasonable and acceptable explanation for the delay and
there was bonafide effort, there is no need to accept the usual explanation that the file was kept
pending for several months/years due to considerable degree of procedural red-tape in the
process. The government departments are under a special obligation to ensure that they perform
their duties with diligence and commitment. Condonation of delay is an exception and should not
be used as an anticipated benefit for government departments. The law shelters everyone under
the same light and should not be swirled for the benefit of a few. Considering the fact that there
was no proper explanation offered by the Department for the delay except mentioning of various
dates, according to us, the Department has miserably failed to give any acceptable and cogent
reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay.”
9.
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.”
10.
The revision petition is meritless and the same is therefore, dismissed.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3707 OF 2012
(From the order dated 10.07.2012 in Appeal No. 1935/2011 of the State Consumer Disputes
Redressal Commission, Rajasthan, Jaipur)
United India Insurance Co. Ltd.
Through the Regional Manager,
DRO-1, Kanchenjunga Building, 8th Floor,
… Petitioner
Barakhamba Road, New Delhi-110001
Versus
Giriraj Prasad Meena
S/o Ramjilal Meena (deceased)
R/o, Village: Surajpura,
Tehsil & District Dausa,
… Respondents
Rajasthan
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mr. S.K. Ray, Advocate
Pronounced on : 20th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Ramjilal Meena, since deceased and father of the complainant Sh. Giriraj Prasad Meena
obtained a Public Personal Accident Policy for a sum of Rs. 5,00,000/- for a period of 15 years
w.e.f. 29.01.1999 to 28.01.2014 from United India Insurance Co. Ltd., the petitioner/OP. It is
alleged by the complainant that Gohara, a poisonous insect had bitten Ramjilal while he was
working in his fields at Gola Ki Dhani on 13.03.2009. On 05.04.2009, Medical Officer,
Government Hospital, Dausa issued a Medical Certificate that Ramjilal died due to insect bite. It
is contended that he issued the certificate without following the due procedure. The complainant
filed the claim, which was repudiated on 30.11.2009. The District Forum dismissed the
complaint, filed by the complainant, under Section 12 of the Consumer Protection Act, on
20.10.2011.
2.
Aggrieved by that order, appeal was preferred before the State Commission, which
accepted the appeal and granted Rs. 5,00,000/- with 9% interest from the date of filing of the
complaint in favour of the complainant. The complainant was also awarded Rs. 10,000/- as costs
of the proceedings from the Insurance Company.
3.
This revision petition is preferred by the petitioner Insurance Co. The argument advanced
by the learned counsel for the petitioner has two prongs. He highlighted the fact that no
postmortem examination of the deceased was conducted. He contended that the absence of
autopsy report, a clear picture does not begin to jell. He explained that the evidence adduced by
the complainant hinges upon the certificates given by the Doctor, SDM and Panchnama. Again
the names of the Panchas were never disclosed. He argued that the evidence adduced by the
complainant is of frail character and does not carry much value.
4.
Secondly, he also pointed out that as per the terms and conditions of the policy,
postmortem report should have been produced to know the actual cause of death. Copy of FIR
must be produced within one month as per requirements of the policy. Again, there is no
evidence, which may go to show that Ramjilal bequeathed insured amount exclusively in favour
of the complainant.
5.
All these arguments are bereft of merit. This is a peculiar case. There is one certificate
issued by the Medical Officer, Govt. District Hospital, Dausa dated 07.04.2009. English version
of the said certificate runs as follows:-
“This is to certify that Sh. Ramjilal Meena S/o Sh. Panchu Lal Meena R/o village
Surajpura Tehsil Dausa District Dausa was under my treatment for following accident “Death
occurred may be due to insect bite”
The subject treatment given for the period 13.03.2009 to 13.03.2009 by me under my
dispensary Dausa.
In accident the following injury happened
“Death occurred due to insect bite”
6.
There is another certificate issued by the Sub Divisional Magistrate in case of death, which
is reproduced as follows:“On the basis of investigation I certify that Sh. Ramji Lal S/o Sh. Panch Ram Meena R/o
Village Surajpura, Tehsil, Dausa, District Dausa died on 13.03.2009 at 8.00 hrs. at village
Surajpura Tehsil Dausa District Dausa. Cause of death
“Due to bite by a poisonous Ghoyra while working on field.”
7.
In view of these certificates, non-production of postmortem report pales into
insignificance. It is but clear that the deceased was taken to the Govt. hospital wherein he died
due to this accident. By no stretch of imagination, it cannot be said that he died naturally. The
question of lodging FIR in this particular case does not possibly arise because matter was
conducted and enquiry was made by the S.D.M. himself. Dispute if any, between the LRs of the
deceased is a matter per se between them and without any evidence or objection the petitioner
should not raise this question.
8.
Last but not the least the Consumer Court acts under a benevolent legislation where the
claim of consumers are not to be brushed aside on frivolous grounds.
9.
The revision petition is dismissed.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(VINAY KUMAR)
MEMBER
Jr/8
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1372 OF 2012
(From the order dated 04.07.2011 in F.A. No.1175/2005 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
The Khanpur Kalan Co-op. Tpt. Society Ltd.
… Petitioner-Complainant
Versus
Oriental Insurance Co. Ltd., Sonepat
Through its Regional Manager, LIC Bldg.,
2nd Floor, Jagadhri Road, Ambala Cantt.,
… Respondent-opposite party
Haryana.
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. Alok Sangwan, Advocate
PRONOUNCED ON 20th NOVEMBER, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed against the order dated 04.07.2011 passed by the
learned Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State
Commission’) in F.A. No.1175/2005 – Oriental Insurance Co. Ltd. Vs. Khanpur Kalan Coop. Tpt. Society Ltd. by which while accepting appeal, order of District Forum was set aside and
complaint was dismissed.
2.
Brief facts of the case are that petitioner/complainant got his bus HR-46/5070 insured from
the respondent/opposite party for 8.10.1999 to 7.10.2000. Bus was stolen during the intervening
night of 12/13.5.2000. An FIR was lodged on 2.6.2000 with Police Station. The complainant
filed claim with the opposite party and as per surveyor’s report, claim was repudiated, hence,
complaint was filed. Opposite party contested the complaint and learned District Forum vide
order dated 23.5.2005 allowed the complaint and directed opposite party to make payment of
Rs.2,60,000/- along with 12% interest per annum against which respondent filed appeal which
was accepted by impugned order.
3.
Heard learned Counsel for the petitioner and perused record.
4.
Learned Counsel for the petitioner submitted that delay of 147 days was caused in filing
revision petition due to non-availability of record of Complaint No. 168 of 2005 – SubeSingh
Vs. New India Assurance Co. Ltd., hence, delay may be condoned. The impugned order was
passed on 4.7.2011 and copy of order was sent to the petitioner on 9.8.2011, but petitioner has
mentioned in his application for condonation of delay that he received copy of order from the
office of the Counsel on 18.9.2011. It was further submitted that petitioner approached Counsel
at New Delhi on 17.10.2011 who asked him to get copy of complaint titled Sube Singh Vs. New
India Assurance Co. Ltd., but could not get record and, hence, ultimately contacted Counsel at
Chandigarh and could get record of aforesaid case on 25.3.2012 and after obtaining record, this
revision petition was filed on 3.4.2012. If it is presumed that petitioner got copy of impugned
order on 18.9.2011, there is no reasonable explanation for filing this revision petition on
3.4.2012. He has not placed on record any application filed before District Forum for obtaining
copy of complaint No. 168/2005 - Sube Singh Vs. New India Assurance Co. Ltd. He has also
not mentioned in the application that from where he got copy of order passed in Sube Singh’s
case and in such circumstances, in absence of satisfactory explanation, we are not inclined to
condone delay of 147 days for filing revision petition and on this count alone petition is liable to
be dismissed.
5.
As far as merits of the case are concerned, learned Counsel for the petitioner submitted
that learned State Commission has committed error in dismissing complaint as there is no
inordinate delay in lodging FIR as complainant was under treatment for a long
period. Admittedly, theft was committed on the intervening night of 12/13.5.2000, whereas FIR
was lodged on 2.6.2000 meaning thereby FIR was lodged after 19 days of theft. No explanation
was given by the complainant regarding delay in lodging FIR. Learned Counsel for the
petitioner simply argued that as the petitioner met with an accident before 5 to 6 months of the
alleged theft, FIR could not be lodged immediately after theft. This argument is totally devoid of
force as the petitioner has not produced any medical record by which it can be inferred that
petitioner was not in a position to move at the time of theft. Learned State Commission has
rightly allowed appeal and dismissed complaint on account of 19 days delay in lodging FIR.
6.
Learned Counsel for the petitioner submitted that petitioner has not obtained any insurance
policy from other Insurance Company but this policy was obtained by Financer. Even if this fact
is true, petitioner was very well aware about the second insurance of the vehicle by Financer as
premium must have been deducted from petitioner’s account. Petitioner did not inform opposite
party regarding other insurance policy and petitioner also did not disclose regarding other claim
filed by Sube Singh (Supra) pertaining to theft of same vehicle. Thus, petitioner suppressed
important facts while obtaining insurance policy and alleged false facts in paragraph 7 of the
complaint and learned State Commission has rightly dismissed complaint on all these counts and
impugned order does not call for any interference.
7.
Consequently, petition filed by the petitioner is dismissed with no order as to costs.
.………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/………………
( SURESH CHANDRA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2987 OF 2011
(Against the order dated 22.07.2009 in First Appeal No. 1117 of 2009 of the
Karnataka State Consumer Disputes Redressal Commission, Bangalore)
Mohamed Yasuf
S/o Late K. Ahamed Sab,
R/o Mavinakappa, Hosanagar,
Shimoga District
... Petitioner
Versus
The Regional Provident Fund Commissioner
Bhavishya Nidhi Bhavan No. 13,
Rajarara Mohan Roy Road,
Bangalore – 560 025
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Raja Venkatappa Naik, Advocate
Pronounced on : 21st November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
There is inordinate delay in filing this revision petition by 768 days. The revision petition
was filed in the year 2011 but somehow learned counsel for the petitioner could not appear and
therefore, the delay in deciding this revision petition was caused due to the absence of the
learned counsel for the petitioner on various dates. The petitioner has moved an application for
condonation of delay. The petitioner has explained the delay that firstly Mohamed Yasuf,
petitioner, was diagnosed as coronary artery disease in 2007. Since then the petitioner is on
regular follow up and needs long term treatment as per the medical certificate issued by
Associate Professor and unit No. 2 Head Department of Cardiology, Kasturba Hospital,
Manipal. The impugned order was announced on 22.7.2009. Consequently, he could not file the
revision petition and there is a delay of 768 days in filing the revision petition. However,
according to the registry, there is delay of 678 days. The petitioner has filed on record the
medical certificate issued by Kasturba Hospital, Manipal dated June, 21, 2001 which runs as
follows:“
June 21, 2011
To WHOMSOEVER IT MAY CONCERN
This is to certify that Mr. Mohammed Yousuf, 69 years, Hospital No. 01773700 was diagnosed
as coronary artery disease in 2007. Since then he is on regular follow-up and needs long term
treatment for the same.
Sd/Dr. Tom Devasia, MD, DM
Associate Professor & Unit II Head
Department of Cardiology
Kasturba Hospital,
Manipal-576104”
2.
It is explained that the application for getting the certified copy was moved on
1.8.2009. The petitioner did not receive the copy of the order from his counsel due to slip shot
and engagement in his legal profession. He forgot to intimate about the status of appeal. The
petitioner was under the impression that the appeal was still pending. In August, 2011, the
petitioner made inquiry and it transpired that the order was passed by the State Commission on
22.7.2009. The office collected all the documents through Shri G. A. Anthony Cruze, Advocate
of Bangalore. The petitioner used to contact his counsel at Bangalore and used to have
telephonic conversations but the counsel represented him due to his profession engagement he
could not intimate the status report of his case. It is contended that delay on the part of the
petitioner is bona fide. It is also explained that SLP (civil) No. 17758-17759 of 2008 is pending
before the Apex Court and the Apex Court vide its order dated 21.4.2010 dismissed the said SLP
filed by the department. The said case is reported in 1995(6) SCC page 614. It was also pointed
out that the Supreme Court condoned the delay of 30 years in filing the SLP considering the
merits of that case. The reference was also made to the celebrated authority in Collector, Land
Acquisition Officer, Anantnag Vs. MST Katiji and Ors. AIR 1987 SC Page 1353 and other
authorities reported in Rafiq vs. Munshilal and another AIR 1981 SC 1400, Abdul Ghafoor
& Anr. vs. State of Bihar VIII 2011 SLT 700 and N. Balakrishnan vs. M. Krishnamurthy
1998 (7) SCC 123.
3.
We have heard the learned counsel for the petitioner. He reiterated the above said
arguments.
4.
All these arguments have left no impression upon us. The name of the Advocate who is
responsible for the delay was not clearly disclosed. It was also not stated that if any action was
taken against the said advocate. No legal notice etc. against the said Advocate saw the light of
the day. It had become very convenient to shift the blame on the advocates. It is the duty of
every litigant to post himself on each date of hearing. However, due to some ailment one person
cannot go to the office of his advocate. He must send somebody on his behalf or telephone or
through postal communication himself must know the then status of his case. The version that
he could not know about the status for this case for a period of 2 years cannot be believed. It
clearly goes to show that the petitioner was himself negligent and inactive. It has become
fashion with the litigants to excuse the advocate without any rhyme and reason and in their
absence.
5.
The above said certificate issued by the Doctor is vague, evasive and leads the court
nowhere. The petitioner should have produced day to day or at least month to month
prescriptions. All these facts and circumstances cast a flim of doubt over doctor’s bona fides.
There is no evidence that the petitioner was ever admitted in the Hospital. He has produced the
certificate dated 21.6.2011 which mentioned about his disease in the year 2007. Such like
certificates have got no value in the eyes of law. Such like certificate can be issued at any
time. The doctor could not have issued such like certificate. The doctor is not supposed to
discuss the disease which has occurred 4-5 years before the relevant time.
6.
The various authorities go to embolden the above said view.
7.
In the celebrated authority reported 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”.
8.
In Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006),
decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bona
fide, it had taken all possible steps
within its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the party
by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd
Edition, 2005]”
9.
See also the law laid down in Office of the Chief Post Master General & Ors. Vs. Living
Media India Ltd. & Anr. 2012 STPL (Web) 132 (SC).
10.
In other case, titled as “Mahindra Holidays & Resorts India Ltd. Versus Vasantkumar
H. Khandelwal & Anr.” [Revision petition No. 1848 of 2012 decided on 21.05.2012], the
Bench of this Commission headed by Hon’ble Mr. Justice Ashok Bhan, has rejected the
explanation that the file was moving from table to table to get the permission to file that
appeal. It was further held that under the Consumer Protection Act, 1986, the District Forum is
supposed to decide the complaint within a period of 90 days from the date of filing and in case of
some expert evidence is required to be led then within 150 days. The said Bench dismissed the
revision petition on the ground that it was delayed by 104 days.
11.
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.”
12.
In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was
sought to be explained on the ground that the counsel did not inform the appellant in time, was
not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office
and enquired about the case, especially when the case was regarding deposit of arrears of rent.
The statute also prescribes a time bound programme regarding the deposit to be made.
13.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellant in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
14.
In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer
that he did not inform the client about the progress of the case nor has he did send any letter, was
disbelieved while rejecting an application to condone delay.
15.
It is well settled that Qui facit per alium facit per se, negligence of a litigant’s agent is
negligence of the litigant himself and is not sufficient cause for condoning delay. See M/s.
Chawala & Co. Vs. Felicity Rodrigues, 1971 ACJ 92.
16.
The above said case is hopelessly barred by time.. Consequently, we dismiss the revision
petition on the ground of its being time barred.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3109 OF 2012
(From order dated 28.05.2012 in in SC Case No. FA/ 131 of 2012 of State Consumer Disputes
Redresdsal Commission, West Bengal)
1.
Chief Post Master General
(West Bengal Circle)
Yogayog Bhawan,
P-36 Chittaranjan Avenue,
Kolkata-700012.
2.
Deputy Superintendent of Post
Office of the Senior Superintendent of Post Office,
Central Kolkata Division,
8th Barabazar Head Post Office Building,
Kolkata-700007.
3.
Sub Post Master,
Asylum Post Office,
Police Station Taltala,
Kolkata -700014
4.
Post Master,
Part Street Post office
Police Station,
Park Street,
Kolkata-700014
…..Petitioners
Versus
1.
Mrs. Chandni Kr. Rani Garai
W/o (L) Ganesh Garai
22 Dr. Lane, Kolkata-700014
2.
Mr. Manoj Kr. Garai
S/o (L) Ganesh Garai
22 Dr. Lane, Kolkata-700014
3.
