NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2186 OF 2013
(Against the order dated 03.01.2013 in Appeal No. 1316/2012
of the State Commission, Haryana, Panchkula)
1.
2.
Sr. Supdt. Of Post Offices NIT, Faridabad
Shri Babu Ram Postman C/o Sub Post Master Post Office Sector 16-A,
Faridabad
....... Petitioners
Versus
1.
2.
Shri Mahabir Prasad R/o H. No.569, Sector-19, Faridabad At Present : R/o
House No.37, Ward No.17 Panchham Mohalla Charkhi Dadri Distt.: Bhiwani,
Haryana
The Estate Officer HUDA, Sector – 14, Gurgaon
…... Respondents
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
Mr. Roshan Lal Goel, Advocate
Pronounced on : 4th July, 2013
ORDER
REKHA GUPTA
Revision Petition No.2186 of 2013 has been filed under section 21 (b) of the
Consumer Protection Act, 1986 (short, ‘Act’) against the impugned order/judgment
dated
3.1.2013,
passed
by
Haryana
State
Consumer
Disputes Redressal Commission, Panchkula (short, “State Commission”) in First Appeal
No.1316/2012.
Brief facts of the case are that respondent no.1/complainant had applied for
allotment of a residential plot of 6 Marlas in Sector-57, Gurgaon to the Estate Officer,
HUDA,Gurgaon, vide application No.11938 registered as G-57, 256681. For further
correspondence the address in the application was given as H.No.569, Sector-19,
Faridabad of respondent no.1’s son-in-law and he had authorized Shri Manoj Kumar to
receive all letters on his behalf from postal authorities. On the draw of lots, the plot of
land was not allotted to the respondent no.1. The respondent no.1 came to know that a
registered letter containing refund of earnest money of Rs.51,030/- was sent by the
respondent no.2 to the respondent no.1 at his given address i.e. H. No.569, Sector-19,
Faridabad. However, neither the registered letter was delivered to the authorized person
of the respondent no.1, by the postman of the office of the petitioner no.1, nor was it
returned to the respondent no.2.
The registered letter sent by the respondent no.2 containing refund of earnest
money of Rs.51,030/- was marked to one Shri Babu Ram postman on 22.12.2004 who
refused to deliver the same to Shri Manoj Kumar, the authorized representative of
respondent no.1 and asked the respondent no.1 to collect it from the Post Office,
Sector-16-A, Faridabad. It is also mention that even on production of authority letter,
the registered letter in question was not delivered to authorized person of the
respondent no.1 for some unknown reasons.
Shri Manoj Kumar had addressed a complaint letter dated 28.12.2004 to
respondent no.1 narrating the entire episode and even after the said complaint, the
postman neither delivered the said registered letter to Manoj Kumar, Attorney
of Shri Mahabir Parshad, respondent no.1 nor returned the said registered letter to the
respondent no.2.
The respondent no.1 also wrote a letter to respondent no.1 and the
Secretary, Deptt. of Posts, Dak Bhawan,
New
Delhi. In
response
to
this
letter,
the Asstt. Director General (PG), Ministry of Communication and I.T., Deptt. of
Posts, Dak Bhawan, Sansad Marg, New Delhi vide their letter No.F-No.13-9/05 PG
dated 2.9.2005 intimated that the Dealing Assistant of Speed Post Article is responsible
for the loss of the said article and the Manager, SPC has been addressed to pay the
compensation to the sender and amount of compensation will be recovered from the
official at fault in addition to disciplinary action.
Respondent no.1 sent an application by registered post on 1.3.2005 to the Estate
Officer, HUDA, Gurgaon for refund of the earnest money subsequently reminders were
sent on 27.4.2005 and 17.5.2005. The respondent no.2 i.e., Estate Officer, Gurgaon
(HUDA) vide his office letter memo No. 13221 dated 18.7.2005 intimated that the refund
order
No.U-57-032588
for
Rs.51,030/-
and
refund cheque No.32627
has
been encashed on 18.1.2005 in the Hongkong and Shanghai Banking Corporation Ltd.,
Greater Kailash-I, New Delhi.
The respondent no.1 had also got served a legal notice to the petitioner no.1 and
respondent no.2 through his counsel on 9.7.2005 but yet till date of complaint the
grievance of the respondent no.1 had not been redressed.
The respondent no.1 wrote a letter to Sr. Supdt. of Police, Sector-12, Faridabad
on 25.7.2005 and requested the Police authorities to lodge FIR against the erring
person and investigate the case.
The petitioners in their written statement before the District Consumer
Disputes Redressal Forum, Faridabad (short, ‘District Forum’) took Preliminary
Objections that :
Under Section 6 of “The Indian Post Office Act, 1898”, the post office is
exempted from liability for loss, misdelivery, delay or damage to any postal article in
course of transmission by post. The Section 6 of IPO Act, 1898 is reproduced as under:
“Exemption from liability for loss, misdelivery, delay or damage : Section-6
exempts Post Office from any liability for loss misdelivery or delay of, or damage to any
postal article in course of transmission by post, except as the liability may be
undertaken by the Government in express terms. This section is equally applicable to
the articles sent by Speed Post for which provisions have been made under Indian Post
Office Rules, 1933 by inserting Rule No.66B. These rules were further amended by
notification GSR 40 (E) dated 21.1.1999 which inserted the following conditions under
condition no.(5) of Rule 66-B -“In case of any delay of domestic speed post article
beyond the norms determined by the Department of Posts from time to time, the
compensation to be provided shall be equal to composite speed post charge paid. In
the event of loss of speed post articles or loss of its contents or damage to the contents
compensation shall be double the amount of composite speed post charges paid or
Rs.1,000/- whichever is less”.
However, the Government shall not incur any liability by reason of
loss, misdelivery or delay of or damage to any postal article in course of transmission by
post, except in so far as such liability may in express terms be undertaken by the
Central Government as hereinafter provided ; and no officer of the Post Office shall
incur any liability by reason of any such loss, mis-delivery, delay or damage, unless he
has caused the same fraudulently or by his willful act or default.
The respondent no.2 had not sent a registered letter but Speed Post article
no.EE-907051664IN dated 21.12.2004 booked from Gurgaon and addressed
to Shri Mahabir Prasad R/o H. No.569, Sector-19, Faridabad at present R/o H. No.37,
Ward No.17, Panchham Mohalla, Charkhi Dadri, Bhiwani. The same was received for
delivery
on
22.12.2004
at
Sector-16A,
PO
and
was
entrusted
to
postman, Shri Babu Ram for delivery on 22.12.2004 & 23.12.2004. Shri Babu Ram
postman had doubts whether Shri Mahabir Prasad lived at the given address
as Shri Mahabir Prasad did not meet him at the given address. Therefore, on
22.12.2004, the said postman did not deliver the article to Shri Manoj Kumar (other than
the addressee) and returned it as undelivered to the concerned P.A. at Sector-16A,
P.O. Faridabad.
Shri Manoj Kumar visited the Sector-16-A, P.O. Faridabad on 23.12.2004 for
taking delivery of the SPP article but he had no authority letter of Shri Mahabir Prasad,
therefore,
the
SPP
article
23.12.2004, Shri Babu Ram
was
postman
not
went
delivered
to
the
to Shri Manoj Kumar
said
address
for
on
delivery
but Shri Manoj Kumar failed to show the authority letter of the addressee as well as
produce any witness. The speed post article was not entrusted by Sector-16A,
P.O., Faridabad P.A. to the postman for delivery on 24.12.2005 and thereafter as the
same was misplaced from the custody of P.A. On receipt of complaint, the said case
was enquired into through inspecting officer concerned. The speed post article was lost
in custody of the Dealing Assistant on 24.12.2004. The case was sent to SSPOs
Gurgaon to pay the compensation to the sender. Letters were written to SSPOs
Gurgaon on 17.3.2005, 15.4.2005 and 17.6.2005 vide which they were requested to
settle the case by sanctioning the admissible claim to the sender of the article. SSPOs
Gurgaon has also written to Administrator, HUDA, Gurgaon for completion of the claim
application so that claim may be sanctioned.
On receipt of legal notice, the matter was examined and as per the finding
SSPOs, Gurgaon was addressed to pay the compensation amount to the sender of the
article and intimate the amount of compensation to be recovered from official at fault. In
addition, disciplinary action was taken against the official at fault vide SSPOs Faridabad
Memo No.CR/DOPG/SP/ Sector-16A dated 30.9.2005/1.10.2005.
District Forum vide their order dated 30.7.2012 came to the conclusion that ;
“The argument of the counsel that the onus was on
the
complainant
to
show
as
to
who
got
the cheque encashed from HSBC Bank is also untenable
because where the speed post article containing
the cheque was in custody of dealing assistant of speed
post article, the onus was of the official of respondent no.1
to show as to how that cheque was misplaced and how it
reached the person who got the cheque encashed. Since
the complainant or his son-in-law Manoj Kumar never got
possession of speed post article, how the onus can be
shifted
upon
them
to
show
as
to
how
thecheque was encashed and who got it encashed from
HSBC Bank.
Therefore, respondent remains liable for nondelivery of speed post article to the complainant and it is
the result of fraud or atleast default of the dealing assistant
of speed post article because of which it reached the
wrong hands who got it encashed from HSBC Bank.
Respondent no.1 is, therefore, directed to pay
the cheque amount of Rs.51,030/- (Rs. Fifty one thousand
thirty only) to the complainant with interest @ 9% p.a. from
the date of complaint i.e. 8.12.2006, till the date of actual
payment and also to pay him Rs.5,000/- towards litigation
expenses and mental harassment. A copy of this order be
sent
to
the
parties
concerned
free
of
costs. File be consigned to the record room.”
Aggrieved by the order of the District Forum, petitioners filed an appeal before the
State Commission. Vide their order dated 3.1.2013, State Commission observed that ;
“In support of his arguments, learned counsel for the
appellants-opposite parties referred to Section 6 read
with Rule 66-B of the Post Office Act, 1898 which is
reproduced as under :The Govt. shall not incur any liability by
reasons of loss, misdelivery or delay of or
damage to except in so far as such liability
may in express terms the undertaken by the
Central Govt. as hereinafter provided ; and no
officer of the Post Office shall incur any
liability
by
reasons
of
any
such
loss, misdelivery, delay or damage, unless he
has caused the same fraudulently or by his
willful act or default.”
We do not find force in the contention raised by the
learned counsel for the appellants-opposite parties
because from the act and conduct of the opposite parties
it is fully established that they were deficient and
negligent in non-delivering of the postal article to the
complainant. If nobody was available to receive the postal
article the opposite parties were bound to send the same
to its sender but they failed to perform their duty. In our
view the act of the appellants-opposite parties for not
delivering the speed post article at its proper destination,
is willful act or default on the part of the officials of the
appellants-opposite parties. It has to be kept in mind that
in view of Section 106 of the Indian Evidence Act, 1872
the burden of proving deliberation about the delivery of
the postal article was upon the opposite parties because
after handing over the speed post envelope to the
opposite party no.1 by the opposite party no.2, the
opposite parties are the custodian of the same and by
conducting an enquiry about the loss/missing of the
postal article, the opposite parties could have submit their
explanation but they failed to do so.
It is evident on record that the appellants-opposite
parties are deficient for the loss of speed post envelope
which was containing cheque of Rs.51,030/-. Merely by
stating that the liability of the opposite parties is limited to
pay compensation as admissible under the rules for loss
of article or Rs.1,000/- whichever is less, is not genuine
excuse as the opposite parties have tried to absolve
themselves from their liability by taking shelter of Section
6 of the Indian Post Office Act, 1989 and the provisions of
the Indian Post Office Rules 1933 and Rule 66B of the
Post Office Act and as such the deficiency of service of
the opposite parties in the instant case is not to be over
sighted.
As a sequel to our aforesaid discussion, the instant case
falls within the mischief of willful act or default on the part
of the officials of appellants-opposite parties and as such
the impugned order passed by the District Consumer
Forum does require any interference.
Hence, this appeal is dismissed being devoid of any
merit.”
Hence the revision petition.
Revision petition has been filed with delay of 16 days. For the reasons
mentioned in the application for condonation of delay, the delay is condoned.
We have heard the learned counsel for the petitioner and gone through the
record carefully.
The grounds as given in the revision petition are that ;
On the face of the record, it is proved that cheque in dispute sent by the
respondent no.2 to respondent no.1 through Speed Post/Registered Post has
been encashed by someMahabir Prasad R/o Gurgaon from HSBC Bank and a
confirmation from the said Bank has been obtained by the petitioner attached
with the present petition but surprisingly, respondent no.1 while filing the
complaint before the District Forum did not array the HSBC Bank or a man
known as Mahabir Prasad R/o Gurgaon in place of respondent no.1, in the
absence of the array of HSBC Bank and the same person Mahabir Prasad R/o
Gurgaon, the real controversy between the parties to the litigation could not have
ben adjudicated upon and this important fact and plea has been ignored by the
Courts below which is very much essential for imparting the justice to the parties.
In
view
of
the
aforesaid
submissions,
the
complaint
of
the
complainant/respondent no.1 was not maintainable and the District Forum ought
to have directed the respondent no.1 to array the HSBC Bank and another same
person Mahabir Prasad R/o Gurgaon as respondent, neither the respondent no.1
nor the District Forum tried to do so, which is legally fatal itself.
One important fact is established that the amount of the cheque in question has
not been fraudulently or otherwise, used by the official of the petitioner no.1 or by
the petitioner no.2, whereas, there are the possibilities that the cheque in
question may have been encashed by the person of the same name respondent
no.1 in collusion with the staff of the said Bank.
Not only the above, before filing the complaint before the District Forum, it was
also required for the respondent no.1 to get the verification from the respondent
no.2, i.e., Haryana Urban Development Authority (HUDA) whether the amount in
question has been got encashed of the cheque in question or not, this aspect
was also not adhered to which clearly shows that gross negligence and nonadherence to the possible and expected measures by the respondent no.1, had
the respondent no.1 taken this precaution and had done this exercise to this
effect, then there were the firm possibility that the Bank referred to above and the
person in the name of the respondent no.1 would have returned the amount in
question to the respondent no.1 on being done so by the respondent no.1. Thus,
both the impugned orders of Courts below are liable to be set aside.
The District Forum correctly came to the following conclusion that there is no
dispute that a speed post article No.EE-907051664IN dated 22.12.2004 addressed
to MahabirPrasad, respondent no.1 was entrusted to the petitioner no.2, Babu Ram
Postman (respondent no.3 before the District Forum) for delivery. But as the addressee
did not live at the aforesaid address and no authority letter from the addressee was
produced for taking delivery, Babu Ram, petitioner no.2 returned that letter to the
dealing Assistant of Speed Post Article. It is clear from the letter dated 2.9.2005 written
to the respondent no.1’s son-in-law Manoj Kumar by Asst. Director General, Post
Offices. It was further mentioned in the letter that the dealing Assistant of Speed Post
Article is responsible for the loss of the said articles and the Manager, SPC has been
addressed to pay the compensation to the sender and recover the amount of
compensation from the official at fault in addition to disciplinary action. So, it is clear
from the letter of an officer of the Dept. of Posts of Government of India that the speed
post article containing the cheque of Rs.51,030/- in favour of the respondent no.1 sent
by respondent no.2 was not delivered to respondent no.1 or his authorized
representative Manoj Kumar but was misplaced by the dealing Asst. of Speed Post
Centre or was got encashed by him from HSBC Bank, Greater Kailash – I, New
Delhi. Petitioner no.1 is, therefore, responsible for the loss caused to the respondent
no.1 but there is no liability of petitioner no.2 Babu Ram because he had admittedly
returned the speed post article to the dealing Assistant of Speed Post Article on the
evening of 23rd December, 2005.
When respondent no.2 had already issued the cheque in favour of the respondent
no.1 and that already stands encashed on 18.1.2005 in HSBC Bank, New Delhi, either
due to the fault or as a result a conspiracy of official of petitioner no.1, respondent no.2
is also not responsible for payment of any amount to the respondent no.1.
The petitioner at this stage based on the advice of Shri Namit Kumar, Advocate
dated
5.2.2013,
with
the
view
to
prove
that
the
person
who
has
got
the cheque encashed is the complainant, have obtained a statement dated 31.1.2005
from HSBC Bank, JMD, Gurgaon which indicates that a deposit of Rs.51,030/vide cheque no.032627
was
made
in
the
account
of Mahabir Prasad,
H.No.16, Gali no.4, Arjun Nagar, Gurgaon. With this statement they have sought to
prove
that
the cheque in
question
had
been encashed by Shri MahabirPrasad,
respondent no.1 himself. To explain the same, they had pleaded before the District
Forum that the article from the Post Office with the conspiracy of the official of
respondent no.1 which in this case being the Sr.Superintendent of Post Offices,
Faridabad had got the cheque encashed from HSBC Bank.
It is noted that this plea was not raised in their reply before the District
Forum. On the contrary, they had admitted in their reply that the SPP article had not
been delivered and had been misplaced from the custody of PA. On receipt of
complaint, the said case was enquired through inspecting officer concerned as the
speed post article was lost in custody of the Dealing Assistant. It is indeed strange that
after that they are taking a contrary stand that SPP article has been delivered
to Shri Mahabir Prasad or as per their case “actually received the article from the post
office
with
conspiracy
of
the
officials
of
respondent
no.1
and
had
got encashed the cheque” without giving any evidence to support this stand.
The Bank statement dated 31.1.2005 was available in December, 2006, when the
complaint was instituted with the District Forum and could have been introduced in their
reply to the District Forum. It was neither introduced before the District Forum nor the
State Commission. It has been relied upon for the revision petition without even making
an application for filing of additional documents. As such we are of the opinion that this
document cannot be introduced in this manner to adduce the main ground for their
revision petition. Further, there is no evidence that the statement pertains to the
account of respondent no.1 as the address of Shri Mahabir Prasad given in the Bank
statement dated 31.1.2005 is not the same as that given in the complaint dated
8.12.2006. In the complaint, Shri Mahabir Prasad has been shown as at present -
resident of House No.37, Ward No.17, Pachham Mohalla,Charkhi Dadri, Bhiwani and
also his corresponding address has been shown House No.569, Sector-19, Faridabad
and
not
the
address
given
in
the
Bank
statement
which
is
H.No.16,Gali no.4, Arjun Nagar, Gurgaon.
We also find that the respondent no.1 had continued to agitate his case with the
Estate Officer, HUDA after 18.1.2005, the alleged date of encashment of the cheque,
right upto17.5.2005. It is the Estate Officer, HUDA who vide his letter dated 18.7.2005
had
intimated
that
the
refund
order
No.U-57-032588
for
Rs.51,030/-
and
refund cheque no.32627 has been encashed on 18.1.2005 in the Hongkong and
Shanghai Banking Corporation Ltd., Greater Kailash-I, New Delhi.
Inspite of the fact that this was mentioned in the complaint that petitioner took no
action to verify whether indeed the cheque has been encashed and if so by whom at
that stage. Respondent no.1 has also got served a legal notice upon HUDA and the
Bank through its counsel on 9.7.2005 and lodged a complaint with Sr. Supdt. of Police
on 25.7.2005 requesting the Police Authority to lodged FIR against the erring person
and investigate the case. These actions of respondent no.1 do not support the stand of
the petitioner that respondent no.1 had already encashed the cheque and deposited the
amount in his account on 18.1.2005.
24.
In view of the above facts, no jurisdictional or legal error has been shown to us to
call for interference in the exercise of powers under Section 21 (b) of Act. Since,
two Forabelow have given detailed and reasoned orders which does not call for any
interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or
material irregularity. Therefore, present petition is hereby, dismissed with cost of
Rs.10,000/- (Rupees Ten Thousand only).
25. Petitioners are directed to pay the cost of Rs.5,000/- by way of demand draft in
the name of respondent no.1 and remaining cost of Rs.5,000/- by way of demand draft
in the name of ‘Consumer Legal Aid Account’ of this Commission within four weeks from
today. In case, petitioners fail to deposit the said cost within the prescribed period, then
they shall also be liable to pay interest @ 9% p.a., till realization.
27.
List on 23.8.2013 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
………..…………..………..
(REKHA GUPTA)
MEMBER
Sonia/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,NEW DELHI
REVISION PETITION NO. 1894 OF 2013
(Against order dated 04.04.2013 in Complaint Case No. 10 of 2011
of the State Consumer Disputes Redressal Commission, Panaji-Goa)
Mr. Mario Joseph, Flat S-4, ‘B’ Wing Sansha La Joy Bldg, Opp. Mahindra Cars
H. No. 895/38, V Socorro Porvorim – Goa – 403521 Ph. 09820199134
… Petitioner.
Versus
Mrs. Mary Fernandes, R/o. Sushma Sadan, Parel, Mumbai 400012.
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER.
For the Petitioner :
Ms. Indu Malhotra Advocate with Mr. Kush
Chaturvedi and Ms. Nishita, Advocates.
PRONOUNCED ON: 4th JULY, 2013
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
In this revision petition there is challenge to order dated 4.4.2013 passed by
Consumer Disputes Redressal Commission, Panaji-Goa (for short, ‘State Commission’).
2.
Respondent/complainant had filed a complaint under Section 17 of the Consumer
Protection Act, 1986(for short, ‘Act’) against Petitioner/O.P. on the ground that
respondent has executed a registered sale deed dated 15.09.2008 in favour of the
Petitioner in respect of property in question for a consideration of Rs.48 lacs. Since,
respondent had incurred certain expenses for the improvement and development of the
property for which petitioner has agreed to pay to the respondent a sum of Rs.27 lacs
by way of reimbursement. As respondent failed to pay the same, a consumer complaint
was filed before the State Commission.
3.
Petitioner contested the complaint and filed its written statement. During the
proceedings pending before the State Commission, petitioner also filed an application
dated 9.11.2012 for cross examination of the respondent stating that at the time of
preparing affidavit-in-evidence, petitioner noticed that there were certain facts which
have not been stated by the respondent in its complaint. These facts are necessary to
be brought on record by way of cross examination to prove the case of the petitioner.
4.
That application was dismissed by the State Commission, vide order dated
08.01.2013 observing that “in case the complainant has not brought certain facts on
record through his affidavit-in-evidence, the O.P. is always free to do so through their
affidavit or their witnesses”.
5.
Thereafter, petitioner filed an application dated 20.3.2013, for amendment of the
written statement. The plea taken by the petitioner with regard to the amendment of the
written statement is that, in view of the order dated 8.1.2013 passed by the State
Commission, petitioner wants to bring certain facts on record as per the draft
amendment.
6.
The State Commission vide impugned order, dismissed the application for
amendment.
7.
It has been contended by learned counsel for the petitioner that since respondent
has not brought on record certain facts, as such petitioner wants to bring those facts on
record by way of amendment. It is also contended that amendment of written statement
should be liberally allowed in view of the decision of Hon’ble Supreme Court in
case Baldev Singh and others Vs. Manohar Singh and another (2006) 6 Supreme
Court Cases 498, wherein the Court observed;
“In the case of amendment of written statement, the courts are
inclined to be more liberal in allowing amendment of the written
statement than of plaint and question of prejudice is less likely to
operate with same rigour in the former than in the latter case”.
8.
Relevant portion of Impugned order passed by State Commission states;
“ On perusal of the record and after hearing of the Ld. advocates on
behalf of both the parties, we find that the O.P. had filed his written
version wayback on 18.5.2012 and thereafter sought adjournments to
file affidavit in evidence on 07/09/12, 12/10/2012, 09/11/12, 23/11/12,
14/12/12. The affidavit in evidence was filed on 20/12/12. In between an
application for cross examination of the complainant filed on 23.11.2012
was disposed off by order dated 08/01/13. By proposed amendment to
the written statement the O.P. seeks to explain as to how the sale deed
dated 15.09.2008 between the parties came to be executed. Any
explanation whether as regards the initial agreement dated 25.10.06
between the parties or the succession deed dated 29.07.08 or the sale
deed dated 15.09.08 could have been given either in the written version
filed by the O.P. on 18.5.2012 or the affidavit in evidence filed on
20.12.2012. In fact, even on 07.02.13 a statement was made on behalf
of the O.P. that there were no additional documents to be filed. In case it
is contended that the explanation sought to be given by virtue of the
amendment application now filed has come about with the change of
legal advice, it may be noted that there was also change in the advocate
on 12.10.12. We find that we are already lagging behind the mandate of
Section 13(3A) of C.P. Act. Written submissions have already been filed
and the complaint is awaiting the final hearing of oral submissions on
behalf of the respective parties. Allowing the amendment application at
this stage will simply put the clock back. The application is filed at a very
belated stage and will delay the complaint further. In the circumstances,
we proceed to dismiss the application for amendment, and fix the
complaint for final hearing of arguments on 22.4.2013.
9.
There is no dispute about the principle of law laid down by the Apex Court
in Baldev Singh (Supra). However, in the present case, petitioner has filed its written
statement as far as back as on 18.5.2012 and thereafter its sought adjournments on five
occasions to file its affidavit-in-evidence. The amendments which are being sought at
this stage pertains to the initial agreement dated 25.10.2006 executed between the
parties and sale deed dated 15.09.2008. All these documents were in existence at the
time of filing of the written version and were in the knowledge of the petitioner. Petitioner
could have easily mentioned about these documents in its written statement which filed
in the year 2012. However, there is no explanation in the entire application for
amendment as to why petitioner did not mention about these documents in the written
statement. As apparent from the record, petitioner itself has been delaying the matter
pending before the State Commission. Moreover, the application for amendment has
been filed at a very belated stage, that is, when the matter is fixed for hearing of final
arguments before the State Commission.
10.
Under these circumstances, the State Commission was fully justified in not
allowing the application for amendment of written statement at this very belated stage.
Accordingly, we do not find any infirmity or illegality in the impugned order passed by the
State Commission. There is no merit in the present revision petition and the same is
hereby dismissed.
11.
No order as to cost.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1291 OF 2013
(Against the order dated 06.03.2013 in FA No.700/2012 & FA No.128 of 2013 of the
State Commission, Andhra Pradesh)
M/s. Narne Estates Pvt. Ltd., Represented by its Managing Director,
1, Gunrock Enclave, Karakhana, Secunderabad- 500009
……….Petitioner
Versus
Sri Dasari Janardhan, S/o Sri Rajaram, R/O:H.No.8-3-234/355, L.N. Nagar, Yasufguda
Hyderabad- 500045 Andhra Pradesh
.........Respondent
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Petitioner
: Mr. Bhagabati Prasad Padhy, Advocate
PRONOUNCED ON: 4th July, 2013
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
Both parties to this revision petition had filed two cross appeals before the A P
State
Consumer
Disputes Redressal Commission.
complainant/Dasari Janardhan was
allowed
and
the
The
appeal
appeal
filed
of
the
by
the
OP/Narne Estates Pvt. Ltd was dismissed. Both appeals had arisen from an Execution
Application filed by the complainant under Section 27 of the Consumer Protection Act
before the District Forum, Hyderabad. The District Forum had passed the following
order—
“In view of the above, both the parties have to comply the orders of
the District Forum dt. 12.09.2007, as it attained finality already. Further, the
Forum provided adequate opportunity to both the parties. And the parties
have now to be clear that to meet the ends of justice, they should adhere to
this District Forum order dt. 12.09.2007 scrupulously.
In the result, the order of this Forum dt. 12.09.2007 has become
final. The complainant complied partly, so directed to comply fully by paying
the balance of development charges with interest. Further, the opposite
party is directed to comply fully (restoration of plot as directed above) within
one month, failing which, punishable with a fine of Rs.10,000/- (Rupees Ten
thousand) only.”
2.
While considering the two appeals, the State Commission noted that the
OP/present revision petitioner had apparently not preferred any appeal against the
original order of the District Forum of 12.09.2007 in which the complaint had been
allowed directing the OP to collect the developmental charges and restore the allotment
of the plot.
3.
The appeals filed by the two parties were disposed of by the State Commission
with the following orders:“18. In the result, the appeal, F.A No.700 of 2012
is allowed modifying the order of the District Forum. The opposite party is
sentenced to three months imprisonment or till it restores the allotment of
plot bearing number 21 Sector V, Block Za, East City, Bibinagar in favour of
the complainant whichever is earlier. Consequently, the appeal, F.A.
No.128 of 2012 is dismissed. The costs of the proceedings quantified at
Rs.2,000/-. Time for compliance four weeks.”
4.
In view of the fact that the order of 24.7.2012 passed by the District Forum and the
order of 6.3.2013 passed by the State Commission have both been passed in
Execution Proceedings, the present revision, in effect, should have been filed as an
appeal under Section 27 A (1) (b) of the Consumer Protection Act, 1986. The petitioner
M/s. Narne Estates Private Ltd. has chosen to file the petition under Section 21 (b) of
the Act which is not applicable to the present case.
5.
I have carefully considered the records and heard Mr. B.P Padhy, Advocate at
length on behalf of the petitioner. Learned counsel agreed during the course of the
argument that the present petitioner had not challenged the original order of the District
Forum passed on 12.09.2007. He therefore agreed that the same had acquired
finality vis-a-vis the revision petition.
6.
The petitioner has assailed the observation of the State Commission in para 16 of
the impugned order. The contention of Shri Padhy is that it was wrong for the State
Commission to observe that the OP had not adduced any evidence to show that the
same plot had already been sold to a third party on 4.8.2007 i.e. prior to 12.9.2007,
when the District Forum passed the relevant order.
7.
In my view, for full appreciation, it is necessary to read para 16 mentioned by the
petitioner’s
counsel
in
conjunction
with para 15
of
the
impugned
order.
These paras read as follows:“15. The opposite party contends that it could not restore allotment of plot
since it has sold the plot to third party five years ago. The complainant
submits that the opposite party cannot sell the plot during pendency of the
complaint before the District Forum and in such case he seeks for refund of
the amount paid by him and imposition of penalty to the opposite party to
the tune of 10,00,000/- for gross violation of the order of the District Forum
and for wasting the time of the District Forum and this Commission by
suppressing the fact of sale of the plot to third party.
16. The opposite party has not adduced evidence to show that the
plot was sold to third party. The opposite party has not stated the name of
the person to whom the plot was sold and on which date as also through
which registered sale deed the sale transaction was made in respect of the
plot bearing number 21 at Sector V, Bloc Za, East City, Bibinagar. The
scope of execution is limited and the District Forum or this Commission
cannot go behind the order.”
8. Learned counsel also argued that the matter had been brought to the notice of the
District Forum itself, when Execution Application No.88 of 2009 was under
consideration. He sought to rely on the fact that in the order of 24.7.2012, the District
Forum has mentioned that the OP had agreed to show an alternative plot to the
Complainant on 23.3.2012. In my view, this does not amount to saying that the inability
of the OP to hand over the original plot to the Complainant on account of the same
having already been sold to another person, had been established before the District
Forum. Secondly, if the sale of the same plot to another person on 4.8.2007 was
actually the case of the OP before the District Forum and the OP felt that its evidence
on this point had not been properly appreciated by the District Forum, the OP definitely
would have appealed against the order of 12.9.2007. Admittedly, no such appeal was
filed. Thirdly, learned counsel Shri B.P.Pardhy was specifically asked to point out what
documentary evidence was placed before and rejected/ignored by the District Forum
which would have established conclusion of sale in favour of a third party prior to the
order of the District Forum. He expressed his inability to point to any such evidence.
9.
In view of the details considered above, I find no ground to interfere with the
impugned order passed by AP State Consumer Disputes RedressalCommission in
Execution Appeal Nos. FA 700 of 2012 and FA 128 of 2013. The petition of
M/s. Narne Estates Private Limited, listed as RP No.1291 of 2013, is consequently
dismissed for want of merit.
.………………Sd/-…………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 88 OF 2013
(Against the order dated 13.12.2012 in Complaint Case No.CC/12/274 of the State
Commission, Maharashtra)
PDC Marketing Private Limited, A company incorporated under the Provisions of
Companies Act, 1956, having its Head office at 12, Esteem Tower,
Ambedkar Road, Nashik Road, Nasik 422101, Maharashtra Through its Director
Mr. Vijaykumar Chaurasia
……….Appellant
Versus
Axis Bank Limited, A Company incorporated under the Companies Act 1956, carrying
on Banking business under the Banking Regulation Act, 1949, and having its
Concerned branch office at Thakkar Bazar, Nashik Maharashtra Through its Manager
AND Having it registered office at “Thirshul”, Third Floor, Opp. Samartheshwar Temple,
Near Law Garden, Ellisbridge, Ahmedabad 380006, Gujarat
.........Respondent
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Petitioner
: Mr.Dilip Annasaheb Taur, Advocate
PRONOUNCED ON: 04th July, 2013
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
In this appeal, PDC Marketing Ltd. has challenged the order of Maharashtra
State
Consumer
Disputes Redressal Commission
in
Complaint
Case
No.CC/12/274. The State Commission has rejected the complaint filed by the
appellant/PDC Marketing Limited, holding that the Complainant is not a ‘consumer’
within the meaning of Section 2(1) (d) of the Consumer Protection Act.
2.
In paras 3 and 4 of the impugned order the State Commission has noted that the
Complainant is a private limited company incorporated under the Companies Act. It is a
multi-level marketing company operating from Nashik, marketing different types of
goods through its Sales Commission Agents. In order to enable it to make payment of
commission on sales to its agents, it had opened a bank account with OP/Axis Bank
Ltd. The bank had issued ATM Cards in the name of the complainant company, which
were distributed to the Sales Commission Agents. This arrangement enabled
the SCAs to withdraw the amount of commission payable to them directly. The bank
account and the ATM Cards stood in the name of the company. Under the arrangement,
commissionpayment to the agents were towards commercial service rendered by them
to the Complainant company. The State Commission, therefore observed that it is not a
case of simple banking service but a camouflaged commercial activity was being carried
out through this system in which 10060 ATM Cards had been activated by the bank.
3.
While dismissing the complaint, the State Commissioner has held that:
“5. What we find that the total activity of the complainant-Company is a
commercial activity and therefore, though it may be a service, but it is hired
for commercial activity of the complainant. Therefore, complainantCompany may have a remedy against the opponent-Bank, but the
complainant-Company is not a consumer within definition of Section 2(1) (d)
of Consumer Protection Act, 1986 and consumer complaint is not a remedy
for the complainant-Company.
6. Learned Counsel appearing for the complainant tried to rely upon judgment of
the Apex Court in the matter of Vimalchandra Grover V/s. Bank of India, AIR 2000
SC 2181. That is the case not involving a commercial transaction, but it was an
individual account having overdraft facility and in that light banking is a service or
not is considered by the Apex Court. There the complainant is a consumer and he
was using the account for himself. In the present matter, such is not the position.”
4.
Records submitted on behalf of the appellant/PDC Marketing Private Limited have
been perused and Mr. D.A. Taur, Advocate has been heard on behalf of the appellant.
5.
A copy of the Complaint filed before the State Commission is available on the
records of the appeal. From a plain reading of the Complaint itself, the following facts
emerge as part of the pleadings of the Complainant are significant and need a special
mention.
a) In para 1, the complainant claims to be ‘a company incorporated under
Companies Act, 1956’.
b) As per para 3, it is a ‘multi-level marketing company operating from Nashik’.
c) Para 4 calls the account opened with the OP/Axis Bank a ‘current account in
the name ‘PDC Marketing Private Ltd’. For operation of this account an
agreement was executed between the two sides on 5.12.2008.
d) Paras 5 & 6, show that under the agreement of 5.12.2008, 23,200 corporate
cards were issued exclusively to allow withdrawal of commission charges of
the Complainant’s individual clients. For this total of Rs.4463573/- was paid
by the Complainant Company to the OP/bank.
6.
The above facts, as seen from the complaint petition itself, clearly show that it is a
case of a bank account opened by a business company in furtherance of its commercial
business. The operation of the bank account was to be in terms of the agreement of
5.12.2008 between the two parties.
7.
Evidently, the cause of action in this case would arise only subsequent to 2008
when the amendment of the relevant provision in the Consumer Protection Act, 1986
had already come into effect on 15.3.2003. The amended Section 2(1) (d) (ii) defines
the term ‘consumer’ in the context of hiring of the service (banking service in the present
case) in the following terms:“(ii) [hires or avails of] any services for a consideration which has been paid
or promised or partly paid and partly promised, or under any system of
deferred payment and includes any beneficiary of such services other than
the person who [hires or avails of] the services for consideration paid or
promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of
the first mentioned person [but does not include a person who avails of such
services for any commercial purpose]”
8.
The above provision, applied to the facts of this case, clearly shows that the
Complainant cannot be treated as ‘consumer’ under the Act. The decision of the State
Commission is therefore, clearly based on correct appreciation of the facts and the law.
9.
The revision petition, while challenging the order of the State Commission, has
sought to rely upon certain decisions of the Hon’ble Supreme Court as well as the
National Commission. However, no attempt is made to show how any of these
decisions would be applicable to the facts of the present case. It is also noticed that the
following decisions clearly belong to the period prior to the amendment of 15.3.2003 to
the relevant provision discussed above:“1) Vimal Chandra Grover Vs. Bank of India reported in (2000) 5 SCC 122.
2) Lucknow Development Authority Vs. N.K.Gupta, reported in (1994) 1 SCC
243.
3. Amtrex Ambience Ltd. Vs. Alpha Radios and another, 1996, CPJ, 324 NC
4. Jindal Drilling & Industries Ltd. Vs. R.A.Aggarwal, in OP No.290 of 1997
(citation not given) ”
10.
During the course of the arguments, learned counsel also could not throw any
additional light on the matter. Therefore, no benefit can accrue to the case of the
Complainant from these decisions. The revision is therefore held to be devoid of any
merit and is dismissed as such. The order of the Maharashtra State Consumer
Disputes Redressal Commission in Complaint Case No.CC/12/274 is confirmed. No
orders as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 155 OF 2013
M/s. Shital Fibres Ltd. A-17, Focal Point Extension, Jalandhar, Punjab
… Complainant
Versus
M/s Bharti Axa General Insurance Co. Ltd. Unit # SFS, 2nd floor, Eminent Mall 261,
Lajpant Kunj, Guru Nanak Mission Chowk Jalandhar
… Opposite Party
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Complainant : Mr. K.L. Nandwani, Advocate
PRONOUNCED ON 4TH July, 2013
ORDER
JUSTICE J.M. MALIK
1.
The
key
question
involved
Commission can travel outside the
in
Insurance
this
case
Policy
and
is
“Whether
grant relief
to
this
the
complainant, without adhering to the parameters laid down in the policy itself?”.
2.
The present complaint has been filed by M/s. Shital Fibres Ltd against M/s. Bharti
Axa General Insurance Co.Ltd., wherein a sum of Rs.4,19,04,368/- towarcds loss &
damage, Rs.25,00,000/- towards punitive losses, Rs.20,00,000/- towards compensation
for loss of business and delay in settling the claim, interest @ 2% or at the bank
rate prevalent as on 15.04.2012 as per Regulation No.9 of the Insurance Regulatory
and Development Authority (Protection of Policyholders’ Interest) Regulations,
2002, because the
amount
was
not
paid
within
30
days from the appointment of Surveyors and costs of the complaint, were claimed.
3.
The facts germane to the present case are these. The complainant got
constructed a building at Plot No.C-81, Focal Point, Jalandhar, Punjab, in December,
2007. The building
was
insured
with different insurance companies, from time
to time, but in the year 2011, the building was got insured from M/s. Bharati Axa
General Insurance Co. Ltd, opposite party, which was issued seven policy
schedules but did not issue
the
complete
policies
till
date. The
policies issued were Special Peril policies which also included the loss of the
building due to subsidence and landslides. Unfortunately, on 15.04.2012, the building
collapsed
like
a
pack
of
cards
when
machines
were
running
and
work was going on as the factory used to run for 24 hours.
4.
The loss was intimated to the opposite party, which appointed M/s.Puri
Crawford Insurance Surveyors and Loss Assessors, which visited the site for the first
time, on 17/18/12/2012. The surveyors called for documents in piece-meal, from time to
time,
w.e.f.
25.06.2012. All the
furnished whenever
the
documents
same
were
and
drawings
required. A
was appointed by the Surveyor but he did not have
complainant. No
any
joint meeting was held with the
of the survey report, the complainant
Associates. They supervised the
again
construction
contacted
were
immediately
Structural
interaction
Engineer,
with
the
surveyor. On receipt
M/s.Gossian
of the building and had
&
issued
completion certificate. The Structural Engineers vide their report reiterated that the
sudden collapse
of
the
entire
structure suggested
that it could not be a
design/material defect and had to do more with the movement of soil. The
opposite party did not pay heed and a legal notice was served on it to make the
payment. The complainant approached Guru Nanak
Dev
Engineering
Testing
vide
their
and
Consulting Cell,
Ludhiana,
which
15.03.2013, gave the opinion that structural design was
report,
College
dated
‘OK’ and there was
no defect in it. Another opinion from an Expert, namely M/s.ARO Tech Structural
Consultants,
Jalandhar
City,
Punjab, was obtained, which
opinion that the collapse was due to faulty construction
was
of
also
sewer
of
the
line
by
Punjab Sewerage Board, due to which soil underneath had become bad. The
complainant
also
met
Shri
Kunwar
Sunil
his expert report and he opined that if
the
Kumar,
Chartered
total vibration
Engineer
of the
for
machine is
taken together, it cannot cause the collapse of the building.
5.
The
Opposite party repudiated
the
claim
made
by
the
complainant vide its letter dated 04.02.2013, wherein it was mentioned :
“…….We reiterate that the claim lodged is not
admissible under the captioned policy due to non-operation of
any insured peril as observed and recommended by
surveyors. We thus repudiate our liability under the claim &
close the claim file as “No Claim”.
This report is accompanied by the report given by Er. Surjan Sindh Sidhu, BE (Civil) MIE
India, FIV, Structural Engineer, Formerly Executive Engineer, PB.PWD (B & R),
Associate Professor (Civil) RIET, Abohar. This is a detailed report which runs into five
pages. The conclusion drawn by the Expert is reproduced, as follows:-
“4. CONCLUSION
Keeping in view the above facts and figures, it is reported that
the main cause seems to be the failure at and near joints of
R.C.C. Columns and R.C.C. beams due to shear stresses,
as the work was done without following structural design
and may have led to the collapse. Therefore, structural
design
defect
is
the
main
cause
of
collapse of building. Addition to it, there is no reliable
information regarding
construction
procedure adopted,
required quality control system applied, and qualified Civil
Engineers
deputed
for
construction
etc.
of building
So,
construction
Codal
and
supervision,
non-compliance
Rules
and
Regulations, Byelaws, Technical Specifications, may have
contributed to produce a weak structure, which could not
resist the applied loads, continuous vibrations due to
operating
machinery
and
other
forces causing
ultimate failure of the building”.
6.
We have heard the counsel for the complainant at the time of admission hearing of
this case. The
policy
in
question was
produced
before
us which
mentions about the Standard Fire and Special Perils and material
damage. According to counsel for the complainant, this case falls within the ambit
of Clause VIII of the policy in question, which reads, as under:“VIII. Subsidence and Landslide, including Rock slide:
Loss, destruction or damage, directly caused by subsidence of
part of the site on which the property stands or Landslide/Rock
slideEXCLUDING :
a) the normal cracking, settlement or bedding down of new
structures
b) the settlement or movement of made up ground
c) coastal or river erosion
d) defective design or workmanship or use of defective materials
e) demolition, construction, structural alterations or repair of any
property or ground works or excavations”.
[EMPHASIS SUPPLIED]
7.
He
further
submits
that
as
his
case
falls
within
this
clause, the case should not be dismissed in limine. He further contended that an
enquiry should be made in the questions raised by him. In support of his
case, he has cited the following authorities :
(1) Consumer Education & Research Society & Ors., Vs. Ahmedabad
Municipal Corporation & Ors., 2002 (10) SCC 542;
(2) United India Insurance Co.Ltd. Vs. Kiran Combers & Spinners,
(2007) 1 SCC 368;
(3) New India Assurance Co. Ltd. Vs. Pradeep Kumar, (2009) 7 SCC
787;
(4) Punj Lloyd Limited Vs. Corporate Risks India Private Ltd., (2009) 2
SCC 301;
(5) V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes, (2011) 1 SCC
53; and
(6) New India Assurance Co.Ltd., Vs. Avadh Wood Products (Cold
Storage), II (2013) CPJ 10 (NC).
8.
We are of the considered view that the case in hand does not fall
within the above said clause. This is not a case of landslide/rock slide. It must be
borne in mind that the policy does not include the normal cracking, settlement or
bedding down of new structures or the settlement or movement of made-up
ground. This case clearly falls within the exceptions (a), (b), (d) and (e), appended with
Clause 8, already cited above. There is hardly any need to make an enquiry. The
facts are crystal clear. The report given by the Expert carries enough value. It is well
settled that it will get preponderance over the report
Experts appointed by the private party. There
made by the
is
no
allegation
against the Surveyor. He appears to be guileless and there is no reason to discard
his statement/report. The Hon’ble Supreme Court of India has already held that a
Surveyor’s report has significant evidentiary value unless it is proved otherwise, which
the complainant has failed to do so in the instant case. This view was taken
in United India Insurance Co. Ltd. Vs. Roshanlal Oil Mills & Ors., (2000) 10 SCC
19 and also by this Commission in D.N.Badoni Vs. Oriental Insurance Co.Ltd, 1
(2012) CPJ 272 (NC).
9.
Otherwise, too, the reports submitted by the
Experts, engaged
by the Complainant have exiguous value. Their reports are vague, evasive and lead
us nowhere. They harp on the same point that structure was quite alright. They have
given different reasons. It is apparent that the complainant is trying to make bricks
without straw.
10.
The complainant has no bone to pluck with the opposite party. The case is
meritless and, therefore, the same is dismissed at the admission stage.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR)
MEMBER
dd/16
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 166 OF 2010
M/s K.K.Jewels Impex Z-25, Hauz Khas New Delhi Through its Partner Kailash Chand
Jain
........ Complainant
Vs.
The Oriental Insurance Company Ltd. Through the Senior Divisional Manager Divisional
Office No.9 1/28, 4th Floor, Asaf Ali Road Near Hamdard Circle, New Delhi-110002
......... Opposite Party
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Complainant
:
For the Opposite Party
:
Mr.S.C.Dhanda and Ms.Sagari Dhanda,
Advocates
Mr.Kishore Rawat, Advocate
PRONOUNCED ON : 05th JULY, 2013
ORDER
PER HON’BLE JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
The complainant – firm is engaged in the business of import and export of
jewellery. The complainant carried jewellery worth US $ 632691.08 to USA for
participating in exhibition and sale of jewellery organized at New York. Before leaving
India with the jewellery, the complainant got the jewellery insured with the OP for
Rs.2,96,09,942.67/- vide cover note number 945271. The insurance cover was for ‘all
risks’. The complainant had carried said jewellery in packed steel containers to USA
and the jewellery was declared to the custom authorities at New Delhi. The
complainant participated in the exhibition at New York on 16 th & 17th June 2001. He
sold some items of jewellery on both days. On the conclusion of exhibition, the
jewellery was packed in suitcases and put in two cars. While on the way, the
complainant decided to pick up some food at Taco Bell Restaurant. The car was
stopped and Mr. Komal Jain who was driving one of the car came out of the car. In the
meanwhile one person aged 25/30 year opened the driver side of the car which was
driven by Mr.Komal. Mr.Komal yelled at him. However, said man managed to pull the
internal liver to unlock the boot of the car and escaped with two suitcases containing
jewellery in another car waiting for him. The matter was immediately reported to the
police. It was even witnessed by a woman Ms. Keecha Patrick who had informed the
police on phone no.911. The Nassau Country Police department registered a robbery
case. The theft was also brought to the notice of Indian Consulate in USA. The
jewellery could not be recovered. The complainant lodged a claim of US $ 315,445/with the OP for the loss of jewellery. The opposite party was supplied with all the
information. It made inquiries directly from the police and Indian Consulate and even
engaged M/s Webster & Co. USA who appointed M/s MRC Investigators. The
investigator after making inquiry reported that incident of robbery was genuine. The OP
not being satisfied engaged another surveyor M/s Omniscent Detectives (P) Ltd, who
also opined that robbery could not be disputed. Thereafter M/s Alka Gupta &
Associates were appointed to assess the loss who assessed the loss at
Rs.1,47,62,838/-.
2.
The OP failed to settle the claim. This prompted the complainant to serve the OP
with a legal notice dated 16.03.2008. The OP vide letter dated 14.08.2009 offered to
settle the claim at 50% of the claim amount i.e. Rs.73,81,419/- provided the discharge
voucher was signed by the complainant. The complainant accepted the aforesaid
amount and signed the discharge voucher. According to the complainant, the aforesaid
discharge voucher has been signed by him under duress and because of the
circumstances created by the OP in not settling the claim. It is alleged that the
complainant is not a big jeweller and loss of capital of Rs.1,47,62,838/- has adversely
affected the business of the complainant and as a result because of pressure of non
settlement of the claim by the OP, he was compelled to accept the offer and signed the
settlement voucher. Claim for the aforesaid settlement is not binding. The complainant
has filed this complaint claiming Rs.2,83,79,458/- including the balance due from
the surveryor assessment report plus interest.
3.
The OP has contested the claim by filing the reply. The complaint is also resisted
on the ground that after having settled the matter by receiving a sum of Rs.73,81,419/-,
the complainant is estopped from reagitating the matter by filing a fresh complaint.
4.
Undisputedly, the complainant has received a sum of Rs.73,81,419/- in full and
final settlement of the claim by executing a discharge voucher which clearly records that
the aforesaid amount has been received by the complainant in full and final settlement
of all his claim. Now the question is after executing such a discharge voucher, whether
the insured complainant could still pursue the claim for any further amount?
5.
This question came up for the consideration of the Supreme Court in the case
of United India InsuranceAjmer Singh Cotton & General Mills and Ors. II (1999)
CPJ 10 (SC) = (1996) 6 SCC 400, wherein the Supreme Court observed as under:
“The mere execution of 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”.
6.
The above position was reiterated by the Supreme Court in the later decisions
in National Insurance Company Limited Vs. Sehtia Shoes (2008) 5 SCC 400
7.
On reading of the above judgments, the legal position which emerges is that the
mere execution of the discharge voucher would not always deprive the consumer for
preferring the claim with respect to deficiency in service despite of execution of
discharge voucher. The consumer can successfully press his claim provided the
consumer is able to establish that the discharge voucher or receipt was obtained from
him by fraud, misrepresentation, undue influence or coercive bargaining.
8.
Shri S.C.Dhanda, Advocate, learned counsel for the complainant has submitted
that ratio of the above noted judgments of the Supreme Court are squarely applicable to
the facts of the case. He has contended that admittedly the claim for loss of jewellery
due to robbery was submitted in June 2001. The matter was inquired into by the OP
through M/s MRC Investigators as also M/s Omniscent Detectives (P) Ltd who
confirmed the robbery incident. Even the surveyor assessed the loss suffered due to
robbery at Rs.1,47,62,838/- and despite that OP delayed the settlement of claim which
resulted in severe financial constraint on the complainant and because of this coercive
approach of the OP, the complainant was compelled to accept the offer of 50% of the
loss assessed by the surveyor. It is thus contended that complainant was coerced to
sign discharge voucher and as such aforesaid discharge voucher cannot be taken as a
circumstance to deprive the complainant from preferring the claim. Learned counsel
further contended that the intention of the opposite party to pressurise and coerce the
complainant to accept the offer is evident from the office noting dated 21.07.2009
wherein the Chief Manager of the Opposite Party while recommending settlement of the
claim on compromise basis at 50% has noted that before releasing the payment a letter
of compromise towards full and final payment be obtained by the Regional Office and
placed on the file.
9.
Learned counsel for the opposite party on the contrary has contended that this is
a case of voluntarily full and final settlement of the claim. In support of this contention,
learned counsel has drawn our attention to copy of letter dated 14.08.2009 addressed
by the OP to the complainant wherein it is clearly mentioned that the cheque of
Rs.73,81,419/- is being tendered in full and final settlement of the claim with a clear
warning that if the offer is not acceptable, the complainant should return the cheque
forthwith. Learned counsel contended that the complainant after having knowledge of
the offer given in the letter has accepted the cheque which clearly indicate that the
cheque has been accepted voluntarily without any demur or protest. Therefore, the
complainant is estopped from filing the complaint.
10.
We have considered the rival submissions and perused the material on record.
The question for determination is whether or not the complainant has received the
offered amount of Rs.73,81, 419/- and signed the full and final discharge voucher
voluntarily under coercion, misrepresentation or fraud. To find answer to the question
it would be useful to have a look on the content of the letter dated 14.08.2009 vide
which the cheque for settlement was sent to the complainant:
“Sir / Madam,
We are enclosing herewith our cheque no.465772 dated
14.08.2009 for Rs.73,81,419/- (Rupees Seventy Three Lakh Eighty One
Thousand Four Hundred Nineteen Only) in full and final settlement of
your above claim.
Please note in case the above offer is not acceptable to you, the
cheque should be returned forthwith to this office, failing which it will be
deemed that you have accepted the offer in full and final satisfaction of
your claim. The retention of this cheque and / or encashment thereof
will automatically amount to acceptance in full and final satisfaction of
your above claim without reason and you will be estopped from claiming
any further relief on the subject”.
11.
On reading of this letter, it is clear that cheque was offered to the
complainant in full and final settlement of his insurance claim with clear instructions that
if the offer was not acceptable, the cheque should be returned failing which it shall be
deemed that the cheque has been accepted in full and final settlement of
claim. Despite that the complainant hasencashed the cheque without any demur or
protest. If the complainant was coerced to sign the discharge voucher nothing
prevented him to record his protest on the discharge voucher, which is not the
case. Therefore, we are unable to accept the contention that discharge voucher has
been obtained by adopting coercive means.
12.
Undisputedly the cheque for full and final settlement was received by the
complainant on 14.08.2009. The protest notice, however, was signed after six months
on 30.03.2010. From this it can be safely inferred that the complainant accepted the
cheque amount in full and final settlement of his claim voluntarily and signed the
discharge voucher. If at all there was a pressure on the complainant to sign the
discharge voucher, the complainant under ordinary course of circumstances instead of
waiting for six months would have protested against the so called coercive measures
adopted by the opposite party. From the conduct of the complainant also, it appears
that the complaint after entering into the settlement has been filed on after-thought with
a view to extract more money from the opposite party. As regards the office noting
dated 21.07.2009, much importance cannot be attached to the same because the
noting only indicate the anxiety of the Chief Manager of the Opposite Party to protect
the rights of the opposite party and this noting by itself cannot be taken as a coercive
protest.
13.
In view of the discussion above, we find that the complainant received a sum of
Rs.73,81,419/- voluntarily in full and final settlement of his claim and also executed a
discharge voucher in this regard. Thus, the complainant having voluntarily entered into
the full and final settlement is now estopped from re-agitating the claim by filing a
complaint. As such, the complaint is liable to be dismissed as not maintainable.
14.
The complaint is, hereby, dismissed as not maintainable.
…..………………………Sd/-….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
…..…………………Sd/-………
(SURESH CHANDRA)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2945 OF 2012
(Against the order dated 17.05.2012 in First Appeal No. 1518/2009
of the State Commission Haryana, Panchkula)
Rahul Electricals, Shop No.1379, Railway Road Rohtak-124001, Haryana Through its
Proprietor Sh.Kulbhushan
........ Petitioner
Vs.
1. State Bank of India Hissar Road Branch, Hissar Road, Rohtak Through its Manager
2. The Oriental Insurance Company Ltd. Through its Divisional Manager, Rohtak124001, Haryana
......... Respondents
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: Mr.Shekhar Raj Sharma, Advocate
For the Respondent No.1 :
Mr.U.C.Mittal, Advocate
For the Respondent No.2 :
Mr.Manish Pratap, Advocate
Alongwith Mr.Ajay Singh, Advocate
PRONOUNCED ON : 05th JULY, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order dated 17.05.2012 passed by State
Consumer Disputes Redressal Commission Haryana ( in short, ‘the State Commission’)
dismissing the appeal preferred by the petitioner / complainant against the order of the
District Consumer Forum Rohtak dismissing the complaint.
2.
Briefly put relevant facts for the disposal of this revision petition are that M/s
Rahul Electricals filed a complaint under section 12 of the Consumer Protection Act
against the respondents State Bank of India as also the Oriental Insurance Company
Limited claiming that the complainant was engaged in the business of electrical
goods. Complainant had obtained a cash credit limit of Rs.3 lakhs from the respondent
/ bank against the hypothecation of the stock. It is the case of the complainant that as
per the agreement, the stock of the complainant was required to be insured and the
opposite party / bank had agreed to get the stock insured on behalf of the complainant
and
debit
the
insurance
premium
to
the
cash
credit
account
of
the
complainant. Pursuant to the agreement, the opposite party / bank had been getting the
stock insured with the insurance company and the last insurance was for the period
w.e.f. 25th May 2006 to 24th May, 2007. It is alleged in the complaint that after 24 th May,
2007, the opposite party / bank failed to renew the insurance. Unfortunately on
30.05.2007 the shop of the complainant caught fire due to electrical spark and the entire
stock was destroyed. The complaint in this regard was lodged at PS Rohtak City vide
DD No.46 dated 31.05.2007. The complainant approached the opposite party / bank to
disclose the name of the insurance company with whom he had got the stock
insured. The opposite party bank after evading the issue for sometime, ultimately
replied that as per the agreement, the insurance was to be got done by the complainant
himself. Claimant alleging the failure of the bank to renew the insurance of the stock as
deficiency in service filed complaint before the District Forum claiming compensation of
Rs.6,27, 870/- on account of loss suffered due to fire accident besides Rs.2,00,000/- on
account of mental pain and agony. The complainant also sought direction to the
opposite party bank to stop charging interest on the over draft w.e.f. 25.05.2007.
3.
The opposite party bank contested the complaint and took the plea that stock
hypothecated with the bank were to be insured comprehensively for the market value by
the complainant in joint names of the bank and the complainant. It was alleged that the
opposite party bank never got the goods insured and it was for the complainant to get
the goods insured at his own responsibility. The bank also denied that stock worth
Rs.6,27,870/- was destroyed. Thus, it was pleaded that there was no deficiency on the
part of the bank.
4.
OP No.2 took the plea that it was neither necessary nor proper party because on
the date of fire accident, the stock of the complainant was not insured with the
insurance company.
5.
Sole controversy which needs determination in this revision petition is whether or
not as per the terms of agreement between the parties, respondent / bank was under
obligation to get the stock available at the shop of the complainant / petitioner
insured?. If answer to this question is in the affirmative, then of-course, the respondent
/ bank has been deficient in providing service to the petitioner / complainant.
6.
Shri Shekhar Raj Sharma, Advocate, learned counsel for the complainant/
petitioner has contended that impugned orders of the fora below are not sustainable as
the orders are based upon incorrect appreciation of the evidence. It is argued that both
the foras below have failed to appreciate that as per the agreement between the parties,
opposite party no.1 / bank was under obligation to get the stock lying in the shop of the
petitioner insured on behalf of the petitioner / complainant and debit the insurance
premium amount to his cash credit account. It is contended that this obligation is
admitted by the opposite party / bank in para 2 (c ) and ( e) of their written statement
filed in response to the complaint in the District Forum. Learned counsel for the
petitioner has also drawn our attention to the copies of the statement of accounts
pertaining to cash credit account of the complainant for the periods 01.04.2006 to
31.12.2006 and 21.07.2006 to 31.05.2007 wherein there are debit entries pertaining to
the insurance premium for the insurance of stock lying in the premises of the
petitioner. It is contended that impugned orders have been passed ignoring the
aforesaid evidence. Therefore, those are liable to be set aside.
7.
On careful perusal of the record, we find both that both the District Forum as well
as State Commission has based their finding on interpretation of Clause V of the
hypothecation agreement which reads thus:
“That the said goods shall be kept by the Borrower (s) in good condition
at his / their risk and expense. Further, when required by the Bank all
goods the subject of this agreement shall be insured against fire by the
Borrower(s) at his / their expense in the joint names of the Borrower(s)
and the Bank in some Insurance Office approved by the Bank to the
extent of atleast 10 percent in excess of the amount advanced by the
Bank against them and that the Insurance Policy (ies) shall be delivered
to and held by the Bank, if the Borrower(s) fail(s) to effect such
Insurance on being asked in writing to do so, the bank may insure the
said goods against fire in such joint names and debit the premium and
other charges to such account as aforesaid and in the event of the Bank
being at any time apprehensive that the safety of the goods is likely to
be endangered owing to not or strike, it shall on failure by the
Borrower(s) to do so after request by the Bank at its discretion itself
insure the same in such joint names against any damage arising
therefrom the cost of such extra insurance being payable by the
borrower(s) and being debited to such account as aforesaid, the
Borrower(s) expressly agree(s) that the Bank shall be entitled to adjust,
settle, compromise or refer to arbitration any dispute between the
Company and the insured arising under or in connection with such
policy or policies and such adjustment, settlement compromise and any
award made on such arbitration shall be valid and binding on the
Borrower(s) and also to receive all moneys payable under any such
policy or under any claim made there under and to give a valid receipt
thereof and that the amount so received shall be credited in the account
having reference to the goods in respect of which such amount is
received and that the Borrower(s) will not raise any question that a large
sum might or ought to have been received or be entitled to dispute his /
their liability for the balance remaining due on such account after such
credit”.
8.
On plain reading of the above said clause, it is evident that as per the agreement
between the parties, the complainant borrower when required by the bank was under
obligation to get the stock in his shop insured at his own expense in the joint names of
borrower and the bank and if the complainant failed to get such insurance on being
asked to do so in writing, the bank in its own discretion was entitled to get the goods
insured against fire and debit premium and other charges to the account of the
complainant. There is nothing in this clause which may suggest that the bank was
under any obligation to get the hypothecated goods insured on behalf of the
complainant. Further, the plea of the complainant that there is an admission of
obligations to get the stock insured on the part of the respondent / bank, in para 2
(c) & ( e) of the written statement is against the record. On perusal of the copy of the
written statement of the opposite party / bank, we find that in para 2 ( c ) & (e ),
the bank has categorically denied that it had any obligation to get hypothecated goods
insured on behalf of the complainant. On the contrary in the aforesaid paragraph, the
bank has categorically stated that stock hypothecated with the bank as per the
agreement was to be insured by the complainant at his own expense in the joint names
of the bank and the borrower. Thus, we do not find any merit in the plea of the
complainant.
9.
In view of the discussion above, we are of the opinion that both the fora below
have rightly dismissed the complaint in view of the written agreement between the
parties. There is no material irregularity or infirmity in the impugned order which may
call for any interference by this Commission in exercise of its revisional
jurisdiction. Accordingly, the revision petition is dismissed.
………………………Sd/-……….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
..…………………Sd/-……………
(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 99 OF 2013
WITH
INTERIM APPLICATION NO. 2693 OF 2013
1. M/s Ashiana Inn Limited A body corporate, having its Registered Office at
Village Dhakoli, Tehsil Dearabassi, District, Mohali through its Managing Director
Shri Avtar Singh
2. Shri Avtar Singh s/o Shri Sarwan Singh r/o 1843, Sector 21, Panchkula, Haryana
........ Complainants
Vs.
Punjab & Sind Bank, IFB, Bank Square, Sector 17-B, Chandigarh Through its Branch
Manager
......... Opposite Party
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Complainants
:
Mr. Madhurendra Kumar, Advocate
Alongwith Mr.I.S.Ratta, Advocate
PRONOUNCED ON : 05th JULY, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
M/s Ashiana Inn Ltd. through its Managing Director Shri Avtar Singh has
preferred this complaint under section 21 r/w section 12 of the Consumer Protection
Act, 1986 ( in short, ‘the Act’) against M/s Punjab & Sind Bank, IFB Bank Square,
Sector 17-B, Chandigarh claiming deficiency on the part of the opposite party in relation
to the release and sanction of the bank loan for the upcoming hotel project of the
complainant with the following prayer:
“i.
To direct the bank to immediately release Rs. 25.00 crores.
ii.
to direct the bank to convert the overdue amount into FITL.
iii.
the opposite party to pay damages on account of mental agony
etc. Rs.90.00 crores
iv.
the opposite party to pay costs of the complaint of Rs.2.00 lac.
v.
any other, additional or alternative relief as deemed fit and proper
in the fact and circumstances of the case”.
2.
The break-up of the damages of the Rs.90.00 crores claimed by the
complainant given in para 50 of the complaint reads thus:
(Amount in Rs.)