Mr. Gobinda Garai
S/o (L) Ganesh Garai
22 Dr. Lane, Kolkata-700014
(2)
….Respondents
REVISION PETITION NO. 3110 OF 2012
(From order dated 28.05.2012 in SC Case No. FA/ 132 of 2012 of State Consumer Disputes
Redresdsal Commission, West Bengal)
1.
Chief Post Master General
(West Bengal Circle)
Yogayog Bhawan,
P-36 Chittaranjan Avenue,
Kolkata-700012.
2.
Deputy Superintendent of Post
Office of the Senior Superintendent of Post Office,
Central Kolkata Division,
8th Barabazar Head Post Office Building,
Kolkata-700007.
3.
Sub Post Master,
Asylum Post Office,
Police Station Taltala,
Kolkata-700014
4.
Post Master,
Part Street Post office
Police Station,
Park Street,
Kolkata-700016
…..Petitioners
Versus
1.
Mr. Manoj Garai
S/o (L) Ganesh Garai
22 Dr. Lane, Kolkata-700014
2.
Mrs. Chandni Rani Garai
W/o (L) Ganesh Garai
22 Dr. Lane, Kolkata-700014
3.
Mr. Gobinda Garai
S/o (L) Ganesh Garai
22 Dr. Lane, Kolkata-700014
(3)
….Respondents
REVISION PETITION NO. 3111 OF 2012
(From order dated 28.05.2012 in SC Case No. FA/ 133 of 2012 of State Consumer Disputes
Redresdsal Commission, West Bengal)
1.
Chief Post Master General
(West Bengal Circle)
Yogayog Bhawan,
P-36 Chittaranjan Avenue,
Kolkata-700012.
2.
Deputy Superintendent of Post
Office of the Senior Superintendent of Post Office,
Central Kolkata Division,
8th Barabazar Head Post Office Building,
Kolkata-700007.
3.
Sub Post Master,
Asylum Post Office,
Police Station Taltala,
Kolkata-700014
4.
Post Master,
Part Street Post office
Police Station,
Park Street,
Kolkata-700016
…..Petitioners
Versus
1.
Ms. Rosemary Kabita Dessa
D/o Mr. Robert Dessa
“Anandam Apartment” represented by her
Mother namely Clara Pronati Dessa
Wife of Mr. Robert Dessa
(Constituted Attorney)
Residing at “Anandam Apartment”
of 6 Abdul Halim Lane,
Police Station Taltala
Kolkata.
2.
Mrs. Clara Pronati Dessa
Wife of Mr. Robert Dessa
Residing at “ Anandam Apartment”
of 6 Abdul Halim Lane,
Police Station Taltala
Kolkata
(4)
….Respondents
REVISION PETITION NO. 3112 OF 2012
(From order dated 28.05.2012 in SC Case No. FA/ 134 of 2012 of State Consumer Disputes
Redresdsal Commission, West Bengal)
1.
Chief Post Master General
(West Bengal Circle)
Yogayog Bhawan,
P-36 Chittaranjan Avenue,
Kolkata-700012.
2.
Deputy Superintendent of Post
Office of the Senior Superintendent of Post Office,
Central Kolkata Division,
8th Barabazar Head Post Office Building,
Kolkata-700007.
3.
Sub Post Master,
Asylum Post Office,
Police Station Taltala,
Kolkata-700014
4.
Post Master,
Part Street Post office
Police Station,
Park Street,
…..Petitioners
Kolkata-700016
Versus
1.
Mr. Benedit Dessa
S/o Mr. Robert Dessa
Residing at “Anandam Apartment”
of 6 Abdul Halim Lane,
Police Station Taltala
Kolkata.
2.
Ms. Rosemary Kabita Dessa
D/o Mr. Robert Dessa
“Anandam Apartment” represented by her
mother namely Clara Pronati Dessa
Wife of Mr. Robert Dessa
(Constituted Attorney)
Residing at “Anandam Apartment”
of 6 Abdul Halim Lane,
Police Station Taltala
Kolkata.
….Respondents
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioners
For the Respondents
:
:
Mr. Hnunpuii, Advocate
Ms. Sujata Mukherjee, Advocate
Pronounced on: 21st November, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Above noted revision petitions have been filed by petitioners/ OPs challenging order dated
28.05.2012, passed by State Consumer Disputes Redressal Commission, Kolkata( for short, ‘
State Commission’).
2.
Brief facts are that respondents/complainants invested certain amounts under Monthly
Income Scheme of the Post Office for six years. After maturity, they visited concerned Post
Office and as per instructions completed the formalities for withdrawing the maturity amount
and deposited their pass-books of the MIS Account with withdrawal slip duly signed with the
Post Master. Respondents were asked to receive the cheque after few days. Thereafter, they
visited numerous times to the Post Master and asked him to take steps for early payment of their
maturity amount but in vain. Then respondents approached Assistant Director of Postal Service
but they did not get any satisfactory reply. Accordingly, respondents filed complaints under
Section 12 of the Consumer Protection Act, 1986 (for short, ‘ Act’) alleging deficiency in service
against petitioners/OPs.
3.
Petitioners in its written statement denied any deficiency of service. It is stated that in the
present cases payments were made in the cash in violation of the order and rules of the Postal
Department. As such departmental proceedings have been started against the erring officials.
Since, payment has already been made and account was closed on 19.12.2008, petitioners were
not liable to make any further payment.
4.
District Forum, vide its order dated 15.12.2010, allowed the complaints of the
petitioners.
5.
Aggrieved by the order of District Forum, petitioners filed appeals before the State
Commission.
Alongwith appeals, applications seeking condonation of delay of 161 days
were also filed.
6.
State Commission, vide impugned order dismissed the applications for condonation of
delay. Consequently, appeals of the petitioners were dismissed being barred by limitation.
7.
8.
Hence, these revision petitions.
It is contended by learned counsel for the petitioner that petitioner is a Govt. Department
and file has to be moved from one place to another for taking decision. Therefore, delay in filing
the appeals before the State Commission was inevitable. State Commission ought to have taken
liberal and lenient approach in the matter. The delay in filing the appeal before the State
Commission was only due to the fact that matter has to be dealt with at different level and there
was no intention to delay the matter. The impugned order is liable to be set aside, since entire
payment has been made to the complainants.
9.
On the other hand, it has been contended by learned counsel for the respondents that there
is no illegality or infirmity in the impugned order passed by the State Commission. Admittedly,
there was long delay of more than five months in filing the appeals. Moreover, no sufficient
cause has been shown by the petitioner for not filing the appeals within the period of limitation. .
10.
State Commission in its impugned order has observed ;
“We have perused the petition for condonation of delay and oral objection thereto and
heard arguments advanced by the Ld. Counsel for the parties. It is seen by that the Ld.
Forum below has passed the impugned on 14.09.2011 in the case no-436 of//2010,
application was made for the certified copy of the said judgment by the Appellants on
15.09.2011 and on the same date the certified copy was delivered to the Appellants and the
present appeal was filed on 29.03.2012 before this Commission. Hence there is delay of
196 days in preferring this appeal from the date of passing the judgment by the Ld. Forum
below. Out of the aforementioned days the Appellants are entitled to get the benefit of the
statutory period of limitation i.e. 30 days and one day for collection of the certified copy of
the impugned judgment. Hence the Appellants are under obligation to give explanation for
165 days towards actual delay excluding the statutory period of limitation. It is pertinent to
mention that the Appellants are not liable to give explanation for the statutory period of
limitation. It is true that the Appellants being a Department of the Central Government
cannot take any decision in respect of filing an appeal or revision as per its own choice and
will and the Appellants are under obligation to take approval from the Higher Authorities
for preferring an appeal and moreover in this respect permission of the Ministry of Law
and Justice is also mandatory. It is also well settled that for getting such approval from the
Higher Authority several formalities should be complied with and for this purpose
admittedly consumption of some time is necessary. But it is also true that in respect of
explaining delay sufficient and cogent explanation should be made.
In the instant petition though after obtaining the certified copy of the impugned judgment
the same was forwarded to the Department concerned and thereafter the same was
provided for seeking legal opinion in respect of preferring an appeal on 19.09.2011, but
the meeting was held by and between the Senior Superintendent of Post Offices, Central
Kolkata Division and the PMG, Kolkata Region on 03.11.2011. We have noticed that there
is no explanation in the petition for condonation of delay from 19.09.2011 to 03.11.2011.
Though the Post Office is a Government Department and some time is necessary for file
pushing from one table to another table, but there should an explanation in the delay
condonation petition. We have noticed that by issuing a letter dated 03.11.2011 approval
was given by the Higher Authority for preferring an appeal. It is seen by us that the letter
of approval was received by the Senior Superintendent of Post Offices, Central Kolkata
Division on 08.11.2011 but abovementioned person addressed a letter to the Deputy Legal
Adviser, MOL on 21.11.2011 requesting for engagement a Government Counsel for
preferring this appeal. In this respect why 13 days were taken only for the purpose of
issuing a letter by the SSPs, the reason has not been assigned. In the paragraph nos-7, 9,
10, 11 and 12 though explanations have been made out, but in support of such explanation
no evidence has been adduced. As the Appellant is a Government concern without any
minutes or resolution no decision can be taken. Though in the abovementioned paragraphs
the Appellants have mentioned that on 18.01.2012 and 22.02.2012 two meetings were held,
but no documentary evidence has been filed in this context by the Appellants. Lastly we
have noticed that from 14.03.2012, when the papers and documents were handed over to
the Government Counsel till filing of this appeal i.e. 29.03.2012 there is no explanation in
the instant petition. The Ld. Advocate for the Appellants has relied on the judgment passed
by the Hon’ble Supreme Court in the case between State of Haryana vs Chandra Mani and
Others, reported in AIR 1996 SC 1623, wherein it has been held that when the State is an
applicant, praying for condonation of delay, it is common knowledge that on account of
impersonal machinery and the inherited bureaucratic methodology imbued with the notemaking, file-pushing and passing-on-the buck ethos, delay on the part of the State is less
difficult to understand though more difficult to approve, but the State represents collective
cause of the community. We have perused the judgment relied on by the Appellants. Within
the four corners of the judgment we are unable to find out that the Hon’ble Court has held
that in respect of delay, explanation is not necessary. We have noticed that the Hon’ble
Supreme Court has held in the said judgment that where the State is an ApplicantAppellant in that respect delay in filing an appeal or revision is not unnatural as in a very
slow pace the file is processed from one table to another and for this reason some delay
may occur. But nowhere it is mentioned that explanation for delay is not necessary. In the
instant case we have noticed that the Appellants did not give any explanation for about 68
days towards delay. Furthermore, though in several paragraphs some explanations are
given, but no evidence has been adduced in support of such averment. We have noticed that
request was made by the SSPs, Central Kolkata Division to the Deputy Legal Adviser for
engage of a Government Counsel in connection with this appeal on 21.11.2011, but the
papers and documents were handed over by the Department concerned on 27.02.2012. In
this respect also why such abnormal delay to engage a Government Counsel, no
explanation is given in the said petition. The Hon’ble Supreme Court has held that the
State cannot be put on the same footing as an individual as the individual would always be
quick in taking the decision whether he would pursue the remedy by way of an appeal or
application since he is a person legally injured while State is an impersonal machinery
working through its officers or servants. Having regard to the aforementioned contention
of the Hon’ble Supreme Court we are to say that the Hon’ble Court was not pleased to hold
in the said judgment that the State is not under any obligation to give explanation for delay.
We have discussed earlier that being a State there may occur some delay, but there should
be explanation for such delay. In the recent judgments passed by the Hon’ble Supreme
Court and the Hon’ble National Commission wherein it has been held that in respect of
delay sufficient and cogent explanation is necessary. In the instant petition there is not at
all any explanation for 68 days towards delay, we are not inclined to allow this petition. It
is necessary to mention that justice is to be done to the both sides equally. Where the
Complainants got a decree in their favour, it is the duty of the State to be more vigilant in
respect preferring an appeal.
Going by the foregoing discussion hence, it is ordered that the petition for condonation of
delay is dismissed on contest without any cost and the appeal be dismissed being barred by
limitation ”.
11. It is well settled that “sufficient cause” for condoning the delay in each case is a question of
fact.
12. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been
observed;
“It is, however, necessary to emphasize that even after sufficient cause has been shown a
party is not entitled to the condonation of delay in question as a matter of right. The proof
of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient
cause is not proved nothing further has to be done; the application for condonation has to
be dismissed on that ground alone. If sufficient cause is shown then the Court has to
enquire whether in its discretion it should condone the delay. This aspect of the matter
naturally introduces the consideration of all relevant facts and it is at this stage that
diligence of the party or its bona fides may fall for consideration; but the scope of the
enquiry while exercising the discretionary power after sufficient cause is shown would
naturally be limited only to such facts as the Court may regard as relevant”.
13. 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”.
14. 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”.
Further, Hon’ble Supreme Court after exhaustively considering the case law on the
15.
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”.
16.
Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development
Authority, IV (2011) CPJ 63 (SC) has observed ;
“It is also apposite to observe that while deciding an application filed in such cases for
condonation of delay, the Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act, 1986 for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the consumer
disputes will get defeated if this Court was to entertain highly belated petitions filed
against the orders of the consumer foras”.
Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media
17.
India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“24. After referring various earlier decisions, taking very lenient view in condoning the delay,
particularly, on the part of the Government and Government Undertaking, this Court observed as
under;
“29. It needs no restatement at our hands that the object for fixing time-limit for
litigation is based on public policy fixing a lifespan for legal remedy for the purpose of
general welfare. They are meant to see that the parties do not resort to dilatory tactics but
avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws
come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts'
discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and
multiplicity of proceedings in no manner subserves public interest. Prompt and timely
payment of compensation to the landlosers facilitating their rehabilitation /resettlement is
equally an integral part of public policy. Public interest demands that the State or the
beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act
to unsettle the settled legal rights accrued in law by resorting to avoidable litigation
unless the claimants are guilty of deriving benefit to which they are otherwise not entitled,
in any fraudulent manner. One should not forget the basic fact that what is acquired is not
the land but the livelihood of the landlosers. These public interest parameters ought to be
kept in mind by the courts while exercising the discretion dealing with the application
filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years
after the termination of legal proceedings would not serve any public interest. Settled
rights cannot be lightly interfered with by condoning inordinate delay without there being
any proper explanation of such delay on the ground of involvement of public revenue. It
serves no public interest.”
The Court further observed ;
“27. It is not in dispute that the person(s) concerned were well aware or conversant with
the issues involved including the prescribed period of limitation for taking up the matter
by way of filing a special leave petition in this Court. They cannot claim that they have a
separate period of limitation when the Department was possessed with competent persons
familiar with court proceedings. In the absence of plausible and acceptable explanation,
we are posing a question why the delay is to be condoned mechanically merely because
the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when
there was no gross negligence or deliberate inaction or lack of bonafide, a liberal
concession has to be adopted to advance substantial justice, we are of the view that in the
facts and circumstances, the Department cannot take advantage of various earlier
decisions. The claim on account of impersonal machinery and inherited bureaucratic
methodology of making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation undoubtedly binds everybody
including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and
instrumentalities that unless they have reasonable and acceptable explanation for the
delay and there was bonafide effort, there is no need to accept the usual explanation that
the file was kept pending for several months/years due to considerable degree of
procedural 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”.
18. Petitioners herein, are officials functioning in a Government Department which is having full
fledged legal department under its command comprising of large number of legal personnel. Inspite
of having all the resources at its command, if the Govt. department takes about six months in filing
the appeals, then it can only be said that how inefficient, careless and negligent are the Govt.
departments. Despite having all the facilities and infrastructures under it, petitioner’s officials have
acted in a very casual and negligent manner for the purpose of filing the appeals before the State
Commission.
19. Observations made by Apex Court in the authoritative pronouncements discussed above are
fully attracted to the facts and circumstances of the case.
20.
Thus gross negligence, deliberate inaction and lack of bonafides are imputable to the
petitioners. State Commission has rightly dismissed the appeals on the ground of limitation as no
sufficient cause is made out for condoning the delay of about six months.
21.
Even on merits, petitioners have no case as they have admitted in their written statement that
payment had been made to the complainants in cash, in violation of the order and rules of the Postal
Department. By not following the rules and violating the same, petitioners cannot deprive the
complainants of their legitimate dues and legal rights.
22.
Accordingly, I do not find any infirmity or ambiguity in the impugned order passed by the
State Commission. Hence, all these petitions are dismissed with cost of Rs. 5,000/- (Rupees Five
Thousand only) each. Entire cost shall be paid to the respondents.
23.
Petitioners are directed to deposit the total costs of Rs.20,000/- (Rupees Twenty Thousand
only) in the above petitions by way of demand draft, in the name of respondents, within eight weeks
from today.
24.
In case, petitioners fail to deposit the costs within the prescribed period, then it shall also be
liable to pay interest @ 9% p.a., till realization.
25.
List on 01.02.2013 for compliance.
……………………J.
(V.B. GUPTA)
PRESIDING MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1063 OF 2012
(From order dated 29.11.2011 in First Appeal No. 1517 of 2009 of State Consumer Disputes
Redresdsal Commission, Haryana, Panchkula)
Krishan Lal Kalra
H.No. 1391/ (P) MIG-B
Sector-11-12 New Housing Board Colony,
Panipat
…..Petitioner
Versus
Haryana Urban Development
Authority through its
1. Chief Administrator, HUDA,
Sector-6, Panchkula,
Haryana
2. The Estate Officer, HUDA
Sector-13-17, HUDA, Panipat
Haryana
….Respondents
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioner
:
Mr. Nikhil Jain, Advocate
Pronounced on: 22nd November, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Aggrieved by order dated 29.11.2011, passed by the State Consumer Disputes Redressal
Commission, Panchkula (for short, ‘State Commission’), petitioner has filed this petition.
2.
Brief facts are that initially plot No. 1349-P, Sector-11 and 12 Part-I, Urban Estate, Panipat
was allotted to Smt. Bala wife of Lakhmi Chand by the respondents/o.ps, vide allotment letter dated
9/12.12.1985. Later on, Smt. Saroj Bala transferred the said plot in the name of
petitioner/complainant on 28.5.1987 after receiving Rs.26,407.70P and all the future installments
were to be paid by the petitioner. The plot was transferred in the name of the petitioner, vide reallotment letter no. 6987 dated 21.5.2007 with the subject of re-allotment of plot No.164-P, Sector12. Petitioner has stepped into the shoes of Smt. Saroj Bala on 28.5.1987 for all intends and purposes
and became the consumer of respondents. The original plot no. 1349-P was under dispute, so fresh
draw was held on 07.07.2005. In lieu of said plot no. 1349-P, a new plot no. 164-P, Sector-12 was
allotted in the name of the original allottee, vide letter no. 9061 dated 01.08.2005. Tentative price of
the plot no. 164-P was fixed by the OPs at Rs.1,05,601.70P. The original allottee paid Rs.9,603/- on
account of application money and Rs. 16,804.70P, at the time of allotment of the plot and remaining
amount was to be paid in installments. The entire payment of the plot has been deposited by the
petitioner but despite that, the possession of the plot has neither been offered nor delivered to him by
the respondents. Respondents have been illegally recovering interest at the rate of 18% p.a. from the
petitioner on due amount of installments to the tune of Rs.5,55,075.30p. It is alleged by the
petitioner that respondents have no legal right to claim or recover any interest from the original
allottee/petitioner and petitioner is entitled to get refund of the amount deposited by him by way of
interest.
3.
Respondents in their written statement took preliminary objection that petitioner has got no
locus standi to file the complaint. It is stated that plot no. 1349-P was allotted to Smt. Saroj Bala,
but in view of the dispute of that plot, another plot no 164-P was allotted in her name. It is further
stated that after completing the due formalities, possession of the plot in question was offered to the
petitioner, vide letter no.13033 dated 18.09.2007. It is denied that respondents have recovered
interest illegally from Smt. Saroj Bala. The petitioner is not entitled to refund of any amount of
interest. Respondents also denied any deficiency in service on its part.
4.
District Consumer Disputes Redressal Forum, Panipat (for short, ‘District Forum’) vide its
order, dated 07.09.2009, dismissed the complaint.
5.
Petitioner challenged the order of District Forum, before the State Commission which
dismissed petitioner’s appeal, vide its impugned order.
6. I have heard learned counsel for the petitioner and gone through the record.
7.
It is contended by learned counsel that admittedly petitioner is the allottee of plot in question
as the plot has been transferred in his name. Petitioner has made all the payments of remaining
amount but respondents were negligent and offer of possession of the plot in question was not made
for twenty years. Hence, petitioner has locus standi to file the complaint. Under these circumstances,
orders passed by the fora below are liable to be set aside.
8.
It is admitted fact that original allottee of the plot in question was one Smt. Saroj Devi,
whereas petitioner is a re-allottee. Hence, petitioner is liable to pay all the dues which were to be
paid by the original allottee and petitioner cannot escape from their liability.
9.
District Forum in its order has held;
“ In the present case, possession of the plot No. 164-P was offered to the complainant on
18.04.2007 in whose name the plot was transferred from the name of the original allottee,
which is clear from Ex. R6 and according to R5, the plot was re-allotted in the name of the
complainant on 29.12.2006, hence the question of payment of interest by the complainant prior
to 29.12.2006 does not arise at all and after 29.12.2006, nothing has been paid by the
complainant. Counsel for OPs also referred to citation 2001(3) RCR (Civil), page 276 titled as
Smt. Kanta Devi Budhiraja Vs. State of Haryana in which it is held “allottee cannot avoid
contractual to pay installments of price on due dates on the pretext of lack of development”. In
view of the above discussion, the complainant has totally failed to prove that he has paid any
amount to OPs rather first time, the plot was re-allotted/transferred in his name on
29.12.2006. Hence, whichever amount was paid prior to 29.12.2006, the complainant is not
entitled to get refund and charging of interest on the installments from Smt Saroj Bala, who
never resisted to Ops in depositing the amount, is justified. Once the allottee accepts the terms
and conditions of the allotment letter, he cannot challenge the act of authorities demanding
interest in view of the terms and conditions of the allotment letter. In view of the above
discussion, we find no merit in the complaint and the same is hereby dismissed with no order
as to costs”.
10.
The State Commission, while affirming the order of District Forum, has observed;
“ We have gone through the impugned order and have taken into consideration the facts and
circumstances of the case as well as case law Haryana Urban Development Authority Vs.
Raje Ram, reported in 1 (2009) CPJ, 56, wherein it has been held by the Hon’ble Apex Court
that re-allotee cannot be compared with the original allottees, who is well aware about the
delay in possession. The ratio of the above case Raje Ram (supra) is fully applicable to the
facts and circumstances of the present. In this views of the matter, we do not find any force in
the appeal preferred by the appellant/complainant. No interference in the impugned order is
called for. No merit. Dismissed.
However, in terms of the order passed in case “ Laxmi Engineering Works Vs. PSG Industrial
Institute” reported in (1995) 3 SCC 583, the respondent/complainant may seek his remedy
before the civil court/court of competent jurisdiction, if so desire”.
11.
Apex Court in Raje Ram (supra) has laid down that ;
“7.
Respondents in the three appeals are not the original
allottees. They are re-allottees to whom re-allotment was made by the appellant in the years
1994, 1997 and 1996 respectively. They were aware, when the plots were re-allotted to them,
that there was delay (either in forming the layout itself or delay in delivering the allotted plot
on account of encroachment etc). In spite of it, they took re-allotment. Their cases cannot be
compared to cases of original allottees who were made to wait for a decade or more for
delivery and thus put to mental agony and harassment. They were aware that time for
performance was not stipulated as the essence of the contract and the original allottees had
accepted the delay. The appellant offered possession to respondents (re-allottees) and they
took possession of the respective plots on 27.6.2002, 21.3.2000, and 13.9.1999 respectively.
They approached the District Forum in 1997, within a short period from the dates of reallotment in their favour. They had not paid the full price when they approached the District
Forum. In the circumstances, having regard to the principles laid down by this Court in
Ghaziabad Development Authority v. Balbir Singh - 2004 (5) SCC 65, Darsh Kumar (supra)
and Bangalore Development Authority v. Syndicate Bank - 2007 (6) SCC 711, we are of the
view that the award of interest was neither warranted nor unjustified”.
12.
There are concurrent findings of facts given by two fora below in the present case. No legal
issue has been raised in the present revision petition.
13. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the
powers of this Commission as a Revisional Court are very limited and have to be exercised only, if
there is some prima facie jurisdictional error in the impugned order.
14.
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”.
15.
Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise
of power under section 21 (b) of the Act, since two fora below have given cogent reasons in its
orders, which does not call for any interference nor they suffer from any infirmity or revisional
exercise of jurisdiction.
16.
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.
17.
Under these circumstances, the present petition is without any legal basis and the same is
hereby dismissed with cost of Rs. 10,000/-.(Rupees Ten Thousand only)
18.
Petitioner is directed to deposit cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of
demand draft, in the name of “Consumer Legal Aid Account” of this Commission, within four
weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then
it shall also be liable to pay interest @ 9% p.a., till realization.
19.
List on 01.02.2013 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO.522 of 2007
(From the Order dated 24.08.2007 in Complaint No.576/2006 of the State
Consumer Disputes Redressal Commission, Karnataka)
1.
M/s. Charan Homes Pvt. Ltd.
Builders & Developers,
No.11, 80 Ft. Road,
HMT Layout, R.T. Nagar,
Bangalore-560 032
2.
Sri K.V.V. Sathyanarayana Reddy,
Managing Director,
M/s. Charan Homes Pvt. Ltd.
Builders & Developers, No.11,
80, Ft. Road, HMT Layout,
R.T. Nagar,
Bangalore-560 032
.. Appellants
Vs.
Sri Jai Prakash Rai, M.G.
S/o Late B. Guddappa Rai,
Flat No.TF-2, 3rd Floor,
Alpine View Apartments,
No.15/1, 3rd Cross,
2nd Main, Bellary Road,
Ganganagar,
…..Respondent
Bangalore-560 032
BEFORE: HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
For the Appellants
For the Respondent
: Mr. S.R. Sudarram, Advocate
: Mr. Sampat Anand Shetty,
Advocate
PRONOUNCED ON:
22.11.2012
ORDER
ASHOK BHAN, J., PRESIDENT
Appellants which were Opposite Parties before the State Commission have filed this
Appeal against the judgment and order dated 24.08.07 passed by the State Consumer Disputes
Redressal Commission, Karnataka (in short, ‘the State Commission’) in Complaint No. 576/2006
wherein the State Commission allowing the complaint filed by the Respondent has directed the
Appellants to allot a two bed room flat in the First Floor of the Multi Storeyed Building
constructed by them in the land bearing Corporation No.21 corresponding to new No.19,
Melvelle House Grounds, Palace Cross Road, Bangalore-560 020 bounded on the “East by K.T.
Apartments, West by Plot No.2 of Sri N. Govind, North by Palace Cross Road, South by Madras
Bangalore Railway Line’ as described in the Agreement dated 24.01.04 within a period of 60
days from the date of the Complainant paying the balance amount, if any. Rs.5,000/- were
awarded as costs.
FACTS:-
Complainant/Respondent was in possession of non- agricultural land in Property Nos.18,
19, 20 & 29 at Melvelle House Grounds, Palace Road, Bangalore and was managing same on
behalf of the original owner Narayana Reddy. In 1983, a partnership firm, namely, M.M.
Foundation was constituted to develop the property bearing No.19 at the request of original
owner. Respondent was one of the Partners of the Firm. Since there was no progress in the
development of the said property, a tripartite agreement was entered into among the Appellants
builder (Opposite Party Nos. 1 & 2), original owner of the Property and the M.M. Foundation for
constructing a multi-storeyed building consisting of residential flats for sale to the intending
buyers.
Thereafter, on Respondent’s agreeing to give up his right as a partner of M.M.
Foundation, Appellants entered into an agreement on 24.01.04 with the Respondent for sale of a
residential flat measuring 1200 Sq. Ft. in the Ist Floor of the said multi-storeyed building for
consideration @ Rs.2,000/- per Sq. Ft. Respondent paid a sum of Rs.15 lakh towards sale
consideration to the Appellant which was also mentioned in the Agreement. In terms of the
agreement, Respondent was liable to pay an additional sum of Rs.50,000/- in case the actual built
up area in the flat sold to him exceeded 1200 Sq. Ft. Appellants did not deliver and register the
sale deed in respect of the said flat in favour of the Respondent. Complainant, being aggrieved,
filed the complaint before the State Commission.
Appellants, on being served, entered appearance and filed their written statement
resisting the complaint, inter-alia, on the grounds; that the agreement relied upon by the
Respondent was a sham and colourable document entered into just to wriggle out of the hurdles
created by the Respondent to stall execution of the project and to cause hardship to the
Appellants; that the Respondent should be relegated to the Civil Court for seeking the relief of
specific performance of the agreement for sale.
State Commission, after scanning the material available on record and going through the
evidence led by the parties allowed the complaint and directed the Appellants to allot a two bed
room flat in the First Floor of the Multi Storeyed Building constructed by them in the land
bearing Corporation No.21 corresponding to new No.19, Melvelle House Grounds, Palace Cross
Road, Bangalore-560 020 bounded on the “East by K.T. Apartments, West by Plot No.2 of Sri N.
Govind, North by Palace Cross Road, South by Madras Bangalore Railway Line’ as described in
the Agreement dated 24.01.04 within a period of 60 days from the date of the Complainant
paying the balance amount, if any. Rs.5,000/- were awarded as costs.
State Commission observed thus:“
In so far as the maintainability of the complaint under the Consumer
Protection Act, we are of the view that under the Agreement the OPs have
undertaken to built a flat for the complainant and to hand over possession executing
the sale deed. Therefore, it is a contract for rendering service and the complaint
under the Consumer Protection Act is maintainable.
The next contention of the OPs is that the agreement is sham colourable and
not intended to be put into effect and was executed only to wriggle out of the
situation created by the complainant to stall the execution of the project. If that is
so, it is for the OPs to get a declaration from the competent Civil Court to that
effect. In the present case, OPs have admitted the execution of the agreement with
the complainant. As already stated above, the agreement envisages construction of
the complex, out of which, the Ops have agreed to sell one flat to the complainant for
which consideration is said to have been paid. Under such circumstances, we are of
the view that so long as the agreement remains and so long as the agreement is not
superceded by an Order of the competent court, the OPs are bound by that
agreement and the OPs are, therefore, liable to deliver possession of one flat by
executing a registered sale deed in favour of the complainant.”
Appellants, being aggrieved, has filed the present appeal.
At the time of admission of Appeal on 23.10.07, Shri Uday U. Lalit, Senior Advocate for
the Appellants after taking instructions from the Appellants made a statement that no two bed
room flat is available for sale in the multi-storeyed building in question. In view of the statement
made by the Ld. Counsel for the Appellants, the Appeal was admitted. Operation of the order
passed by the State Commission was stayed subject to deposit of Rs.50 lakh by the Appellants
with this Commission within a period of four weeks of passing of the order. The amount on
deposit was ordered to be invested in short term deposits. Appellants preferred a SLP against the
said conditional order before the Hon’ble Supreme Court which was dismissed and time was
extended for deposit of the amount.
Subsequently, by letter dated 08.02.08, Appellants offered a sum of Rs.1,26,00,000/- to
the Respondent to settle the claim in full and final. The contents of the letter read:“Dear Rai,
Please excuse me for having dragged you to the Court of Law on the illadvice of Mr. P.M. Bhat. In lieu of our mutual dialogue and discussion as well as on
the advice of our well-wishers, I finally decided to put an end to our long drawn
legal battle and settle our disputes amicably, so as to honour the order passed by the
Karnataka State Consumer Disputes Redressal Commission, Bangalore. In this
regard, I herewith send a cheque bearing No.755386 for Rs.1,26,00,000/- dated
8.2.08 drawn on Karnataka Bank Ltd., R.T. Nagar Branch, Bangalore, towards the
full and final settlement of your claims.
Hence, I request you to permit me to withdraw the amount of Rs.50,00,000/deposited in National Commission as per the Order passed in Appeal No.522/2007 at
New Delhi and I will not press my above Appeal pending before the National
Commission. Please acknowledge the receipt of the cheque.
The cheque issued by the Appellants to the Respondent towards full and final settlement
was dishonourned on presentation by the Bank on the ground of “Payment stopped by Drawer”.
Appellants lodged an FIR with the RT Nagar Police Station against the Respondent alleging that
he had obtained the cheque by playing fraud.
We have heard the Ld. Counsel for the parties at length.
Ld. Counsel appearing for the Appellant has made only two fold submissions which were
raised before the State Commission that the Agreement was a sham and colourable document not
intended to be implemented and the complaint was not maintainable under the Consumer
Protection Act, 1986. No other argument was advanced.
As against this, Ld. Counsel appearing for the Respondent supports the order passed by
the State Commission.
We agree with the view taken by the State Commission that the agreement entered into
between the parties was not a sham and colourable document not intended to be put into
effect. Appellants had agreed to sell the flat to the Respondent and received a sum of Rs.15 lakh
from him towards the sale consideration. Appellants could wriggle out of the written contract
only on showing that the agreement had been got executed by the Respondent either by playing a
fraud or coercion or on mis-representation. Neither any such plea nor any evidence was put on
record to show that the Respondent had got the agreement executed from the Appellants either
by playing a fraud or coercion or on mis-representation. In the absence of any such plea or proof,
the agreement cannot be termed as a sham and colourable document not intended to be put into
effect on a bald submission made by the Appellants. Finding recorded by the State Commission
that the agreement between the parties was valid and not a sham and colourable document is
affirmed.