Extra Interest liability on Bank
borrowings for a period of last three
years
Extra interest liability on borrowings
from other sources for a period of three
years
Loss of income from the Hotel for the
period of last three years i.e.
Rs.10.00crores each year
Loss of reputation
Mental torture and physical discomfort
Total Rs.
3.
15.00 crores
10.00 crores
30.00 crores
30.00 crores
15.00 crores
90.00 crores
Shri Madhurendra Kumar, learned counsel for the complainant in his written and
oral submissions has contended that the respondent bank is engaged in the business of
providing service to the general public for consideration. As such, it being the service
provider, the bank is amenable to the jurisdiction of the consumer fora. In support of
this contention, learned counsel has drawn our attention to the definition of ‘service’ as
provided in section 2 (1) (O) of the Act. Learned counsel for the complainant has taken
us through the definition of “consumer” as defined under section 2 (1) (d) of the Act and
contended that since the complainant has hired the banking services of the opposite
party, he squarely falls within the definition of “consumer”. He contended that
amendment of definition of “consumer” which excludes the person who avails service
for commercial purpose is not applicable in this case for the reason that although the
loan transaction between the complainant and opposite party is a commercial
transaction but the services availed are not for commercial purpose. Learned counsel
contended that the building of the proposed hotel project is not yet complete or
functional, therefore, at this stage, it cannot be said that the building in question would
be used for commercial purpose because the user of the building is dependent upon
various permissions and licences from the authorities. In support of his contention,
learned counsel for the complainant has relied upon several judgments of the Apex
Court and the National Commission particularly in the cases of Karnataka Power
Transmission Vs. Ashok Iron Works Pvt. Ltd. AIR 2009 SC 1905 being Civil Appeal
No. 1879 of 2003, Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi
(2000) 1 SCC 98, Chandigarh Housing Board Vs. Avtar Singh & Ors. AIR 2011 SC
130, Lucknow Development
Authority
Vs.M.K.Gupta (1994)
1
SCC
243, Harsolia Motors Vs. National Insurance Co. Ltd. 1 (2005) CPJ 27 (NC) and also
the decision of this Commission dated 18.08.2011 in the matter of HUDA Vs.
M/s Suneja & Sons in RP No. 2951 of 2009.
4.
We have considered the submissions made by learned counsel for the
complainants and perused the record. The answer to the issue of maintainability of the
instant complaint would depend upon the fact whether or not the complainants are
covered within the definition of “complainants” given in section 2 (1) (b) of the Act which
is reproduced thus:
“complainant” means(i)
a consumer; or
(ii) any voluntary consumer association registered under the
Companies Act, 1956 ( 1 of 1956) or under any other law for the time
being in force; or
(iii)
the Central Government or any State Government ; or
(iv) one or more consumers, where there are numerous consumers
having the same interest;
(v) in case of death of a consumer, his legal heir or representative;
who or which makes a complaint”.
5.
The complainants claim that they are covered under clause (i) of Section 2 (b) of
the Act. Thus it is to be seen whether or not the complainants fall within the definition of
“consumer”. The term “consumer” is defined under section 2 (1) (d) of the Act. Section
2 (1) (d) (i) deals with the definition of “consumer” in relation to the person who buys any
good or consideration. Section 2 (1) (d) (ii) deals with the definition of “consumer” in
relation to a person who hires or avails of services for consideration since this is a case
relating to alleged deficiency in service. The definition of “consumer” as provided in
section 2 (1) (d) (ii) is relevant which is reproduced thus:
“consumer” means any person who (ii)
hires or avails of any services for a consideration which has been
paid or promised or partly paid and partly promised, or under any
system of deferred payment and includes any beneficiary of such
services other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are
availed of with the approval of the first-mentioned person but does
not include a person who avails of such services for any commercial
purpose;
Explanation.—For the purposes of sub-clause (i), ‘commercial purpose’ does
not include use by a consumer of goods bought and used by him exclusively
for the purpose of earning his livelihood, by means of self-employment.
6.
Before dwelling upon the above noted definition of “consumer”, we may note
that the definition of “consumer” was amended by Act 62 of 2002, Section 2 w.e.f.
15.03.2003. By this amendment, the legislature in its own wisdom restricted the scope
of the definition of “consumer” by adding the words “but does not include a person who
avails of such services for any commercial purpose”. This implies that a person who
avails of services for consideration for any commercial purpose shall not be covered
under the definition of “consumer” and as such, such persons would not be entitled to
maintain a complaint under the Act in view of Section 2 (1) (b) of the Act. We are
conscious of the fact that explanation to section 2 (1) (d) of the Act provides that for the
purpose of section 2 (1) (d), “commercial purpose” does not include the services availed
by the person exclusively for the purpose of earning his livelihood by means of selfemployment. Above-noted explanation restricting the scope of commercial purpose is of
no avail to the complainant because complainant no.1 is a body corporate and not a
natural person who needs to indulge in some activity to earn his livelihood.
7.
In the light of the above analysis of the relevant provisions of the Act, we now
proceed to analyse the complaint to find out whether or not the complainants fall within
the definition of “consumer” reproduced above. On perusal of the complaint, it is evident
that loan facility was availed of by the complainants to finance their commercial project
to construct and run a three star hotel ‘Marc Royale’. Therefore, it is obvious that the so
called services which are claimed to be deficient were availed by the complainant for
commercial purpose i.e. running a hotel for earning profits.
8.
Learned counsel for the complainant has made a valiant effort to make a
distinction between the commercial transaction and commercial purpose referred to in
the definition of consumer. He has contended that although the nature of loan
transaction between the complainants and the opposite party is commercial but the loan
sanctioned by the opposite party cannot be termed as loan for any commercial
purpose. We do not find any merit in this contention in view of the allegations made in
the complaint. Otherwise also, perusal of para 50 of the complaint would show that the
complainants have sought compensation of Rs.30.00 crores for loss of income for three
years because of deficiency in service by the opposite party and also Rs.
30.00 crores for loss of reputation. From the fact that the claimants are seeking
compensation for loss of income for a period of three years because of non
completion of project as a consequence of deficiency in service of the opposite party, it
is clear that the loan in question was taken for commercial purpose. That being the
case, the only conclusion which can be derived on reading of the complaint is that the
complainants had availed the services of the opposite party bank for a commercial
purpose i.e. construction of hotel for earning profit. Thus, in our view, the complainants
are not covered under the definition of “consumer” as defined under section 2 (1) (d) (ii)
of the Act. As such, the complaint is not maintainable before the consumer fora.
9.
Judgments of the Supreme Court in the matters of Karnataka Power
Transmission Vs. Ashok Iron Works Pvt. Ltd. (supra), Regional Provident Fund
Commissioner Vs. Shiv Kumar Joshi (supra), Lucknow Development Authority
Vs. M.K.Gupta (supra) are of no avail to the complainant because aforesaid judgments
relate to the cases pertaining to the period prior to the amendment of definition of
“consumer” which included the persons availing or hiring services for commercial
purpose also. Even the other judgments relied upon by the complainants are of no avail
to them for the reason that those judgments have been given in different context based
upon the peculiar facts of said case. In the instant case, as discussed above, it is
evident from the allegations in the complaint that the complainants have availed of the
alleged services for purely commercial purpose. As such, complainants are not covered
under the amended definition of “consumer”.
10.
The result of above discussion is that the complainants herein are not covered
under the definition of “consumer” as defined under section 2 (1) (d) (ii) of the Act. As
such they are not entitled to maintain a consumer complaint in view of section 2 (1) (b)
of the Act. Complaint is, therefore, rejected as not maintainable.
Sd/…..………………………….
(AJIT BHARIHOKE, J)
( PRESIDING MEMBER)
Sd/……………………………
(SURESH CHANDRA)
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4747 OF 2012
(Against order dated 03.10.2012 in First Appeal No. 827 of 2011 of the
Andhra Pradesh State Consumer Disputes Redressal Commission,Hyderabad)
1. The Managing Director Cholamandalam MS. General Insurance Co. Ltd.
Venkata Plaza-2, D.No. 6-3-698/3 Ist Floor, Panjagutta Cross Roads,
Hyderabad
2. The Managing Director Cholamandalam MS. General Insurance Co. Ltd.
Paramount Health Management, Elite House, Ist Floor, 55-A, Vasanji Road,
Opp. Andheri Kurla Road Chakala, Andheri, Mumbai- 400093
…Petitioners
Versus
Ms. Borredy Pragahi W/o T. Bharat Reddy R/o D.No. 1/334-3, Opp. RTC Bus Stand,
Maruthi Nagar Presently Resident At Flat No.-408, Victory
Apartments, Yerramukkapalli Kadapa City, YSR District 526001
…Respondents
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner(s)
:
For the Respondent(s)
Mr.S.M. Tripathi, Advocate
:
Ms. Radha, Advocate
Pronounced on 5th July, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The Revision Petition is filed against the Impugned Order of Andhra Pradesh
State Commission Disputes Redressal Commission, Hyderabad (in short, State
Commission, AP) in First Appeal Number 827 of 2011 against the Consumer
Complaint No. 44/2011 of District Consumer Disputes Redressal Commission,
Kadapa (in short District Consumer Forum).
2.
The Facts In Brief are:
The Complainant/Respondent herein was Ms. Borredy Pragahi a medical student
of Nanjing Medical University,China took Overseas Student Travel Insurance
Policy from the respondent for a sum of US $.1,00,000/- covering from
25.02.2007 to 24.02.2009. She got admitted in Jiang Hospital,Nanjing for
treatment of iliac fossa pain, fever and nausea where she was diagnosed as
Right Oopheritis, Menstrual Syndrome and Acute Appendicitis and treated
accordingly.
3.
She returned back to India on 16.01.2009 to visit her parents. Thereafter, she
suffered similar attacks of pain as suffered in China for which she was operated
on emergency basis at Pragathi Orthopaedic & General Hospital, Karapa on
10.02.2009. The said treatment incurred Rs.64,282/- as expenditure. The claim
made with the Respondent, which was repudiated on the ground that said
operation was not conducted in China. Therefore, she was not entitled for the
claim amount. Against this repudiation the Complainant filed a Complaint before
District Forum on 25/2/2011 claiming Rs.64,282/- together with interest 24 per
cent per annum, Rs.50,000/- towards mental agony and cost.
4.
The respondent resisted the case. While admitting the issuance of policy, it was
alleged that the Complainant having taken treatment at Kadapa was not entitled
to the amount covered under the policy. In fact, she was paid as amount of
Rs.25,805/- towards treatment she underwent in China, which was paid towards
full and final settlement of the claim. The surgeon, who conducted surgery, is
none other than her own father. Therefore, it prayed for dismissal of the
Complaint with costs.
5.
The District Forum dismissed the Complaint. The Complainant preffered the
Appeal in the State Commission. The State Commission set aside the order of
District Forum and allowed the appeal.
6.
Being aggrieved by impugned order of State Commission petitioner herein filed
this revision petition on 14/12/2012.
7.
We have heard the learned counsel for both the sides and perused the
evidence on record before District forum and State Commission.
8.
It is an undisputed fact that the Opposite party – the Insurance Company had
issued an Overseas Student Travel Insurance Policy, Ex.B.1 for a sum of US $
1,00,000/- covering the period from 25.02.2007 to 24.02.2009. It is not in dispute
that during the above said period, she had taken treatment at China and the
amount which she incurred towards treatment was paid. Her case was that after
she
returned
to
India,
an emergency Appendicectomy operation
was conducted on 10.02.2009,. This is evident on perusal of discharge summary
that the diagnosis was “Acute Recurrent Appendicitis” and she incurred a sum of
Rs.64,282/- towards medical expenses. When she requested for settlement of
claim, the Insurance Company repudiated it by issuing letter, Ex.B.2 alleging that
she would not be entitled to the said amount if the operation was performed in
India.
9.
On perusal of the policy condition under section B which is as follows:
“Section B-Cover 1. Medical expenses1) Under Medical Evaculation/Transportation: 1) the transportation of the
insured from that overseas country to India or the place of residence where
necessary medical attention can be provided; the coverage for medical
treatment will be up to the limit of indemnity for medical expenses for
maximum period of 30 days from the date of return.” (emphasis supplied)
10.
The Pragathi Hospital records like In-Patient Case Sheet, Discharge
Summery where the Complainant underwent emergency operation on
10.02.2009 and it’s evident that operation was within 30 days of her return from
China that is on 16.01.2009. Therefore, the Insurance Company is bound to
reimbursement the amount paid by Complainant towards the hospitalization
expenses. The repudiation was unfair and is unjustifiable. Therefore, we agree
with the findings of State Commission in allowing the appeal filed by the
Complainant. Therefore, we upheld the order of State Commission and pass
the orderThe Revision Petition is dismissed with a punitive cost of Rs.25,000/- which is to
be paid to Complainant within 45 days otherwise it will carry 9% interest per
annum, till its realization.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 328 OF 2000
Indian Sugar Exim Corporation Limited Having its registered office at: Block-C, IInd
Floor, Ansal Plaza, August Kranti Marg, New Delhi- 110049 Through Mr. V.K. Jain,its
Manager (Commercial)
…….Complainant
Versus
1. M/s. United India Insurance Co. Ltd. Having its registered & head office at: 24,
Whites Road Chennai- 600014 Through its Divisional Manager Divisional Office
No.XXIII 607-608, Devika Tower 6, Nehru Place New Delhi- 110019
2. M/s. J.B. Boda Surveyors Pvt. Ltd. Having its registered office at: Maker Bhavan
No.11, Sir Vithal Das Thackersey Marg Mumbai- 400020 Through its Managing Director
........Opposite parties
BEFORE
HON’BLE MR. JUSTICE J.M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: Mr. Buddy Ranganathan, Advocate
Mr. Lokesh Bhola, Advocate,
Ms. Pankhuri Jain, Advocate
Ms. Mansha Anand, Advocate
For the Opposite parties
: Mr. A.K. De, Advocate
Mr. Rajesh Dwivedi, Advocate
Ms. Deepa Agarwal, Advocate
PRONOUNCED ON: 5/7/13.
ORDER
PER MR.VINAY KUMAR, MEMBER
M/s. Indian Sugar & General Industry Export Import Corporation has filed this
complaint in the year 2000. In the course of the proceedings MA/1428/2009 was filed
informing that the Complainant had changed its name to M/s Indian Sugar Exim
Corporation Ltd. The application was allowed on 15.12.2009 and necessary
amendment in the memo of parties permitted. In the proceeding of 19.11.2012, it was
observed that negotiations for compromise between the parties were in progress. The
matter was therefore adjourned to 2.1.2013 directing that in the event of no compromise
being reached, the parties would file their written arguments. The matter was finally
heard on day to day basis and reserved for order on 16.1.2013.
BACKGROUND
2.
The consumer dispute arises out of import of 13,800 MT of white sugar by the
Complainant from Switzerland in 1994. The entire consignment was shipped to India
and was received at Mangalore Port. The Complainant had obtained a marine
insurance policy to cover the shipment. It was effective from 13.4.1994, initially for a
period of 60 days. Subsequently, the terms of the policy got extended to 1.11.1994,
with three extensions in between.
CASE OF THE COMPLAINANT
3.
The Cargo vessel MV Scotian Express left Eemshaven Port in Netherland on
28.4.1994 and arrived at Mangalore Port on 26.5.1994. Discharge of the entire Cargo
of 13,785 (mts) of Sugar was completed by 3.7.1994. As per para 7 of the complaint
petition, “substantial quantity of sugar bags were found progressively to be partly
wet and stained in all hatches of the vessel apart from bursting of many bags. It
would be also evident from perusal of date-wise summary of discharge as recorded in
Annexures-A & B of Annexure-8 herein that; heavy rain was experienced right from first
day of discharge upto the date of final discharge, namely, 3rd July 1994. A copy of
Certificate issued by Indian Meteorological Department Station: Panambur dated
6th December 1994 certifying the recorded rain fall during the months of May, June, July
& August 1994 is annexed herewith and marked as Annexure-9.”
4.
In the above background of damaged conditions of the goods, the Complainant
appointed M/s. Superintendence Company of India Pvt. Ltd. (hereinafter referred to
SCPL) to inspect the condition of the Cargo in the vessel and to supervise its discharge
therefrom. Simultaneously, OP-1/ insurance company appointed a Surveyor (OP-2) for
the same purpose. The report of OP-2 (Annexure 12) gives full details of unloading
of 13800 (mts) of sugar between 26.5.1994 and 3.7.1994. In this report OP-2 clearly
mentions that:“During discharging we observed that lots of bags were wet
stained/discoloured in-side the holds and the same were discharged
alongwith the sound bags since it was difficult to segregate the wet
stained/discoloured bags inside the hold.”
The report of the Surveyor (OP-2) has also noted the details of the total discharge of
13800 MTs (Annexure 12) as follows:No. of sound bags
271,266
No. of cut/torn bags
1109
No of wet stained/ discoloured bags
3625
Total no. bags discharged
276,000
The complaint petition states that the Complainant is entitled to compensation on
the basis of the facts contained in the above report of the Surveyor/OP-2.
5.
The goods were stored in hired transit godowns of Mangalore Port Trust. The
process of unloading and stacking was completed between 26.5.1994 to 3.7.1994. It is
the case of the complainant that in this period Mangalore received very heavy rain
fall. Despite coverage of the stocks, top and bottom, with tarpaulins sheets, further
damage to the stocks occurred from leakage of the godown roofs. Also, excessive rains
continued through the months of June and July.
6.
The Complainant was advised by OP-2 to segregate the damaged cargo, but
according to the Complainant it was not possible as the godowns were packed
and there was no space to take up the segregation exercise of such a huge
quantity. Moreover, with incessant rain any such exercise, involving movement
of stocks from one godown to another would have exposed them to further
damage by rain.
Allegedly the Complainant also informed the OPs that due to heavy
rain it was not possible to move the stocks to other regions in the country. He was
advised to take action keeping in view Clauses of 16 and 18 of the Policy. The first
dealt with reimbursement of expenditure incurred for averting or minimising loss and
protecting the rights of the underwriter against third parties. The second required the
Complainant to act with ‘reasonable despatch’ under all circumstances within its
control.
7.
The complaint petition states that by 22.10.1994, in all 77414 bags of sugar
were segregated , with re-bagging to the extent necessary and 3870.70 MTs of
sound sugar was despatched. Details of these deliveries made between 10.8.1994
and 22.10.1994 are shown in Annexure 42 to the complaint. Complaint petition also
shows that joint survey of the remaining stocks—198353 bags-- was done and its report
of 22.11.1994, signed by the representatives of both sides showed that it largely
comprised either partly wet or fully wet bags. But, the total weight of these 198353 is
accepted to be 9917.65 MTs in the complaint. This was based on analysis of 6000
bags as a joint exercise taken by both.
8.
The complaint petition also seeks to make out a case that when sugar is damaged
by rain it is not only moisture but also factors like loss of lustre and caking etc. that
need to be taken into consideration. Allegedly, after 198353 bags of sugar were sold @
of Rs.9875 per MT, the picture of final loss became clear. Therefore on 16.9.1995 a
claim under the policy was made for Rs.707.83 lakhs. In response, OP-1/ United India
Insurance Company made an offer of Rs.44,24,963/- only on 8.5.1998, which was
declined by the Complainant. The prayer of the Complainant is to award an amount of
Rs.707.83 lakhs with 24 % interest from the date of the claim i.e. 16.9.1995.
RESPONSE OF THE OPPOSITE PARTIES
9.
Per contra, in the Written Statement filed on behalf of OP-1, it is stated that the
entire unloading operation was personally supervised by the Surveyor/ OP-2 between
26.5.1994 to 3.7.1994. The WS accepts that the cargo has suffered water damage
during the voyage and many bags were found to be wet/stained/discoloured at
the time of unloading. Intermittent rains had continued during the entire period of
unloading and the discharged cargo was stored in godowns with “roofs full of
holes”. The written response strikes a note similar to that in the complaint petition
when it comes to effect of continued heavy rain fall and repeated damage to the
godown roofing on the sugar stocks stored therein. Allegedly, the Complainant failed
to take prompt action to save goods from suffering further rain damage in the
godowns.
10.
It is the case of the Insurance company that while the Surveyor had repeatedly
demanded segregation of sound stocks from the damaged ones in the godown, the
Complainant was unwilling to take up the exercise, on the ground of high cost of the
operation and offered to do the same at the time of delivery. However, the delivery
operation itself came to a stop after 23.10.1994 with the despatch of 77414 bags of the
sugar to various destinations.
11.
As stated in the WS of the OP/United India Insurance Company Ltd., an attempt
was made to settle the claim on non-standard basis, due to failure of the Complainant to
segregate the damaged stocks from the sound ones and failure to take timely action to
minimize the loss. The total loss was quantified by OP-2 to be of the order of 288.127
MTs, for which a total compensation Rs.44,24,963 was offered to the Complainant on
8.5.1998, against the claim of Rs.707,83,101.96. Apparently, the offer was declined.
According to the OPs, there was no deficiency of service in rejection of a very large
claim of Rs.707,83,101.96.
ARGUMENTS ADVANCED BY THE TWO SIDES
12.
Before the National Commission the case of the complainant has been argued by
learned Advocates, Mr Buddy Ranganathan, Advocate and Mr A K De, Advocate has
argued the case of the United India Insurance Co. They have been heard extensively,
over several days, with reference to documents brought on record. We have also
considered the written arguments filed on behalf of the two sides.
13.
Coming to the core of their arguments, Mr Ranganathan argued that damage to
the stocks and resultant loss suffered by the complainant are not denied by the insurer.
But against a loss of Rs 707.8 lakhs, the insurance has assessed the loss as Rs 58.99
lakhs only. Even here, OP-1 has deducted 25% in the name of non-standard settlement
of the claim. This was not acceptable to the complainant. Further, he referred to the joint
exercise of November 1994 which segregated 6000 bags for analysis. Learned Counsel
argued that the report of the Surveyor/OP-2 itself mentions that out of 6000 bags 5789
were found to be water stained externally, a fact that by itself would show that damage
to the stocks was extensive. He referred to test results of the stocks (on parameters of
polarisation, moisture, colour etc) at the time of loading for India and compared them to
the results of analysis of samples drawn on 2.12.1994 and claimed that water had
affected the quality (sale value) of the stocks.
14.
Reacting sharply to the above, learned counsel for the OP/insurance coy, Mr.
A.K.De, argued that a series of correspondence has taken place between the Surveyor
appointed by the insurance and the insured on precisely the same concern i.e.
need to protect the stored stocks against further damage from continued rain. But, the
Complainant did not take action for speedy repair of the leaking godowns or for
segregating damaged stocks from good ones. Nor was action taken for prompt disposal
as a measure against further damaged in continued storage. The delivery of sugar
stocks started only on 10.08.1994 and came to an abrupt stoppage since 23.10.1994.
By then only 77414 bags, as against import arrival of 27,0000 bags, had been delivered
to different destinations. It has been strongly argued on behalf of the
respondent/Insurance Company that lab analyses of samples taken from 6000
bags segregated in November, 1994, showed that despite external damage to the
packaging, moisture and sucrose content as well as colour of sugar were within
the stipulated limits. The assessment of total loss being limited to 288.127 MT
against the total quantity of 13800 MT was based on the above mentioned test results.
Mr. A.K.De, argued that the complainant base his case only on the extent of external
damage to the bags and not on actual condition of the sugar within. Therefore, the claim
of the Complainant for Rs.707.83 lakhs is exaggerated, misconceived and
untenable. The insurer cannot be held liable for loss caused by failure of the
Complainant to take prompt action in protection and disposal of the stocks.
THE EVIDENCE ON RECORD
15. Damage during storage at Mangalore Port, caused by continued rains and leaking
godown roofs, is not denied. Para 19 of the affidavit evidence of Mr V K Jain, Manager
(Commercial) of complainant coy accepts it. But it also goes on to add that the godowns
were packed and there was no space to undertake the exercise of stock segregation.
But, the claim that OPs had agreed that it could be done at the time of delivery, is
denied by the OPs.
16.
The two sides eventually undertook an exercise of segregating 6000 bags in
November 1994 and analysed the contents with the help of SGS Goa. (Annexures 54 &
55). The content analysis of water affected bags showed their moisture content as
follows—
Partially stained bags
0.16%
Fully stained bags
0.25%
Further, in December 1994, while the complainant was in the process of moving 1700
MT (34000 bags) of sugar to Orissa, OP-2 got them analysed. As per his report of
23.5.1995, re-bagging resulted in 118 bags of water damaged sugar and 33,882 bags
of sound quality cargo. Therefore, his report stated that the condition of sugar was not
as bad as to require disposal on “as is where is” basis. The final assessment of loss
was given by the Surveyor in June 1995, as follows:1. Amount of cargo lost due to cut/torn bags
discharged from the vessel
2.
7.950 M.T.
Based upon the %age of damages noticed on
the 34,000 bags the loss in respect of the balance
cargo of 1,98,427 bags (9921.350 M tons).
34.433 M.T.
3. Further
depreciation
allowed
on
analysis.
9,829,766 M.Ts at
based
on
245.755 M.T.
4. Total loss of cargo
17.
2.5%
288.127 M.T.
While the OPs have relied on the report of the Insurance Surveyor, the
complainant has relied upon the report of their expert agency, Superintendence Co. of
India Pvt. Ltd (SCPL). It talks about delivery of stocks soon after recession of the
monsoon and details segregation and despatch of 77414 (3870MT) between 17.8.1994
and 22.10.1994. SCPL report of 8.8.1995 states that on the basis of careful visual
examination made on 3.10.1994 and excluding 7185.9 MT of stocks lying in two Port
Sheds, “the
entire
remaining
quantity
of
2721.95
MT
were
completely
damaged/wet/moistured conditioned and contents thereon not free flowing and
therefore advised our client to dispose of the above stock immediately on as is
where is condition to avoid to avoid further losses/damages.”
Significantly, this
opinion was based on visual examination of 2721.95 MT (corresponding to 54439 bags)
stocks. SCPL also relies on segregation of 2000 bags on 23.10. 1994 and 6000 bags on
22.11.1994, jointly with OP-2. Its conclusion that over 99% of the remaining stock of
197667 bags (approximately 9883 MT) were damaged, is based on external
appearance of stocks. On the other hand, the Insurance Surveyor has gone further
and based its conclusions on content analyses of sucrose, moisture and
polarisation percentages in the stock of sugar. SCPL report refers to these analyses
reports and merely states that moisture content was above permissible limits. In the
affidavit evidence of the complainant it is alleged that it was the result of selective
sampling.
18.
Affidavit evidence of Mr S K Sharma, Deputy Manager, has been produced on
behalf of the insurer,OP-1. Its main thrust is on the contention that despite repeated
requests and reminders from the Surveyor, the complainant did not segregate the
stocks. Allegedly, this failure of the complainant “further aggravated the loss and
had the soaked bags been separated from the sound one, the moisture would not
have affected the sound bags/or the moisture content in cargo would have been
minimal.” However, 6000 bags were segregated in November 1994, as part of content
evaluation exercise. It also refers to analysis of samples drawn on 2.12.1994 and states
that, “It was noticed that the moisture and sucrose contents were found to be
within stipulated limits and colour of sugar was also within specification.”
19. OBSERVATIONS AND CONCLUSIONS
a. It is not the case of the complainant that it was not aware that the cargo would
arrive into Magalore Port during heavy monsoon season. But when the cargo
arrived, the complainant did nothing more than storing it in unsafe conditions
and waiting for the monsoon season to pass.
b. Some damage had already occurred while in the ship hold itself. But it was
only 4734 bags out of 276000 as reported by insurance surveyor and not
questioned by the complainant. Admittedly, (para 9 of the complaint) these
4734 damaged bags were re-bagged into 3428 standard bags. Thus, the net
loss before leaving the ship would come to 1203 standard bags out of 276000
i.e. 0.43%.
c. Viewed only from external impact on packaging, the above report of the
Insurance Surveyor (preliminary report of 6.10.94 and not followed by a final
report) would show the loss of 65.20 MT out of 236.70 MT i.e. 27.54% of the
wet or damaged bags, which was acceptable to complainant.
d. Complainant has taken conflicting stands by first claiming that there was no
space in the godowns to take up stock segregation and then arguing that its
proposal of 25.7.1994 for stock segregation remained pending with OP-2 till
31.10.1994.
e. The results of tests to bring out content analyses of sucrose, polarisation and
moisture, has been dismissed by the complainant as outcome of selective
sampling. As per the affidavit evidence of complainant, fresh sampling was
done on 2.12.1994. But, its results are called ‘patently tainted’, without showing
how does it become ‘tainted’, even if it is somewhat different from another
analysis.
f.
In Aug-Oct 1994, segregation of 77414 bags with re-bagging, produced
77414 bags of 50 kg sugar. In all 3870.70MTs.Even a subsequent report of
13.12.1994 from the complainant to OP-2 shows that 33972 bags after
rebaging produced 33882 bags of sugar. Both stocks were moved out for sale.
These results would go against complainant’s claims of extensive damage to
the content of externally damaged bags.
g. Admittedly, the complainant wished to undertake stock segregation at the time
of their despatch from Mangalore. But, till December 1994, only about 111,296
bags were attended to. Another 8000 bags were segregated as part of a joint
evaluation exercise. There is nothing to show that the balance stock, about
170,704 bags, were also segregated. Clearly, it is a case of action by the
complainant which was too little and too late.
h. In the rejoinder filed on behalf of the Complainant in September, 2009, a
reference is made to segregation and re-bagging of 34000 bags of
sugar. Admittedly, re-bagging produced 33882 standard bags of 50 kg
each. But, the stocks were not despatch to Orissa admittedly for want of a
buyer. It is not the case of the Complainant that the responsibility for disposal
of stocks rested with the OP. Therefore, the complainant has only itself to
blame for its resultant predicament.
i.
Claim under the policy was lodged on 11.9.1995. The settlement offer from
the OPs came only on 21.5.1998. Even if a reasonable processing time of
three months is allowed, OP’s response was delayed by two years.
j.
Correspondence on record shows that high cost involved in segregation of
stocks was one of the reasons why segregation was deferred by the
complainant. This cost is admitted by OP-1 in the settlement offered, which
raises a question as to why it was not agreed earlier.
k.
It needs to be observed that the claim of Rs 708.83 lakhs made by the
complainant includes interest claimed at 24%. The interest amount itself
comes to Rs 326.4 lakhs.
20.
To conclude, details examined above establish that some damage had already
been caused to the consignment before unloading at Mangalore Port. It is also evident
that further damage was caused by improper storage after unloading. For the latter,
major part of responsibility must lie at the door of the complainant itself. Further, the
complainant has failed to establish its claim for a large settlement of Rs 708.83 lakhs.
The attempt of the insured to make external condition of the sugar bags as the basis for
determination of loss has rightly been rejected by the insurer. However, the failure of the
insurer to consider reimbursement of the cost of segregation of stocks is held to be a
deficiency of service. It was eventually accepted, though partly, in the proposed
settlement, as re-bagging cost for 197739 bags. Secondly, inordinate delay in proposing
the settlement itself is held to be another deficiency of service on the part of OP-1. We
therefore deem it just and equitable to allow the following, in addition to the settlement
of Rs 44,24,963 offered by OP-1 to the complainant on 8.5.1998--
i.
Compensation for delay in proposing settlement of the claim
Rs eight
lakhs.
ii.
Compensation for delay in acceptance of the cost of segregation Rs five
lakhs.
iii.
Litigation cost of Rs two lakhs.
The entire amount of Rs 59,24,963 shall be paid by OP-1 within a period of three
months, computed from 90 days after presentation of the claim to the insurer on
16th September 1995, with interest of 8% per annum. Period of delay, if any, shall
carry additional interest of 3% per annum.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 161 OF 2013
Anand Diamonds Pvt. Ltd. 1980, Ist floor Katra Khushal Rai, Kinari Bazar, Chandni
Chowk, Delhi-110006
……Complainant (s)
Versus
1. National Insurance Co. Ltd. (A Govt. of India Undertaking), 808809, Kailash Building, VIIIth Floor, 26, K.G. Marg, New Delhi.
2. Bank of India New Delhi Mid Corporate Branch, 37, Shahid Bhagat Singh Marg,
(Near Shivaji Stadium), New Delhi.
…….Opp. Party (ies)
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Complainant (s) : Mr. Rahul Sharma, Advocate
PRONOUNCED ON : 5th JULY, 2013
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
The complainant has made a vain attempt to make bricks without
straw. Dacoity/robbery has to be proved not assumed. Can robbery of goods is a
gooddefence to save yourself from the vigours of the Law under the SARFAESI
Act. We have heard the counsel for the complainant at length.
2.
The complainant, Anand Diamonds Pvt. Ltd. is owned by Mr. Rajesh Anand and
his wife Mrs. Chandni Anand. The complainant company is a manufacturer and a
wholesaler of jewellery dealing in both diamonds and gold. The business activities are
transacted
from
their
premises
No.
1980, Ist FloorKatra Khushal Rai, Kinari Bazar, Chandni Chowk, Delhi-110006.
3.
The complainant approached the Bank of Inida –OP No. 2, which granted credit
limits for a credit amount of 4.5 crores. The complainant mortgaged two immovable
properties in favour of the Bank in February 2008. As agreed and stipulated,
hypothecated stocks of jewellery were got insured with the Respondent No. 1. The
insurance amount went on increasing and on 23.03.2010, it was increased to Rs.
12 crores vide insurance policy.
4.
On 26.03.2010, 4 unknown persons entered into the business premises of the
complainant. They
showed
the
visiting
card
of
M/s
Sri
Ram Jewellers,Sadar Bazar, Gurgaon. When they were being shown the jewellery and
other articles they committed the robbery on gun point after trying the staff present on
the
side
and
ensuring
that
none
was
able
to
raise
alarm. They
looted
gold/gold jewellery & diamond jewellery lying in the premises which were worth Rs.
11.41crores and its value stands increased to Rs. 25 crores at the time of filing of this
complaint. The police was informed immediately. FIR was lodged for offences under
sections 392/397 read with Section 34 of IPC. The intimation was furnished to the
National Insurance Company Limited-OP-1. The complainant filed claim in the sum
of Rs. 11.41 crores with the OP-1. However, despite several reminders no claim was
granted.
5.
However, the OP continued paying the installment/interest to the OP-2 till
31.03.2011 in the hope of claim being paid. In the meantime Bank of India –OP2 delcared the account of the Complainant as N.P.A. on account of non-payment on
29.09.2011. OP-2 issued a noticed dated 21.10.2011 U/S-13(2) ofSecuritisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in
short, ‘SARFAESI Act) thereby calling the complainant to pay the entire amount of Rs.
1,49,76,125.03/- alongwith the interest within 60 days.
6.
The police filed a closure report as the police could not find any clue about the
culprits on 26.02.2011.
On 17.10.2011, OP-1 filed an application U/S 173(8)
of Cr.P.C. raising doubts on the police investigation. The said application was
dismissed by the learned M.M.
7.
The request made by the complainant to the bank that under these circumstances
he was unable in clearing the debts and its claim will be settled when the claim is
granted by the Insurance Company was rejected. On 30.07.2012, the complainant filed
a complaint against the OPs. Notice was issued in that complaint. Thereafter, the OP-1
illegally and arbitrarily vide letter dated 24.09.2012 repudiated the claim of the
complainant, by falsely contended that no incident of robbery took place in the shop of
the complainant. The complainant desired to withdraw the complaint so as to include
the facts mentioned in the repudiation letter. The complaint was dismissed as
withdrawn with the liberty to file another complaint on the same cause of action.
Consequently, this fresh complaint has been filed.
8.
We have heard the counsel for the complainant at the time of admission of this
complaint. He contended that the police investigation clearly goes to show that the
above said incident had taken place. He further explained that the investigator was an
Ex-Delhi Police Officer, also supported that the incident had taken place.
9.
As a matter of fact, the repudiation letter is very crucial. It is wee bit lengthy one
but to understand this case completely it has become necessary to reproduce it fully.
The letter of repudiation dated 24.09.2012 runs as follows:“Kindly
refer
to
your
claim
under
the Jewellers Block
Policy
No.
354301/46/09/3700000372 regarding the loss on account of alleged robbery on
26.03.2010. The claim has been examined and considered by the competent
authority of the company in detail in terms of the Jewellers Block Insurance
Policy terms, conditions and exceptions. Various observations have been made
by Sh. Vinod Sharma, Surveyor. In his Survey Report indicating that there are
many inconsistencies and contradictions in the alleged material event, as
reported by you. To recap, based on the Surveyor’s observations as well as our
own:
1. On enquiring from the other shopkeepers in the same building/ on
the ground floor/neighbourhood, it was found that nobody noticed
the said looting nor were aware of it, till the same was reported in a
newspaper. Even the Police visit was taken as a routine matter.
2. The area in which the Insured location/ establishment is located is a
highly and thickly populated area and to escape with the bags, is
very difficult for any Robber/s. No four wheeler can enter the area
from a long distance, and even for two wheelers also it is very
difficult to drive in that locality/area.
3. You, as the Insured and your staff, instead of raising the alarm, went
to the Police post located at some distance on foot.
4. Nearby/neighboring Shopkeepers came to know about the event and
the quantum of loss of Rs. 8-10 Cr. from the Newspaper only, when
news was published after 5 days.
5. There was no media reporting of the alleged event from 27 th March till
31st March 2010. It came only in a Hindi Newspaper, ‘Nav Bharat
Times’.
6. During the Surveyor’s visit to your establishment on 31 st March, Mr.
Rajesh Anand was
not
available
and
the
staff
and
father
of Mr.Rajesh Anand told that Mr. Rajesh Anand had gone to the
Police Station as they wanted him for some identification. However,
when the Surveyor immediately went to the Police Station and met
the
SHO
and
IO,
they
had
to
state
that
they
never
called Mr.Rajesh Anand, on that day.
7. There is an increase in the sum insured of Rs.7.5 cr. immediately
before the alleged event and alleged loss. Throughout the year 200910, stocks as per stock statements to Bank was more than Rs.12 Cr.
However,
you
had
opted
for
a
sum
insured
of
only
Rs.1.50 crores at inception, increased it by another Rs.3.00 crores on
24.02.2010, and another Rs.7.5 Cr. on 23.3.2010, which was suddenly
increased to Rs.12 cr on 23.03.2010, just 3 days before loss. There is
no convincing justification for the said increases, particularly of
Rs.7.50 crores from your side.
8. The entire stocks from the shop were reportedly looted/taken away
by the alleged miscreants. Reportedly, not even a single piece was
left. As per your statement 4 persons took away the jewellery in 4
bags. The total weight of jewelleryreportedly stolen is approximately
50.00 Kgs. It does not appear to be convincing that nobody noticed
the 4 persons carrying 4 bags of jewellery, weighing approx. 50.00 kg
each.
9. There is a contradiction in the statement regarding masks used by
the miscreants. At the time of looting, they used mask, in
between. Definitely while escaping they must have taken out the
masks. Why these were used in between the looting is inexplicable,
particularly considering the fact that they had not used masks, while
entering the shop.
10.Even in small jewellery shops, CCTV is installed.
The CCTV
installed by you was reportedly having no recording facilities. It is
only used to have a watch on the entry from the staircase. At the
time of incident, CCTV was not working. There is contradiction
regarding CCTV. You did not reply/clarify/confirm properly that the
CCTV in question, sans the recording facility was not working at the
time of the alleged incident.
11.
As per your statement, miscreants/robbers
remained in
shop
for
half-an-hour. However,
surprisingly
no
customer came in between. And you claim to be one of the leading
showrooms in that area?
During the Surveyor’s visit, he was told that
12.
due to
firing
from
broken. Subsequently,
pistol
in
all
of
miscreant,
statements,
police
glass
got
report,
this
information was changed and it is mentioned that insured, Sh.
Rajesh Anand threw the tray on one miscreant, which hit the glass
and same got broken.
13.
The Investigator appointed by us (Sh. L.D.
Arora) failed to obtain information regarding stocks in possession of
your employee, Shri Makkan Lal, who was on official duty, outside
the office at the time of alleged incident. Sh. Makkan Lal was having
4 boxes of jewellery with him, which, he was carrying for Hall
Marking.
14.
You could not explain why Sh. Makkan Lal, who untied the
rope/s of the person/s tied up, did not call the police from his Mobile.
15.
As per the Surveyor, when he went to Police Station and met
SHO and concerned IO, during Internal/Initial investigation, at
that time, they, i.e. the Police were doubtful about the occurrence
of event and quantum of loss.
16.
There is a contradiction in your reply regarding how the police
was informed. As per one statement of yours, your employee Sh.
S.K. Aggarwal walked to the nearby PCO and informed the Police
at 100 No. However, during the Surveyor’s visit, he was told that
Sh. S.K. Aggarwal went on foot, to the Police Station which is at
about 10 minutes walking distance. Further, as per the Surveyor,
and to which we also agree, the employee concerned could have
immediately gone down and informed the police from the ground
floor shops. In fact, such employee or Mr. RajeshAnand himself
could have raised an alarm, soon after being untied right from
outside the shop, even which was not done. Why such alarm was
not raised, and why the Police was not informed from the ground
floor shop/s itself, is not clear.
17.
The nearby shop keepers were not even aware of such an
incident, till it was reported in a Hindi Daily, five days after.
18.
Mr. Rajesh Anand did not clearly explain the number of mobile
phones he is/was having. As per the Surveyor’s information, Mr.
Rajesh Anand was having two mobile connections and mobiles.
19.
You made a vague reply regarding intimation to the local
Market/Traders’ Association.
20.
You did not give proper reply regarding loans from Banks by
the
family
members/close
relatives
of
the
Director
(Mr.Rajesh Anand). The Police reportedly verbally informed the
Surveyor that the Director and/or his family members have taken
various loans from different Banks and are in default.
The observations made by the Surveyor in his Survey Report, clearly
show
that
there
are
many
anomalies,
inconsistencies
and
contradictions in the event ,as purportedly reported by you. Such an
event or even attempt of threat is not remotely possible in a plea like
where
the
Insured
location/premises is located. There
is
a
contradiction with regard to the incident of gunshot also. There is
no mention of the incident of gun shot in the FIR & the final report. If
there was a gunshot, the whole neighbourhood should have been
upon the shop. Even a violent breakage of the glass, should also
have brought the whole neighbourhood, down to your shop.
The absence of a CCTV or it’s non-functioning, if installed, the
statement that the glass/mirror got broken due to the throwing of a
plate by an employee at one of the perpetrators, the role of the Peon,
Mr. Makkan Lal, the story about some of the stocks having been
taken for Hall Marking’, the ‘No objection’ statement given by you, for
closure
of
the
case
by
the
P.S.
and
issuance
of
the
Final Untrace/Closure Report, all clearly indicate that you were not
keen for proper & further investigation of the case by the Police,
even which further confirms our suspicions that the event of the
alleged Robbery was stage-managed. It is obvious that you were
keen to recover the insurance claim amount from the Insurance
Company, as you were in financial distress. It is obvious that no
such alleged robbery ever took place.
The alleged event took place, within 3 days of the SI being
enhanced. Incidentally, you were maintaining stocks of high value,
as much as around, 15 crores even, but had insured only for
1.50 crores, in the previous year’s policy and also at the inception of
the renewal of the policy, which is material to this claim.
All facts considered, including the circumstantial evidence, the
inconsistencies, the anomalies, the contradictions, we are of the
considered opinion that this claim is based on fraud/fraudulent
means. Neither such an event as alleged ever took place nor have
you suffered any such loss, as claimed due to any alleged Robbery.
Condition No. 9 of the Policy contract provides:
“If the claim be fraudulent or if any fraudulent means or devices be
used by the insured or any one, acting on his behalf to obtain any
benefit under this policy, or if any destruction or damage be
occasioned by the willful act or with the connivance of the insured,
all benefits under this policy shall be forfeited.”
Besides Condition No. 9, there is breach of Condition no.
(ii) and condition no. 10 of the policy of insurance. The said two
conditions i.e. no. (ii) and 10, deal with ‘the duty of the Insured to act,
as if uninsured” and “due diligence and reasonable dispatch”
respectively.
We accordingly hereby regret our inability in unequivocal and
categorical terms to admit any liability, whatsoever, in respect of this
claim of yours, in terms of the terms and conditions of the governing
Policy contract”.
10.
It is surprising to note that the counsel for the Complainant could not explain all
these reasons noted in the repudiation letter. He could not deny all these facts. He was
asked to produce the Hindi Newspaper which was allegedly published five days after
the incident. He admitted that he has not attached that Hindi Newspaper with the
complaint. He however, argued that, that paper finds mention in the documents
produced by him.
11.
Secondly, the police also did not take any effective action. It is difficult to fathom
why the case was sent as untraced. Why the police was not able todetect , even a
single clue. The repudiation letter clearly shows that the case of the complainant is an
inchoate mix of irreconcilable opposites. Such like stories can be created at any
time. Arrest of the robbers or recovery of any article would have done the trick. No
evidence was adduced, no proof, from where these ornaments were purchased, was
produced.
12.
Last but not the least, it is difficult to fathom as to why Bank of India was made a
party in this case. Bank of India has nothing to do with the Insurance Policy. They have
no privity of contract with the complainant or with the Insurance Policy. It appears that
in order to save themselves from provisions of SARFAESI Act, this false case was
instituted. Bank has to do nothing with the loss. No relief has been claimed against the
bank. Attempt was made to punish them for proceedings against the complainant U/S13(2) of the SARFAESI Act. The Complaint has no merit and the same is dismissed
in limine.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR)
MEMBER
Jr/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1980 OF 2013
With
(I.A. No. 3268 of 2013 for Stay)
(From order dated 18.03.2013 in First Appeal No.1365 of 2012 of the State Consumer
Disputes Redressal Commission, Haryana)
Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan,16 Kasturba Gandhi Marg,
New Delhi-110001
...…Petitioner
Versus
Nidhi Jain w/o of Shri Parshant Kumar R/o A-171, Prashant Vihar, Delhi-110085.
……Respondent
Nitin Jain S/o Ashok Jain, (R/o A-171, Prashant Vihar, Delhi-110085 ......(through
Attorney Holder) Vijay Kumar Jain S/o Shri Nihal Chand Jain, R/o 3346, Bankeders
Enclave, Sector-55 D, Chandigarh
.....(through Attorney Holder)
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:Mr.Saurabh Taneja, Authorized Representative
Pronounced on: 5th July, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Being aggrieved by the impugned order dated 18.3.2013 passed by State
Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State
Commission’), Petitioner/O.P. has filed the present revision petition.
2.
Brief facts are that respondent/complainant booked a flat situated at the
Europa Residency, Kundli, Sonepat which was provided by the petitioner. It is
alleged that at the time of booking of the above said flat, respondent deposited an
amount of Rs.90,000/- and thereafter she also deposited Rs.90,500/-, Rs.87,750/-,
Rs.87,750/- and Rs.1,75,500/- i.e. total amount of Rs.5,31,500/- on different dates
upto 21.5.2010 with the petitioner against proper receipts and petitioner also gave
brochure of the flats scheme to her.
3.
It is also alleged that at the time of booking of the flats, petitioner assured the
respondent that they will construct/prepare above said flats within a period of 36
months as mentioned in para no. 10.1. a of the brochure and will construct the flats
according to the norms of the brochure. However, it was surprising for the
respondent that petitioner not only is unable to handover the possession but also it
has not started the construction work of flats till today, which shows that the
petitioner has not fulfilled the terms and conditions of the Government of Haryana
and he was not fully authorized to construct the flats within a stipulated period. Thus,
petitioner not only cheated the respondent by way of abstracting money from
the respondent but also played fraud upon the respondent.
4.
It is further alleged that when petitioner did not start the construction work on
the site, the respondent wrote several letters and brought the deficiency/negligence
to the knowledge of the petitioner. However, petitioner neither started the
construction work of the flats nor replied the letters of the respondent. Hence,
respondent filed consumer complaint seeking the following reliefs;
i)
To make the interest @24% per annum to the complainant from the
date of booking the flat and thereafter i.e. 18.1.2010 to
25.11.2010 till the date of possession of the flat.
ii)
To provide compensation of Rs.10,000/- per month for not handing
over the possession of the flat in time to the complainant till the
date of delivery of the possession.
iii)
To complete the construction work within 6 months from filing the
present complaint.
iv)
To make payment of Rs.50,000/- on account of deficiency in
service on the part of the respondent and on account of
sufferings, mental agony, transportation, humiliation etc.
v)
5.
To pay Rs.22,000/- as litigation expenses.
Petitioner in its written statement has not denied the averments as made by
the respondent in para nos. 2 and 3 of its complaint with regard to the booking of
the flat as well as deposit of total amount of Rs.5,31,500/-. However, it is alleged
that petitioner did not assure the respondent that the construction work will be
completed within 36 months. It is pertinent to mention that respondent did not
execute the Flat Buyer’s Agreement with the petitioner. As per terms and condition
of the agreement, as per term No. 12 “the company shall endeavour to offer the
possession of Apartment within 3 years from the date of sanction of building plans
by the authorities subject to majeure circumstances and on receipt of all payments
punctually as per agreed terms and on receipt of complete payment of the basic
sale price.....”
6. Further as per term no.13 of the agreement “if the construction of the premises
is delayed due to force majeure circumstances which interalia include delay on
account of non availability of building materials, or water supply or electric power or
slow down strike or due to a dispute with the construction agency, civil commotion,
or by reason of war or enemy action or earth quake or any act of God, delay in
certain decision/clearances from statutory body, or if non delivery of possession is
as a result of any notice, order, rules or notification of the Government and/or any
other public or any competent authority or for any other reason beyond the control
of the company, then in any of the aforesaid event, the company shall be entitled to
a reasonable corresponding extension of the time of delivery of the said premises
on account of the force majeure circumstances. Further, in consequences of the
company abandoning the scheme, the company’s liability shall be limited to refund
the amount paid by the allottee without any interest. No compensation whatsoever
shall be payable.
7. District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District
Forum’) vide order dated 23.10.2012, allowed the complaint.
8.
Being aggrieved by the order of District Forum, petitioner filed appeal before
the State Commission, which vide its impugned order dismissed the same.
9.
Hence, this revision.
10.
We have heard Mr. Saurabh Taneja, Authorized Representative of
petitioner-company and have gone through the record.
11.
It has been stated by A.R. of the petitioner that District Forum as well as the
State Commission have ignored the fact that the project itself admittedly has not yet
taken off and due to certain development at the level of the government the same
may never come up. In the light of the above directions regarding handing over of a
flat that is not and may never be constructed, is patently wrong and unsustainable.
Another argument advanced on behalf of the petitioner is that respondent has not
executed the Flat Buyer’s Agreement with the petitioner and in the absence of
execution of such Agreement or any contractual obligation, both the fora erred in
passing the impugned orders.
12.
District Forum, while allowing the complaint in its order held;
“4.
After giving thoughtful consideration to each and every aspect of
this complaint, reply, points argued by the learned counsel for the
parties at length and after perusing the documents very carefully
and minutely, this Forum is of the view that the ends of justice would
be fully met if the directions are given to the respondents to pay
interest to the complainant for not handing over the possession of
the flat in time to the complainant and the respondents are utilizing
the huge amount of the complainant without providing any services
to the complainant and the respondents have no right to utilize the
amount of the complainant without providing any services to her.
Accordingly, we direct the respondents to pay interest to the
complainant on the amount deposited by her during the period w.e.f.
18.1.2010 to 25.11.2010 at the rate of 9% per annum from the date
18.1.2010 to 25.11.2010 till the date of possession of the flat and
further to compensate the complainant to the tune of Rs.1,000/-(Rs.
One thousand) for rendering deficient services, for causing
unnecessary mental agony & harassment and under the head of
litigation expenses”.
13.
State Commission while upholding the order of District Forum, in its
impugned order observed;
On behalf of the appellant it was argued that the
complaint filed by the complainant was premature having been
filed before the expiry of 36 months and thus was liable to be
dismissed.
During hearing, the appellant was asked to verify as to
whether the construction work of the project was complete by
now, when 36 months have already expired, to which the reply
was in negative. Thus, it is established on the record that the
opposite parties have failed to fulfil the terms of the agreement
with respect of the allotment of the flat to the complainant and
therefore no case for interference in the impugned order is
made out. The complainant, who had deposited the huge
amount with the opposite parties, is certainly entitled to interest
on the same for the delayed period in delivery of possession to
the complainant.
In view of the above, this appeal is dismissed being devoid
of any merit”.
14.
This plea taken by the petitioner in its revision petition that due to certain
development at the level of the government the project itself has not taken off and
as such directions regarding handing over of a flat are patently wrong, are
absolutely false on the face of it, in view of the Apartment Allottees Agreement
which has been relied upon by the petitioner. As per Clause 2 A of this agreement,
the petitioner had started the development of “THE EUROPA RESIDENCY” which
was duly approved by the Government of Haryana and this Clause read as under;
“WHEREAS
the
Company
has
been
developing
an
integrated Group Housing Complex/Apartment over a piece
and parcel of land admeasuring 5.85 acres approx. in the
revenue estate of Village Badkhalsa, Tehsil and District
Sonepat, Haryana, hereinafter referred to as the ‘Group
Housing Project Land’ in the name and style of ‘THE
EUROPA RESIDENCY’ which also situated within the
colony, namely ‘SUSHANT CITY, KUNDLI’, being developed
by the COMPANY and duly approved by the Govt. of
Haryana”.
15.
In view of petitioner’s own documents, now it does not lie in its mouth to take
this plea, that the State Government has not approved the Scheme. With regard to
the execution of the Buyer’s Agreement, there is nothing on record to show that
petitioner ever asked or gave any notice to the respondent, to execute the Buyer
Agreement or respondent had ever refused to execute that agreement.
16.
Present revision petition has been filed under Section 21(b) of the Consumer
Protection Act,1986 (for short, ‘Act’). It is well settled that the powers of this Commission
as a Revisional Court are very limited and have to be exercised only, if there is some
prima facie jurisdictional error in the impugned order.
17.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under
which the said power can be exercised only if there is some
prima facie jurisdictional error appearing in the impugned order,
and only then, may the same be set aside. In our considered
opinion there was no jurisdictional error or miscarriage of justice,
which could have warranted the National Commission to have
taken a different view than what was taken by the two
Forums. The decision of the National Commission rests not on
the basis of some legal principle that was ignored by the Courts
below, but on a different (and in our opinion, an erroneous)
interpretation of the same set of facts. This is not the manner in
which revisional powers should be invoked. In this view of the
matter, we are of the considered opinion that the jurisdiction
conferred on the National Commission under Section 21 (b) of
the Act has been transgressed. It was not a case where such a
view could have been taken by setting aside the concurrent
findings of two fora”.
18.
Petitioner/builder in the present case “wants to have the cake and eat it too”
as admittedly it has already received a sum of Rs.5,31,500/- towards the cost of the
flat. Thus, petitioner being the builder is enjoying the huge amount deposited by the
respondent without any hindrance. On the other hand, respondent having paid
substantial amount of consideration is still without any roof.
19.
Such type of unscrupulous act on the part of petitioner/builder should be dealt
with heavy hands, who after grabbing the money from the purchaser, enjoy and
utilize their money but does not hand over the flat, on one pretext or the other.
Petitioner has made respondent run from one fora to other so that respondent
cannot have any roof over her head and petitioner can go on enjoying respondent’s
money without any hindrance.
20.
Thus, no jurisdiction or legal error has been shown to us to call for
interference in the exercise of power under section 21 (b) of the Act, since, two fora
below have given cogent reasons in their orders, which does not call for any
interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
21.
In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
“Courts of law should be careful enough to see through such
diabolical plans of the judgment debtor to deny the decree
holders the fruits of the decree obtained by them. These type of
errors on the part of the judicial forum only encourage frivolous
and cantankerous litigations causing law’s delay and bringing
bad name to the judicial system”.
22.
It is well settled that no leniency should be shown to such type of litigants who in
order to cover up their own fault and negligence, goes on filing meritless petitions in
different foras. Time and again Courts have held that if any litigant approaches the
Court of equity with unclean hands, suppress the material facts, make false averments
in the written statement and tries to mislead and hoodwink the judicial Forums, then its
defence should be thrown away at the threshold. Equity demands that such
unscrupulous litigants whose only aim and object is to deprive the opposite party of the
fruits of the decree must be dealt with heavy hands. Unscrupulous builders like
petitioner who after taking entire cost of the flat do not perform its part of obligation,
should not be spared. A strong message is required to be sent to such type of builders
that this Commission is not helpless in such type of matters.
23.
Now question arises for consideration is as to what should be the quantum of
costs which should be imposed upon the petitioner for dragging the respondent upto this
fora. It is not that every order passed by the judicial fora is to be challenged by the
litigant even if the same is based on sound reasonings.
24.
Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil
Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
“45. We are clearly of the view that unless we ensure that
wrong–doers are denied profit or undue benefit from the
frivolous litigation, it would be difficult to control frivolous and
uncalled for litigations. In order to curb uncalled for and frivolous
litigation, the Courts have to ensure that there is no incentive or
motive for uncalled for litigation. It is a matter of common
experience that court’s otherwise scarce and valuable time is
consumed or more appropriately wasted in a large number of
uncalled for cases”.
Apex Court further held;
“It is also a matter of common experience that to achieve
clandestine objects, false pleas are often taken and forged
documents are filed indiscriminately in our courts because they
have hardly any apprehension of being prosecuted for perjury by
the courts or even pay heavy costs. In Swaran Singh Vs. State
of Punjab (2000) 5 SCC 668 this court was constrained to
observe that perjury has become a way of life in our courts.
It is a typical example how a litigation proceeds and
continues and in the end there is a profit for the wrongdoers.
Learned Amicus articulated common man’s general impression about
litigation in following words :
“Make any false averment, conceal any fact, raise any plea,
produce any false document, deny any genuine document, it will
successfully stall the litigation, and in any case, delay the matter
endlessly. The other party will be coerced into a settlement
which will be profitable for me and the probability of the court
ordering prosecution for perjury is less than that of meeting with
an accident while crossing the road”.
25. Thus, in our opinion, the present petition is nothing but a gross abuse of the
process of law and the revision petition is totally meritless and frivolous, which is
required to be dismissed with punitive costs of Rs.1,00,000/-(One lakh only).
Accordingly, we dismiss the present petition with costs of Rs.1,00,000/- (Rupees One
lakh only).
26.
Out of the costs imposed upon the petitioner, Rs.50,000/-(Rupees Fifty
Thousand only) be paid to respondent no.1–Nidhi Jain by way of demand draft in her
name. Remaining costs of Rs.50,000/- (Rupees Fifty Thousand only) be deposited
by way of demand draft in the name of “Consumer Legal Aid Account” of this
Commission, within one month from today.
27.
In case, petitioner fails to deposit the aforesaid costs within the prescribed period,
then it shall also be liable to pay interest @ 9% p.a., till realization.
28.
Costs awarded to respondent no. 1 shall be paid only after expiry of the period
of appeal or revision preferred, if any.
29.
Pending application also stands disposed of.
30.
List on 23.08.2013 for compliance.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3916 OF 2010
(From the order dated 25.02.2010 in F.A. No.749/2007 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
SMT. P. LAXMI W/O RAMULU R/O 5-1-87/M/C, SIDDARTHNAGAR, SANGAREDDY
TOWN, MEDAK DISTRICT, A.P.
.….. PETITIONER
Versus
THE BRANCH MANAGER, UNITED INDIAN INSURANCE COMPANY,
SANGAREDDY BRANCH, MEDAK DISTRICT, A.P.
....... RESPONDENT
BEFORE:
HON'BLE MR.JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
For the Respondent
PRONOUNCED ON:
: Ms.Surekha Raman, Advocate
: Mr.Maiban N. Singh, Advocate
JULY, 2013
ORDER
PER SURESH CHANDRA, MEMBER
The petitioner who is the original complainant has filed this revision petition to
challenge the order dated 25.02.2010 passed by the A.P. State Consumer
Disputes Redressal Commission, Hyderabad in F.A. No.749/2007. The OP, which is
an insurance company, is the respondent herein.
2.
There is a delay of 118 days in filing this revision petition for which the
petitioner has filed an application for condonation. For the reasons stated in the
application and the submissions made by learned Amicus, the delay in filing the
revision petition is condoned.
3.
Briefly stated, the petitioner being the owner of the lorry bearing no. AP 31T
0599 insured it with the respondent company for the period from 17-11-1999 to 1611-2000. This lorry met with an accident on 28.08.2000 in the outskirts
of Sadasivpet town of Medak. The incident of accident to the lorry was reported to
the Police Station on 28.08.2000 and was also intimated to the respondent company
on telephone followed by written communication. Immediately, the OP sent a
surveyor to conduct spot inspection. The surveyor took photographs of the
damaged vehicle and asked the complainant to submit her claim for settlement. The
complainant submitted her claim and asked permission of the surveyor for shifting
his damaged vehicle to the workshop, which was granted. It is alleged that while
shifting the damaged lorry by towing it by another lorry on 02.09.2000, somewhere
on the way the link chain between two Lorries got broken which allegedly resulted in
the second accident. It is stated that the said fact about the second incident was
also intimated to the respondent company on telephone and the complainant also
lodged the complaint before the police. One more surveyor came to be appointed
who also conducted survey by taking photographs of the damaged vehicle along
with estimate and original bills for the repairs done to the tune of Rs.1,22,190/-. The
grievance of the complainant is that in spite of submission of the claim and notice to
the insurance company, her claim was repudiated, which made her to file a
consumer complaint against the OP insurance company praying for a direction to
pay compensation of Rs.2 Lakhs towards repairs of the damaged vehicle along with
interest @18% p.a. and Rs.20,000/- towards compensation and costs.
4.
On being noticed by the District Forum, Medak, the OP filed counter and while
admitting the issuance of the insurance policy for the period in question to the
vehicle and intimation about the accident on 28.08.2000, the insurance company
denied the second accident or any intimation about it to the company or to their
Divisional Office on 11.09.2000. The insurance company also submitted that the
claim of the complainant for compensation was repudiated because she did not file
copy of the police report and also when asked to submit the documents including the
original bills, no such documents or the bills were sent by her. Denying any
deficiency in service on its part, the OP insurance company prayed for dismissal of
the complaint. On appraisal of the evidence placed before it by the parties, the
District forum by its majority opinion held that there was no deficiency in service on
the part of the OP insurance company and hence, dismissed the complaint.
5.
Aggrieved by the aforesaid decision of the District Forum, the complainant filed
an appeal before the State Commission, which was partially allowed by the State
Commission by its impugned order in terms of the following directions:“In the result, the appeal is allowed partly, setting aside the order of
the District Forum and as a consequence the complaint before the
District Forum is allowed partly directing the opposite party
insurance company to pay to the complainant an amount of
Rs.7,425/- with interest at 9% p.a. from the date of claim i.e. 11-92000 till the date of realization and proportionate costs in a sum of
Rs.1,000/- within six weeks from the date of receipt of this order.”
6.
Not satisfied with the partial relief granted by the State Commission vide its
impugned order, the petitioner has filed this revision petition praying for setting aside
the impugned order and remanding the matter for afresh appraisal in view of raising
the various points by her in the revision petition.
7.
We
have
heard Ms.Surekha Raman,
Amicus
for
the
petitioner
and Mr.Maiban N. Singh, Advocate for the respondent company.
8.
Two issues have arisen for our consideration and decision. The first issue is
as to whether the second accident took place while towing the lorry on 02.09.2000
as alleged by the petitioner and secondly in the given facts and circumstances of this
case any interference is called for with the impugned order giving partial relief to the
petitioner.
9.
So far as the first issue is concerned, the State Commission has considered
this aspect at great length in the impugned order based on the evidence before it
and concluded that there was no second accident on 02.09.2000 as alleged by
the petitioner. The State Commission has made following observations while
rejecting the claim of the petitioner regarding occurrence of the second accident:“The opposite party however stated that it was informed only about
the first accident. As a matter of fact, this discrepancy is not of
much significance as ultimately the claim was made in writing by
the complainant on 11-9-2000. In the said claim form which was
obviously subsequent to even the so called second accident, did
not make a mention about the second accident. On the other
hand, it specifically gave, while giving a short description and other
details of the first accident the following account:
‘While
my
vehicle
was
proceeding
from Sangareddy to Tandur near at the accident spot while tried to
overtaking a foregoing truck steered to right applied brakes. At
that time in order to avoid a hit of opposite coming vehicle steered
to left. Due to his my vehicle slipped and skidded and dashed the
foregoing truck and again dashed a tree which was living on left of
the road caused heavy damage. Estimate enclosed’.
No where in Ex.B2 do we find reference to the second accident.”
10.