Learned Counsel appearing for the Appellants strenuously argued that the complaint was
not maintainable under the Consumer Protection Act, 1986. We do not find any substance in this
submission as well. Under the agreement, Appellants had undertaken to build a flat for the
Respondent and to hand over the possession and execute the sale deed. The complaint was
maintainable in view of the law laid down by the Hon’ble Supreme Court inLucknow
Development Authority Vs. M.K. Gupta – (1994) 1 SCC 243, in which it has been held
that the housing is a service and if the housing firm/Authority failed to comply with its obligation
under the agreement, it is liable to compensate the consumer for the same.
The relevant para of the aforesaid judgment reads as under:“6. What remains to be examined is if housing construction or building activity
carried on by a private or statutory body was service within the meaning of clause (o)
of Section 2 of the Act as it stood prior to inclusion of the expression 'housing
construction' in
the definition of "service" by Ordinance No. 24 of 1993. As
pointed out earlier the entire purpose of widening the definition is to include in it not
only day to day
buying and selling activity under-taken by a common man but
even such activities which are otherwise not commercial in nature yet they partake
of a character in which some benefit is conferred on the consumer. Construction of a
house or flat is for the benefit of person for whom it is constructed. He may do it
himself or hire services of a builder or contractor. The latter being for consideration is
service as defined in the Act. Similarly when a statutory authority develops land or
allots a site or constructs a house for the benefit of common man it is as much
service as by a builder or contractor. The one is contractual service and other
statutory service. If the service is defective or it is not what was represented then it
would be unfair trade practice as defined 257 in the Act. Any defect in construction
activity would be denial of comfort and service to a consumer.
When possession of property is not delivered within stipulated period the delay so
caused is denial of service. Such disputes or claims are not in respect of immoveable
property as argued but deficiency in rendering of service of particular standard, quality
or grade. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of
Section 2 as unfair trade practice. If a builder of a house uses substandard material in
construction of a building or makes false or misleading representation about the
condition of the house then it is denial of the facility or benefit of which a consumer is
entitled to claim value under the Act. When the contractor or builder undertakes to erect
a house or flat then it is inherent in it that he shall perform his obligation as agreed
to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service.”
Finding recorded by the State Commission regarding the maintainability of the complaint
is also affirmed.
In the present case, it is not disputed that the Appellants had failed to deliver and register
the sale deed in respect of the flat in favour of the Respondent. Ld. Counsel appearing for the
Appellants during the course of arguments reiterated that no two bed room flat is available in the
multi-storeyed building. In these circumstances, we mold the relief granted by the State
Commission in the following manner:(i)
Appeal is dismissed.
(ii)
Appellants are directed to either give a flat measuring 1200 sq. ft. to the Respondent as per the
Agreement entered into between the parties or to pay a sum of Rs.1,26,00,000/- offered vide
letter dated 08.02.08 towards full and final settlement of the claim, within a period of three
months from today failing which the amount shall carry interest @ 9% p.a. from the date of offer
of amount of Rs.1,26,00,000/-, i.e. 8.02.08 till payment.
(iii)
The sum of Rs.50,00,000/- deposited by the Appellants with this Commission be released in
favour of the Respondent along with accrued interest towards the part payment of the decretal
amount.
(iv)
In case Appellants deliver the possession and execute the sale deed of the flat, Respondent
would be liable to refund the sum of Rs.50,00,000/- and the amount of accrued interest received
to the Appellants with interest @ 9% p.a. from the date of receipt of payment till the date of
execution of the sale deed.
…………….. . . . . .
(ASHOK BHAN J.)
PRESIDENT
................
(VINEETA RAI)
MEMBER
Yd
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.1737 OF 2012
(Against the order dated 28.02.2012 in Appeal No. 600 of 2009 of the State Commission,
Rajasthan)
Lufthansa German Airlines
12th Floor, DLF Building No.10,
Tower B,
DLF City, Phase-II,
Gurgaon,
Haryana122002
……….Petitioner
Versus
1. Sunil Kothari
# 200,
Haldiyo Wala Rastha,
Jaipur
2. Royal Classic Tours & Travels Pvt. Ltd.
# 143, First Floor,
Ganpathi Plaza,
M.I. Road
Jaipur
.........Respondents
REVISION PETITION NO.1738 OF 2012
(Against the order dated 28.02.2012 in Appeal No. 601 of 2009 of the State Commission,
Rajasthan)
Lufthansa German Airlines
12th Floor, DLF Building No.10,
Tower B,
DLF City, Phase-II,
Gurgaon,
Haryana122002
……….Petitioner
Versus
1. Sudhir Kothari
# 200,
Haldiyo Wala Rastha,
Jaipur
2. Royal Classic Tours & Travels Pvt. Ltd.
# 143, First Floor,
Ganpathi Plaza,
M.I. Road
Jaipur
.........Respondents
REVISION PETITION NO.1739 OF 2012
(Against the order dated 28.02.2012 in Appeal No. 602 of 2009 of the State Commission,
Rajasthan)
Lufthansa German Airlines
12th Floor, DLF Building No.10,
Tower B,
DLF City, Phase-II,
Gurgaon,
Haryana122002
……….Petitioner
Versus
1. P.K. Lodha,
A-8, Mahavir Nagar,
Tonk Road,
Jaipur
2. Royal Classic Tours & Travels Pvt. Ltd.
# 143, First Floor,
Ganpathi Plaza,
M.I. Road
Jaipur
.........Respondents
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr.Sandeep Grover, Advocate with
Mr. Varun Shankar, Advocate
PRONOUNCED ON: 22.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
These three revision petitions arise out of a common order passed by the Rajasthan State
Consumer
Disputes Redressal Commission
in
Appeal
Nos.600-602/2009. The
State
Commission has confirmed the order of the District Forum and dismissed the appeal filed by the
present revision petitioner, Lufthansa German Airlines.
2.
The facts as seen in Revision Petition No.1737 of 2012 have been taken for the purposes of
the consideration of these revision petitions. The matter arose out of travel of the Complainant
from New Delhi to Tusan (US) for participating the Tusan Fair in February, 2005. The journey,
in both sectors, was booked on Lufthansa Flight. Onward journey from New Delhi to Tusan via
Munich (Germany) had apparently no problem. But, for the return journey, which was
from Tusan to New Delhi via Frankfurt (Germany), the Complainant was not allowed to board
the flight, on the ground that he did not have transit visa for Germany. He had to undergo
considerable additional expenditure and personal inconvenience and could return to Delhi after a
delay of two days. In the consumer complaint filed against Royal Classic Tours and
Travel Pvt. Ltd. (OP-1) and Lufthansa German Air Lines, through its Country Manager, New
Delhi (OP-2), the Complainant claimed 1488.44 US $ towards cost of the tickets,
Rs.4 lacs towards compensation and Rs.21,000/- towards costs.
3.
Before the District Forum, OP-1 took the stand that he had only sold the ticket as the agent
of OP-2. According to OP-2 transit visa was demanded by the officials of United Airlines on
whom OP-2 did not exercise any control. These contentions were rejected by the District Forum
which relied upon the letter of 23.2.2005 address by OP-2 to OP-1 in which it was clearly
admitted that the problem arose due to miscommunication between the immigration officials and
the United Airlines, which was partner airline of OP-2/the present revision petitioner. The
District Forum also took note of the submission of OP-2 that they had rebooked the passenger
from Tusan to New Delhi on the next day i.e. 9.2.2005 but it has observed that no supporting
documentary evidence was produced in this behalf. In the result, the District Forum allowed the
complaint and awarded the air fare from Tusan to New Deklhi via Frankfurt, rejecting the claim
of the Complainant for a much longer route of travel. The Forum also awarded compensation of
Rs.1 lakh.
4.
In the appeal, the State Commission has referred to the letter of 23.2.2005 and observed
that:“Appellants themselves admitted that transit visa was demanded by them due to
confusion and they have apologized for this. Therefore, deficiency in service on the part
of appellant is clear from their letter dated 23.2.2005. These trips of complainant did
not cancel due to the migration officers but cancelled due to wrong demand of transit
Visa after the issue of ticket by the defendant.”
5.
We have considered the records as produced with the revision petitions as well as the
additional documents filed as per the direction of this Commission. The crucial letter of
23.2.2005 address by OP-2 to OP-1 was not originally produced and was therefore, taken as part
of additional documents. Contents of this letter explain the entire situation in the following
terms:“This is further to our correspondence dated February 16, 2005, regarding the
inconveniences that our mutual customers – Mr. SudhirKothari, Mr. Sunil Kothari
and Mr. Pramod Lodha had to undergo, on account of the transit visa for Germany.
Before going further, we would like to take this opportunity to apologise for all
the inconveniences that they had to face on account of this incident. We have on hand
the outcome of our investigations, which we would like to share with you. As per the
histories of the flight booking records, it has come to our notice that all the three
passengers were booked to travel for 08 February 05 from Tusan in Arizona. On
account of some miscommunications between the immigration officials and our partner
airline- United Airways in Tusan. As soon as we received theinformation , our officials
immediately contacted the embassy officials and a message to ignore this regulation was
sent. Furthermore, it has also come to our notice that, accordingly the flights were
rebooked for the passengers to return to Delhi via Frankfurt.
Dear Mr. Sett, we express our sincere regrets over the incidents and regret to
learn of the inconvienences that the passengers had to face on account of this
incident. We hereby request you to provide us with another chance to display our
commitment.”
6.
Learned counsel for the revision petitioner Mr. Sandeep Grover argued that once the
mistake was found out, the petitioner had rebooked the Complainant on the flight to New Delhi
for the very next day i.e. 9.2.2005. However, when confronted with the observation of the
District Forum in this behalf, learned counsel conceded that the fact of rebooking could not be
communicated to the Complainant.
7.
A perusal of the revision petition shows that it is a reiteration of the contentions raised
before and considered by the fora below. It needs to be pointed out here that the scope of
proceedings under revision powers of this Commission is limited. Section 21 (b) of the
Consumer Protection Act, 1986 permits interference of this Commission only where “it appears
to the National Commission that 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.”
8.In this behalf Hon’ble Supreme Court of India in Rubi(Chandra) Dutta Vs.United India
Insurance Co. Ltd.,(2011) 11 SCC 269 has held that the National Commission’s power of
revision under S.21 (b), C P Act, 1986 is limited to cases where some prima facie error appears
in impugned order. Interference on the basis of a different interpretation of same sets of facts was
held to be not permissible.
9.
In our view, the decision of the State Commission in the impugned order in Appeal
Nos.600-602/2009 is based on correct appreciation of evidence on record. No interference is
called for in exercise of power under Section 22 (b) of the Consumer Protection Act,
1986. Consequently, the revision petitions are dismissed for want of merit.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4176-4177 OF 2012
(Arising out of the order dated 31.07.2012 in First Appeal No. 1982/2010 & Appeal No.
1933/2010 of the State Consumer Disputes Redressal Commission, Circuit Bench No. 3,
Rajasthan, Jaipur)
1. Prahlad
S/o Jagnath Ji,
R/o- Kachola
2. Bhawarlal a.k.a Bhawar Singh,
R/o- Kachola, Tehsil- Hindoli,
… Petitioners
District-Bundi Rajasthan
Versus
The Oriental Insurance Company Limited,
Through the Bank Manager,
Branch Office, Opposite Circle House,
… Respondent
College Road, Bundi (Raj)
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
The enclosed order is sent herewith for your kind perusal. If approved, the same may be
listed for pronouncement.
…………………………….
(J.M. MALIK, J.)
PRESIDING MEMBER
21.11.2012
HON’BLE MR. VINAY KUMAR,
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4176-4177 OF 2012
(Arising out of the order dated 31.07.2012 in First Appeal No. 1982/2010 & Appeal No.
1933/2010 of the State Consumer Disputes Redressal Commission, Circuit Bench No. 3,
Rajasthan, Jaipur)
1. Prahlad
S/o Jagnath Ji,
R/o- Kachola
2. Bhawarlal a.k.a Bhawar Singh,
R/o- Kachola, Tehsil- Hindoli,
… Petitioners
District-Bundi, Rajasthan
Versus
The Oriental Insurance Company Limited,
Through the Bank Manager,
Branch Office, Opposite Circle House,
… Respondent
College Road, Bundi (Raj)
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioners
: Ms. Tania Sharma Ahluwalia, Advocate
PRONOUNCED ON
NOVEMBER, 2012
ORDER
JUSTICE J.M. MALIK
1.
The case of the petitioners/complainants is as follows. The petitioners got their tractor
insured from The Oriental Insurance Company, OP/Respondent which was valid from 29.08.2006
to 28.08.2007. When the driver was driving the tractor from village Harna to village Hindoli,
suddenly 7-8 people came in a jeep and they forcibly took away the possession of the vehicle
representing that since the installments of the tractor were pending and they were taking such step
on behalf of the creditor. The driver was directed to pay the pending installments at Bundi and
take back the tractor. The driver gave this information to the complainants on 28.08.2007 which
was a holiday on account of Raksha Bandhan. On 29.08.2007, the complainants went to Bundi
Branch of Bank of Baroda where it transpired that no one was sent by the Bank to take the
tractor. The incident was, thereafter, reported to the police on 01.09.2007. The Insurance
Company was informed of the incident on 22.10.2007.
2.
The Insurance Company investigated the matter and it came to light that the event had
actually
occurred
on
29.08.2007. The
complainants’
insurance
had
expired
on
28.08.2007. Consequently, the complainants gave false date of 27.08.2007 in order to make the
claim before the Insurance Company. The Insurance Company declined their claim.
3.
After the claim of the petitioner was repudiated, a complaint was lodged with the District
Forum Bundi. The District Forum allowed the complaint. It held that the claim of the
complainants appears to be eligible for compensation. It merely directed that respondent Insurance
Company to act in accordance with the rules and shall pass the claim of the complainants within
three months.
4.
Aggrieved by this decision, both the complainants and Insurance Company filed two
separate appeals. The petitioners filed appeal on the ground that no compensation for mental
harassment, interest or insured value in the said order was granted. The Insurance Company called
into question the order rendered by the District Forum. The State Forum accepted the appeal filed
by the insurance company and ordered that under these circumstances, the appeal filed by the
complainants had become infructuous and dismissed the same.
5.
We have heard the counsel for the petitioner at the time of admission of this case. She has
invited our attention towards the judgment of this court reported in Oriental Insurance Co. Ltd. &
Anr. Vs. Pearls Buildwell Infrastructure Ltd. & Ors. II (2012) CPJ 102 (NC); NVC Group Farms
rep. by its Managing Partner Sri N. V. Chowdary S/o Varadaiah and Ors. Vs. The United India
Insurance Company Ltd. decided by this Commission on 24.05.2010 by the bench headed by
justice R. C. Jain; Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Ors. AIR 1974 SC
471 and Mrs. D.P. Divakar Vs. Chairman/Personal Managing Director, Kudremukh Iron and Ore
Company Ltd. 1996 ACJ Page 7. She contented that complainants had explained the delay in
lodging the FIR and the delay in giving information to the insurance company is not fatal.
6.
All these arguments are devoid of merits. The above said authorities are not applicable to the
instant case. There is a delay of 4 days in lodging the FIR. An integument of suspicion envelops
the entire case of the complainants. The possibility that the incident took place on 29.08.2007
instead of 28.08.2007 cannot be ruled out. The case of the complainants must stand on its own
legs. It is the complainants and nobody else who is to carry the ball in proving their case. Had the
FIR been lodged immediately the case of the complainant to this extent would have proved. The
delay in lodging the report casts a flim of doubt over the bonafides of complainants. This aspect is
very significant, which destroys the case of the complainants’ root and branch.
7.
It is also difficult to believe as to why did the driver withhold this information from the
complainants for one full day. He should have informed the complainants on the phone. He could
have rushed to the complainants on the same very day. His version is that a jeep carrying 7-8
people came to forcibly possess the vehicle. He should have noted the number of the jeep. The
story of the complainants is made out of whole cloth. Even if the story of the complainants is
assumed to be believed, why there was delay of 4 days from 29.08.2007 to 01.09.2007. No
explanation is coming to this extent. On day of Raksha Bandhan, there is no holiday for the banks
and Insurance Company or the police.
8.
Again the insurance company was informed about this incident on 22.10.2007 i.e. nearly
about 2 months from the date of the incident. The intimation should have been given to the OP
immediately so that they could have inspected the case promptly.
9.
In the result, we see no merit in the revision petition and the same is, therefore, dismissed in
limine.
.…..…………………………
(J. M. MALIK)
PRESIDING MEMBER
……………………………...
(VINAY KUMAR)
MEMBER
PSM/13
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2418 OF 2012
(From the order dated 03-04-2012 in Appeal No. 664/2011 of the State Consumer Disputes
Redressal Commission, Bihar)
WITH
IA/1/2012 (STAY)
1. Chairman, Bihar State Electricity Board,
Vidyut Bhavan, Bailey Road, Patna, Bihar
2. The General Manager-cum-Chief Engineer,
Electricity Supply Area, Bhagalpur, Bihar
3. The Electrical Superintending Engineer,
Mayaganj, Bhagalpur, Bihar
4. The Electrical Executive Engineer, Electric
Supply Division, Mayaganj, Bhagalpur,
Bihar
… Petitioners
Versus
Md. Yusuf Khan S/o Late Akhtar Ali Khan
R/o Village- Nasrathani Road,
P.S.-Vishwavidhyalaya Campus,
District-Bhagalpur, Bihar
… Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioners
:
Mr. Mohit Kumar, Advocate
Pronounced on :
22nd November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Learned State Commission dismissed the appeal as the same was delayed by 171
days. Aggrieved by that order dated 03.04.2012, the instant revision petition was filed.
2.
We have heard the counsel for the petitioners/OPs.
3.
We have perused the application for condonation of delay moved before the State
Commission. The learned State Commission has observed that the reason assigned for such late
filing is the time consumed in the official processing of file. Learned counsel for the petitioners
also admitted that the delay was caused due to procedural and departmental delays. It was also
argued that the Hon’ble Supreme Court has laid down a liberal view for condonation of delay in
the case of State of Nagaland Vs. Lipok A O as reported in 2005(2) PLJR 209. It was also
argued that if the delay is not condoned, it will cause loss and irreparable injury to the Bihar
State Electricity Board and public interest will suffer in the ultimate analysis.
4.
All these grounds do not constitute the sufficient cause. It is now well settled that
departmental and procedural delays do not form a sufficient ground Under Section 5 of the
Limitation Act. It must be borne in mind 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 that must be
sufficient one for the purpose of delay condonation. The following authorities go to fortify this
view:-
5.
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”.
6.
In Balwant
Singh Vs. Jagdish
Singh
&
Ors., (Civil
Appeal
no.
1166
of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bona fide, it had taken all possible steps within its
power and control and had approached the Court without any unnecessary delay. The test is
whether or not a cause is sufficient to see whether it could have been avoided by the party by
the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd
Edition, 2005]”
7.
The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and
others AIR 1977 Supreme Court 1221 held,
“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it
within a narrow compass. A large measure of case-law has grown around S.5, its highlights
being that one ought not easily to take away a right which has accrued to a party by lapse of
time and that therefore a litigant who is not vigilant about his rights must explain every days
delay.”
8.
In another authority reported in Office of the Chief Post Master General & Ors. Vs.
Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC), Hon’ble Supreme Court was
pleased to hold:
“13. In our view, it is the right time to inform all the government bodies, their agencies and
instrumentalities that unless they have reasonable and acceptable explanation for the delay
and there was bonafide effort, there is no need to accept the usual explanation that the file was
kept pending for several months/years due to considerable degree of procedural red-tape in the
process. The government departments are under a special obligation to ensure that they
perform their duties with diligence and commitment. Condonation of delay is an exception and
should not be used as an anticipated benefit for government departments. The law shelters
everyone under the same light and should not be swirled for the benefit of a few. Considering
the fact that there was no proper explanation offered by the Department for the delay except
mentioning of various dates, according to us, the Department has miserably failed to give any
acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay.”
9.
In a recent case in reference “Mahindra Holidays & Resorts
India Ltd. Versus Vasantkumar H. Khandelwal & Anr.”, Revision petition No. 1848 of
2012. There was delay of 104 days in filing the Appeal. The only explanation given was that the
file was moving from table to table to get the permission to file the appeal. This Commission, by
the Bench headed by Hon’ble Mr. Justice Ashok Bhan dated 21.05.2012, dismissed the Appeal
as barred by time.
10.
In the result, we see no merit in this revision petition and therefore, the same is dismissed.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(VINAY KUMAR)
MEMBER
Jr/reserved/10
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4081 OF 2012
(Against the order dated 27.07.2012 in S.C.Case No.-FA/64/12 of the State Commission, West
Bengal)
National Insurance Co. Ltd.
Having its registered office at
3, Middleton Street Calcutta,
Delhi Regional Office I, at Tower II,
Level IV, Jeevan Bharti Building,
124, Connaught Circus,
New Delhi- 110 001
and one of its Divisional offices
at 8, India Exchange Place,
Ground
Floor,
071
Versus
1. Bela Mahajan
w/o Late Sridam Mahajan,
village- Bera Kamalgachhi,
P.O. Ranaghat, P.S. Taherpur,
District- Nadia, Pin- 741201
2. The Manager,
Golden Trust Financial Services,
Krishnagar Branch,
Kolkata-
700
……….Petitioner
R.N. Tagore Road,
P.O. Krishnagar, P.S. Kotwali,
District
Nadia
.....Respondents
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner : Mr. Yogesh Malhotra, Advocate
PRONOUNCED ON: 23.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
This revision petition has been filed against the concurrent orders of District Consumer
Disputes Redressal Forum,
Nadia
and
the
West
Bengal,
State
Consumer
Disputes Redressal Commission. Both fora have categorically rejected ground for repudiation of
the insurance claim in this case.
2.
The letter of repudiation issued by the National Insurance Company/revision petitioner in
the present proceedings dated 11.1.2010 reads as follows:“We have received the letter from Advocate Smt. Husnara Begum enclosing the
copy of the order passed by Hon’ble Justice S. Banerjee on 11.09.2009 in connection
with the above Writ Petition filed by you. Hon’ble Justice Sri Banerjee directed the
undersigned to dispose of the claim within six weeks from the communication of the
order. We have perused all the documents available on record. We would draw your
attention to the Scope of Cover printed on the backside of the certificate. The insurance
company is liable to pay the claim under the ‘Benefit’ mentioned below ‘Scope of
Cover’ that if there is death, permanent total disablement, loss of limbs, loss of eye of
insured person resulting solely and directly from the accident by external visible and
violent means subject to terms, conditions, exclusions of JPA policy.
In the present case no Post Mortem was carried out on the dead body to arrive
at definite conclusion that there was an accident by external visible and violent means.
There is no evidence that there was external injury on the head or any part of the body
of insured which would indicate that his head dashed against the door or snake had
bitten him. Since there was no external injury and he died due to ‘Ceerebro Vascular
Accident’ doctor did not advice for Post Mortem Death of Sridam Mahajan did not
result solely and directly from the accident by external visible and violent means. There
is no abnormality in the death. It is a case of natural death. It is a case of natural death
which is not covered under the policy. Hence we repudiate the claim and regret for the
inconvenient caused to you.”
3.
The ‘Scope of Cover’ mentioned in the above letter of repudiation, is given in the first part
of
the
Terms,
Conditions,
Exclusions,
Definitions,
which
govern
the
relevant
Group Janta Personal Accident Insurance Policy taken by the deceased Sridam Mohajan,
husband of the Complainant Bela Mahajan. The District Forum did not accept the contention of
the insurance company in relation to the meaning of the term ‘accident’ and has observed:“On a careful perusal of the definition of accident as given by Dr. Taylor, we
find that there is no agreed definition of accident. Rather we hold that it happens
suddenly without a previous incident. Here in this case, we find that the victim on
seeing a snake (Gokhro) at his bedroom tried to come out of that room quickly to
escape himself, when he suddenly dashed against the door of that room and fell down on
the ground in an unconscious state of affairs. Undoubtedly it is an accidental case. The
doctor who examined him at the Hospital has clearly stated in the death report that the
death was caused due to Cerebro Vascular Accident. This disease cropped up suddenly
when he fell down on the ground being dashed against the door and ultimately
expired. There is no heard and fast rule that post mortem of the dead body is
compulsory to detect the death caused by an accident. It is the doctor who examined the
patient did not advise for post mortem examination as he was satisfied that the death
was caused due to Cerebro Vascular Accident.”
4.
The above view of the District Forum was challenged by the Insurance Company in
FA/64/2012 before the State Commission. The State Commission dismissed the appeal with the
following observations:“Ld. Advocate for the Appellant has vehemently opposed the claim of the
Complainant/Respondent No.1 and assailed the judgment of the Ld. District Forum by
submitting that the “Scope of Cover” given overleaf the policy certificate has
categorically made out that it covers death of insured person when it resulted solely and
directly from accident caused by external visible and violent means which is very much
absent in this case and that no post-mortem examination of the deceased insured was
made to substantiate the same. The certificate of death issued by the hospital shows that
the
death
occurred
due
to Cerebro Vascular
Accident. The
Police
Officer
of Nishiganj Outpost by way of a certificate dated 27.3.08 gave out in this respect that
as actually post-mortem examination is required to ascertain the real cause of death,
but as in this case the attending Medical Officer has clearly opined the said cause of
death, so the question of post-mortem examination does not arise. The police officer has
also made out as final investigation report that during enquiry/investigation as well as
perusal of the death certificate etc., so far collected it could be ascertained that the
information lodged by the petitioner Bela Mahajan regarding death of her husband is
true and there is no foul play or unfair means detected behind the death.”
5.
The OP/Insurance Company is now before this Commission against the decision of the
State Commission. We have perused the records of the case and heard Mr. Yogesh Malhotra,
Advocate on behalf of the National Insurance Company. Learned counsel restated the case of
the OP on the basis of definition of the scope of cover in the policy, referred to earlier in this
order. He argued that the cause of death ‘cerebro vascular accident’ as per the death certificate
issued by MJN Hospital Coochbehar, does not make it a case of death from accident caused by
external visible and violent means. However, the learned counsel could not explain how it could
be treated as a case of normal death. We have examined the written response of the
OP/Insurance Company before the District Forum. The stand taken therein is that:“In the present case no post mortem was carried out on the dead body
of Sridam Mahajan/insured and/or not produce post mortem report to arrive at definite
conclusion that there was an accident by external visible and violent means and there is
no evidence that there was external injury on the head or any part of the body of insured
which would indicate that the head of the insured was dashed against the door or snake
had bitten the insured and since there was no external injury and the insured died due to
“Cerebro Vascular Accident” and no post mortem was held o the dead body of the
insured Sridam Mahajan and the cause of death of Sridam Mahajan was not solely and
directly from the accident by external visible and violent means and there was no
abnormality in the death and it is clear case of normal death which is not covered under
the policy and as such this opposite party repudiated the claim of the petitioner rightly,
legally and according to the terms and conditions of the policy and there was no any
deficiency of any short of service.”
6.
It is clear that the OP has relied entirely upon absence of post-mortem report in this case to
conclude that the death was not directly caused from an accident. It needs to be noted that it is
also not the case of the Insurance Company that the death was caused by any disease, which the
deceased may have suffered from. The evidence examined by the fora below, clearly brings out
the circumstances in which the accident resulting in cerebro vascular injury had occurred. The
State Commission has also pointed out that no foul play was suspected. This would explain why
post-mortem was not considered to be necessary. We are therefore, unable to accept the
contention of the revision petitioner that it is to be treated as a case of natural death.
7.
The revision petitioner has sought to rely on the decision of this Commission
in Gitaben Vs. National Insurance Company, IV (2009) CPJ (NC). We find that the facts
therein were very different. The insured had died on 11.11.1999 due to drowning. No postmortem was done and his body was cremated. The FIR was later lodged on 15.11.1999. The
State Commission and the National Commission both held that the doctor’s report, showing it as
a case of cerebral haemorrhage, did not necessarily lead to the conclusion that it was a case of
death due to an accident. But, in the present case, the death certificate and other evidence
examined by the fora below, clearly show it to be a case of accident. Therefore, the case of the
revision petitioner cannot draw any support from this decision cited on its behalf.
8.
For the reasons considered in the foregoing paragraphs, we have no hesitation in holding
that the view taken by the fora below is based on correct appreciation of the evidence on
record. The revision petition is therefore, dismissed for want of merit. No order as to costs.
.……………Sd/-…………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4276 OF 2012
(From the order dated 15.2.2006 in F.A. No.118/2004 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
M/s. Hari Developers
Door No.1433,
Sri. Krishnadevaraya Road
Vijayanagar,
Bangalore – 560 040
Versus
1. Smt. Nirmala
W/o B.S. Damodar
Flat F3, Sooryodaya Apts
113, BCC Layout, 4th Cross,
1st Stage, Attiguppe,
Bangalore – 560 040
2. Sri G.S. Ravi Kumar
S/o G.K. Srinivasrao
1265, 9th Cross, 14th Main,
Opp. Kamala Nursing Home
Srinagar,
… Petitioner-Complainant
Bangalore – 560 040
3. Smt. Ratna G. Krishna
W/o Gopala-Krishna G.S. No.62,
10th Main, NOBO Nagar
Opp. Bannerghatta Road
Bangalore – 560 076
4. Smt. A.V. Annapoorna
W/o V.A. Lakshmaiah Setty,
No. 1152, 5th ‘B’ Cross,
12th Main, Prakashnagar,
Bangalore – 560 021
5. Sri N. Ashok Rao
S/o E. Narayana Rao
446, 1 Stage, 2nd Cross,
Indiranagar,
Bangalore – 560 038
6. Sri B.N. Narasimha Murthy
S/o Late B. Nagesha Rao
No.68, Upstairs, I C Cross, 3rd Stage
4th Block, Basaveswaranagar,
Bangalore – 560 040
7. Smt. K. Rashmi
D/o R.S. Krishna Murthy
51/30, 22nd Main, 2nd Cross,
Behind BTS Deport, Vijayanagar,
Bangalore – 560 040
8. Sri C.P. Mohd. Siddique
S/o K.P. Abdulla,
Mayfair Novelties,
24, Tallam Complex, K.G. Circle,
Bangalore – 560 009
9. Sri S. Nagaraj
S/o Late of Subbarao Srivatsa
Channabasaveshwar Layout,
2nd Cross,
Tumkur 2.
10.Sri C.N. Venkatesh Murthy
S/o Late C.V. Narasimha Murthy
297, 75th Cross,
Kumaraswamy Layout,
1 Phase,
Bangalore – 560 079
11.Smt. Nalini S. Rao
W/o T.N. Subbarao
No. 119, 3rd Stage
4th Block, 1st F Cross
Basaveshwaranagar
Bangalore – 560 079
12.Sri T.N. Subba Rao
S/o T.N. Nagabhushan Rao
No. 119, 3rd Stage
4th Block, Basaveshwaranagar
Bangalore – 560 079
13.Sri D.K. Ramachandra Rao
S/o Late Deerendra Rao
No. 119, 3rd Stage, 4th Block,
Basaveshwaranagar
Bangalore – 560 079
14.Sri B.S. Venkateshmurthy
S/o R.K. Srinivasamurthy
91/1, 3rd Cross, Srirampuram
Bangalore – 560 021
15.Smt. K. Mamtha
W/o B.S. Venkateshmurthy,
91/1, 3rd Cross, Srirampuram
Bangalore – 560 021
16.Smt. Malathy
W/o Sundara
No.14, 14th Cross,
Malligethota, Near Best Beauty Parlor,
Cholurpalya
Bangalore – 560 029
17.Sri Sundara
S/o Late H. Jawaregowda
No. 14, 14th Cross, Mallegethota
Near Best Beauty Parlour, Cholurpalya
Bangalore – 560 029
18.Sri P. Narayana Herele
S/o late P. Mahabala Herele,
149/154, Mysore Bank Colony
BSK 1 Stage
Bangalore – 560 050
19.Sri K.A. Sumantha
S/o Anantha Padmanabha
149/154, Mysore Bank Colony
BSK 1 Stage
Bangalore – 560 050
20.Sri L.V. Yogaradhya
S/o Late Veerabhadraiah C/o
M C. Ramakrishnappa
Maruthi Krupa, Banath Maramma Extn.
Kanakapura,
Bangalore – 560 017
21.Smt. Padmini Ramesh
W/o M.V. Ramesh, No. 12, I Main Road,
Katriguppe, East BSK III Stage
Bangalore – 560 085
22.Smt. B. V. Indira
W/o B Prakash
438, 9th Main, Nrupatunga Nagar,
NGEF Layout, Nagarabhavi
Bangalore – 560 079
23.Smt. Sujatha Vinodkumar
W/o Vinodkumar, 102,
Sriniketh MSR College Road,
Mathikere
Bangalore – 560 054
24.Smt. V. Bhagya
W/o B.L Chandrashekharaiah
No.12A, 5th Main, A D Halli
Magadi Road
Bangalore – 560 079
25.Sri Ramachandra
S/o Gangaiah, No. 35
6th Main, A Block
A D Halli, Magadi Road,
Bangalore – 560 079
26.Sri Y Kempegowda
S/o Y K Kempegowda
No. 33A, 1th Cross, 20th Main
Muniswara T Block, Girinagar,
Bangalore – 560 085
27.Sri Gopalakrishna G Bhat
S/o Late Gajanana R Bhat
96A, II Cross, 6th Main
4th Block, Tyagarajanagar
Bangalore
28.Sri Radhakrishna H Bhat
S/o Late Hanumantha R Bhat
No. 3, Brindavan, 1st D Main Road
Cauvery Layout, Vijayanagar
Bangalore – 560 040
29.Smt. Rekha G Rao Bhat
W/o Gopalkrishna Rao
FFI, Suraksha Apts.