We agree with the view taken by the State Commission. Incidentally, learned
Amicus has admitted that there is no claim being pressed for the second accident to
the vehicle. This leaves us with the second issue in respect of the adequacy or
otherwise of the relief already granted by the State Commission through the
impugned order. We may note that after going through the submissions and
appreciating the evidence, the District Forum vide its majority opinion dismissed the
complaint of the petitioner outright. The minority judgment however allowed
compensation of Rs.73,000/- to be paid by the OP insurance company to the
petitioner. After going through the preliminary report of the spot surveyor and the
final report of the second surveyor which assessed the loss, the State Commission
came to the conclusion that even though there was no cogent evidence to support
the huge claim of the petitioner to the tune of Rs.2 Lakhs, the conclusion drawn by
the second surveyor in his final report in respect of the entitlement of the petitioner to
a net compensation of Rs.7,425/- should not have been ignored by the District
Forum. In view of this, the State Commission has rightly set aside the order of the
District Forum and given the aforesaid partial relief to the petitioner. Here again the
State Commission has recorded reasons for its findings in respect of this partial
relief and the same can be reproduced as under:“It is no where stated in the complaint that she got effected the repairs
and for getting the repairs she had spent so much money. This is
exactly what is decisive of the claim as claim cannot be adjudicated on
the basis of estimates. Estimates were only for the purpose of arriving
at a figure tentatively. As a matter of fact, the surveyor proceeded to
assess the damages at the workshop at Vijayawada carrying with him
the estimate, Ex.B10 furnished by the complainant and had come to a
firm conclusion that the complainant was entitled to a net amount of
Rs.7,425/-. This is rather an amount admitted by the opposite
party. The complainant totally failed to adduce cogent evidence to
support her huge claim of Rs.2,00,000/-by failing to produce the original
bills but at the same time pretending that she so produced without any
acknowledgement to that effect nor any reference to such production in
the relevant documents especially the claim form marked as
Ex.B2. The complainant contended in para 6 of her complaint that she
had submitted the original bills to the surveyor, V.V.S.Ram Prasad of
Vijayawada appointed by the Divisional Office for conducting the survey
of damaged vehicle and it is simply absurd that she could have
submitted the original repairs for the repair done amounting to
Rs.1,22,190/- as contended by her in the said para for the simple
reason
that
Ex.B12,
dated
20-4-2001,
the
report
of Mr.V.V.S.Ram Prasad, specifically referred to his time of survey as
having been carried on 12th 14th, 18th and 25th September by which
time the vehicle was not at all subjected to repairs as is obvious from
the fact that the complainant did not tender any evidence to that
effect. Apart from all this, if really the complainant had spent so much
money nothing prevented her from filing the affidavit of the
person who effected the repairs at Vijayawada workshop and also file if
necessary duplicate copies of the bills if really she had ever taken the
original
bills. Thus
the
amount
claimed
is
totally
unsubstantiated. Nevertheless as per Ex.B12, damage did occur and
the damage was translated into monitory terms fixing it at Rs.7,425/. The minority order of the District Forum rendered by the President
quantified the relief at Rs.73,000/- comprising Rs.68,000/- plus
Rs.5,000/- basing on his appraisal of the photographs. But this is very
unscientific as the President himself stated that he worked it out by
guess
work. The
total
denial
by
the
minority
is
also
not
acceptable. Thus the failure of the opposite party to offer relief in terms
of Ex.B12 rather marks a certain amount of deficiency in service for
which a suitable relief can be granted. In these circumstances, the
complainant has to be granted a relief commensurate with the loss she
sustained
in
the accident
as established
by the
entirety of
the evidence in the case. Going by such yardstick, the amount that
she can be validly granted would boil down to an amount of Rs.7, 425/as drawn from the only reliable document in this regard. Of-course the
complainant is also entitled to the concomitant interest and the
proportionate costs as well. ”
11.
On perusal of the record including the reports of the spot surveyor as well as
the second surveyor, we are of the
need to remand the matter. The impugned order having been passed on the
evidence placed by the parties, the same is upheld. Consequently, the considered
opinion that the State Commission has given a fair and just finding in respect of the
entitlement of the petitioner for the damage suffered by her vehicle. We do not see
any reason to interfere with this finding of the State Commission.
12.
In view of the discussion above, there is no revision petition stands dismissed
with no order as to costs.
……………Sd-……..………..
(K.S. CHAUDHARI, J.)
PRESIDING MEMBER
……………Sd-….……………
SURESH CHANDRA)
bs
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 169 OF 2013
(Against the order dated 19.12.2012 in CC No.02/2009 of the State Commission,
Haryana)
M/s. Ravindra Spinners Ltd., Through its Director Sh. Anish Singla V.P.O. Kabri,
Panipat (Haryana)
……….Appellant
Versus
1. National Insurance Company Ltd. Through its Regional Manager SCO No.337-340,
Sector 35-B, Chandigarh
2. National Insurance Company Ltd., Through its manager Near Kishore Theater,
G.T.Road, Panipat
.........Respondent
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Appellant
: Mr. Arvind Jain, Advocate
PRONOUNCED ON: 08/7/2013.
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
M/s. Ravindra Spinners Ltd. has filed this appeal against the order of Haryana
State Consumer Disputes Redressal Commission in Consumer Complaint No.02 of
2009. The State Commission has dismissed the complaint on the ground that the claim
of the Complainant under the policy had been settled by the respondent/National
Insurance Co. with payment of Rs.51.89 lakhs on 14.3.2008, which had been accepted
by the Complainant in full and final settlement of the claim.
2.
The appeal has been filed with delay of 27 days. Explanation for it is contained in
the application for condonation of delay. On perusal of the same the delay is condoned.
3.
The records submitted on behalf of the appellant have been perused and
Mr. Arvind Jain Advocate has been heard at length on behalf of the appellant. The case
of the appellant/complainant, as seen from the complaint filed on 7.1.2009 before the
State Commission, was that it had received the amount under coercion/compulsion due
to financial constraints. The memorandum of appeal also states that the State
Commission has failed to appreciate that the Complainant accepted the amount under
pressure and due to financial problem. It is contended that the State Commission failed
to appreciate that the ‘full and final’ acceptance cannot be held against the
appellant/Complainant as it amounted to reduction of the claim to 75%.
4.
Learned counsel for the appellant Mr. Arvind Jain argued that the allegation of
coercion/pressure should have been appreciated by the State Commission in the light of
the fact that the Complainant had lost everything in the accident of fire and was left with
no option but to accept whatever was offered. However, learned counsel clarified that
no specific evidence on the plea of coercion had been led before the State
Commission. He accepted that no evidence was produced before the State
Commission to show that the amount of Rs.51.89 lakhs was received under protest. He
also accepted that the discharge slip acknowledging the payment in full and final
settlement was signed on 14.3.2008, while the legal notice was issued by the appellant
to the respondent/Insurance Company nearly four months thereafter, on 5.7.2008.
5.
On consideration of the pleadings and evidence before it, the State Commission
has arrived at the following categorical decision:“Having considered the facts and circumstances of the case and the
‘Discharge voucher’, we find force in the contention raised on behalf of the
opposite parties. It is well settled law that once the claim has been
accepted by the claimant without any objection by signing consent letter in
full and final settlement of claim offered by the Insurance Company,
thereafter, the claimant cannot be allowed to reopen his claim seeking any
further relief. However, mere execution of discharge voucher in the form of
letter of indemnity cannot deprive the claimant of consequential relief if
discharge voucher was obtained by fraud, misrepresentation or under
coercion. There is no evidence on behalf of the complainant that any fraud
or misrepresentation or coercive method was adopted by the Insurance
Company upon the complainant at the time of signing the discharge
voucher and as such the complainant is not entitled for any further
compensation.”
6.
As seen from the impugned order, the State Commission has relied upon the law
as laid down by Hon’ble Supreme Court of India in United India Insurance Vs. Ajmer
Singh cotton and General Mills & Ors. Etc. 1999 (2) CPC 601 (S.C) as well as the
decision of this Commission in National Insurance Company Ltd. Vs. Kuka Rice &
General Mills, 2008 (1) CPC 28 (Haryana).
7.
Considered objectively, the pleadings and the evidence led before the State
Commission clearly established that:a) That the payment of Rs.51.89 lakhs was received without protest.
b) The discharge slip admittedly signed on 14.3.2008 makes it a full and final
settlement of the claim.
c) It took the Complainant nearly four months to give the legal notice of 5.7.2008 on
the ground of coercion/compulsion.
d) The consumer complaint itself was filed before the State Commission on
7.1.2009, which makes it almost 10 months from the date of full and final
discharge, 14.3.2008.
8.
The above facts would by themselves indicate that it is a case of action as an
afterthought. The arguments of learned counsel for the appellant would indicate that
the Consumer Complaint was filed in the background of the information that the
Surveyor had assessed the loss to be Rs.70.5 lakhs while the insured had accepted
Rs.51.89 lakhs, in ‘full and final’ settlement. It is thus a case where, as rightly observed
by the State Commission, the insured is seeking to reopen his claim for further
relief. No evidence was led before the State Commission to show that the acceptance
of the appellant/Complainant was obtained by any acts of fraud or misrepresentation or
coercion on the part of the respondent/Insurance Company.
9.
It is therefore, held that the decision of the State Commission is based on
complete and correct appreciation of the evidence on record. There is no ground to
interfere with the same. The appeal is therefore, dismissed at the stage of admission
itself. No order as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1362 OF 2013
(Against the order dated 14.02.2013 in S.C.Case No.FA/223/2011 of the State
Commission, West Bengal)
Kotak Mahindra Bank Limited, 7th Floor, C Block, Apeejay House, 15 Park
Street, Kolkatta West Bengal- 700016 Through its Authorised Representative
……….Petitioner
Versus
Partha Pratim Chatterjee S/o Bimal Chatterjee R/O A/1, Ramgarh Colony, Kolkata700047
.........Respondent
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Petitioner
: Mr. Sourabh Leekha, Advocate
PRONOUNCED ON: 8/7/13.
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
Revision petitioner/M/s. Kotak Mahindra Bank has challenged the order of West
Bengal State Consumer Disputes Redressal Commission in FA No.223 of 2011. The
State
Commission
has
upheld
the
order
of
the
Kolkata
Consumer
Disputes Redressal Forum, directing RP/OP to refund a sum of Rs.33,450/- to the
respondent/Complainant. The order of the District Forum has been modified to the
extent that the direction to pay compensation of Rs.5000/- has been set aside and the
costs of Rs.2000/- awarded by the District Forum has been reduced to Rs.1000/. To
this extent, the appeal of the RP/OP has been allowed partially by the State
Commission. However, on the main issued of refund of Rs.33450/-, there is unanimity
of view between the District Forum and the State Commission. Both have ordered its
refund.
2.
The matter arose out of loan of Rs.301205/- taken by the Complainant from the
RP/OP Bank. It was to be paid in 36 instalments. After some default on repayment of
the EMIs, the two parties negotiated the matter and research a settlement on
26.03.2009. Under the settlement, the complainant was required to pay Rs.140000/- in
four instalments. As seen from the record, the agreed payment schedule was as
follows:i)
Rs.12,000/- within 30.03.2009
ii)
Rs.20,000/- within 30.03.2009
iii)
Rs.50,000/- within 30.05.2009
iv)
Rs.58,000/- within 30.06.2009
3.
The case of the Complainant was that the first three instalments were paid on
time. Third instalments was paid with an additional sum of Rs.8000/-. Thus, the
balance payable by 30.06.2009 was Rs.50,000/-, which was paid as per the following
details:i)
Rs.25,000/- on 01.07.2009
ii)
Rs.10,000/- on 15.09.2009 and
iii)
4.
Rs.15,000/- on 26.10.2009.
Accordingly, the entire agreed sum of Rs.140,000/- stood fully paid, though the
last instalments of Rs.50,000/- was paid with some delay. Set back in business was
explained as reason for this delay. In the meanwhile, the respondent/Complainant
discovered from the bank statement of account that three monthly ECS payments of
Rs.11,150/- each had also been deducted by the bank, without any prior intimation. This
amounted to excess repayment to the extent of Rs.33450/-. This is the amount which
has been ordered to be refunded by the fora below. While doing so, the District Forum
has observed that:“That the petition of complaint is allowed ex parte with cost against the o.p.
M/s. Kotak Mahindra Bank Ltd. O.p. is directed to refund the amount of
Rs.33450/- (Rupees thirty three thousand four hundred fifty) only to the
complainant along with interest @ 8% p.a within 45 days from the date of
communication of this order and to pay compensation of Rs.5000/- (Rupees
five thousand) and litigation cost of Rs.2000/- (Rupees two thousand) only
positively within 45 days from the date of communication of this order, failing
which it will carry further interest @ 10% p.a. till full realization.”
Similarly, the State Commission has held that:“We have heard the submission made by both sides and perused the
materials on record. From the materials on record it appears that the
settled
amount
of
Rs.1,40,000/was
paid
by
the
respondent/complainant. Vide cheque dated 29/06/09 the respondent paid
Rs.25,000/- and thereafter the sum of Rs.10,000/- was paid
vide cheque dated 05/09/09. There was the gap of two months and it is
contended by the respondent that due to serious illness he could not pay
the said insltament on time. Since the settled amount was paid by the
respondent, we are of the considered view that the bank ought not to have
deducted three instalments by way of ECS, in as much as, there was no
intention on the part of the respondent to avoid payment.”
5.
The records, as submitted by the revision petitioner, have been perused and
Mr. Saurabh Leekha, Advocate has been heard at length on behalf of the
petitioner/ Kotak Mahindra Bank. The main argument advanced in justification of the
action taken by the bank is that the action of the fora below tantamounts to modifying
the terms of the settlement reached between the parties. It is also contended that upon
default in timely repayment as per the terms of the settlement, the terms and conditions
of the original loan had automatically got revived.
6.
The District forum has categorically observed that the RP/OP did not contest the
case and therefore was treated ex-parte. In this background, a specific query was put
to the counsel for the revision petitioner whether the contention raised in the revision
petition was a ground before the District Forum. Learned counsel accepted that it was
not raised as the petitioner was treated ex-parte. The contention was therefore raised
before the State Commission. Learned counsel however, accepted that no specific
justification was offered before the State Commission for deduction of three
ECS instalments. It is thus, clear that the contention now raised is a mere attempt to
improve the case of the OP at the stage of revision.
7.
The fact remains that the petitioner/bank has received payment through the ECS
arrangement under the original loan agreement as well as separate payments
through cheques, under the settlement. Details as already examined show that the
entire amount of Rs.140000/- has been received under the settlement, though the last
25,000/- with a delay of few months. Equally, there is nothing to show that the amount
collected under the ECS arrangement, has been recredited to the account of the
Complainant after 26.10.2009, when the entire agreed sum of Rs.140,000/- had already
been received by the bank.
8.
The revision petitioner has sought to rely upon the decision of Hon’ble Supreme
Court in Export Credit Guarantee Corpn. of India Ltd. Vs. Garg Sons International,
I (2013) SLT 614 in which it was observed that while construing the terms of a contract
of a insurance, the words used therein must be given paramount importance, and it is
not open for the court to add, delete or substitute any words. The above decision came
in the context of a contract of insurance to cover default in payment by a foreign
importer. Clause 8 (b) of the Insurance Agreement stipulated the period within which
the insurer was to be informed about default, if any, committed by a foreign
importer. The ECGC rejected the claim on the ground of non-compliance of this
stipulation. It was held that the insured cannot claim anything more than what is covered
under the policy.
9.
The facts of the case of the revision petitioner stand on a very different
footing. The bank has received payments under the subsequent settlement and at the
same time granted to itself the ECS payment benefit under the original loan
agreement. The fact of excess payment being received in the process is apparent from
the record. Therefore, the revision petitioner cannot seek any protection under the
terms of the decision of the Apex Court cited on his behalf.
10.
In the result, the revision petition is held to be completely devoid of any merit and
is dismissed as such. No order as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2248 OF 2013
(Against order dated 22.11.2013 in First Appeal No. 143 of 2012 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)
Today Homes Infrastructures Pvt. Ltd., Statesmen House, 8th Floor, New Delhi-110001
…Petitioner
Versus
1. Mr. O.P. Ratra M-86 FF, Blossoms-II Sector-51, Gurgaon-122 018
2. Mrs. Harmeet Ratra W/o Mr. O.P. Ratra M-86 FF, Blossoms-II, Sector-51,
Gurgaon-122 018
…Respondents
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner(s)
PRONOUNCED ON
:
Ms.Ruhi, Advocate
JULY, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The Revision Petition is filed against the impugned order of Haryana State
Commission Disputes Redressal Commission, Hyderabad (in short, State Commission,
Haryana) in First Appeal Number 143 of 2012 against the Consumer Complaint No.
722/2009 of District Consumer Disputes Redressal Forum, Gurgaon(in short District
Consumer Forum). The Facts in Brief are these.
2.
The Respondents/Complainants One Mr. O.P. Ratra and Mrs. Harmeet Ratra had
booked two floors in the project of Petitioner/Opposite Party units bearing No. 86 at
Ground Floor and First Floor, Blossom-II at Sector-51, Gurgaon. The Complainants
wrote a letter on 04.08.2005 to the Petitioner and sought concession of Rs.3,00,000/for the direct booking and deposited Rs.59,40,000/- as a down payment plan for the two
floors in total. As per Agreement entered between the Complainants and Opposite Party
the possession of unit was to be delivered within 21 Months but the OP offered
possession along with final demand notice on 13/8/2007 for the same of Rs.8,28,094/of 29 months as detailed below:.
1.
2.
3.
4.
5.
6.
Total Sale Consideration:
Early Payment discounts (if applicable)
Amount received till date
Balance Payable
Interest on delayed payment, if any
Maintenance Security
Rs. 65,07,000/Rs.60,000/Rs.59,40,000/Rs.5,07,000/Rs.2,96,094/Rs.25,000/-
3. The Complainants did not accept the above said offer because of delay of 29
months and by various reasons like the Units and Blossoms II, Complex were (i) not
habitable (ii) nor in a capacity of ready to move in with no facilities/utilities, horticulture,
water and power supply (iii) no motorable inside roads and proper entry of the complex
from the main road. Complainants further alleged that the demand of the OP with
respect to interest of Rs.2,96,094/- was wrong as per their letter dated 04.08.2005. OP
stated that the delay in offering the possession was due to non-availability or sanction of
power supply by the State electricity board. Subsequently on demand from builder the
compliant cleared the final payment of Rs.5,32,000/-+ interest of Rs. 1,91,094/- in full
and final settlement for Unit No. M 86 (GF & FF) in Blossoms_II, Gurgaon and
requested for delivery of physical possession of their Units within one week after
completing the leftover work. Thus, the Complainants paid a total sum of Rs.66,88,094/as on 07.06.2008/22.07.2008 including the additional Maintenance Charges (IFMS
Charges) worth Rs.25,000/- and again prayer for delivery of physical possession was
made. But the OPs further delayed and the physical possession of the Units was given
after 41 months i.e. a delay of 20 months and the same was taken by the Complainants
on 25-08-2008. As per agreement, the Complainants were entitled for compensation @
Rs.5/- per sq. ft per month for delay of 20 months of the Units which amount to
Rs.3,00,000/-. Complainants further sought interest @12% per annum on the deposited
amount from the date of each deposit on the total amount of Rs.66,88,094/-. Thus,
alleging deficiency in service on the part of the OP, the Complainants filed complaint
before the District Forum.
4.
The District Forum dismissed the Complaint.
5.
Aggrieved by the order of the District Forum the Complainants have preferred an
Appeal before the State Commission. The State Commission heard both the parties
wherein the Complainants restricted as arguments only with respect to charging of
interest of Rs.1,91,094/- by the Respondent-Ops. The State Commission after the
appraisal of pleadings and evidence of both parties on record allowed the appeal
No.143/2012 with following findings as,
“ keeping in view the facts and circumstances of the case and to bring the
parties at an equal status, we hold the opposite parties deficient in service
for not delivering the possession of the units to the complainant within 21
months and further hold them guilty indulging in unfair trade practice
adopted by them for charging interest of Rs.1,91,094/- (Rs.91,094/- through
cheque No.901953 dated 07.06.2008 and Rs.1,00,000/- through cheque
No.349123 dated 07.06.2008), which could not be charged. The Complainant
O.P. Ratra, who is Senior Citizen, has been put to great inconvenience by
not delivering the possession of the flat in time and at time and at the old
age of 74 years, he has to run from pillar to post to get justice. Keeping in
view that the interest of Rs.1,91,094/- was charged by the opposite party,
the same is to be refunded to the complainant”
6.
Against the said impugned order of State Commission, this revision petition.
7.
The learned counsel appearing for petitioner vehemently reiterated the
submissions made before the State Commission. We have perused the entire material
placed on record and the contentions of both the parties.
8.
There is delay of 87 days in filing this revision petition. The petitioner moved an
application for condonation of delay and the reasons sated therein are as follows:
“a) It is stated that the legal officer of the Applicant Company, who
was dealing with the matter, left the Applicants Company office in
January 2013.
b) It is further stated that after the said legal officer left the Applicant
Company, the whole file of the matter along with the certified copy of
the order of the State Commission was not traceable, due to shifting
of some files for some renovations in the office.
c) It is stated that, only when a new legal officer joined the office in
May 2013, that the file was traced back and the matter could be
revamped”.
9. The petitioner did not explain day-to-day delay. The reasons quoted in the
application are not acceptable to us those appears to be vague and imaginary in nature.
10. Considering the merits of this petition; it is very clear from the documents on record
that the petitioner had NOT given physical possession of the units to the Complainants
after 21 months from the date agreement but the same was delivered after 41 months.
Hence, the petitioner delayed the possession for 20 months. This is deficiency in
service. The petitioner tried to cover up its deficiency by taking the plea that the delay
was caused due to non-availability of the electricity by the Electricity Department and
the possession could be taken without the electricity connection. In our view once the
Complainants had paid the entire price of the Units the possession should be given with
all amenities. The petitioner failed to do so, which is deficiency in service.
11. In our observation the petitioner claim his right to charge interest @ 15% which
appears to be unjust and an exploitation of consumers. Hence, Petitioner is charging
interest of Rs.1, 91,094/- which was not proper and is an unfair trade practice. As the
Complainants are 72 and 68 years old, senior citizen suffered exploitation and inconvenience due to non-delivery of the flat within specified period of time and made him
run from pillar to post.
12. In conclusion, we do not find any merit in this petition, as well there is
unexplained delay of 87 days filing this revision petition. There is no illegality in the
order of State Commission. Therefore, we dismiss this revision petition. No costs.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR)
MEMBER
Mss
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 327 to 379 OF 2012
(Against the Order dated 27/04/2012 in Complaint Case No. 13/2010 of the State
Commission Andhra Pradesh)
M/s. Maytas Properties Ltd. (Formerly Maytas Hill County Pvt. Ltd.) Regd. Office at
Maytas Hills County Ltd. Through its authorized signatory, Sh. C. Nagaiah, Senior
Manager, Bachupally, Miyanpur, Hyderabad Andhra Pradesh
… Appellant
Versus
1. Bharati Khurana D/o Ramesh Chander Khurana, R/o Pond Ave. Brokline, MA-02445,
USA
2. Mrs. Asha Khurana, W/o Ramesh Chander Khurana, R/o 103, New Swastik
Apartments, Sector-9, Rohini, New Delhi -110085
Both rep. by their GPA Holder Shri Sandeep Khurana, S/O Mr. Ramesh Chander
Khurana, R/o 501, Block -2B, SMR Vinay Acropolis White Fields, Opp. Jayabheri Silicon
Valley, Knodapur, Hyderabad
PRONOUNCED ON 08.07.2013
ORDER
ASHOK BHAN, J., PRESIDENT
First Appeal Nos. 327 to 386 of 2012 have been filed by the Appellant/Developer, M/s.
Maytas Properties Ltd. (formerly known as M/s. Maytas Hill County Pvt. Ltd.) against
the judgments and orders dated 27.04.12 passed by the State Consumer Disputes
Redressal Commission, Andhra Pradesh (in short, 'the State Commission') in 60
complaints filed by the Respondents/Complainants wherein the State Commission
relying upon its own order passed in C.C. No.30/09 against the very same Developer
which was modified by this Commission and upheld by the Hon’ble Supreme Court,
allowed the complaints and directed the Developer to refund the amounts deposited by
the Respondents/Complainants along with interest @ 12% p.a. from the respective
dates of deposit till payment together with compensation of Rs. 1,00,000/- and costs of
Rs. 10,000/-.
First Appeal Nos. 387 to 400 of 2012 and First Appeal Nos. 14 to 25 of 2013 have been
filed by the Appellants, State Bank of India and ICICI Bank Ltd. respectively against the
judgments and orders dated 27.04.12 passed by the State Consumer Disputes
Redressal Commission, Andhra Pradesh (in short, the “State Commission ”) in 26
complaints whereby the State Commission allowing the complaints has directed the
Appellant
Banks
to
recover
the
loan
amount
borrowed
to
the
Respondents/complainants from the Developer and credit it to the loan accounts of the
Respondnets/Complainants.
First Appeal Nos. 717 to 720 of 2012 have been filed by the Appellant/Developer, M/s.
Maytas Properties Ltd. against the judgment and order dated 25.09.12 passed by the
State Consumer Disputes Redressal Commission, Andhra Pradesh (in short, ‘the State
Commission’) in complaint case nos. 79 & 82/09 and 1 & 97/2010 wherein the State
Commission allowing the complaints has directed the Developer to refund the amount
deposited by the Respondents/Complainants along with interest @ 12% p.a. from the
respective dates of deposit till payment together with compensation of Rs.1,00,000/and costs of Rs. 10,000/.
First Appeal No.8 of 2013 and First Appeal No.29 of 2013 have been filed by the
Maytas Properties Ltd. and the State Bank of Bank respectively challenging the order
dated 19.10.12 passed by the State Consumer Disputes Redressal Commission,
Andhra Pradesh in CC No.81/09 wherein also the State Commission allowing the
complaint has given the same directions as above to the Developer and the Bank.
First Appeal Nos. 781 & 783/12 have been filed by the Developer and the State Bank of
India respectively against the common judgment and order dated 5.11.12 passed by
the State Consumer Disputes Redressal Commission, Andhra Pradesh in CC No.75/10
wherein State Commission allowing the complaint has given the similar directions to
them.
State Commission dismissed the complaints against the land owner companies.
Since the Developer had executed sales deeds in favour of some of the
Respondents/Complainants,
the
State
Commission
has
directed
those
Respondents/Complainants to re-convey the property to the Developer on receipt of
refund of the amount.
It is pertinent to mention that the State Commission has segregated the complaints into
several categories and disposed of them by similar orders dated 27.04.12. The
complaints in which the Bank was not a party and where loans were not availed of,
were disposed of by 2 separate but similar orders. The complaints in which
banks/financial institutions were made parties had been disposed of vide 5 separate but
similar orders. The banks/financial institutions which were arrayed as parties in the
complaints are, State Bank of India, ICICI Bank Ltd. IDBI Bank, Axis Bank Ltd. BHW
Home Finance. All the orders passed by the State Commission are identical, in
addition to the directions of refund to the Developer where the Banks are also made a
party.
Since the question of law and facts involved in all these Appeals are the same, we
propose to decide all the Appeals by a common order.
AVERMENTS MADE IN THE COMPLAINT:Appellant/Developer, M/s. Maytas Properties Ltd. (hereinafter to be referred to as “the
Developer”) - entered into a Development Agreement cum General Power of Attorney
bearing No. 102/206 dated 30.12.05 with the 14 land owner companies for
development of Ac. 85.36 Guntas of land situated in Survey No. 192/P to 198/P, 201/P
and 282/P at Bachupally Village, Qutubullapur Mandal, Rang Reddy District. Developer
obtained layout permission from Hyderabad Urban Development Authority (HUDA) on
21.03.06 for development of a township known as “Maytas Hill County” consisting of
364 independent villas and multistoried residential apartments together with facilities
like club apartments, parks, open spaces, gym, health clubs, playgrounds, shopping
centre
etc.
Developer
further
entered
into
agreements
of
sale
with
the
Respondents/Complainants (hereinafter to be referred to as the “Respondents”) for
booking of flats/villas/apartment. As per agreements of sale, the sale consideration was
agreed to be paid in installments, i.e., 10% of the sale consideration on the date of
booking, another 10% within 15 days from the date of booking and remaining in phased
manner and 5% at the time of handing over the possession of the flat. Some of the
Respondents approached the Appellant Banks for grant of housing loan. The Appellant
Banks agreed to grant the home loan as per tripartite agreements executed between
the Bank, Developer and the Respondents. Developer executed registered sale deeds
in favour of some of the Respondents in respect of undivided share of land together
with unfinished structure.
As per Agreements of Sale, construction of the flats/apartments was to be completed
within one year with a grace period of three months. On 07.01.09, founder of M/s.
Satyam Computer Services Ltd., Shri Ramalinga Raju confessed that he had diverted
the funds from Developer to computer services and, therefore, there could be delay in
completion of the project. Criminal proceedings were initiated against the Directors of
the Developer. There was an award passed against the Developer for Rs.600 crores
together with interest of Rs.221 crores. Respondents alleged that the Developer was
deficient in rendering service by not completing the construction within the stipulated
time and in diverting the funds; that they could not collect more than 20% towards
advance as per Section 5 of the Andhra Pradesh Apartments (Promotion of
Construction and Ownership) Act, 1987; that the Banks had disbursed the entire loan
amount to the Developer without any physical verification or valuation by a valuer of the
construction contrary to the agreement of sale and tripartite agreement. Complainants,
being aggrieved, filed the complaints before the State Commission.
STAND TAKEN BY THE DEVELOPER
On being served, Developer entered appearance and filed its written statement
contesting the complaints on the grounds; that the Developer commenced the project
as per schedule but on a wholly incorrect understanding of Developer’s association with
Mr. B. Ramalinga Raju, Founder of M/s. Satyam Computer Services Ltd. the various
investigations and proceedings were instituted against the Developer; that the
Banks/financial institutions which had committed funding withdrew from the project as a
result of which the project could not be developed; that the delay in completion of the
project was due to ‘force majeure’ which was beyond the control of the Developer; that
the Developer constructed and delivered possession of 140 independent houses to
some of the purchasers and 172 houses were in final stages; that pursuant to the
enquiries initiated against M/s. Satyam Computers Ltd. the case of the Developer was
referred to the Company Law Board (in short “CLB”) which appointed SBl Capital
Markets Ltd. (in short “SBl Cap”) as transaction Advisor; that the CLB passed an order
dated 13.01.11 inducting M/s. Infrastructure Leasing and Financial Services Ltd., M/s.
IL&FS Financial Service Ltd. and M/s. IL & FS Engineering and Construction Company
Ltd. into the company as shareholders by allotting preferential shares; that the Board of
Directors of the Developer was re-constituted; that the new Board of Directors made
efforts to arrange further funds to complete the project; that the complaints filed by the
Respondents before the State Commission were not maintainable as in terms of
Agreements of Sale in case of any dispute the matter was required to be referred to the
Arbitrator for resolving the same; that by virtue of the orders passed by the CLB on
05.03.09 and 13.01.11, the complainants could not seek relief before the consumer fora
and they were required to approach the CLB.
STAND TAKEN BY THE APPELLANT BANK
Appellant Banks, in the cases where the home loan was obtained by the
Respondents/Complainants, contested the complaints on the grounds; that the
Respondents, Developer and the Bank entered into a tripartite agreement and the Bank
had disbursed the loan amount against the mortgaged property directly to the
Developer on behalf of the Respondents as per agreed terms of the tripartite
agreement; that the disbursement of loan to the Developer was not on the basis of
different stages of construction of the flats but was on the basis of the due date fixed for
payment as per agreement of sale; that as per tripartite agreement, the Developer and
the Respondents were liable to indemnify the Bank against any risk which might arise
on account of any defect in the title to the property; that the Respondents could not stop
payment of EMIs on the ground that the Developer failed to complete the construction
or hand over possession of the flats; that the Respondents were estopped from making
any claims in the light of the terms of tripartite agreement.