42, I Main, 2nd Cross
Gruhalakshmi Layout, 2nd Stage
Kamalanagar
Bangalore – 560 079
30.The Commissioner
Bangalore Development Authority,
Kumara Park West
Bangalore – 560 020
31.Special Deputy Commissioner,
Revenue
Bangalore Urban District,
… Respondents-opposite parties
Bangalore
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. K. Vijay Kumar, Advocate
PRONOUNCED ON 26th NOVEMBER, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the impugned order dated
15.02.2006 passed by the learned Karnataka State Consumer Disputes RedressalCommission,
Bangalore (in short, ‘the State Commission’) in F.A. No.118/2004 – M/s. Hari Developers Vs.
Smt. Nirmala by which while dismissing appeals order of District Forum was upheld.
2.
Brief facts of the case are that 29 complainants filed complaint before the District Forum
with a prayer for allotment of sites and in the alternative to refund the money with
interest. Learned District Forum vide its order dated 10.11.2003 allowed complaint and directed
the petitioner/op to refund the amount along with interest @ 12% p.a. and Rs.1000/- cost to each
complainant. Petitioner preferred appeal against the order of the District Forum which was
dismissed by learned State Commission against which this petition has been filed.
3.
Heard learned Counsel for the petitioner and perused record at admission stage.
4.
Petitioner has filed petition along with application for condonation of delay and submitted
that compromise was attempted between the parties before the State Commission
in LokAdalat dated 28.12006 and it was agreed that alternative sites would be allotted to the
complainants. But, petitioner could not arrange alternative sites for allotment and in 2009
petitioner firm sole proprietor Mr. Hari Nath died, hence, allotment could not be made and
prayed for condonation of delay. This petition has been filed after 2366 days. Learned Counsel
for the petitioner submitted that sole proprietor’s wife is undergoing treatment so revision
petition could not be filed in time and delay in filing petition may be condoned.
5.
Learned
Counsel
for
the
petitioner
has
nowhere
stated
in
the
application
for condonation of delay that petitioner firm sole proprietor’s wife is undergoing treatment and in
these circumstances it cannot be inferred that Mr. Hari Nath’s wife is undergoing treatment since
a
long
period. Learned
State
Commission
passed
order
on
15.2.2006
after
considering LokAdalat’s submissions dated 28.1.2006 and Mr. Hari Nath/sole proprietor of the
petitioner firm died in 2009 meaning thereby even upto 3 years he did not file revision petition
and after his death 3 years had elapsed and this revision petition has been filed with an inordinate
delay of 2366 days which cannot be condoned and petition is liable to be dismissed on this count
of delay.
6.
Consequently, the application under section 5 for condonation of delay is dismissed and in
consequence thereof revision petition filed by the petitioner stands dismissed with no order as to
costs.
Sd/.……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
Sd/..……………………………
( SURESH CHANDRA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4256 OF 2012
(From the order dated 08.08.2012 in F.A. No.A/11/618 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai)
Dolphin Offshore Enterprises (India) Ltd.
A Company Incorporated under
The Companies Act, 1956
Having its Registered office at 1001,
Raheja Centre, 214,
Nariman Point,
… Petitioner-Complainant
Mumbai
Versus
The United Insurance Co. Ltd.
An insurance company carrying
On business of insurance and
Having their registered office at
United India House, 24, Whites Road,
Chennai – 600 014 and having their
Registered office No. 1 at Stadium House,
4th Floor, Veer Nariman Road,
Mumbay – 400 021.
… Respondent-opposite party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. V.K. Ramabhadran, Ms. Rukhmini Bobde,
Ms. Ekansh Mishra, Advocates
For M/s. Parekh & Co., Advocates
PRONOUNCED ON 26th NOVEMBER, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the complainant/petitioner against the order dated
08.08.2012 passed by the learned Maharashtra State Consumer Disputes Redressal Commission,
Mumbai (in short, ‘the State Commission’) in F.A. No. A/11/618 – The United Insurance Co.
Ltd. Vs. Dolphin Offshore Enterprises (India) Ltd. by which while accepting appeal, order of
District Forum was set aside and complaint was dismissed.
2.
Brief facts of the case are that petitioner/complainant insured its Jack up rig “Friendly
Dolphin 1” with the opposite party/respondent and Marine Policy was issued on 3.2.1998. This
Rig was to be towed by the Tug m.t. Gurpur from the Port of Nagapattinam to Port of Chennai in
October, 1998 and during the voyage on or about 10.10.1998 Rig’s AFT Port side leg broke and
fell
into sea. Complainant informed opposite party and opposite party appointed
surveyor. Surveyor assessed claim but also observed that as there was no Port clearance in
respect of the tug, complainant is not entitled to get claim. Opposite party by its order dated
30.10.2002 repudiated the claim, hence, complainant filed complaint. Opposite party resisted the
complaint, filed written statement and alleged that complaint is time barred along with other
objections and prayed for dismissal of complaint. District Forum vide its order dated 14.3.2011
allowed complaint and directed opposite party to pay Rs.19,85,000/- with 9% p.a. interest. On
appeal learned State Commission vide its impugned order set aside the order of District Forum
and dismissed complaint being time barred.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that learned State Commission has
committed error in dismissing complaint on the ground of limitation, hence, revision petition
may be admitted.
5.
Perusal of record reveals that cause of action arose on 10.10.1998 and claim of petitioner
was repudiated by opposite party vide its letter dated 30.10.2012 whereas complaint has been
filed on 21.5.2006 which is clearly time barred and learned State Commission has not committed
any error in dismissing complaint on the ground of complaint being time barred.
6.
Learned Counsel for the petitioner submitted that vide letter dated 12.8.2003, petitioner
requested opposite party to reconsider decision dated 30.10.2002 and vide letter dated 3.11.2004
opposite party dismissed review petition, hence, complaint filed on 21.5.2006 is well within
limitation. It is true that review petition was dismissed by letter dated 3.11.2004 but as claim was
repudiated by letter dated 30.10.2002, period of limitation for filing complaint will not be
counted from 3.11.2004 and review petition will not extend limitation for filing complaint but
complaint had to be filed within period of 2 years from the date of repudiation i.e. 30.10.2002.
7.
Learned Counsel for the petitioner placed reliance on I (2009) CPJ 55 (SC) – Oriental
Insurance Co. Ltd. Vs. Prem Printing Press in which complaint filed on 6.8.1994 was held
within limitation as final decision about repudiation of claim was conveyed on 28.7.1994 and till
then insurer kept on dangling a carrot of hope before complainant regarding repudiation being
considered afresh. Facts of aforesaid case are not applicable to the case in hand because claim
was clearly repudiated by letter dated 30.10.2002 and when review petition was filed after 9
months it was obligatory on the part of opposite party to decide review petition and by merely
deciding review petition and affirming earlier order vide letter dated 3.11.2004 limitation will
not stand extended. Learned Counsel for the petitioner also placed reliance on (1997) 6 SCC
383 – New India Assurance Co. Ltd. Vs. G.N. Sainaniin which it was held that complaint can
be filed within 3 years of the date of occurrence causing loss or from the date when the claim on
the polices was denied by the insurer. This citation does not help to the petitioner rather helps to
the opposite party because in this case complaint could have been filed within period of 2 years
either from the date of loss caused on 10.10.1998 or from the date of repudiation of claim i.e.
30.10.2004 and complaint filed on 21.5.2006 is clearly time barred. Learned Counsel for the
petitioner also placed reliance on (1994) 3 SCC 324 – Food Corporation of India Vs. New
India Assurance Co. Ltd. & Ors. in which it was held that “in fact the period of limitation for
filing a suit or instituting a legal proceeding by the Corporation for recovery of the claim made
against the Insurance Company could also be regarded as commencing from the date when the
Insurance Company expressly refuses to honour the claim or from a date when its conduct
amounts to refusal to honour the claim, in that, such default could also give rise to the cause of
action for the institution of the suit or legal proceeding by the Corporation against the Insurance
Company”.
8.
Perusal of record reveals that opposite party expressly repudiated claim of the petitioner
vide letter dated 30.10.2002 and afterwards, merely by rejecting review application it cannot be
inferred that opposite party’s conduct of 3.11.2004 amounted to refusal to honour the claim.
9.
Had review petition not entertained, limitation had to be counted from 30.10.2002 and in
such circumstances, mere entertainment and disposal of review petition cannot extend period of
limitation for filing complaint.
10.
In such circumstances, complaint filed by the complainant is time barred and District
Forum has not dealt with this aspect, though, opposite party had taken objection in written
statement.
11.
Consequently, petition filed by the petitioner/complainant is dismissed at admission stage
with no order as to costs.
Sd/.……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
Sd/( SURESH CHANDRA )
MEMBER
k
..……………………………
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1319 OF 2010
(Against the order dated 29.12.2009 in in First Appeal No. 698 of 2006 of the M. P. State
Consumer Disputes Redressal Commission, Bhopal )
M/s Indolabs Ltd.
339, First Floor,
Dawa Bazar 13-14,
R.N.T. Marg, Indore (M.P.)
Through Director Dhiraj Shukla
... Petitioner
Versus
M/s Inland Road Transport Pvt. Ltd.
264, Loha Mandi,
Indore (M.P.)
Presently At 22/2,
S.D.A. Compound, Dewas Naka
Indore (M.P.)
Head Office
221/2, State Bank Road,
Kolkata – 700 001
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Nikhil Jain, Advocate with
Mr. A. K. Prasad, Advocate
Mr. Ritesh Khare, Advocate
For the Respondent
: Mr. Anil Goel, Advocate
Pronounced on : 26th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The case of M/s Indolabs Ltd., the petitioner/complainant is that M/s Inland Road
Transport Pvt. Ltd., the opposite party, respondent did not deliver the goods worth Rs.2,26,367/to M/s Indolabs Ltd. The complainant had booked the goods with the opposite party/transporter
for delivery to the consignee. When the transfer receipt was produced before the carrier, the
goods were not handed over to the consignee. The consignee was informed that the goods were
not received by the transporter. A number of requests were made to the opposite partyTransporter to deliver the goods but it did not do the needful. The complainant gave a legal
notice on 25.9.2002 as required by the Carriers Act. The carrier did not either produce the goods
or paid its price. Consequently, a claim was filed with the District Forum wherein the
complainant/petitioner claimed a sum of Rs.2,26,367/- with interest. The District Forum allowed
the complaint and the respondent-carrier was directed to pay Rs.2,26,267/- with interest thereon
@6% per annum and cost of Rs.1,000/-. However, learned State Commission allowed the appeal
filed by the Carrier and dismissed the complaint.
2.
The respondent-transporter admitted that the goods were booked with the carrier but on the
instructions of the Dhiraj Lulla, the representative of the complainant, the goods were delivered
to M/s Purna Enterprises without obtaining the transport receipts. M/s Purna Enterprises had
sent a cheque dated 28.7.2002 as price of the goods. The said cheque got dishonored and the
complainant filed a case under Section 138 of the Negotiable Instruments Act.
3.
We have heard the learned counsel for the petitioner. He admitted that the case under
Section 138 of the Negotiable Instruments Act was decided on 18.8.2007. In the said decision,
learned Magistrate sentenced the accused to pay a sum of Rs. 3 lakh to the complainant. An
appeal was preferred and the same was dismissed by the Sessions Judge.
4.
Learned counsel for the petitioner submitted that that was a different case. He contended
that this transaction is separate. On the contrary, learned counsel for the respondent insisted that
this is the same case.
5.
Learned counsel for the petitioner could not show that the case pending under Section 138
of the Negotiable Instruments Act is different from this case. He did not produce any
documentary evidence to prove the above said facts. He should have produced invoices in
respect of these two cases; he should have produced books of accounts; he should have produced
different orders, agreements in this context. The petitioner cannot get benefit from one criminal
court and another from consumer court. The complainant cannot be permitted unjust enrichment
in this matter. A person cannot be vexed twice for the same cause of action.
The revision petition is meritless and the same is hereby dismissed.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4308 OF 2012
(Against the order dated 23.07.2012 in F.A.No.-1216/2010 of the State Commission, Andra
Pradesh)
1. Sundaram BNP Paribas Home
Finance Limited, Rep by its
Power of Attorney Holder,
JM-3, II Floor,
Opp: Chandramoulipuram
Post office, M.G. Road,
Vijayawada- 520 010
2. Sundaram BNP Paribas Home
Finance Limited, Rep by its
Senior Manager Legal,
Registered office:21,
Pattullos Road,
Chennai- 600 002
Versus
1. Consumer Guidance Society
Representing: Smt. Sujatha
Yanam, w/o Late Raju Yanam
Residing at R.S. No.126/3A, 3B
And 16/4A, High School Road,
Beside Ramakrishna Ventures,
……….Petitioners
Ramavarappadu, Vijayawada- 521 108
2. SBI Life Insurance Company
Limited, Rep by its Regional
Manager, No.5-9-58/B,
Ground Floor, Parishram
Bhavan, Basheer Bagh,
Hyderabad029
500
.....Respondents
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioners : Mrs. Prabha Swami, &
Mr. Nikhil Swami, Advocates
PRONOUNCED ON: 27.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The revision petitioner Sundaram BNP Paribas Home Finance Ltd. has challenged the
decision of the AP State Consumer Disputes Redressal Commission in FA No.1216 of
2010. The matter arose out of a home loan taken by the late husband of the Complainant from
the petitioner on 31.8.2008. At the time of disbursal of the loan, the deceased Nagaraju Yanam
and his co-borrower/Complainant, agreed to subscribe to SBI Life Insurance Policy. It was
allegedly on the representation that the Group Housing Loan Protection Policy would be
immensely beneficial in the event of the death of the borrower as the entire outstanding balance
of the loan would be written off. As per the consumer complaint, subsequently filed before the
District Forum Krishna District, being deeply swayed away by these representations, the
complainant’s deceased husband gave his assent for the subscription of the above described
policy and even authorized the opposite party Nos.1 and 2 to disburse one time lump sum
premium amount of Rs.36,464/- (Rupees thirty six thousand four hundred and sixty four only) to
SBI Life Insurance Company Limited, Hyderabad i.e. opposite party No.3.
2.
The complaint petition also states that this amount was subsequently sent by OPs-1 and 2 to
OP-3, through a cheque of 31.8.2008. The borrowers also gave authorisation, empowering OP-1
and Op-2 to adjust the claim amount to be received from OP-3 against the entire out outstanding
housing loan. The Complainant’s husband was informed by OP-1 that the insurance proposal had
been accepted by OP-3. But, the policy certificate was never delivered.
3.
Consequent upon death of the borrower/Complainant’s husband on 3.12.2008 the OPs were
informed. The Complainant, as advised by OP-1, made a claim under the insurance policy,
through OP-1, but heard nothing. Subsequently, a notice was received under the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act,
2002, calling upon the Complainant to pay an amount of Rs.14,86,667/- towards the outstanding
balance of the housing loan and an interest. Allegedly the notice was sent in the name of the
deceased husband, though the OPs had been informed about his death. A legal notice was issued
on behalf of the Complainant on 9.7.2009, asking OP-1 and OP-2 to indemnify the Complainant
for the loss caused due to their negligence and inaction in not getting the insurance cover for the
Complainant.
4.
A reply was reportedly received from them on 21.7.2009 informing the Complainant that
her claim had been repudiated by the OP-3 on the ground that the deceased was suffering from
HIV+ condition. Despite a specific request from the Complainant, OP-1 and 2 did not even send
a copy of the alleged repudiation letter. Therefore, the following prayer was made in the
consumer complaint filed before the District Forum:“i)
To write off the entire outstanding loan in the account of the complainant’s
deceased husband on the date of his death amounting to Rs.14,86,667/- caused due to
sheer negligence of the opposite party Nos.1 and 2 with the connivance of the opposite
party No.3, despite disbursement of premium amount and release all the original
documents delivered to the opposite party No.1 to the complainant.
ii)
To refund the amount of Rs.38,000/-, illegally collected from the complainant
after the death of her husband.
iii)
Award compensation for mental agony, trials and serious discomfort caused to
the complainant at Rs.1,00,000/- and costs and such other relief’s which in the opinion
of the Hon’ble forum may think fit and proper.”
5.
The District Forum allowed the complaint and held that the Complainant need not pay the
balance loan amount to OP-1 and 2. The appeal of the revision petitioner against the decision of
the District Forum has been dismissed by the State Commission observing that:“In fact in page 2 of the affidavit filed on behalf of opposite parties 1 and 2, the
opposite parties admitted that on 19.9.2008, a bunch of cheques were sent through
Pavan Air couriers which was lost during transit. This concludes that opposite parties 1
and 2 never sent the premium amount to opposite party No.3 and therefore no policy
was issued, for which act the complainant cannot be made to suffer. The complainant
also filed the guidelines on Fair Practices Code for HFCs which she procured under
Right to Information Act, 2006 and keeping in view this code, it was the duty of opposite
parties 1 and 2 to have informed the complainant about the issuance/non issuance of the
policy...................................................... ...........................Therefore, we are of the
considered view that in the absence of any concluded contract by opposite party No.3,
only because of the latches of opposite parties 1 and 2 in not transmitting the premium
amount to opposite party No.3, opposite parties 1 and 2 are liable to settle the claim
amount and we see no reasons to interfere with the well considered order of the District
Forum.”
6.
It is seen from the orders of the fora below that in their joint version, OP-1 and OP-2
admitted the sanction of loan and receipt of insurance premium. The written version
categorically accepts:“It is respectfully submitted that the subscription to SBI group housing loan
protection insurance policy would be beneficial to the co-borrower if borrower ends up
with natural death. It is not necessary to these opposite parties to allure its customers
and to behave as hand in glove with the Opposite party No.3. Had the customer got the
insurance claim, it is the Opposite party No.1 and 2 and its customer who are the
beneficiaries.”
This amounts to a clear admission that OP-1 and OP-2 had promoted the insurance as a measure
which was required to protect repayment of their loan and which protected the borrower as well.
7.
On the other hand, OP-3 denied receiving any claim form on behalf of the Complainant. In
fact, receipt of premium and issue of policy in the name of the late husband of the Complainant
were denied by OP-3. On this issue, the State Commission has referred to the admission of OP-1
and OP-2 that the cheque was sent but was lost during transit. In this behalf, the written response
of OP-1 and OP-2 admits that:“It is unfortunate that the ten cheques including the cheque of the complainant’s
husband bearing No 101196 of ICICI Bank along with the respective insurance
proposal forms were sent by the second opposite party through Pavan Air Ways courier
on 19-9-2008 but unfortunately the bunch of cheques 10 in Nos sent to the SBI Life
insurance was lost during transit. The fact of loosing the said cheques were noticed by
the opposite parties No1 and 2 a little late immediately it prepared the second cheque
bearing No 022547 dated 18-12-2008 and requested the Complainant to send the
Opposite party No 1 duly filled in proposal form with the signature of the Husband of
the complainant on that the complainant for the first time disclosed that her husband
died on 3-12-2008.”
8.
From the above averment in the written response of OP-1 and OP-2 two things become
very clear:a) That the premium for insurance coverage payable to the SBI Life, was recovered from the
borrower; but
b) It was never received by OP-3, as the cheque sent by OP-1 and OP-2 was lost in transit. There
was further delay of nearly three months in informing the Complainant that proposal form also
was required to be sent for the insurance.
9.
We find no explanation why the proposal form was not obtained simultaneously with
deduction of the premium amount. Also, there is no explanation why, in the first instance, the
premium cheque was sent to OP-3 without the proposal form.
10.
We have heard Mrs. Prabha Swami on behalf of the revision petitioner and carefully
considered the records. Learned counsel argued that Consumer Protection Ac, 1986 empowers
the consumer fora to award compensation in suitable cases. However, the Act does not empower
them to direct that the loan should be return off, as was done by the District Forum and
confirmed by the State commission. In our view, the import of the decision of the fora below
becomes clear from the observation of the State Commission cited above in this order. The nonconclusion of a contract of insurance between the borrower and OP-3 was the direct consequence
of latches on the part of OP-1 and OP-2. But for this, the borrower would have been fully
eligible to be considered to receive benefits from OP-3 equal to the unpaid balance of principal
and interest in the loan account. It is for this reason, that the State Commission has held that OP1 and OP-2 are liable to settle the claim amount. In other words, liability of OP-1 and OP-2 is for
deficiency of service and its quantum is equal to the balance of loan amount with interest. We
therefore, find no substance in the contention of the learned counsel.
11.
The other contention of the revision petitioner is that the deceased was in any case not
entitled to claim any benefit under the Insurance Policy as he had suppressed information
relating to pre-existing HIV+ conditions. The contention needs to be thrown out at the threshold
itself. By their own admission in the joint written response before the District Forum, OPs 1 and
2 accept that they had failed to obtain the proposal form from the borrower before his
death. Without the proposal form, there would be no occasion for the insurer to either investigate
the claim or repudiate it.
12.
In the result, we find no merit in this revision petition. It is consequently dismissed with no
order as to costs.
.…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
………………………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1851 OF 2012
(Against the order dated 09.03.2012 in F.A.I.A. No. 2441 of 2011 in First Appeal(SR) No. 5913
of 2011 of the A. P. State Consumer Disputes Redressal Commission, Hyderabad)
Citibank N.A.
Having its office at
123, Jeevan Bharati Building,
Connaught Circus,
New Delhi
... Petitioner
Versus
Ghatty Chaya Padmini,
D. No. 45-57-14/3,
Opp. Ryot Bazar,
Narsimha Nagar,
Visakhapatnam – 530234
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
For the Respondent
: Mr. Deepayan Mandol, Advocate
: Mr. K. Maruthi Rao, Advocate
Pronounced on : 27th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The learned State Commission dismissed the appeal filed by the complainant on the ground
that it was delayed by 214 days. It is pertinent to note that the petitioner has not filed the copy of
application for condonation of delay which was filed before the State Commission. Learned
counsel for the petitioner, however, stated that the reasons given in the impugned order are
correct. The delay has been explained in para 1 of the impugned order, which is reproduced as
follows:“1. This is a petition filed by the Appellant bank to condone the delay of 214 days in preferring
the appeal on the ground that the complainant and her husband filed similar complaints before
the District Forum with similar allegations and the complaint of the husband was
dismissed. However, counsel informed that both the complaints were dismissed. Subsequently it
came to light that the complaint filed by the Respondent herein was allowed and his counsel had
informed the same by oversight. Therefore, it could not take steps and file the appeal. Later, it
was learnt that the Respondent/Complainant initiated proceedings under Section 27 of C.P. Act
where arrest warrants were issued. As such, the appeal has been filed with condonation of delay
is neither willful nor deliberate.
2.
Learned counsel for the petitioner submitted that the conduct of the petitioner has been
bona fide. He argued that due to inadvertence of the counsel, the appeal could not be filed in
time.
3.
The petitioner has accused another person for the delay in filing the appeal before the State
Commission. By no stretch of imagination, the above said facts constitute sufficient
cause. Learned State Commission has rightly observed that the petitioner did not file the
affidavit of the counsel to confirm these facts. Now-a-days, it has become a fashion to transfer
the responsibility upon the Advocate and that, too, in his absence. It is the duty of the litigant to
peruse the order of the court and take action accordingly. It is also the duty of the litigant to go
to the office of the Advocate and find out the true state of affairs. The delay of 214 days is huge
one. The affidavit of the advocate would have gone a long way to do a trick. It is also the duty
of the litigant to post himself and know about the day to day proceedings. It clearly goes to
depict negligence, inaction and passivity on the part of the petitioner.
4.
Learned counsel for the petitioner has cited an authority reported in N. Balakrishnan vs.
M. Krishnamurthy JT 1988 (6) SC 242, para 14 of the whichas under:
“14. It must be remembered that in every case of delay there can be some lapse on the part of the
litigant concerned. That alone is not enough to turn down his plea and to shut the door against
him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory
strategy the court must show utmost consideration to the suitor. But when there is reasonable
ground to think that the delay was occasioned by the party deliberately to gain time then the
court should lean against acceptance of the explanation. While condoning delay the Court
should not forget the opposite party altogether. It must be borne in mind that he is a looser and
he too would have incurred quiet a large litigation expenses. It would be a salutary guidance that
when courts condone the delay due to laches on the part of the applicant the court shall
compensate the opposite party for the loss.
(Emphasis supplied)
5.
In the authority cited by the learned counsel for the petitioner, it was clearly explained that
if the delay was occasioned by the party deliberately to gain time the explanation has to be
rejected. Moreover, it must be understood that the Consumer Protection Act, 1986 is a special
law. It prescribed its own limitation. Before the State Commission, the appeal is to be filed
within 30 days as per Section 15 of the Consumer Protection Act 1986. Section 19-A requires
that appeal has to be heard within 90 days from the date of its admission.
6.
In the celebrated authority reported 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”.
7.
In Balwant Singh (Dead) Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bona
fide, it had taken all possible steps
within its power and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been avoided by the party
by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd
Edition, 2005]”
8.
See also the law laid down in Office of the Chief Post Master General & Ors. Vs. Living
Media India Ltd. & Anr. 2012 STPL (Web) 132 (SC).
9.
In
other
case,
titled
as “Mahindra
Holidays
&
Resorts
India
Ltd.
Versus Vasantkumar H. Khandelwal & Anr.” [Revision petition No. 1848 of 2012 decided on
21.05.2012], the Bench of this Commission headed by Hon’ble President has rejected the
explanation that the file was moving from table to table to get the permission to file that
appeal. It was further held that under the Consumer Protection Act, 1986, the District Forum is
supposed to decide the complaint within a period of 90 days from the date of filing and in case of
some expert evidence is required to be led then within 150 days. The said Bench dismissed the
revision petition on the ground that it was delayed by 104 days.
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 Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was
sought to be explained on the ground that the counsel didnot inform the appellant in time, was
not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office
and enquired about the case, especially when the case was regarding deposit of arrears of rent.
The statute also prescribes a time bound programme regarding the deposit to be made.
12.
In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R.
83, it was observed that cause of delay was that the counsel of the appellant in the lower Court
had told them that there was no need of their coming to Court and they would be informed of the
result, as and when the decision comes, was held to be a story which cannot be believed.
13.
In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer
that he did not inform the client about the progress of the case nor has did he send any letter, was
disbelieved while rejecting an application to condone delay.
14.
It is well settled that Qui facit per alium facit per se, negligence of a litigant’s agent is
negligence of the litigant himself and is not sufficient cause for condoning delay.
See M/s. Chawala & Co. Vs. Felicity Rodrigues, 1971 ACJ 92.
15.
We have also perused the judgment rendered by District Forum. The complaint was partly
allowed by the learned Judge. There is no evidence that the complainant had used the credit card
and no bills were raised against the alleged use of the credit card. The judgment is well reasoned
and the petitioner could not make out a case to interfere in the same.
16.
Consequently, the above said case is hopelessly barred by time and on merits, there is
nothing to challenge. The revision petition is dismissed.
…………Sd/-…………….
(J. M. MALIK, J.)
PRESIDING MEMBER
…………Sd/-……………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2613 OF 2012
(Against the order dated 03.05.2012 in First Appeal No. 18 of 2007 of the
Bihar State Consumer Disputes Redressal Commission, Patna)
Branch Manager (Legal)
Life Insurance Corporation of India
Patna Branch-III, Jeewan Deep,
Exhibition Road, Patna – 800001
Also At :
Life Insurance Corporation of India
Through its Secretary (Legal)
H-39, New Asiatic Building, 1st floor,
Connaught Circus, New Delhi-110001
... Petitioner
Versus
C.P. Sinha
SFA-2/1, Bhoot Nath Road,
Bahadurpur Housing Colony,
Patna-80
... Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Rajat Bhalla, Advocate
Pronounced on : 27th November, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
On 31.1.2002, Mrs. Sudha Kumari Sinha, the deceased assured had paid a first premium
amount of Rs.3385/- to the LIC-petitioner for a policy of Rs.1 lakh. After a period of 2 months
and 25 days of paying the first premium amount, Mrs. Sudha Kumari Sinha passed away on
April 25, 2002. The complainant, Gaurav Pratik is her minor child, who filed the complaint
through C.P. Sinha. Shri C. P. Sinha requested the insurance company to issue duplicate
policy. The complainant also made a claim for the death of his mother on 9.7.2003. He also sent
reminder on 24.11.2003 but the same did not produce the desired result.
2.
Thereafter, the complainant filed a complaint before the District Forum alleging deficiency
in service for non-payment of death claim. The District Forum accepted the claim and directed
the opposite party to pay a sum of Rs.1 lakh to the complainant within two months from the date
of communication of the order and to pay Rs.2,000/- as costs of litigation, failing which the
insured amount will be recovered through legal procedure with interest @9%.
3.
The LIC filed an appeal before the State Commission, which was also dismissed vide order
dated 3.5.2012.
4.
We have heard the learned counsel for the petitioner at the time of admission of this
case. He contended that there was no concluded contract between the deceased and the
petitioner. Again, the proposal of the deceased-respondent was never accepted by the insurance
company and as such the policy bond was not issued to the proposer in her life time. The agent
of the LIC had deposited a sum of Rs.3385/- but the proposal form was not submitted by the
agent or the proposer herself during her lifetime. Consequently, the question of acceptance of
proposal of issuance of policy and bond of the proposer did not arise. It was however admitted
that cheque was issued for a sum of Rs.3385/- and the same was returned on15.10.2005 as refund
of the unused first premium amount during the pendency of the complaint in the District Forum
which the complainant refused to receive the same. The agents are not authorized to accept the
premium amount from the policy holder or any other person under the terms of agency and if any
person gives the money, they do it at their own peril and the LIC cannot be held liable for such
act of the agent or the proposer. In order to buttress his case, learned counsel for the petitioner
has cited few authorities which are reported in Branch Officer, LIC of India
& Anr. Vs. Kanchanben H. Shah & Ors. II (1994) CPJ (NC), LIC of India & Anr. Vs. Smt.
K. Aruna Kumari III (1995) CPJ 80 (NC), LIC of India vs. Mrs. Bimala Routray II (1993)
CPJ 146 (NC), LIC of India vs. Raja Vasireddy Komalavalli Kamba and Ors. AIR 1984 SC
1014, LIC of India & Anr. Vs. Smt. MumtajBegum I (1993) CPJ 9 (NC), LIC of India vs.
Gita Sharma II (2010) CPJ 231 (NC), Kolla Vijaya Laxmi vs. LIC of India and Anr. I
(2010) CPJ 137 (NC), Smt. Shakuntala Devi vs. LIC of India & Anr. II (2002) CPJ 123
(NC).
5.
We have gone through these authorities. These are not applicable to the facts of this
case. The facts in each case are different. The facts of this case are peculiar and unique. The
opposite parties are not permitted to act arbitrarily.
6.
In this case, it is clear that a cheque of Rs.3385/- for first premium was received by the
agent of LIC and it was deposited in the office of the LIC. The said amount was returned after
about 2 years and 9 months. The LIC has failed to give any lucid explanation as to why
the cheque was withheld for a period of 2 years and 9 months. The LIC did not take action. The
moment LIC had accepted the cheque, it should have returned the cheque to the deceased or
written that is cheque stood accepted and fill up the proposal form. It is well known that the LIC
grants insurance cover after acceptance of money. The insurance starts the moment the cheque is
accepted. If there is no irregularity or the facts are admitted by the LIC, it cannot be turned
around and discard the proposal after a lapse of more than two years. All these facts go to show
the mala fides on the part of the LIC. It cannot cheat the gullible persons with the help of few
authorities, which are not applicable in this case. The return of the cheque after about 2 years
and 9 months, smacks of malafides on the part of the LIC. Decision in such like cases must be
taken immediately. The delay in such matters rather casts a flim of doubt over the integrity of
the officers involved in this case. It is also surprising to note that no action was taken against the
agent. It was the duty of the agent to give LIC cover immediately after acceptance of the
amount. It is also surprising to note that the agent did not inform the LIC about the death of the
proposer. Learned counsel for the petitioner has stated that they could not send back
the cheque to the petitioner because the LIC did not know his address. This argument leaves no
impression upon us and it should have called the agent and enquired the address from him. The
purpose of law is to prevent the strong already having their way.
7.
In the result, we see no merit in the revision petition and therefore, the same is hereby
dismissed.
………Sd/-……………….
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4258 OF 2012
(From the order dated 16.08.2012 in F.A. No.1501/2012 of the Karnataka State Consumer
Disputes Redressal Commission, Bangalore)
Dr. Sripathi U
H.No. 5-2-23 (1), Shanthi Nagar
Udupi, Udupi Taluk & Dist.
… Petitioner-Complainant
Karnataka
Versus
1.Vicent D’Almeida
S/o U.K. Vasantha Kumar
Church View, Shirva Village
Church View, Shirva Village
Udupi Taluk & District
Karnataka
2.Smt. Mariya Gladis Almeida
W/o Vincent D’Almeida
Church View, Shirva Village
Udupi Taluk & District
Karnataka
… Respondent-opposite party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. B. Subrahmanya Prasad, Advocate
PRONOUNCED ON 29th NOVEMBER, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed against the order dated 16.08.2012 passed by the
learned Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the
State
Commission’)
in F.A.
No.1501/2012 – Dr. Sripathi U
Vs.