During the pendency of the complaints before the State Commission, the Developer
moved Miscellaneous Applications seeking dismissal of the complaints on the ground
that the complaints were not maintainable in view of the arbitration clause in the
agreements of sale. That as per Arbitration Clause in case of dispute, the matter was
required to be referred to the Arbitrator and the jurisdiction of the Civil Court/any other
forum was ousted by the said Arbitration Clause. The said applications were dismissed
by the State Commission holding that the Consumer Fora constituted under the
Consumer Protection Act, 1986 had the jurisdiction to try, entertain and adjudicate upon
the complaints as per law laid down by the Apex Court in catena of judgments. Feeling
aggrieved, Developer filed Writ Petitions (27689/10 and batch) before the Andhra
Pradesh High Court which were dismissed by observing as under:“ Having regard to the interpretation given by the Supreme Court in FAIR
AIR ENGINEERS PVT. LTD ( supra) with regard to Section 3 of the 1986 Act and
the ratio in LUCKNOW DEVELOPMENT AUTHORITY (supra), we are of the view
that the 1986 Act, being a special enactment, created an additional remedy in
favour of the consumers to raise consumer disputes before the Fora constituted
under the said Act, and that Section 8 of the Arbitration Act does not have the
effect of taking away such a remedy from the consumers as in the case of civil
suits, which are in the nature of common law remedies. If a party chooses to
avail a remedy other than the consumer dispute, he shall be free to do so
because the remedy under the 1986 Act is not in derogation of the other
remedies available to such a party and he cannot be denied such right on the
ground of availability of an alternative remedy, such as Arbitration Act as Section
3 of the 1986 Act is intended to provide an additional remedy to a party and the
same is not meant to deny such a remedy to him. Further, by virtue of Section 17
of the Consumer Protection Act the parties can undoubtedly resort to filing of the
complaint as specified under section 17 of the Consumer Protection Act The
restriction as to the inherent jurisdiction would not come in the way for the
complainant to file the complaint, provided he fulfils the conditions mentioned in
section 17 of the Consumer Protection Act. ”
Developer, being aggrieved, filed SLP (C) No. 30367/11 which was dismissed as
withdrawn by the Supreme Court vide order dated 18.11.11 with the following
observations:“
If the petitioners file an appeal before the National Consumer
Disputes Redressal Commission (for short, ‘the National Commission’) within 30
days and apply for condonation of delay then the prayer shall be considered by
the National Commission on its own merits and decided keeping in view the fact
that the petitioners had been pursing remedy before the High Court.
It is needless to say that the National Commission shall decide the appeal
uninfluenced by the observations made in the order passed by the High Court.”
State Commission, after taking into consideration the facts, pleadings and the evidence
led by the parties, came to the conclusion that the Developer was deficient in rendering
service by not completing the construction of the flats/handing over the possession of
flats within the stipulated time as per Agreements.
State Commission relying upon its earlier judgment passed in Complaint Case
No.30/09 against the same very Developer which was modified by this Commission and
upheld by the Hon’ble Supreme Court, allowed the complaints and directed the
Developer to refund the amounts deposited by the Respondents/Complainants along
with interest @ 12% p.a. from the respective dates of deposit till payment together with
compensation of Rs.1,00,000/- and costs of Rs.10,000/-. Since, in some of the cases
the Sale Deeds were executed in favour of the Respondents, the State Commission
directed the Respondents to re-convey the property to the Developer on receipt of the
refund of the amount. Complaints against the land owner companies were dismissed.
State Commission held the Developer deficient in rendering the service by observing as
under:“26. Since the developer could not prove the stages of construction
or that it would hand over possession within a reasonable period, and the
period that was originally stipulated was already expired, and all through
the complainants have been paying EMIs, we are of the opinion that it
would be unjust that the complainants be directed to go on paying the
amounts to the banks without there being any hope of getting the project
completed.
27. The Complainant by issuing notice to the developer cancelled
the above said agreement and directed the Developer to pay the
consideration received so far, as no construction was taken up nor
completed, and sought for refund of the amount with penalty @ Rs.5/- per
sfts. as per clause 7 (a to d) of the agreement. However, we do not see any
justification in impleading the original owners of property, who have no
subsisting interest in the property. They have parted their title in favour of
the Developer. Therefore, the claims against them do not sustain. The
complaints are liable to be dismissed against them….
29.
In some of the cases, sales deeds were executed in favour
of the complainants by the developer conveying the title. Obviously, the
complainants cannot have title as well as refund of the amount, since the
very sale has been frustrated, in such a case, when the developer has
executed the sale deed and there is no prospect of either constructing flats
or delivering the property to the complainants, the Hon’ble Supreme Court
in somewhat similar case Vinod Kumar Thareja Vs. M/s.
Alpha Construction reported in CPJII (2011) CPJ 3 SC while giving
direction to refund the amount also directed to re-convey the property to
the builder. Therefore, we direct the complainants to execute reconveyance deed on receipt of amount payable by the developer. The
registration charges shall be borne by the developer. This is in conformity
with the above said decision of the Hon’ble Supreme Court.
30.
We may also state herein that the orders of this
Commission against the same developer (vide C.C.No.30/2009) directing to
refund the amount with interest @ 12% p.a has been upheld by the National
Commission in F.A. No.189/2010 while reducing the compensation from
Rs.5 lakhs to Rs.1 lakh. The SLP moved by the developer before the
Hon’ble Supreme Court in Appeal (Civil) No. 26256/2010 was dismissed on
27.09.10. Therefore, these matters are covered by the above decisions and
there is no need for any distinction to be made between these cases. These
contentions do not sustain.”
IL & FS which was inducted and permitted to complete the project by the
CLB vide its order dated 13.01.11, raised an additional plea which was not raised
earlier by the Developer in Complaint Case No.30/09 that by virtue of orders of
the CLB dated 05.03.09 and 13.01.11 which were passed with the consent of
Respondents, the Respondents could not seek the relief before the consumer
fora and they ought to have approached the CLB for redressal of their
grievances.
The
said
contention
was
rejected
by
the
State
Commission on the grounds; that neither the Respondents were
a party to the proceedings pending before the CLB nor were they issued any
notice by the CLB; that the orders passed by the CLB were not binding upon the
Respondents and did not bar the consumer fora to decide the complaints filed by
them.
In the complaints in which the Banks/Financial Institutions were made a
Respondent Party, State Commission held that the Appellant Banks/Financial
Institutions were deficient in rendering service in disbursing the loan amount to
the Developer without verifying the stage and nature of the construction. State
Commission also held that the Respondents were not liable to pay any further
EMIs. State Commission directed the Banks/financial institutions to recover the
loan amount plus whatever interest due from the Developer and credit it to the
loan account of the Respondents.
State Commission observed as under:“
The bank has undoubtedly violated the terms of the tripartite
agreement and released the amount even without bothering to verify as to
the stage and nature of construction. In other words, the bank financed to
a non-existent project or incomplete project, duping its own customers.
Now the complainants would be unnecessarily hard pressed to pay the
amounts towards EMI without there being any hope of getting the
apartments as the developer is under winding up proceedings. The bank
cannot take advantage of its own indiscretion. This is unjust and unethical.
If the bank released the amounts contrary to tripartite agreement it has to
suffer for the consequential losses. Whatever loss caused thereby it could
as well as approach appropriate forum for recovery of the amount from the
developer, to which it has released the amount in one go. The bank under
the terms entitled to recover from the developer to which it had paid the
amounts. It cannot turn round and claim against the complainants. It is not
under original stipulation that the bank had to pay the entire amount to the
developer. The developer also agreed to refund the amount if there are
cancellations of the agreement or failure to fulfill its commitments. The
agreement that was arrived at earlier was fair and no party would benefit
from the lapses or mistakes of the other. Therefore, the complainants are
not
liable
to
pay
the
EMIs.
“
The Bank has to collect the loan amount plus whatever interest and
other legally permissible charges from the developer and credit it to the
complainant’s loan account. It shall not collect further EMI’s nor entitled to
any more amount except the amount, if any, remained unpaid by the
complainants towards loan granted to him. The Bank has no authority to
complain to CIBIL. In fact if there is a provision, the CIBIL has to enter the
name of the bank, as one of the violators of guidelines of the banks.”
Feeling aggrieved, the Developer as well as the Banks have filed the
present appeals.
We have heard the Ld. Counsel for the parties at length.
SUBMISSIONS MADE IN FIRST APPEAL NOS. 327 TO 386 OF 2012, 717 TO
720 OF 2912, 781/12 AND 8/13 FILED BY THE DEVELOPER
Ld. Senior Counsel, Shri A.M. Singhvi, appearing for the Developer
contends that the expiry date of construction was not the same for all the
agreements of sale as the agreements of sale were executed on different dates
till the end of the year 2009; that since the project was abandoned midway and
construction activity came to a standstill for a period of two years after the
Satyam scam; the purchasers under the misapprehension that the project will not
be
completed,
stopped
paying
the
installments
and
the
various
Investors/Banks/Financial Institutions which had committed funding of the
project, also withdrew from the project; that due to acute shortage of funds the
development of the project was jeopardized; that various attachments and court
orders also delayed the project; that pursuant to the inquiries initiated against
M/s. Satyam Computers Services Ltd., the case of the Developer was referred to
the CLB; that CLB vide order dated 13.01.11 inducted IL & FS group as the new
promoter of the Developer and consequently the Board of Directors of the
Developer was re-constituted; that with the new arrangements made by the CLB,
the Developer has completed 9 out of 11 Apartment Towers of the “Hill Country
Project”; that the Developer is in a position to hand over the possession of the
flats to the Respondents; that by virtue of order dated 13.01.11 passed by the
CLB, the Respondents could not seek remedy of their grievances before the
Consumer Fora; that the State Commission erred in holding that the order
passed by the CLB was not binding upon the Respondents as they were not a
party before the CLB; that no individual notices were required to be given to the
Respondents as the Respondents were represented by the Hill County Home
Owners Welfare Association, a body representing the interest of all the
purchasers; that the Hill County Home Owners Welfare Association was
impleaded as a party by the CLB and the arrangements were made by the CLB
with the consent of the Association; that the State Commission has erroneously
directed the refund of the deposited amounts to the Respondents on the
presumption that the order of CLB had not been complied with and there was no
progress in the construction; that in most of the complaints, Respondents had
prayed for handing over of the possession of the finished flats and in the
alternative for refund of deposited amount but the State Commission by a blanket
order has directed the refund of amount to all the Respondents; that pursuant to
the order dated 13.01.11 passed by the CLB, IL&FS Group had infused Rs.425
crores to meet the commitments of the Hill County Project and the Developer has
no funds to pay the dues either to the Respondents or the Bank; that if the funds
are diverted in making refunds to the Respondents or paying amounts to the
Bank, it would be at the cost of the other customers of the “Hill County Project”
as the project may not be completed due to lack of funds; that the State
Commission erred in observing that there was no evidence on record to show as
to what was the stage of construction when the additional affidavit of the
Developer was on record giving all the details about progress in construction;
that the application filed by the Developer for appointment of Commissioner to
inspect the stage of construction was illegally rejected by the State Commission;
that the delay in completion of the construction and handing over of the finished
flats to the Respondents had occurred due to ‘force majeure’ events which were
beyond the control of the Developer; that the project is near completion and the
new Promoters will not charge any penal interest on the delayed payment and
also not charge for any escalation in cost of construction.
Ld. Senior Counsel appearing for the Developer further submitted that the
State Commission wrongly proceeded to pass orders in favour of the
Banks/Financial Institutions as if they were complainants before it; that after the
Satyam Episode in 2009, Respondents started defaulting in making the
payments of installments to the Banks/Financial Institutions; that the Developer
has been meeting Banks/Financial Institutions periodically to help the
Respondents to arrive at settlement and for restructuring of their loans; that there
was no occasion or reason for the Respondents to apprehend about fate of the
project or to stop making payment of their EMIs to the Bank and, therefore, there
was no justification in shifting Respondents’ liability towards the Bank to the
Developer; that the State Commission has held the Banks/Financial Institutions
deficient in service and, therefore, the Banks/Financial Institutions should
restructure the Respondents’ loan account.
SUBMISSIONS MADE IN FIRST APPEAL NOS. 387 TO 400 OF 2012, 783/12,
29/13 AND 14 TO 25 OF 2013 FILED BY THE STATE BANK OF INDIA AND
ICICI BANK LTD.
Financial Institutions other than State Bank of India and ICICI Bank Ltd.
have not challenged the orders passed by the State Commission. The orders
passed against the Financial Institutions other than State Bank of India and ICICI
Bank Ltd. have attained finality.
Ld. Counsel appearing for the Appellant State Bank of India contends that
the Appellant cannot be fastened with any liability to collect the loan amount from
the Developer and the Respondents cannot be granted liberty not to pay the
EMIs to the Appellant Bank; that it was agreed between the parties that the
payment of the sale consideration of the flats would be made in installments on
due dates fixed in the Agreements of Sale; that the disbursement of loan amount
to the Developer directly was not linked to the stage of construction and,
therefore, the bank was not liable to review the progress of construction; that as
per clause 7 (a) of the tripartite agreement in the event of cancellation of
allotment of schedule property by the Developer, the Developer was liable to pay
all amounts received by it from the Bank on behalf of the Respondents and,
therefore, in the present case as the allotment was not cancelled by the
Developer, the Bank was not liable to recover the loan amount from the
Developer; that there was no “Debtor – Creditor relationship” between the
Developer and the Bank and the amounts were released to the Developer on the
basis of duly signed disbursement request forms submitted by the Respondents
and as such it is not open for the Bank to claim the recovery of the loan amount
from the Developer.
Ld. Counsel appearing for the Appellant Bank further contends that no
complaint under the Consumer Protection Act, 1986 was maintainable against the
Appellant Bank as they had acted under the agreed terms and conditions of the
loan agreement; that the Respondents cannot escape the liability of making the
payment of loan to the Banks and the Banks could not be made liable to collect
the loan amount from the Developer; that if the construction of the project was not
completed by the Developer, the Respondents were at liberty to take appropriate
action against the Developer but that cannot be the ground for the Respondents
to seek a declaratory relief or direction not to insist for repayment of the loan
amount; that the State Commission erred in holding that the Appellant Bank did
not try to recover the loan amount from the Developer by invoking clauses of
tripartite agreement; that the home loan was granted to the Respondents for
purchase of the residential property and the Appellant Bank is legally entitled to
recover the dues from the Respondents.
Ld. Counsel appearing for the Appellant, ICICI Bank Ltd. submits that the
Appellant Bank in all the 12 appeals have disbursed the loan amount based only
on the duly signed disbursement request forms submitted by the customers and
there has been no direct disbursement; that the Appellant Bank has not disbursed
the entire loan amount at one go.
SUBMISSIONS
MADE
ON
BEHALF
OF
COMPLAINANTS IN BOTH SET OF APPEALS
THE
RESPONDENTS/
Ld. Counsel appearing for the Respondents/Complainants contends that
the direction to the IL&FS Group to complete the Maytas Hill County Residential
Project Phase I within 18 months of its induction as Promoter by the CLB order
dated 13.01.11 would not preclude the individual Respondents from agitating
their rights in the complaints filed by them before the Consumer Fora; that the
orders passed by the CLB were not binding upon the Respondents as they were
not member of the Hill County Home Owners Association which participated in
the proceedings before the CLB; that the Respondents were not issued any
individual notice by the CLB; that the order dated 13.01.11 passed by the CLB
was not in the nature of a scheme under the provisions of the Companies Act,
1956 and, therefore, the present batch of Appeals would have to be decided on
its merit; that most of the Respondents had prayed only for refund of their
amounts and the remaining Respondents who sought for alternative reliefs had
categorically given up their claim for finished flats before the State Commission
and restricted their claim for the refund of their amounts; that the State
Commission taking into consideration the fact that the project was nowhere near
completion, directed the Developer to refund the amounts paid by the
Respondents; that in case the project is completed, the Developer can sell the
flats in the open market at current market rates which will fetch more money for
the Developer than the amounts at which they were agreed to be sold to the
Respondents herein; that the Respondents are not interested in the allotment of
the flats as they are facing litigations initiated by the Bank under the provisions of
The Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, The Recovery of Debts due to Banks and the
Financial Institution Act, 1993 and The Negotiable Instruments Act, 1881;
Ld. Counsel for the Respondents vehemently argued that as per Clause
13 (c) of the Loan Sanction letter and as per clauses of the tripartite agreement
the Appellant Banks were obligated to release the home loan amounts in phases
to the Developer on the basis of progress of the construction; that the Appellant
Banks in collusion with the Developer disbursed the entire home loan amount
along with the contribution of the Respondents before the commencement
of construction at the project site and even without verifying the existence of the
approved building plans; that as per tripartite agreement executed between the
parties, in the event of cancellation of allotment of flat the developer was liable to
refund the entire loan amount to the Appellant within a period of 60 days but the
Appellant Banks did not initiate any steps for recovery of the loan amount from
the Developer; that if the Respondents take possession of their respective flats,
the Appellants Bank would immediately initiate proceedings for attachment of the
Flats towards recovery of the alleged dues; that the Appellant Banks cannot have
any grievance against the order dated 27.04.12 passed by the State Commission
as their interest has been adequately protected by granting liberty to recover the
entire loan amount from the Developer;
FINDINGS IN FIRST APPEAL NOS. 327 TO 386 OF 2012, 717 TO 720 OF
2912, 781/12 AND 8/13 FILED BY THE DEVELOPER
M/s. Maytas Properties Ltd. – Developer – entered into individual
agreements of sale/construction with each of the individual Respondents. The
relevant clause from one of the agreements of sale is reproduced herein for
ready reference:“3.
Construction
(a) Having received the consideration specified in Schedule 2, the
first party agrees to complete the construction of the apartment in a timely
manner by 31st December, 2008 subject to the availability of the steel or
other construction material and other causes beyond the control of the first
party.
(b)
months.
The first party shall have a further grace period of three
(c) The first party shall be entitled to further periods if the
construction is delayed due to flooding, due to rain, war, earthquake, fire,
stay of construction by any Court or authority or any other emergencies
including riots and any terrorist activities, etc.;
(d) In the event of any further delay beyond time stipulated in
Clause 3 (a), 3(b), and 3(c), the first party shall pay the second party an
amount of Rs.5 per sq. feet of contracted built-up area for every month or
delay or part thereof upto a maximum of 8 months. After lapse of such
extended period of 8 months, the second party can terminate this
agreement and seek for immediate refund of total consideration amount
paid to the first party i.e. the sale consideration amount and the
construction agreement consideration amount alongwith the Corpus Fund
as defined vide Clause 1 (c) above and the first party shall refund the
amount within 30 days from the date of such termination. “
The individual sale agreements entered into by the Respondents specified a payment
schedule to the Developer. Some of the Respondents paid the entire sale consideration
from their own pocket. Since some of the Respondents after having paid the initial
amount towards their contribution to the Developer, wanted to avail home loans, the
Developer approached the various Banks/financial institutions to render financial
assistance to them which is evident from the following clause of the tripartite agreement
entered into between the Developer, the Banks/Financial Institutions and the
Respondents:“AND WHEREAS the Developer has approached SBI to render
financial assistance for the construction of dwelling units to such of its
dwelling unit purchaser/members as may be in need thereof and in
consideration of SBI doing so in accordance with its lending policies”
Banks/Financial Institutions agreed to
grant
home
loans to
the
Respondents in terms of the tripartite agreement executed between the Banks,
Respondents and Developer. Some of the relevant clauses from one of the
tripartite agreement wherein Bank/Financial Institution was a party, are
reproduced herein for ready reference:“2. SBI shall make disbursement of the sanctioned loan by making
payments to the Developer directly on behalf of the borrowers and
payment(s) made to the Developer shall be deemed to be payment(s) made
to the borrowers and the borrowers shall in each case be liable for the
amount of the loan disbursed on his/her behalf to the Developer, as though
the same has been disbursed directly to him/her. It is further agreed by the
borrower that SBI shall not be responsible or liable to ensure or ascertain
the progress of the construction and mere demands for disbursement
would be sufficient for SBI to effect disbursement as aforesaid.
However, SBI at its sole discretion, shall disburse the loan in
suitable installments, at the request of borrower/Developer or in
suitable installments to be decided by SBI with reference to need or
progress of construction, which decision shall be final and binding
on the borrower(s)/Developer. The borrower shall be responsible to
follow up with SBI to make disbursement on his/her behalf as per
any agreement, payment schedule he/she may have with the
Developer.
Notwithstanding anything to the contrary contained herein,
SBI may in its sole discretion refuse to disburse the loan until; (a)
Borrower(s) has/have paid his/her own contribution in full to the
Developer (the cost of the dwelling unit less the loan) and the
progress and need of the construction justifies the disbursement
requested.
6.
That in the event of cancellation of allotment to the borrower by
the Developer for any reason whatsoever the Developer shall refund
to SBI only forthwith the entire amounts received from SBI within 60
days subject to clause No. 7 below. The balance if any after adjusting
the dues, interest, costs and other amounts recoverable by the SBI,
shall be returned to the borrower by SBI. The Developer herein
undertakes not to refund any amount, on any account, under any
circumstances to the borrower without the written consent of SBI.
7(a) Upon cancellation of the allotment of the schedule property to
the borrower for any reason, the Developer shall immediately
intimate about the same in writing to SBI. Upon receipt of such
intimation, SBI shall notify the Developer all amounts due to it from
the borrower. In such an event, the Developer shall forthwith pay
SBI all amounts received by it from SBI on behalf of the borrower
within 60 days of receipt of such statement during which period, the
Developer shall pay interest to SBI, at the rate of interest on such
amount shall be the same as agreed between the SBI and borrower
in the loan agreement.
(b) Further, the Developer hereby agrees that it shall also pay all
the remaining amounts due and payable to SBI from the borrower
such as defaulted payments, additional interest etc. after deducting
reasonable expenses (as agreed by both Developer and SBI)
incurred by the Developer from the sale proceeds of the property”
After entering into tripartite agreements, the Banks/Financial Institutions
sanctioned the home loans to the Respondents. The loan agreements were
executed between the Banks/Financial Institutions and the Respondents. As per
loan agreements, in case of any delay in the payment of EMI, the borrower was
liable to pay an additional interest and other penal charges. Relevant clause of
one of the sample loan agreements, entered into by one of the Respondents with
the BHW Home Finance Ltd. reads as under:“2.6 Delay in payment of EMIs/PEMIIs/Interest/ other dues, etc.
(b) the delay in payment of EMIs/PEMIIs/Interest or any other dues
shall render the borrower liable to pay additional interest at the rate
of 24 per cent p.a. or at such higher rate as per the rules of BHW
Home Finance Ltd. in that behalf as in force from time to tie. In such
event, the borrower shall also be liable to pay incidental charges and
costs of BHW Home Finance Ltd. “
After the sanction of the loans, both the Banks and the Financial
Institutions disbursed the entire and/or substantial loan amount to the Developer
contrary to the terms of the tripartite agreement which have been extracted
hereinabove. Developer after making some initial construction completely
abandoned the project in 2008. One of the purchasers of the flat filed complaint
No.30/09 before the State Commission which was allowed by it directing the
Developer/Opposite Party to refund the deposited amount with interest @ 12%
p.a. from 4.08.08, i.e., the date of payment of the last installment by the
complainant together with compensation of Rs.5 lakh and costs of Rs.5,000/-.
Developer, being aggrieved, filed First Appeal No.189/10 which was disposed of
by this Commission vide order dated 12.08.10. This Commission modified the
order of the State Commission to the extent that the amount of compensation
was reduced from Rs.5,00,000/- to Rs.1,00,000/-. Developer challenging the
order passed by this Commission filed SLP (C) No. 26256/10 which was
dismissed by the Supreme Court by its order dated 27.09.10.
During the pendency of the present proceedings before the State
Commission, the Central Government filed an application before the CLB under
the provisions of the Companies Act, 1956 seeking change of management of
the Maytas Properties Ltd. During the course of proceedings before the CLB,
competitive bidding took place wherein 28 companies evinced expression of
interest to take over the project and the assets and liabilities of the
Developer. Out of 28 companies which had evinced expression of interest, 9
responded and out of 9, IL&FS and GVK Group submitted their concrete
proposals. SBI Capital Market was the Advisor for transaction. M/s. Maytas
Properties Ltd. submitted Company Application No.24/11 before the CLB On
13.01.11 wherein a prayer was made to induct IL&FS as promoter. The
application was unopposed and was allowed by accepting the entire proposal
made in the application, on the same date. CLB vide its order dated 13.01.11
permitted IL&FS group to be the new promoter of the Developer wherein it would
acquire 80% in equity share capital by investing Rs.20 lakhs. IL&FS Group was
permitted to take over the management control of the Developer and reconstitute the Board of Directors whereby it would have 4 nominees as Directors
including the Chairman. IL&FS Group was to mobilize the fund of Rs.150 crores
within a period of three months from the date of order. IL&FS Group was to
complete the Maytas Hill County Residential Project Phase I within 18 months of
its induction. It was required to arrange the finances to complete the project. It
was also ordered by the CLB that the IL&FS Group shall settle all disputes, tax
liability and the contractual dues and other creditors of the Developer.
During the course of final arguments on 16.05.13 and 22.05.13 in the
present batch of Appeals, the Ld. Senior Counsel, Shri A.M. Singhvi, appearing
for the Appellant/Developer fairly conceded that the CLB proceedings/orders did
not bind this Commission in any manner whatsoever inasmuch as the order of
13.01.11 was not in the nature of a scheme under the provisions of the
Companies Act, 1956. That this Commission would have jurisdiction to decide
the appeals on their merit by taking into consideration the overall facts and
circumstances.
Ld. Senior Counsel appearing for the Developer sought to contend that
the order dated 13.01.11 passed by the CLB was a consent order and the
Respondents herein were allegedly bound by it as they were represented by the
Hill County Owners Welfare Association. Similar contention raised by the
Appellant/Developer before the State Commission was rejected by it by
observing that there was no proof that the Respondents were members of the
said Association or that any notice was served upon the Respondents
individually in order to bind them. The Respondents had categorically stated that
the
Hill
County
Owners Welfare
Association
did
not
represent
their
interests. That till date the Developer had not even bothered to implead the
Respondents before the CLB. According to the Respondents, the Hill County
Owners Welfare Association was acting in connivance with the Developer as it
was present before the CLB on the first day itself on 13.01.11 when the period of
18 months was given to the Developer to complete the project. During the
pendency of the Appeals, the period to complete the project has been extended
by the CLB till 30.06.13. The project is not complete as yet.
It may be mentioned here that the Hill County Owners Welfare Association
filed an Interim Application No.3141/13 before this Commission seeking
impleadment which was later on got dismissed as withdrawn reserving liberty
with the Association or members other than the Respondents herein to start
independent proceedings.
We do not find any substance in the contention raised by the Ld. Senior
Counsel for the Developer that the order dated 13.01.11 passed by the CLB
could be termed as a consent order on behalf of the Respondents in the present
Appeals. The presence of some advocates on behalf of the Hill County Owners
Welfare Association who did not oppose the prayer made in the C.A.No.24/11
filed by the Developer would have no impact on the complaints filed before the
State Commission. There is nothing on record to show that the said Association
represented the interests of the Respondents herein. Any consent given by an
advocate on behalf of that Association for the completion of the project would not
tantamount to waiver of the rights of the Respondents. As per averments made
by the Respondents, the said Association has been acting in connivance and
behest of the Developer and does not represent the interest of the Respondents
who had filed their complaints much prior to the passing of the order by the
CLB. It may be mentioned here that a majority of the Respondents have formed
their own Association which is duly registered in the name and style of M/s.
Maytas Hill County Apartment Buyers Association. For the reasons stated
above, it is held that the order dated 13.01.11 passed by the CLB cannot be
taken as a consent order on behalf of the Respondents herein.
Ld. Senior Counsel appearing for the Developer strenuously contended
that the State Commission erred in directing the Developer to refund the amount
contrary to the prayer made in the complaints. That majority of the Respondents
had asked for possession of the finished flats as the main relief and had sought
the relief for refund of the amount in the alternative.
We do not find any substance in this submission as well. Out of the 66
Appeals, 39 Respondents had prayed for possession of the finished flat as the
main relief and the relief for refund of the amount in the alternative. 27
Respondents herein had prayed for refund of their amounts only. 39
Respondents who had sought the possession of the flat as the main relief had
categorically given up their claim for finished flats before the State Commission
and confined their relief for the refund of the amount only. State Commission
taking into consideration the fact that the project was nowhere near completion,
directed the Developer to refund the amounts deposited by the Respondents. We
do not find any infirmity in this finding. The project is still not complete.
At the time of admission hearing of the appeals on 10.07.12, the Ld.
Counsel appearing for the Developer had stated before us that out of 11 towers,
9 were near completion; that the Respondents/ Complainants will be handed
over the flats as per agreement between the parties within a reasonable time at
the old rates subject to the Respondents paying the balance amount; that the
Appellant shall suitably compensate the Respondents for delayed handing over
of the possession. On the basis of his submissions, this Commission passed the
following order on 10.07.12.
“
Counsel for the appellant states that out of the 11 towers, 9 are
near completion; that the complainants/respondents will be handed
over the flats as per agreement between the parties within a
reasonable time which shall be submitted before the Commission at
the old rates subject to the Respondents paying the balance
amount; that the appellant shall suitably compensate the
respondents for delayed handing over of the possession. Seek time
to get firm instructions and put the same on affidavit. Undertakes to
file the affidavit before the next date of hearing with an advance
copy to the Respondents.”
Subsequently, on a statement made by the Ld. Counsel for the parties that
certain developments had taken place after passing of order by this Commission
on 10.07.12, the following order was passed on 15.01.13:“
Ms.lndu Malhotra, learned senior counsel appearing on behalf
of the respondents in majority of the cases has brought to our notice
that a similar order passed by the State Commission has been
upheld by this Commission in F.A. No.189/2010 against which SLP
was filed which has been dismissed.
Learned counsel appearing for the appellant submits that certain
developments have taken place after the passing of the order by this
Commission; that IL&FS, a new promoter, has stepped in and has
taken over the assets and liabilities of the previous promoter; that
Company Law Board (CLB) by its order dated 13.1.2011 permitted the
IL&FS to step in and take over as a new promoter and develop the
property within the time frame of 18 months.
Buildings have not been completed in spite of the lapse of 18
months. New promoter has neither applied for nor got extension of
time from CLB.
Learned counsel for the appellant submits that in view of the
subsequent
developments,
the
decision rendered by this Commission in the
earlier case is not binding. On 10.7.2012, counsel for the appellant
had made a statement before us that out of 11 towers, 9 are near
completion; that the complainant/ respondents will be handed over
the flats as per agreement between the parties within a reasonable
time which shall be submitted before this Commission at the old
rates subject to the respondents paying the balance amount; that the
appellant shall suitably compensate the respondents for delayed
handing over of the possession. Appellant had taken time to file the
affidavit before the next date of hearing with an advance copy to the
respondents. Pursuant to the undertaking given, appellants have
filed the affidavit.
Ms.lndu Malhotra, senior counsel appearing for the respondents
submits that offer made by the appellant is not acceptable to her
clients; that since the property has been put under attachment by the
Income Tax Department as per the statement made in the affidavit
filed by the appellant themselves, complainants would not be able to
get a clear title to the property; that the complainants are not paying
the EMIs as possession has not been given. Complainants had given
postdated cheques to the bank. Bank has initiated proceedings
under Section 138 of the Negotiable Instruments Act for recovery
and under the Securitization Act.
Learned counsel appearing for the appellant submits that the High
Court of Andhra Pradesh in Writ Petitions No.9227/2010 and other
connected cases, by a common order dated 5.12.2012, in order to
protect the interest of the purchasers and revenue, has issued
certain instructions, one of which reads as under:“In respect of units (villas/ apartments/ plots) where full
consideration was received by MPL, sale deeds executed in favour of
purchasers and registered and possession of the plots and villas/
apartments (along with undivided) share of land) mentioned in the
respective sale deeds has been delivered, we declare that such units
and the undivided share in land transferred along with
villas/apartments, covered by such registered sale deeds would be
free from attachment and the attachment orders passed by the I.T.
Department would have no application to them. This position in law
is also accepted by the Revenue.”………………………
According to him, said instructions will protect the interest of the
respondents as the property would be transferred to them free from
any attachment.
Counsel for the appellant is directed to supply a copy of the order
passed by the CLB, High Court of Andhra Pradesh in Civil Writ
Petition No.9227/2010 and other connected cases to the counsel for
the respondent. Counsel for the respondent is directed to supply a
copy of the proceedings initiated by the banks against the
complainants to the counsel for the appellant.
Adjourned to 19th March 2013 to enable the counsel for the parties to
address their arguments regarding the effect and impact of the order
passed by the CLB.
Respective counsel appearing for respective banks are also directed
to seek instructions.
Counsel for the respondent is also directed to supply a copy of the
order passed by this Commission referred to above and the order
passed by the Supreme Court in SLP No.26256/2010.”
On 20.03.13, Developer filed an application seeking permission to file
some additional documents which was declined on the ground that the additional
documents by way of additional evidence could not be taken at this belated
stage. However, the order passed by the High Court of Andhra Pradesh in
W.P.No.9227/10 will be taken note of while deciding these appeals.
This Commission on 16.05.13 has passed the following order:“
Counsel for the appellant states that Company Law Board had
extended the time for completion of the project by 30.6.2013.
Adjourned to 22nd May 2013 to enable the appellant to file an
affidavit as to within how much time the project would be completed
in all respects including the facilities like water, road, sewerage,
electricity, elevators and other such facilities to make the units
livable.
According to the learned counsel for the respondent,
respondents had purchased the flats after taking loan from the
banks; that the project was to be completed by 2008; that the bank
would charge penal interest @ 24% for the delayed EMIs. Further
states that the bank has also started proceedings under Section 138
of the Negotiable Instruments Act and Securitization and
Reconstruction of Financial Assets & Enforcement of Security
Interest Act, 2002.
Counsel for the appellant is directed to state as to what
compensation the appellant shall pay to the respondents for the
delay caused in completion of the project which would take care of
the interest which the bank will charge from the complainants for the
delay in making the payments.
Interim Application No.3141/2013 seeking impleadment is
dismissed as withdrawn reserving liberty with the Association or
members other than the complainants in these cases to start
independent proceedings.
Adjourned to 22nd May 2013.
Affidavit be filed on or before 20.5.2013 with an advance copy
to the counsel for the respondents.
In compliance of our order dated 16.05.13, Developer has filed a detailed
affidavit with regard to the status of construction, delivery of the apartments to the
Respondents, interest to be charged by the Bank in cases where the
Respondents have taken bank loans, Access Roads, Sewerage, Power, water,
elevators etc. It is stated in the affidavit that the 4 towers, i.e. Darjeeling,
Khandala, Mussoorie and Nainital have been completed and notices have been
issued from November, 2012 onward to the purchasers for handing over
possession. 5 towers, namely, Dalhousie, Shimla, Ooty, Munnar and Manali are
to be completed within the extended time schedule of end of June, 2013. With
regard to remaining 2 towers, namely, Kodai and Coonoor, it was decided not to
commence the construction as the number of bookings in these two towers were
under 57 out of a total of 132 apartments. It is further stated that the work of
access roads had been completed for the stages 1 to 4 and the similar work for
stage 5 is under progress and expected to be completed by Ist week of July,
2013. The tar road connectivity to the areas leading to the apartment towers is
under construction and would be completed by end of July, 2013. Permanent
Sewage Treatment Plant works have been commissioned. External drainage,
sewerage and water line works are in progress and will be completed by end of
June, 2013. The application for power connection was submitted with APCPDCL
in April, 2012 and final orders were issued by the department on May 10, 2013 for
laying the cable to the sub-station of the Appellant for energizing as well as
awarding the contract to M/s. Mamtha Constructions vide their letter dated Lr.
NO.CGM(O&M)/ SE(O&M)/F.Tender/D.N. 384/13 dated 10.05.13. The cable
laying work is expected to commence before end of May, 2012. At present,
Hyderbad Metropolitan Water Supply and Sewerage Board is supplying Manjeera
water to the residents of Hill Country. The Developer has made application for
supply of additional quantum of water in February, 2013. The gas piping
infrastructure work will be completed by June 30, 2013. It is further stated in the
affidavit that the provisional club house is operational with indoor facilities and the
permanent club house will be completed by end of July, 2013.
With regard to the home loans taken by the Respondents from the
Appellant Banks/Financial Institutions, it is averred in the affidavit that the
Developer has been meeting the Banks/Financial Institutions periodically to help
the Respondents to arrive at settlement and restricting the payment of loan
amount. The Developer filed an application before this Commission on 19.03.13
offering a compensation package to all the apartment owners in Hill Country
based on fair rental value. However, It has been submitted in the affidavit that the
Developer is not in a financial position and cannot undertake to meet the financial
bank interest commitments of the respondents or make refunds. The IL&FS
Group has infused Rs.425 crores to complete the project and the has paid
substantial income tax dues for the past period in order to negotiate with the
Income Tax Department to lift the ban on registration of conveyance deeds in the
Hill County Project. It is further submitted that if the funds are diverted in making
refunds and making interest payments on behalf of the apartment owners, it
would be at the cost of other customers of the Hill County Project as the project
may not be completed due to lack of funds. Under these circumstances, the
Respondents be granted compensation at the rate of Rs.5/- per sq. ft. per month
in proportion to the amounts paid by them for the entire period of delay till the
date of handing over possession except the 18 months period granted by the
CLB to the Developer to complete the project.
As per Agreements of Sale, the construction of the flats/apartments was to
be completed by the Developer in all the cases on or before 31st December
2008. Due to Satyam Computer’s scam in 2009, the development of the project
remained at standstill. The matter was referred to the CLB which by order dated
13.01.11 induced the IL & FS Group to complete the project. IL&FS infused
Rs.425 crores to complete the project. As per statement made in the Affidavit
filed by the Developer on 20.05.13 in compliance of our order dated 16.05.13 only
four towers out of the 11 towers have been completed. 5 towers, namely,
Dalhousie, Shimla, Ooty, Munnar and Manali which were to be completed by the
end of June, 2013 are likely to be completed in the end of July, 2013. It has been
decided by the Developer not to construct the remaining 2 towers, namely, Kodai
and Coonoor. The work of providing basic amenities such as water, electricity,
drainage, elevator, gas pipeline, club etc. has yet to be completed by the
Developer. Under these circumstances, the Respondents/Complainants are not
interested to take possession of the flats/apartments. This apart, most of the
Respondents by issuing legal notices to the Developer cancelled the Agreements
of Sale as they were not willing to take possession of the flats. Since there was
nothing on record to show the stage of construction and when the project would
be completed, the State Commission rightly directed the Developer to refund the
deposited amount along with interest @ 12% p.a. from the respective dates of
deposit till payment together with compensation of Rs.1,00,000/- and costs of
Rs.10,000/-.
As per affidavit filed by the Developer, the Developer could not complete
the project within the period of 18 months granted by the CLB. Developer has got
the period to complete the project extended by the CLB upto 30.06.13. Since the
contradictory
statements
being made by the Ld. Counsel appearing for the
Developer, we asked the Developer to file a fresh affidavit
were
showing the
stage
of
construction. On
perusal
of
the
Affidavit,
we
are satisfied that the project cannot be completed till 30.06.13. As
per Affidavit filed by the Developer, the Developer is not in a position to complete
the project upto 30.06.13. Developer has sought further time upto 31.07.13 to
complete the project as the basic amenities such as water, electricity, drainage,
elevator, gas pipeline etc. have yet to be provided by them. Since the project is
not complete as on the date, we cannot direct the Respondents to take the
possession of the flats. For the reasons stated above, we endorse the finding as
well as direction given to the Developer by the State Commission to refund the
amount to the Respondents.
The Developer’s primary contention made before us is that the order of
refund passed by the State Commission is unsustainable and more so in the
present circumstances when the construction is already completed. The affidavit
filed by the Developer on 20.05.13 reveals that a substantial part of the work,
even according to the Developer, is still going on. The affidavit, on the face of it,
does not inspire any confidence and rather makes it abundantly clear that the
apartments are not habitable. Section 455 of the Hyderabad Municipal
Corporation Act, 1955 mandates that after completion of the work in a building,
the builder should intimate the Municipal Corporation in writing about such
completion in the prescribed form. The Authority after inspection, if it deems fit,
would grant a completion certificate and no person shall be allowed to occupy a
building until a completion certificate is issued. This would be possible only if the
entire work is complete. It is pertinent to mention here that Section 4 (4) of the
Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act,
1987 mandates that an apartment can be transferred by the Developer only after
obtaining a Completion Certificate and Certificate of fitness for occupation from
the local authorities. In view of the mandatory provisions of law, the claim of the
Developer that the flats are ready and would be handed over to the Respondents
by June, 2013 is factually incorrect. Respondents are not interested in allotment
of flats as the Banks/Financial Institutions are to recover the loans on the terms
and conditions of the original agreement with interest for the period of six years
when there was no construction. If the Respondent are compelled to take the
flats, they would be in a state of debt to the Banks/Financial Institutions and
would be required to pay interest/penal interest etc. Further, Respondents are
facing litigations initiated by the Banks under the provisions of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002; The Recovery of Debts due to the Banks and Financial Institutions Act,
1993 and The Negotiable Instruments Act, 1881. Assuming that the Respondents
take possession of their respective flats, the Banks would immediately initiate
proceedings for attachment of the flats towards recovery of the alleged dues. It is
evident that in the event of the Respondent’s taking over the possession of the
flats, they would have to pay huge amounts to the Banks as per the penal
provisions for default in the loan agreements, which cannot be repaid by them
even after selling the flat. If the Respondents take possession of the flats, they
would be left with huge debts to the Banks and continue to litigate in various other
Courts for no fault of theirs.
The 66 Respondents in the present batch of Appeals comprise less than
10% of the total flat purchasers in the Developer’s project. It would not make any
difference to the Developer, if the Respondents are refunded the amount paid by
them. The Developer can sell the finished flats in the open market at current
rates and fetch more money than the amounts at which they agreed to sell the
flats to the Respondents herein.
This apart, the earlier judgment on the same/similar facts in Complaint
Case No.30/09 based on which the State Commission has allowed the present
complaints, was upheld by this Commission with slight modification. SLP filed by
the Developer against the said order was dismissed by the Supreme Court. The
earlier judgment is a binding precedent which has been upheld upto Supreme
Court. We respectfully follow the same. Complaint No.30/09 was filed against the
Developer on the same facts. The only intervening factor is the order dated
13.01.11 passed by the CLB which according to us makes no difference as the
Developer remains the same. By order dated 13.01.11, CLB had allotted the
preferential shares to the IL&FS by virtue of which it has controlling interest in the
company. The liability of the Developer to the Respondents remains the same.
The judgment rendered by this Commission in First Appeal No. 189/10 in
complaint No.30/09 which had been upheld by the Supreme Court, is a binding
precedent and as stated above we are bound by the same.
Even as on today, the flats are not complete. Developer has not obtained
the Completion Certificate or Certificate of fitness for Occupation. Under these
circumstances, Respondents cannot be ordered to take possession of the
unfinished flats without Completion Certificate and Certificate of fitness for
Occupation issued by the local authorities.
For the reasons stated above, we do not find any merit in the Appeals filed
by the Developer and dismiss the same with no order as to costs.
FINDINGS IN FIRST APPEAL NOS. 387 TO 400 OF 2012, 783/12, 29/13 AND
14 TO 25 OF 2013 FILED BY THE STATE BANK OF INDIA AND ICICI BANK
LTD.
We need not recapitulate the facts again. Relevant clauses of the tripartite
agreements wherein the Appellant, State Bank of India/ ICICI Bank Ltd. was a
party, are reproduced as under:-.
“2. SBI shall make disbursement of the sanctioned loan by making
payments to the Developer directly on behalf of the borrowers and
payment(s) made to the Developer shall be deemed to be payment(s)
made to the borrowers and the borrowers shall in each case be liable
for the amount of the loan disbursed on his/her behalf to the
Developer, as though the same has been disbursed directly to
him/her. It is further agreed by the borrower that SBI shall not be
responsible or liable to ensure or ascertain the progress of the
construction and mere demands for disbursement would be
sufficient for SBI to effect disbursement as aforesaid.
However, SBI at its sole discretion, shall disburse the loan in suitable
installments, at the request of borrower/Developer or in suitable
installments to be decided by SBI with reference to need or progress
of construction, which decision shall be final and binding on the
borrower(s)/Developer. The borrower shall be responsible to follow
up with SBI to make disbursement on his/her behalf as per any
agreement, payment schedule he/she may have with the Developer.
Notwithstanding anything to the contrary contained herein, SBI
may in its sole discretion refuse to disburse the loan until; (a)
Borrower(s) has/have paid his/her own contribution in full to the
Developer (the cost of the dwelling unit less the loan) and the
progress and need of the construction justifies the disbursement
requested.
6.
That in the event of cancellation of allotment to the borrower by
the Developer for any reason whatsoever the Developer shall refund
to SBI only forthwith the entire amounts received from SBI within 60
days subject to clause No. 7 below. The balance if any after adjusting
the dues, interest, costs and other amounts recoverable by the SBI,
shall be returned to the borrower by SBI. The Developer herein
undertakes not to refund any amount, on any account, under any
circumstances to the borrower without the written consent of SBI.
7(a) Upon cancellation of the allotment of the schedule property to
the borrower for any reason, the Developer shall immediately
intimate about the same in writing to SBI. Upon receipt of such
intimation, SBI shall notify the Developer all amounts due to it from
the borrower. In such an event, the Developer shall forthwith pay
SBI all amounts received by it from SBI on behalf of the borrower
within 60 days of receipt of such statement during which period, the
Developer shall pay interest to SBI, at the rate of interest on such
amount shall be the same as agreed between the SBI and borrower
in the loan agreement.
(b) Further, the Developer hereby agrees that it shall also pay all
the remaining amounts due and payable to SBI from the borrower
such as defaulted payments, additional interest etc. after deducting
reasonable expenses (as agreed by both Developer and SBI)
incurred by the Developer from the sale proceeds of the property”
Pursuant to the tripartite agreements, the Appellant Bank entered into the
loan agreements with the Respondents herein and sanctioned the home loans.
Thereafter, the Appellant Bank issued sanction letters. As per clause 13 (c) of the
Loan Sanction Letter, the Appellant Bank was obligated to release the loan
amount to the Developer directly on the basis of verification of the stage and
nature of the construction. In terms of Section 5 of the Andhra Pradesh
Apartments (Promotion of Construction and Ownership) Act, 1987, the Appellant
Bank was under an obligation not to release more than 20% of the sale
consideration amount as advance to the Developer before commencement of the
construction. The relevant Section 5 reads as under:“ A promoter who intends to transfer any apartment shall before,
accepting any sum of money as advance payment or deposit, which shall
not exceed twenty percent of the price, enter into a written agreement of
sale with the intending transferee and the same shall be registered as a
document compulsorily registerable under clause (b) of sub-section (1) of
Section 17 of the Registration Act, 1908.”
The Appellant Bank disbursed the entire loan amount to the Developer
even
before
the
commencement
project site contrary to the provisions
of
construction
of
the
at
the
Tripartite
Agreement. The Appellant Bank could not have disbursed the loan a
mount without taking proper care and caution to
find out about the existence/start
which loans were sanctioned.
part of the Appellant Bank,
of
construction
of the flats for
Due to the lack of supervision on
the Developer diverted the funds of
the project to the Satyam Computers. The Appellant
Banks
having
acted
contrary to the terms of the tripartite agreement, its own
sanctioned terms and provisions of Section 5 of the Andhra Pradesh Apartments
(Promotion of Construction and Ownership) Act, 1987 by disbursing the entire
loan amount without any construction being made, cannot be absolved of their
responsibility.
The tripartite agreements executed between the Bank, Developer and the
Respondents contemplate that in the event of cancellation of allotment of flat, the
Developer was liable to refund the entire loan amount to the Appellant Banks
within 60 days. Respondents terminated the contracts by filing the complaints.
The Appellant Banks in spite of having notice of termination of the contracts did
not take any steps for recovery of the loan amount from the Developer. The
contention of the Bank that as per tripartite agreements the Bank was bound to
review the progress of the construction only to protect its own interest otherwise
no duty was cast upon it does not hold water and appears to be a fallacious
argument and a lame excuse. The progress of construction and the manner in
which the loan amount was to be disbursed by the Bank were inter-connected
issues and the Appellant Bank being the home loan banker who has lien over the
flats should have acted cautiously and taken reasonable care to ensure that its
money is safe and secure. Moreover, the Appellant Bank cannot have any
grievance against the order passed by the State Commission directing it to
recover the loan amount from the Developer as the interest of the Bank has been
adequately protected by the State Commission.
For the reasons stated above, we do not find any merit in the Appeals filed
by the Banks and dismiss the same with no order as to costs.
The developer is directed to comply with the orders passed by the State
Commission within a period of six weeks from today failing which the
Respondents would be at liberty to execute the decree.
Registry is directed to refund the sum of Rs.35,000/- deposited by the
Developer as statutory deposit in each case along with accrued interest.
…………….. . . . . .
(ASHOK BHAN J.)
PRESIDENT
................
(VINEETA RAI)
MEMBER
YD/*
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2120 OF 2013
(From the order dated 04-07-2011 in F.A. No. 293/2009 of the State Consumer
Disputes Redressal Commission, Andhra Pradesh)
With IA/3478/2013(For stay) IA/3479/2013(For condonation of delay)
M/s DDF (Davood Fruit Merchant), Rep. by S. Davood, S/o Mastan, No. 17, Municipal
Shop, Near Old Bus Stand, Behind Ponnaimman Koil Street, Chittoor, Andhra Pradesh
… Petitioner/Complainant
Versus
M/s Murugan Cold Storage Pvt. Ltd., Ramasamudram Road, near Degree College,
Punganoor, Chittoor District, Andhra Pradesh rep. by its Managing Director
… Respondent/Opposite Party
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: Mr. V. Sridhar Reddy, Advocate
PRONOUNCED ON
8th
JULY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order
dated 04-07-2011 passed by the learned State Consumer Disputes Redressal
Commission, Andhra Pradesh (in short, ‘the State Commission’) in Appeal No.293 of
2009 – M/s DDF (Davood Fruit Merchant) Vs. M/s MuruganCold Storage Pvt. Ltd. by
which, while allowing the appeal, order of the District Forum allowing complaint partly,
was set aside and complaint was dismissed.
2.
Brief facts of the case are that complainant/petitioner purchased apples worth
Rs.26,08,907/-
and
same
were
stored
in
cold
storage
of
opposite
party/respondent. When complainant was lifting the stock, he was informed that apples
worth Rs. 20 lakhs have been damaged. Complainant alleged that apples were
damaged due to mismanagement of opposite party and alleging deficiency on the part
of the opposite party filed complaint before the District Forum. Opposite party contested
the complaint. Learned District Forum after hearing both the parties partly allowed the
complaint and directed opposite party to pay an amount of Rs. 4 lakhs along with 9%
p.a. interest. Appeal filed by the respondent was allowed by learned State Commission
vide impugned order, against which this revision petition has been filed along with
application for condonation of delay.
3.
Heard learned Counsel for the petitioner at admission stage and perused the
record.
4.
Petitioner, along with revision petition, has filed application for condonation of
delay of 57 days whereas as per office report there is delay of 592 days in filing the
revision
petition.
Perusal
of
application
reveals that
learned State Commission passed impugned order on 04-07-2011 and issued free
copy on 12-07-2011. Petitioner contacted his advocate in the month of August, 2011
but as his file was missing from the advocate’s office, he could not get opinion from the
advocate. In the third week of December, 2012 file was traced and petitioner applied for
certified copy of the impugned order on 21-12-2012 and received on 27-12-2012. It was
further mentioned that his counsel asked him to approach another advocate appearing
in the National Commission and petitioner’s present counsel was approached in March,
2013 and revision petition has been filed on 24th May, 2013.
5.
It becomes clear that instead of delay of only 57 days, there is delay of 592 days
in preferring revision petition. No satisfactory explanation has been given for
condonation of inordinate delay of 592 days. As per application, when he received
another certified copy on 27-12-2012, he should have preferred revision petition
immediately. When petitioner’s counsel was also approached in March, 2013, he
should have filed revision petition immediately but revision petition has been filed on
24th May, 2013.
6.
As per law, revision petition is to be filed within 90 days and after excluding period
of limitation, this revision petition has been filed with inordinate delay of 592 days, which
cannot be condoned.
7.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it
has been observed:
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
8.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd.,
AIR 1962 Supreme
Court 361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation
of delay in question as a matter of right. The proof of a sufficient
cause is a discretionary jurisdiction vested in the Court by S.5. If
sufficient cause is not proved nothing further has to be done; the
application for condonation has to be dismissed on that ground
alone. If sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay. This aspect
of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona
fides may fall for consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause is shown
would naturally be limited only to such facts as the Court may
regard as relevant.”
9.
Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries
Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC
459 as under;
“We have considered the respective
submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they
do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the remedy
within the stipulated time.”
10.
Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General &
Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal
even by Government department and further observed that condonation of delay is an
exception and should not be used as an anticipated benefit for the Government
departments.
11.
Hon’ble
Apex
Court
in
2012
(2)
CPC
3
(SC)
–
Ansul Aggarwal Vs. New Okhla Industrial Development Authority observed as
under:
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the
Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act,
1986, for filing appeals and revisions in Consumer matters and
the object of expeditious adjudication of the Consumer
disputes will get defeated, if this Court was to entertain highly
belated
petitions
filed
against
the
orders
of
the
Consumer Foras”.
Thus, it becomes clear that there is no reasonable explanation at all for
condonation of inordinate delay of 592 days.
12.
As revision petition has been filed after 592 days, application for condonation of
days is liable to be dismissed and as revision petition is barred by limitation, revision
petition is dismissed at admission stage.
13.
Consequently, revision petition filed by the petitioner is dismissed as barred by
limitation at admission stage with no order as to costs.
.……………….………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….……………
( DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 164 OF 2013
(Against the order dated 28.01.2013 in Complaint No.09/2010 of the State Commission,
Rajasthan)
Jet Airways (India) Ltd. Siroya Centre Sahar Airport Road Andheri (East), Mumbai400099 City Office: Umed Nagar House Corporate Office Ganapati Plaza, M.I. Road
Jaipur (Rajasthan)
……….Appellant
Versus
1. Smt. Vandana Jain W/o Sh. Subhash Bhatnagar R/o 11, Gangwal Park Jaipur302004 (Rajasthan)
2. Sh. Subhash Bhatnagar S/o Late Shri Avinash Chand Bhatnagar R/o
11, Gangwal Park Jaipur- 302004 (Rajasthan)
3. B.C.B. Tours & Travels Pvt. Ltd. 214 11th floor, Vardhman Complex, Johari Bazar,
Jaipur (Rajasthan)
.........Respondents
BEFORE
HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER
For the Appellant
: Mr.Randhir Jain, Advocate
Mr. Dhananjai Jain, Advocate
PRONOUNCED ON: 9 July 2013.
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
1.
This appeal has been filed by M/s. Jet Airways (India) Ltd. against the order of
Rajasthan State Consumer Disputes Redressal Commission in Complaint No.9 of
2010. The State Commission has allowed the complaint of the respondent/Complainant
against OP-1, the present appellant. The appellant has been directed to reimburse to
the Complainant the cost of Cathay Pacific Airline Tickets for Hong-Kong and pay
compensation of Rs.50,000/-, together with cost of Rs.25,000/-. No orders have been
passed against OP-2/B.C.S. Tours and Travel Pvt. Limited.
2.
Facts, as seen from the record, relate to the journey of the two Complainants from
Jaipur to Hong-Kong via Mumbai. Both sectors of the journey were to be performed
with Jet Airways. The Jet flight from Jaipur to Mumbai arrived at 11:40 p.m. instead of
its scheduled arrival of 10:20 p.m. As a consequence of this delay of one hour twenty
minutes, they could not take the connecting Jet Flight to Hong-Kong, despite having
boarding cards for Mumbai Hong-Kong flight issued to them at Jaipur itself. According
to the Complainants, this was due to delay in operation of the Airport shuttle and long
immigration and security queues for boarding. The Airline staff allegedly failed to make
arrangement for putting them in the next flight to Hong-Kong and advised the
Complainants to buy fresh tickets for the next day. The Complainants therefore, were
forced to take 5:30 a.m. flight of another Airline, the next morning.
3.
The State Commission has held that the problem of delay in immigration and
security checks was caused only by delayed arrival of Jaipur-Mumbai Jet Flight. The
Airline staff failed to give the necessary help and assistance even when boarding
passes has already been issued to the Complainants for the Jet flight to HongKong. Staff of Jet Airline knew that the Complainants had short time due to delayed
arrival of their flight and they would need to be transported to the international
terminal. But, no such assistance was provided. There was also no material to prove
that the Complainants were offered seats in the next flight to Hong-Kong. Therefore,
the State Commission held it to be a case of deficiency of service on the part of OP1/Jet Airline.
4.
The records submitted by the appellant have been perused and the counsel for
the appellant has been heard at length. In the appeal memorandum, it is stated that two
other passengers coming from Jaipur on the same flight had successfully boarded the
connecting flight from Mumbai to Hong-Kong. It is therefore, alleged that the
Complainants themselves were to blame for missing the flight. However, this argument
is contradicted by the appellant’s own averment that the delay, if any was caused due to
non-co-operation and delay on the part of immigration and security personnel. This
bland claim, in the absence of any evidence of assistance provided by the Jet Airways
staff, is at best a very feeble attempt to pass on the blame to others for their own
lapse. Having issued tickets for both sectors of the journey on two flights of their own
Airline, the appellants/OP had a clear obligation to ensure that the passengers boarding
at Jaipur are able to board the connecting flight at Mumbai. This obligation becomes
more direct and inescapable due to delayed arrival of the Jaipur-Mumbai flight.
Learned counsel for the appellant has referred to their written response before
the State Commission and claimed that the delay in arrival of this flight due to air traffic
congestion at Mumbai Airport resulting in delay in landing of the flight. This again
cannot be accepted, if Jet Airways schedules a flight to land at Mumbai Airport at a
particular time and another connecting flight to take off at a particular time, it must
provide for time required in all services/functions including security, immigration and air
traffic management, which are necessarily concerned with or mandated for such landing
and departure. The travelling public is in no way responsible for delay caused by any of
them.
5.
In view of the above, it is held that the decision of the State Commission is based
on correct appreciation of evidence on record and does not call for any
interference. The appeal is held to be devoid of any merit and is dismissed as such.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
S./-12
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2127 OF 2013
(From the order dated 09-10-2012 in First Appeal No. 1844 of 2008 of the State
Consumer Disputes Redressal Commission, Haryana)
WITH I.A./3563/2013 (FOR CONDONATION OF DELAY)
Kapil Sharma S/o Late Shri Satbir Singh Sharma R/o Village Durjan Pur,
Tehsil Narwana, District – Jind (Haryana)
… Petitioner/Complainant
Versus
Life Insurance Corporation of India Jeevan Parkash Building, Sector-17, Chandigarh
(U.T.) Through its Divisional Manager/ Manager(Legal)
… Respondent /Opposite Party
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
: Dr. Sukhdev Sharma, Advocate
10th JULY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
1.
This revision petition has been filed by the petitioner against impugned order
dated 09-10-2012 passed by the learned State Consumer Disputes Redressal
Commission, Haryana (in short, ‘the State Commission’) in Appeal No. 1844 of 2008 –
Life Insurance Corporation of India Vs. Kapil Sharma, by which while allowing the
appeal, order of the District Forum allowing the complaint was set aside.
2.
Brief facts of the case are that Satbir Sharma, father of the complainant/petitioner
obtained policy for Rs. 1.00 lakh from opposite party/respondent on 22-022006. Insured died on 24-04-2006. Complainant submitted claim, which was repudiated
by the opposite party on the ground that life assured was chronic alcoholic and
suffered from Cirrhosis and this fact was not disclosed by the deceased in the
proposal form. Complainant alleging deficiency on the part of opposite party, filed
complaint before District Forum. Opposite party resisted claim on the ground
mentioned in repudiation letter and prayed for dismissal of complaint. Learned District
Forum after hearing both the parties, allowed complaint and directed opposite party to
pay Rs. 1 lakh along with 9% p.a. interest and Rs.1,000/- as costs. Respondent filed
appeal against the order and learned State Commission vide impugned order allowed
the appeal and dismissed complaint, against which this revision petition has been
filed along with application for condonation of delay.
3.
Heard learned Counsel for the petitioner on application for condonation of delay
as well as on merits, at admission stage and perused record.
4.
Petitioner moved an application for condonation of delay of 107 days
and alleged that copy of the order was received on 15-11-2012 and approached his
counsel in December, 2012, who demanded records. Petitioner contacted his counsel
at Panchkula, who provided photostat copies of record on 20 th April, 2013 and this
revision petition was filed on 24th May, 2013. As per application for condonation of
delay, there was delay of 107 days whereas, as per report of the office, there is delay
of
100
days
in
filing
not given any cogent reason
revision
petition. Apparently
for condonation of
delay. When
petitioner
on
has
20-01-2013
counsel for the petitioner at Panchkula shown his inability to provide record, he should
have applied for certified copies of the record. Not only this, when photostat copies of
record were made available by advocate at Panchkula on 20-04-2013, revision petition
should have been filed immediately but it was filed after 34 days of receipt of
record. Revision petition is liable to be dismissed on the ground of limitation alone.
5.
As far as merits of the case are concerned, certificate dated 24-02-2007
issued
by
Maharaja Aggarsain Medical
College,
Agroha
shows that deceased assured was admitted in the hospital on
2006 and again on
years and with
23-04-2006 with history
Cirrhosis for last one
of
alcohol
for
02-04last
15
to
20
year. Insured also remained
on leave on medical grounds from 02-05-2005 to 30-06-2005 and 01-12-2005 to 1001-2006 from his employer’s office.
6.
The contract of insurance is based on the doctrine of utmost good faith and
life assured was under an obligation to disclose each and every aspect with respect to
his health at the time of submitting proposal form. Insured had not disclosed fact of
being alcoholic for last 15 to 20 years and suffering from Cirrhosis for last one year and
had not disclosed fact of remaining on leave on medical grounds for about 3½ months
and in such circumstances, on account of suppression of material facts regarding
health, respondent has not committed any error in repudiating claim filed by the
petitioner.
7.
Learned State Commission dealt with suppression of material facts at length and
had arrived at correct conclusion that life assured concealed true and material facts
with respect to his health at the time of taking of the policy and has rightly allowed the
appeal. We do not find any illegality, irregularity or jurisdictional error in the impugned
order, which calls for any interference and revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage, being barred by limitation as well as on merits, with no order as to costs.
.……………….………………
(K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
(DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2126 OF 2013
(From the order dated 28-06-2012 in First Appeal No. 1840 of 2008 of the State
Consumer Disputes Redressal Commission, Haryana)
WITH I.A./3562/2013 (FOR CONDONATION OF DELAY)
Rajesh Sharma S/o Late Shri Satbir Singh Sharma R/o Village Durjan Pur,
Tehsil Narwana, District – Jind (Haryana)
… Petitioner/Complainant
Versus
Life Insurance Corporation of India Through Manager (Legal & HPF), Divisional Office,
Sector 17-B, Chandigarh (U.T.)
… Respondent /Opposite Party
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
: Dr. Sukhdev Sharma, Advocate
10th
JULY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order
dated 28-06-2012 passed by the learned State Consumer Disputes Redressal
Commission, Haryana (in short, ‘the State Commission’) in Appeal No. 1840 of 2008 –
Life Insurance Corporation of India Vs. Rajesh Sharma, by which while allowing the
appeal, order of the District Forum allowing the complaint was set aside.
2.
Brief facts of the case are that Satbir Sharma, father of the complainant/petitioner
obtained policy for Rs. 1 lakh from opposite party/respondent on 28-08-2002, which
lapsed due to non-payment of premium for the period from February, 2005 to August,
2005. Policy was got revived on 20-09-2002. Insured died on 24-04-2006 due to
Cirrhosis. Complainant submitted claim, which was repudiated by the opposite party on
the ground that life assured was chronic alcoholic and suffered from Cirrhosis and this
fact was not disclosed by the deceased in the proposal form. Complainant alleging
deficiency on the part of opposite party, filed complaint before District Forum. Opposite
party resisted claim on the ground mentioned in repudiation letter and prayed for
dismissal of complaint. Learned District Forum after hearing both the parties, allowed
complaint and directed opposite party to pay Rs. 1 lakh along with 9% p.a. interest and
Rs.1,000/- as costs. Respondent filed appeal against the order and learned State
Commission vide impugned order allowed the appeal and dismissed complaint, against
which this revision petition has been filed along with application for condonation of
delay.
3.