Vincent D’Almeida & Anr. by which appeal at admission stage was dismissed and order of
District Forum dismissing complaint was affirmed.
2.
Brief facts of the case are that petitioner/complainant purchased two shop room premises
from the opposite party/respondent on 28.3.2000 for carrying on business of dentist and opposite
party executed sale deed in favour of the complainant. Opposite party also collected Rs.20,000/from the complainant towards maintenance of the building at the time of registration but opposite
party failed to maintain building. There was poor maintenance of electric meter, water pump,
generator, etc. and complainant incurred expenditure of Rs.60,000/- for installing new electricity
board, Rs.12,000/- for maintenance of water pump and Rs.45,000/- towards generator. In spite
of notice dated 2.11.2009, opposite party did not pay the amount, hence, complaint was filed on
30.4.2010. Opposite party resisted claim and submitted that there is no relationship of consumer
and service provider between the parties and complaint is time barred, hence, complaint may be
dismissed.
3.
Learned District Forum after hearing both the parties dismissed complaint being time
barred and appeal filed by the petitioner was also dismissed by the learned State Commission
vide impugned order.
4.
Heard learned Counsel for the petitioner at admission stage and perused record.
5.
Admittedly, property was purchased by the petitioner on 28.3.2000 and as per averment in
the complaint, petitioner paid Rs.20,000/- towards maintenance of the building to the opposite
party at that time but this complaint has been filed after 10 years of incurring expenditure which
is clearly time barred and learned District Forum has not committed any error in dismissing the
complaint on the ground of limitation and learned State Commission has also not committed any
error in dismissing appeal at admission stage.
6.
Apparently, there is no relationship of consumer and service provider between the parties
and if petitioner has incurred any expenses towards improvement of facilities he should have
filed Civil Suit for recovery of expenditure incurred on facilities.
7.
Consequently, petition filed by the petitioner is dismissed at admission stage with no order
as to costs.
Sd/.……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
Sd/..……………………………
( SURESH CHANDRA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4150 OF 2012
(From the order dated 30.7.2012 in F.A. No.1271/2011 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
Panipat Thermal Power Station
HPGCL, Panipat through its
… Petitioner-Complainant
Executive Engineer/LRE-7.
Versus
New India Assurance Co. Ltd.
Near S.D. College, G.T. Road,
Panipat through its Divisional Manager,
Now, through
its authorised signatory of
Regional Office, SCO 36-37,
… Respondent-opposite party
Sector 17A, Chandigarh
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
: Mr. Alok Sangwan, Advocate
PRONOUNCED ON 29th NOVEMBER, 2012
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed against the order dated 30.07.2012 passed by the
learned Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State
Commission’) in F.A. No.1271/2011 – New India Assurance Co. Ltd. Vs. Panipat Thermal
Power Station by which while accepting appeal, order of District Forum was set aside and
complaint was dismissed.
2.
Brief facts of the case are that complainant/petitioner issued a work order on 6.1.2005 for
Standard Fire Insurance of Unit-7 in favour of respondent-opposite party as leader with 40%
shares and M/s. United India Assurance Co. with 30% share, M/s. National Insurance Co. with
15% share and M/s. Oriental Insurance Co. Ltd. with 15% share. Opposite party issued Policy
No. 353900 dated 6.1.2005 in favour of the complainant for a period of 1 year. After
commissioning of Unit-8, on payment of premium of Rs.44,88,254/- in addition to the premium
already paid, insurance coverage of the first policy was extended. Fire incidents took place at the
premises of the complainant on 23.7.2005, 5.7.2005, 20.7.2005 and 26.7.2005 and complainant
claimed Rs.70,356, Rs. 11,82,835/-, Rs.11,79,581/- and Rs.12,34,432/- respectively, but opposite
party repudiated claim for the incidents of fire occurred on 23.7.2005 but allowed claim of other
3 fire incidents after deducting Rs.5 lakhs for each claim on the ground that Fire Equipment
Accessories (FEA) discount of Rs. 5 lakhs in each claim was wrongly given. Later on, vide
letter dated 25.7.2008, opposite party informed complainant that Rs.15.00 lakhs has been
deducted on account of low claim discount which was wrongly allowed and not on account of
FEA. This amount was not given by the opposite party and vide letter dated 24.4.2009
further claimed Rs.7,26,042/- from the complainant. Complainant filed complaint lodging
deficiency in service. Opposite party filed written statement and denied deficiency in service
and further alleged that as losses were caused in the year 2005 and amount of Rs.15.00 lakhs was
deducted in the year 2007, complaint filed in the year 2009 was time barred. Learned District
Forum after hearing both the parties allowed complaint and directed opposite party to pay
Rs.15.00 lakhs along with 8% p.a. interest against which appeal filed by the opposite party was
accepted by impugned order.
3.
Heard learned Counsel for the petitioner and perused record at admission stage.
4.
Learned Counsel for the petitioner submitted that learned State Commission has
committed error in allowing appeal and dismissing complaint on the ground that complaint is
time barred, hence, notice may be issued to the opposite party.
5.
It is an admitted case of the complainant that incident of fire took place in July, 2005 and
opposite party vide its letter dated 30.8.2007 issued cheque for three incidents of fire after
deducting Rs.5.00 lakhs in each claim in lieu of discount wrongly given in the
policy. Complainant filed complaint on 27.10.2009 i.e. after 2 years and 2 months after
deducting Rs.15.00 lakhs from the claim amount and remitting rest of the amount. Under Section
24A of the Consumer Protection Act, complaint has to be filed within a period of two
years. Learned State Commission had rightly held that as the complaint has been filed after the
prescribed period, the complaint is time barred and liable to be dismissed.
6.
Learned Counsel for the petitioner submitted that complainant was regularly
corresponding with the opposite party for remitting balance Rs.15.00 lakhs and vide letter dated
24.4.2009 opposite party asked complainant to make payment of Rs.7,26,042/- and in such
circumstances, complained filed on 27.10.2009 is very well within limitation. It is well settled
principle of law that after repudiating the claim or making some payment under claim as final
payment subsequent correspondence between the parties does not extend period of limitation and
complaint has to be filed within the prescribed statutory period of two years. Admittedly,
payment was sent by the opposite party to the complainant pertaining to the complainant’s claim
on 30.8.2007 and complaint filed on 27.10.2009 is time barred and learned State Commission
has not committed any error in allowing appeal and dismissing complaint.
7.
Perusal of order of District Forum reveals that District Forum in its order has mentioned
objection regarding time barred complaint taken by the opposite party, but has not dealt this
aspect in its order which District Forum should have done.
8.
Consequently, order passed by the learned State Commission does not call for any
interference and revision petition is dismissed in limine at admission stage. There shall be no
order as to costs.
Sd/.……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
Sd/..……………………………
( SURESH CHANDRA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO.342 OF 2002
Mrs. Kanta Lamba
w/o Shree Mangat Lamba
7, Siri Fort Road,
New Delhi -110 049
Second Address
Flat No.12, 89
Great Portland Street
Londen W
1,
England
……….Complainant
Versus
M/s. Tanya Asset Management Company
Through its Proprietor
Shri Sanjiv Anand
B-38,Defence Colony, 2nd Floor
New Delhi- 110024
M/s. S.K.S. Limited
B-II/99, Mohan Cooperative
Industrial Estate,
Badarpur
New
Delhi
–
110
044
.........Opposite parties
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: Mr. Subair, Advocate
For the Opposite Parties : NEMO
PRONOUNCED ON: 30.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
Mrs. Kanta Lamba has filed this complaint against M/s. Tanya Asset Management
Company and M/s. S.K.S. Limited. The case of the Complainant is that she had deposited a sum
of Rs.16,00,000/- in two cheques, No.100153 of 20.2.1997 drawn on Bank of Baroda and
No.157803, of the same date, drawn on Central Bank of India. The deposits were made with
OP-1 for a period of six months at 12% per annum rate of interest. Accordingly, OP-1
issued chequeNo.771029 dated 6.9.1997, drawn on State Bank of Hyderabad for Rs.48,000/towards interest. This cheque was allegedly dishonoured, when presented for payment, on the
ground of insufficiency of fund in the account of OP-1.
2.
One year later, OP-1 transferred the fix deposit in favour of OP-2. Therefore, OP-
2 wrote to the Complainant on 31.10.1998, acknowledging the liability to pay the amount after
180 days with 18% per annum interest. A Copy of this letter No.SKS/ROLLOVER/1998 dated
31.1.1998 is placed on record by the Complainant. The letter reads as follows:“We understand that the sum of Rs.18,39,000/- is due to you from Tanya Asset
Management Co., New Delhi. As discussed and advised by them, it has been agreed and
accepted by us to transfer the said amount in your name as bills discounting in investment
for a period of 180 days.
We undertake to repay your investment in bill discounting after 180 days along with
discounting charges @ 18% P.A. Accordingly, we are enclosing herewith the
following Post dated Cheques.
1. Post dated cheque No.986556 dated 10.02.98 for Rs.39000/- drawn on UBI, Nehru Place
Branch, New Delhi towards part repayment of your investment as per your advice.
2. Post dated cheque No.986557 dated 30.07.98 for Rs.159973/- drawn on UBI, Nehru Place
Branch, New Delhi towards discounting charges @18% P.A. for 180 days.
3. Post dated cheque No.986558 dated 30.07.98 for Rs.1800000/- drawn on UBI, Nehru Place
Branch, New Delhi towards refund of your investment.”
3.
The first cheque of Rs.39,000/- dated 10.2.1998 was presented for payment and amount
thereon realise. However, the other two cheques dated 30.7.1998 for Rs.18 lakhs and
Rs.159973/- were also subsequently presented, but were allegedly dishonoured.
4.
The case of the Complainant is that the deposits was accepted by OP-1 with the liability to
pay the principal with interest. Subsequently, OP-2 accepted the liability. But both failed to pay
the amount as per their commitments, which amounted to deficiency of service. Therefore, the
Complainant had made the following prayers:“a)
Award a sum of Rs.18,00,000/- (Rupees Eighteen lacs only) in favour of the
Complainant/applicant against the Respondents.
b)
Award interest on the above stated amount in clause (a) hereinabove @ 18 p.a. from
31 Jan. 98, which comes Rs.8,37,000 as on date.
c)
Pass such other and further orders as this Hon’ble Commission may deem fit and
proper in the facts and circumstances of the case.”
5.
In its written response, OP-1/Tanya Asset Management Company, has alleged that the
Complainant had not come to this Commission with clean hands. But, the deposit of Rs.16 lakhs
by the Complainant on 6.3.1997 is admitted. We also have on record a deposit receipt of the
same date for Rs.16 lakhs issued by Tanya Asset Management Company. Similarly, issue of
a cheque for Rs.48,000/- towards interest in favour of the Complainant is also admitted. The
reason why this cheque was dishonoured on presentation, is also admitted.
6.
As for the main question of deposit of Rs.16 lakhs, the stand of OP-1 is that that
Complainant had expressed a desire to further invest the money and therefore, the deposit was
passed on to OP-2 under ‘Bill Discounting Facility’ for a period of 180 days. Later, OP-2 wrote
to the Complainant on 31.9.1998, enclosing three post dated cheques of 10.2.1998 for
Rs.39,000/-, of 30.7.1998 for Rs.159973/- and the third of 30.7.1998 for Rs.18 lakhs. The
written response of OP-1 also mentions a tripartite agreement of 28.2.1998, in witness of transfer
of this investment of the Complainant from OP-1 to OP-2. It is alleged that though the transfer of
deposit was with the consent of the complainant, she had refused to sign the tripartite agreement.
A copy of this agreement, where the Complainant is mentioned as the First Party, is on record. It
is seen that the Complainant has not signed it. It is also alleged that by accepting the
three cheques from OP-2 and by encashing the first one for Rs. 39,000/-, the complainant had
confirmed the discharge of OP-1 from the obligation.
7.
The case of OP-1 is that the Complainant issued a legal notice to him only because two of
the three cheques issued by OP-2 could not be realised by the Complainant. The consumer
complaint was allegedly filed by the Complainant with full knowledge that the liability to repay
the deposit with interest, had already been taken by OP-2 and that OP-1 stood fully discharged
from the same. The liability was now of OP-2 to pay the Complainant. There is no cause of
action against OP-1.
8.
Another plea taken in the response of OP-1 is that the cause of action against OP-1 would
arise only when the cheque of Rs.48,000/- was dishonoured by the banker of OP-1 on 24.9.1997,
But, the complaint was filed on 3.8.2002, which is beyond the period of two years permissible
under Section 24-A of the Consumer Protection Act, 1986.
9.
The stand taken by OP-2 in the written response filed on 10.12.2003 is that the dispute, if
any, is between the Complainant and OP-1. The Complainant had neither made any investment
in the fix deposit scheme of OP-2, nor has OP-2 received any money from the
Complainant. Therefore, the Complainant is not a consumer of OP-2. The written response of
OP-2 however, states that:“Without prejudice, the Answering Respondent agreed to pay to the Complainant by
considering the said amount as Bills Discounting Investment in view of business
relationship between Respondent No.1 and the Answering Respondent. The very nature of
the transaction is commercial. That in consideration of the said investment, the
Complainant was entitled for the Bills Discounting Charges, not the interest. That since no
interest was payable or accrued out of the said transaction the complainant does not come
into the preview of the Consumer and therefore, the instant Complainant is not
maintainable under the Act as against the Answering Respondent. Even otherwise, the
transaction is between the Complainant and Respondent No.1.”
10.
During the course of the proceedings before this Commission, a Memorandum of
Understanding dated 16.11.2006 was executed between the Complainant Kanta Lamba and OP2/SKS Limited. The entire dispute, as per this agreement, is compromised for a total
consideration of Rs.10.80 lakhs, to be paid by OP-2 to the complainant through 24 cheques of
Rs.45,000/- each, between 25.12.2006 and 25.11.2008. An application was filed in this behalf on
16.2.2010 by Mr. Manoj Kumar, counsel for OP-2. It was considered by the Commission
18.2.2010. The Commission took note of the settlement reached between the parties and
dismissed the complaint qua OP-2.
11.
Later, on 19.5.2012, Mr Subair, counsel for the complainant, informed that written
submission of the complainant was filed before the settlement with OP-2 was reached. Therefore,
the counsel sought time to file revised written argument qua OP-1. However, no fresh written
submission has been filed. Instead, a statement of account of money due from OP-1 has been
filed in this Commission on 17.9.2010. Para 4 therein states that:“The said cheque was dishonoured and the complainant filed a complaint against
respondent no.1 and 2 asking for refund of Rs.18 lacsand also interest amount of
Rs.1,37,000/- as on 3rd August 2000 with further interest of 18%. That during pendency of
the complaint the respondent no.2 had entered into a compromise vide memorandum of
understanding dated 16.11.2006 and has made payment of Rs.10,80,000/-. That this
compromise was entered before the Ld. Criminal Court which was trying the case u/s 138
of N.I. Act. That in the said compromise cum memorandum of understanding it was clearly
stipulated that the case was being compromised only against the respondent no.2 M/s.
S.K.S. Ltd. That the Hon’ble Commission vide its order dated 18.02.2010 has dismissed
the complaint qua respondent no.2 and ordered the case to be proceeded against the
respondent no.1.”
The statement ends with a prayer to direct OP-1 to pay the balance of Rs.7.20 lakhs with 18%
interest.
12.
The statement of account filed on behalf of the Complainant cannot take the place of the
written submission for which time was sought but not utilized. We therefore, revert to the
evidence already placed on record by the parties. In the affidavit evidence of Mrs. Kanta Lamba,
the letter of 31.10.1998 from OP-2/SKS Limited has been fully reproduced. We have brought
out the entire content of this letter, earlier in this order. The very first paragraph of this letter
categorically states that M/s. SKS Limited accepts transfer of liability of Rs.18.39 lakhs due from
OP-1 to the Complainant. Towards the same the letter also indicates that three cheques for the
entire amount together with additional Rs.159973/- towards discounting charges at 18% were
being enclosed. Thus, both in the written response and the affidavit evidence of the Complainant,
complete transfer the liability from OP-1 to OP-2 is agreed and admitted. This is also
corroborated by the Tripartite Agreement of 28.2.1998 between the parties. As already noted, the
Complainant had refused to sign it but OP-1 and OP-2 have appended their signatures to it. It
therefore has a finality in so far as the two OPs are concerned. The agreement categorically
witnesses transfer of complete liability from OP-1 to OP-2, qua the Complainant. The settlement
of 16.11.2006 reached between the Complainant and OP-2 is categorically for settlement of the
entire dispute. The Complainant has agreed to accept Rs.10.80 lakhs “as full and final settlement
of all dues”. Therefore, nothing survives.
13.
The complaint has accordingly become unfructuous and is dismissed as such.
.………………Sd/-…………
(J. M. MALIK, J.)
PRESIDING MEMBER
………………Sd/-………….
(VINAY KUMAR)
S./-
MEMBER