Heard learned Counsel for the petitioner on application for condonation of delay
as well as on merits, at admission stage and perused record.
4.
Petitioner moved an application for condonation of delay and alleged that he
received copy of the order on 15-11-2012 and approached his counsel in December,
2012, who demanded records. Petitioner contacted his counsel at Panchkula, who
provided photostat copies of record on 20th April, 2013 and this revision petition was
filed on 24th May, 2013. As per application for condonation of delay, there was delay of
174 days whereas, as per report of the office, there is delay of 100 days in filing revision
petition. Apparently petitioner has not given any cogent reason for condonation of
delay. When on 20-01-2013 counsel for the petitioner at Panchkula shown his inability
to provide record, he should have applied for certified copies of the record. Not only this,
when photostat copies of record were made available by advocate at Panchkula on 2004-2013, revision petition should have been filed immediately but it was filed after 34
days of receipt of record. Revision petition is liable to be dismissed on the ground of
limitation alone.
5.
As far as merits of the case are concerned, certificate dated 13-04-2007
issued
by
Maharaja Aggarsain Medical
College, Agroha shows that deceased assured was admitted in the hospital on
02-04-2006 and again on 23-04-2006 with history of alcohol for last 15 to 20 years and
with
Cirrhosis
for
last
one
year. Insured also remained
on leave on medical grounds from 02-05-2005 to 30-06-2005 and 01-12-2005 to 1001-2006 from his employer’s office.
6.
The contract of insurance is based on the doctrine of utmost good faith and life
assured was under an obligation to disclose each and every aspect with respect to his
health at the time of submitting proposal form as well at the time of revival of lapsed
policy, as revival amounts to new contract of policy. Insured had not disclosed fact of
being alcoholic for last 15 to 20 years and suffering from Cirrhosis for last one year at
the time of revival and had not disclosed fact of remaining on leave on medical grounds
for about 3½ months and in such circumstances, on account of suppression of material
facts regarding health, respondent has not committed any error in repudiating claim filed
by the petitioner.
7.
Learned State Commission dealt with suppression of material facts at length and
had arrived at correct conclusion that life assured concealed true and material facts with
respect to his health at the time of taking of the policy as well as at the time of revival of
the insurance policy and has rightly allowed the appeal. We do not find any illegality,
irregularity or jurisdictional error in the impugned order, which calls for any interference
and revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage, being barred by limitation as well as on merits, with no order as to costs.
.……………….………………
(K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
(DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1322 OF 2012
(From the order dated 01-12-2011 in First Appeal No. 190 of 2010 of the State
Consumer Disputes Redressal Commission, Madhya Pradesh)
Smt. Satyavati Sharma R/o Village-Lohadwar, Post Office Padra Police Station, Tehsil
Raipur Karvelyun, District – Rewa (M.P.)
… Petitioner/Complainant
Versus
Life Insurance Corporation Through Branch Manager, Krishna Complex, Krishna Nagar
District, Satna (M.P.)
… Respondent /Opposite Party
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
: Mr. Vikas Upadhyay, Advocate
For the Respondent
: Mr. Kamal Gupta, Proxy Counsel for
Mr. Neeraj Gupta, Advocate
PRONOUNCED ON
10th
JULY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order
dated 01-12-2011 passed by the learned State Consumer Disputes Redressal
Commission, Madhya Pradesh (in short, ‘the State Commission’) in Appeal No. 190 of
2010 – Smt. Satyavati Sharma Vs. Life Insurance Corporation, by which while allowing
the appeal, order of the District Forum allowing the complaint was set aside.
2.
Brief facts of the case are that deceased Shyamlal Sharma, husband of the
complainant/petitioner obtained policy for Rs. 1 lakh from opposite party/respondent on
30-03-2007 and suddenly insured Shyamlal died on 13-06-2008. Complainant filed
claim for payment of sum assured to the opposite
party but claim was
repudiated. Alleging deficiency on the part of opposite party, complainant filed
complaint before District Forum. Opposite party resisted claim and submitted that after
investigation it was noticed that insured was suffering from heart ailment and prior to
filling proposal form he had taken leave for 289 days on the ground of said
illness. Deceased had suppressed all these facts in proposal form and therefore prayed
for dismissal of complaint. Learned District Forum, after hearing both the parties,
allowed complaint and directed opposite party to pay Rs. 1 lakh with 8% p.a. interest
and Rs.5,000/- as compensation and Rs.1,000/- as cost of the complaint. Appeal filed
by the respondent was allowed by learned State Commission vide impugned order,
against which this revision petition has been filed.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that as there was no nexus between
the cause of death and alleged illness, learned District Forum rightly allowed the
complaint but learned State Commission has committed error in dismissing the
complaint, hence revision petition be allowed and impugned order be set aside. On the
other hand, learned counsel for respondent submitted that order passed by learned
State Commission is in accordance with law, which does not call for any interference,
hence revision petition be dismissed.
5.
Perusal of record clearly reveals that in the proposal form, insured replied in
negative to Clause 11 (a) & (c) as under:-“Did you ever consult a Medical Practitioner for any
Ailment requiring treatment for more than a week?
No
Ever remained absent from place of work on grounds
Of health during the last 5 years?
6.
No”
On the other hand, record clearly reveals that insured took 289 days leave from
the office and he was suffering from various diseases of the nature and kind which he
ought to have disclosed before issuance of policy. Learned State Commission rightly
observed as under:“We are of the view that in none of these cases the deceased had proceeded
on long leave of 289 days for his treatment and the documentsEx.P/6 to
P/18 clearly certify that he was suffering from hyper tension and
diabetes. Thus, there is sufficient evidence on record to show that the
deceased was suffering from the diseases and he had suppressed it, indeed
he had not disclosed that he had taken leave on medical ground. All these
circumstances lead to irresistible conclusion that the deceased had
deliberately suppressed the pre-existing disease thus, relieving the
Insurance Company of its obligation to pay amount of the insurance.
The counsel for the Insurance Company has relied upon the decision
of the Supreme Court of India in Satwant Kaur Sandhu vs. New India
Assurance Co. Ltd., Civil Appeal No. 2776 of 2002 in support of his
contention that the IRDA regulation 2(1) (d) (Protection of Policyholders’
interest) defines ‘material’ to mean and include all important, essential and
relevant information to decide whether to undertake the risk or not. If the
deceased had disclosed the multiple diseases from which he was suffering,
the Insurance Company would have taken decision whether to undertake
the risk or not.”
7.
The contract of insurance is a contract of trust and it was obligatory on the part of
the insured to disclose previous disease, treatment, etc. but as deceased not only
suppressed all these material facts, but also answered in negative and in such
circumstances, respondent has not committed deficiency in repudiating the claim. We
do not find any illegality, irregularity or jurisdictional error in the impugned order and
revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
.……………….………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
( DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4018 OF 2006
(From the order dated 26-10-2006 in Appeal No. 2106 of 2005 of the State Consumer
Disputes Redressal Commission, Karnataka)
M/s Monto Motors Ltd. Through its Director D-33, Okhla Industrial Area Phase – I, New
Delhi-110020
… Petitioner/O.P. No.1
Versus
1. M/s Sri Sai Motors Through Sh. G. Venkatesulu R/o SBI Colony, Gandhi Nagar,
Bellary Town, Karnataka
… Respondent No. 1/Complainant
2. M/s Taj Motors 407, Brigade Tower, Brigade Road, Bangalore – 560025.
… Respondent No. 2/O.P. No. 2
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
For Respondent No. 1
For Respondent No. 2
PRONOUNCED ON
: Mr. Rakesh Kakar, Advocate
:NEMO
:NEMO
10th JULY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against impugned order
dated 26-10-2006 passed by the learned State Consumer Disputes Redressal
Commission, Karnataka (in short, ‘the State Commission’) in Appeal No.2106 of 2005 –
M/s Monto Motors Ltd. Vs. M/s Sri Sai Motors & Ors. bywhich while dismissing the
appeal, order of the District Forum allowing the complaint was upheld.
2.
Brief facts of the case are that complainant/respondent no. 1, proprietor of
Respondent No. 1, being an unemployed person wanted to start his own business for
earning his livelihood. As per advertisement of petitioner/O.P. No. 1, respondent no. 1
was appointed authorised dealer of the petitioner on 17-09-2002 and in pursuance to
agreement, respondent no. 1 deposited Rs. 2 lakhs as security amount with the
petitioner/O.P. No. 1 and respondent no. 1 opened his showroom in Bellary. Opposite
party no. 2/respondent no. 2 being authorised distributor of opposite party no. 1
supplied 24 vehicles to the complainant/respondent no. 1. Complainant cleared all dues
payable to opposite party no. 2 but opposite party no. 2 had not given the sales
commission
and
discount
to
the
complainant
as
agreed
between
the
parties. Complainant requested for refund of security amount, but amount was not
refunded. Alleging deficiency on the part of the opposite parties, complainant filed
complaint before District Forum with a prayer for refund of security deposit of Rs. 2
lakhs along with interest and other expenses. Opposite party no. 1 submitted written
statement and alleged that complainant does not fall within the ambit of consumer under
Consumer Protection Act as dispute is of commercial nature. It was further alleged that
District Forum has no jurisdiction to entertain the matter and denied any deficiency on
the part of the opposite party and prayed that complaint be dismissed. Opposite party
no. 2 did not appear before District Forum and was proceeded ex-parte. Learned
District Forum after hearing both the parties allowed complaint and directed opposite
party no. 1 to refund Rs. 2 lakhs with 10% p.a. interest from the date of filing complaint
till realisation and Rs.5,000/- as compensation for mental agony and Rs.2,000/- as
litigation cost. Appeal filed by the petitioner was dismissed by learned State
Commission vide impugned order against which this revision petition has been filed.
3.
Respondents did not appear; hence they were proceeded ex-parte.
4.
Heard learned Counsel for the petitioner and perused record.
5.
Learned Counsel for the petitioner submitted that as dealership was for the
purpose of purchase and sale of vehicles and spare parts, complainant does not fall
within purview of consumer. As per letter of authority, disputes were subjected to
jurisdiction of Delhi Court and District Forum, Bellary had no jurisdiction to entertain the
complaint, even then District Forum committed error in allowing the complaint and
learned State Commission further committed error in dismissing the appeal. It was
further argued that complainant has not come with clean hands, as per authority letter,
complainant was partner of firm Sri SaiMotors whereas complaint has been filed by the
complainant showing himself to be proprietor of the firm, hence revision petition be
allowed and impugned order be set aside.
6.
Perusal of record reveals that complainant has signed authority letter dated 17-09-
2002, letter of intent dated 17-09-2002, and commitment letter dated 26-09-2002
pretending himself as partner of the firm Sri Sai Motors. On the other hand complainant
has filed complaint depicting himself as proprietor of the firm. Complaint could have
been filed only by the firm through its partners and as complaint filed by the
complainant, as sole proprietor of the firm, complaint was not maintainable and learned
District Forum has committed error in allowing complaint and learned State Commission
has committed error in dismissing the appeal.
7.
Learned counsel for the petitioner submitted that as dealership was for the
purpose of purchase and sale of the vehicles and spare parts, complaint does not fall
within purview of consumer under Section 2(d)(i) of the Consumer Protection
Act. Admittedly, Sri Sai Motors, when appointed authorised dealer for Bellary for selling
and servicing motorcycles, Moped, fun bikes and spare parts by opposite party no. 1,
deposited Rs. 2 lakhs as security with the opposite party. Section 2(d)(i) of Consumer
Protection Act reads as under:-“(i) buys any goods for a consideration which has been paid or promised of
partly paid and partly promised, or under any system of deferred payment
and includes any user of such goods other than the persons who buys
such goods for consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment, when such use is
made with the approval of such person, but does not include a person who
obtains such goods for resale or for any commercial purpose.”
8.
Learned State Commission while dealing with this aspect observed as under:-“The case of OP-1 is that since the contract between the parties is
commercial in nature, the complainant is not a consumer as defined under
the Consumer Protection Act. It is true that the complainant was appointed
as a Dealer to sell the vehicles manufactured by OP-1. The dispute between
the complainant and OP-1 relates to the refund of the security deposit and it
has nothing to do with the vehicles supplied by OP-1 through OP-2 to the
complainant and re-sale of the said vehicles by the complainant to third
parties. Hence, the complaint filed by the complainant is maintainable, as
the complainant is a consumer as there is “Deficiency in service” by OP-1 in
not refunding the security deposit as per the terms of the contract.”
9.
We do not agree with the interpretation arrived at by learned State
Commission. As security amount was deposited for obtaining dealership for the
purpose of purchase and sale of vehicles, dispute regarding refund of security amount
does not fall within the purview of consumer disputes under the Act and in such
circumstances
complaint
(i) has been added w.e.f.
was
not
maintainable. Explanation
15-03-2003
whereas
dealership
to
Section
2(d)
has been granted
vide letter dated 17-09-2002 and explanation excluding commercial purpose for
purpose of earning livelihood by self-employment is not applicable to the present case
and in such circumstances, District Consumer Forum had no jurisdiction to entertain the
complaint and has committed error in allowing complaint and learned State Commission
further committed error in confirming order of District Forum.
10.
Learned counsel for the petitioner further submitted that District Forum, Bellary
had no jurisdiction to entertain the complaint as disputes were subjected to jurisdiction
of Delhi Courts as per letter of intent dated 17-09-2002. We do not agree with this
submission as dealership was granted for Bellary and showroom was also opened at
Bellary and security amount was also given for running dealership at Bellary. In such
circumstances, cause of action also arose at Bellary and as per Section 11 of
Consumer Protection Act; complaint can be filed within the local limits of District Forum
in whose jurisdiction cause of action arises. Merely by mentioning that all disputes are
subjected to jurisdiction of Delhi Courts in the letter of intent, jurisdiction of Court at
Bellary is not ousted.
12.
From the above discussion it becomes clear that complainant has not come with
clean hands and complaint filed by the complainant, as sole proprietor of Sri Sai Motors
was not maintainable and as dispute does not fall within the purview of consumer
dispute. Revision petition is to be allowed and order of learned State Commission is
liable to be set aside.
12.
During course of arguments, learned counsel for the petitioner submitted that
petitioner is ready to refund the security amount to Sri Sai Motors subject to returning of
the documents, inventory and indemnifying loss caused to the petitioner. We hope
complainant will submit requisite documents along with inventory to the petitioner and
petitioner will refund security amount to the complainant.
13.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 26-10-2006 passed by learned State Commission in appeal no. 2106/2005
– M/s Monto Motors Ltd. Vs. M/s Sri Sai Motors & Anr. is set aside and complaint is
dismissed.
.……………….………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
( DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 857 of 2010
(From the order dated 20.11.2009 of the Haryana State Consumer Disputes Redressal
Commission, Panchkula in Appeal no. 609 of 2006)
Haryana Urban Development Authority Through its Estate Office, Gurgaon Haryana
Petitioner
Versus
Pawan Kumar Gupta Son of Shri C P Gupta 43 Sarojini Park Shastri Nagar New Delhi
– 110031
Respondent
BEFORE:
HON’BLE MRS REKHA GUPTA
For the Petitioner
For the Respondent
, PRESIDING MEMBER
Mr R S Badhran, Advocate
IN PERSON
Pronounced on 10th July 2013
ORDER
REKHA GUPTA
Revision petition no. 857 of 2010 has been filed under section 21 (b) of the
Consumer Protection Act, 1986 against the order dated 20 th November 2009 passed by
the Haryana State Consumer Disputes Redressal Commission, Panchkula in First
Appeal no. 609 of 2006.
The brief facts of the case as per the respondent/complainant are as follows:
The respondent had applied for allotment of 10 Marla Plot in Sector 9, Gurgaon to
the Petitioner/ Opposite Party vide application no. 014712 dated 20.08.1992 and has
deposited earnest money of 10% amounting to Rs.22,836/- in cash on 20.08.1992.
Respondent was allotted a plot bearing no. 1184 ad-measuring 10 marlas, i.e.,
220 sq mtrs, in Sector – 9, Gurgaon vide memo no. E O (G)/ ALT – 9/ 961 dated
09.07.1993 issued by the petitioner and a sum of Rs.34,924/-, i.e., 15% of the total
tentative price was deposited with the petitioner vide Bank draft no. 283813 dated
24.07.1993 drawn on SBI, Laxmi Nagar, Delhi and thus 25% of the total price was paid
at the time of allotment and the balance 75% sale price was payable in 6 yearly
instalments. The respondent has also deposited Rs.1,51,031/- towards the cost of
additional price i.e., 574/- sq. yds, as desired in notification no. 7904 dated 03.05.1999.
Thus full and final payment has been received by HUDA in 1998 and escalated price
also on 23.03.2002.
The respondent has paid Rs.3,80,031/- as per the above list enclosed and the
petitioner had received full and final payment but they unduly delayed the possession of
plot for no fault of the respondent causing undue harassment, mental agony and
irreparable loss.
The above said plot was allotted to the respondent with a provision to offer
possession of the same after completion of its full development in the area at the
earnest and not later than two years. But now more than 12 years have passed since
the date of allotment of the said plot and the petitioner has not bothered to offer. The
possession of the said plot to the respondent till this date after completion of full
development work in the area, inspite of repeated requests and personal visits to the
office of the petitioner.
Time and again, the respondent has visited the site. During long spell of 12 years,
the petitioner neither developed his site well nor supply of sewage system, water supply
and other amenities. Facilities like community centre, school, health centre required for
the residential colony as declared by the petitioner, has yet to be provided.
Furthermore as the possession was not given even after 12 years it has another
impact, i.e., the cost of construction, cost of steel, cement, building material and labour
charges etc., has increased approximately by 300%. Thereby what could have been
done at a cheaper rate, will now, be done with more.
The petitioner/ opposite party in their reply have stated that paragraph no. 4 of the
complaint is wrong, baseless and hence denied. The area of this plot is fully developed
and only thereafter physical possession was offered to the allottee vide this office memo
no. 2749 dated 29.06.2001. As per the terms and conditions of the allotment the
respondent/ allottee was given an offer of possession, but the allottee failed to even
start the construction work and hence he is bound to pay the extension fee as per
HUDA policy.
Paragraph no. 7 of the complaint was also denied by stating that the area is fully
developed and physical possession had already been offered to theallottee on
29.06.2001. The allottee failed to start the constructions and complete the building
within two years from the date of offer of possession.
The District Consumer Disputes Redressal Forum, Gurgaon (in short, ‘the District
Forum) came to the following conclusions after going through the file and hearing the
parties:
“Possession has been admitted to have been delivered during the proceedings.
As per application dated 16.12.2005 conveyance deed is not being executed. It is
ordered that the same be executed on furnishing papers by the complainant, if
any, besides the complainant is awarded interest @ 18% per annum on deposits
from the dates of deposits till the delivery of possession of his plot on the spot by
demarcation and this interest is being awarded keeping in view the rise in
construction cost so as to compensate him as he has been waiting for the plot
since, 1993. During the arguments counsel for the complainant contended
that another illegal demands have been raised vide memo no. 17260 dated
15.09.2005. We have perused the said letter Rs.8,246/- have been demanded as
instalments due to on 15.10.2005 and Rs.88,335/- towards enhancement which
could be recovered as per terms of the allotment. However, Rs.14,565/-
demanded as extension fee could not be demanded as physical possession was
delivered only on 24.10.2005. This last demand is struck down and this amount
is ordered to be refunded to the complainant with interest as per HUDA policy
from the date of deposit till the date of refund. As regards the plea that the
complainant had already paid amount of instalment and enhancement in 10/99
and March 02 respectively, he has not mentioned any receipt number or date. He
can agitate the matter again with the HUDA and in case the complainant paid
amount of instalment and enhancement double, respondent is liable to refund the
said amount to the complainant along with interest from the date of deposit till the
date of refund as per HUDA policy. There will be no other orders as to costs.
Compliance of the above order be made within one month from the receipt of the
copy of this order”.
Aggrieved by the order of the District Forum, the petitioner/ opposite party filed an
appeal before the State Commission. The State Commission in their order has
recorded that “none has put in appearance on behalf of the appellant. Perusal of the file
shows that this appeal is old one and relates to the year 2006. No one has taken care to
appear on behalf of the appellant before this Commission from the last four consecutive
hearings, i.e., 11.06.2007, 29.08.2007, 17.01.2008 and 27.01.2009. Even today none
has appeared on behalf of the appellant. Since this appeal is old, therefore, we do not
find any justification to adjourn the case time and again. Hence we proceed to decide
this appeal after going through the case file”.
The State Commission thereafter came to the following conclusion:
“We have gone through the impugned order and taken into consideration the
facts and circumstances of the case and are of the view that it is a case where
the plot no. 1184, Sector – 9, Gurgaon was allotted to the complainant on
09.07.1993 whereas the physical possession of the same was handed over to
the complainant on 24.10.2005 during the pendency of the proceedings before
the District Forum, i.e., after a period of more than 11 years, which itself shows
deficiency in service on the part of the opposite party. Therefore, we do not find
any ambiguity or illegality in the impugned order passed by the District Forum.
No case for interference in the impugned order is made out.
No merit. Dismissed”.
Hence, this present revision petition.
The main grounds for the revision petition are as follows:
-
Forums below erred in facts and law, and have misread, misconstrued and
misinterpreted the documentary evidence available on record and also the
mandatory provisions of law applicable on that fact while passing the orders
dated 20.11.2009. In fact the counsel for the petitioner was not present at the
time of deciding the matter which devoid the petitioner herein being heard and
explain the position of the matter before the State Commission. The petitioner
thus lost the opportunity to bring the true facts before the Commission.
-
The Forums below failed to appreciate that the respondent herein is bound by
the terms and condition of the allotment letter as well as provisions of Act, Rules
and Regulation, policies instructions framed and issued in this regard from time
to time. The respondent herein is bound by the aforementioned rules, instructions
and policies of the petitioner herein and to pay the outstanding amount as
demanded by the petitioner herein.
-
The Forums below have not taken into consideration that the offer of
possession of the plot was made after completion of all the developments works
on 29.06.2001. However, it was the respondent herein who instead of taking the
possession filed the complaint with ulterior motives. The complaint was thus not
maintainable. The District Forum has travelled beyond its jurisdiction in
entertaining the complaint under the Act, which ought to have been dismissed.
-
The Forums below failed to appreciate that vide Memo no. 17260 dated
15.09.2005 demand of Rs.14,564/- as extension fees was rightly raised as the
respondent herein has failed to construct the building as per the terms and
conditions of the allotment and as per HUDA Policy. The Forums below erred in
striking down the said demand even though the same was demanded as per rule
and regulations of HUDA policy and as per the terms and conditions of the
allotment letter.
-
The Forums below erred in awarding interest @ 18% per annum on deposits
from the date of deposits till the delivery of possession of plot on the spot by
demarcation. As already submitted the possession of the plot was offered on
29.06.2001 and it was the respondent who failed to take the possession of the
plot, as such there is no deficiency in the service. Moreover the interest so
awarded is too high.
I have heard the counsel for the petitioner and respondent in person and have
gone through the record.
Nowhere in the revision petition has it been mentioned as to why no one had put
in appearance on behalf of the petitioner/ appellant on the last four consecutive dates in
the State Commission on 11.06.2007, 29.08.2007, 17.01.2008 and 27.01.2009.
Thereafter the petitioner cannot complain that they were not given opportunity to bring
the true facts before the State Commission.
The counsel for the petitioner drew my attention to the offer of possession dated
29.06.2001 and stated that it is the fault of the respondent that he did not take
immediate possession. However, the respondent denied having received this
communication. Counsel for the petitioner could not provide any evidence that the said
communication had been received by the respondent.
Counsel for the petitioner then stated that the petitioner was objecting to pay
18% interest because as per the terms and condition of the allotment letter it was not
due. He drew my attention to paragraph 7 of the allotment which states that “possession
of the site will be offered to you on completion of the development works in the area,
where situated”.
It is however, patently unfair that this clause is open ended with absolutely no
time limit. The petitioner had taken full payment from the respondent by March 2002
with the first payment being taken in August 1992.
It is an undisputed fact that plot bearing no. 1184, Sector -9, Gurgaon was
allotted by the petitioner to the respondent vide memo no. E O (G) /ALT – 9/ 961 dated
09.07.1993 at a tentative base price of Rs.22,836/-. Full and final payment including the
escalated price was paid by 23.03.2002. However, the physical possession of the plot
was given only on 24.10.2005. The respondent has now received both physical
possession of the plot as also the conveyance deed. The petitioner is objecting to pay
interest @ 18% per annum for the period upto 29.06.2001. The respondent has stated
however, that since interest has not been paid till date, he should get the same even for
the period beyond 2005.
In view of the above, we find that there is no jurisdictional error, illegality or
infirmity in the order passed by the State Commission warranting our
interference. However, as per the terms and conditions of the allotment letter, the
interest payable by allottee in case of default is 15%. In all fairness and in the interest of
equity and justice, the order of the District Forum is partially modified by reducing the
rate of interest from 18% to 15% per annum. Rest of the order stands as it is.
In view of the foregoing, the revision petition stands disposed of.
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2569 OF 2012
(From the order dated 18-05-2012 in First Appeal No. 1147 of 2008 of the State
Consumer Disputes Redressal Commission, Punjab)
1.
MALKIAT SINGH S/o Shri Karam Singh R/o Flat No. 521, 6th Floor,
Housefed Flats Complex, Shaheed Bhagat Singh Nagar, Block-E, Ludhiana - 141013
Punjab
.... Petitioner/Complainant
Versus
1. SHAHEED BHAGAT SINGH NAGAR, HOUSEFED COMPLEX, CO-OPERATIVE
HOUSR BUILDING SOCIETY LTD. Through President, Block-E, Ludhiana Punjab
2. The Managing Director, Housefed Punjab, SCO No. 150-152, Sector 34-A,
Chandigarh Punjab
3. The Registrar, Co-Operative Societies, Chandigarh Punjab
... Respondents
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
PRONOUNCED ON
:
In person
11th JULY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
1.
This revision petition has been filed by the petitioner against impugned order
dated 18-05-2012 passed by the learned State Consumer Disputes Redressal
Commission, Punjab (in short, ‘the State Commission’) in Appeal No. 1147 of 2008 –
Malkiat Singh Vs. The Shaheed Bhagat Singh Nagar,Housefed Complex, Co-operative
House Building Society Ltd. & Ors., by which appeal filed by the petitioner was
dismissed and order of the District Forum dismissing the complaint, was upheld.
2.
Brief facts of the case are that complainant/petitioner was allotted flat no. 521 on
6th floor by opposite party no. 1/respondent no. 1 and possession was delivered to the
petitioner on 30-04-2002 after receiving entire amount of Rs.11.90 lakhs. Respondent
no. 1 charged additional amount of Rs.1,000/- for creation of common fund which was
to be used or maintenance of common services/area. It was also mentioned in the
Brochure that monthly instalments as decided by opposite part no. 1 shall be payable by
the members of this society for maintaining, regulating common areas and
services. Petitioner was under impression that respondent no. 1 shall provide all
amenities. It was further alleged that there was seepage of water in the lintel roof,
which was brought to the notice of opposite parties. Many cracks developed in the
walls. It was further alleged that respondent no. 1 was to provide two lifts and generator
set for the use of allottee members. Complainant never withheld monthly payment of
maintenance
but
resolution
was
passed
by opposite
party no.
1
that
in
case flatownerfailed to pay monthly water supply charges, his connection would be
disconnected and complainant’s water connection would be discontinued. It was further
alleged that only one lift was provided against provision of two lifts. Alleging deficiency
on
the
part
of
respondents,
complainant
filed
complaint
before
District
Forum. Complaint was not admitted against respondents’ no. 2 & 3. Opposite party no.
1/respondent no. 1contested complaint before District Forum denied allegations of
deficiency and further submitted that complaint is time barred and complainant himself
is in arrears of maintenance charges, hence complaint be dismissed. Learned District
Forum after hearing both the parties, dismissed complaint against which appeal filed by
the petitioner was dismissed by learned State Commission vide impugned order against
which this revision petition has been filed.
3.
Heard petitioner in person at admission stage and perused record.
4.
Learned petitioner submitted that as per Brochure, two lifts, generator set has not
been provided and as there are many defects in the construction, which have not been
removed by opposite parties; even then learned District Forum has committed error in
dismissing the complaint and learned State Commission further committed error in
dismissing the appeal, hence revision petition be admitted.
5.
Admittedly, possession was delivered to the petitioner
on
30-04-
2002 whereas complaint was filed before District Forum on 08-09-2005. Complaint
should have been filed within a period of two years from getting possession of the flat
regarding any defect in the construction or deficiency in the services. As complaint has
been filed after almost three years and four months and no application has been moved
for condonation of delay, complaint being time barred is not maintainable and learned
District Forum has not committed error in dismissing the complaint and learned State
Commission has not committed any error in passing the impugned order.
6.
was
As far as defects in the flats are concerned, as per delivery possession receipt, flat
in
good
condition. In
that construction of flat
such
circumstances,
was defective.
and generator set, petitioner
could
As
far
it
as
cannot
providing
not
place
be
inferred
two
lifts
any
document to substantiate that respondent was to provide two lifts and generator set
for inhabitants
of the
building. Learned
Commission and District Forum rightly observed that as
State
petitioner
himself was defaulter in making payment of maintenance charges, petitioner
cannot claim benefit of service of lift, etc. to be provided by the respondent. It cannot
be expected from the respondent to maintain all the services without contribution
towards maintenance charges being made by flat owners and in such circumstances,
petitioner is not entitled to any relief.
7.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order, which calls for any interference and revision petition, is liable to be dismissed at
admission state.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
.……………….………………
(K.S. CHAUDHARI, J)
PRESIDING MEMBER
.……………….………………
(DR. B.C. GUPTA)
MEMBER
aj
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3345 OF 2012
(Against the order dated 10.01.2012 in Appeal No. 176/2009 of the State Consumer
Disputes Redressal Commission, Rajasthan, CIRCUIT BENCH NO.2, Jaipur)
M/s Sterlite Industries (India) Ltd. a Company incorporated under the Companies Act,
having its Registered Office at SIPCOT Industrial Complex, TV Puram, Tuticorin 628002 (Represented By its Company Secretary)
........ Petitioner
Versus
Ganapati Finsec Pvt. Ltd. Registered Office : 37 K Block, Sriganganagar, Rajasthan
Through its Director, Shri Devendra Kumar Mittal
…….Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
:
Mr. Manish Garg, Advocate
For the Respondent
:
Mr. Vijay K. Jain, Advocate
Pronounced on : 12th July, 2013
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.
Ganapati Finsec is a private limited company. It had purchased 116 shares
from the Sterlite Industries Limited. The above said 116 shares were deposited in
the complainant’s Demat Account.
2.
It is alleged that the respondent company, without the permission of the
complainant, sent the cheque of Rs.11,600/- to the complainant company, drawn at
Standard Chartered Bank Branch, M.G. Road, Mumbai, under Buyback Scheme for
116 shares @ Rs. 100/- per share, in the year 2002, along with 580 NonConvertible
Debentures. The complainant company refused
to
accept
the
same and informed the respondent, through e-mail, on 04.02.2003, 17.02.2003
and 20.02.2003 and the above said cheque was returned by the complainant
company to the respondent company. The complainant company sent a letter/Notice
dated
22.02.2003
to
the
respondent
company
for
depositing
back
the 116 Demat Start Lite Industries Ltd.’s shares in the CDLL Demat Account of the
complainant
company. Complainant Company also
stated
that
it may
deposit the above said debentures in the account of the respondent. The
respondent company neither gave the reply nor returned the 116 shares to the
complainant. Thereafter, a legal
notice
was
sent
on
16.10.2003, but
the
respondent company did not respond. It is alleged that the respondent has
committed deficiency in service by not returning the 116 shares of Demat to the
complainant and by not replying to the letter dated 22.02.2003 and notice dated
16.10.2003, and this act of respondent caused unnecessary mental harassment
and financial losses to the complainant company.
3.
The
petitioner
accordingly filed the complaint under
Section
12 of the
Consumer Protection Act, with the prayer that respondent be directed to give 116
shares of Sterlite Industries Limited of Demat account of the complainant company
so that the complainant company may deposit the debentures in the account of the
respondent. It was further prayed that compensation in the sum of Rs. 10,000/- and
costs amounting to Rs. 2,200/-, be also awarded.
4.
The District Forum dismissed the complaint. It was held:
“Complainant has not stated anything in his complaint with regard
to Option Form nor has stated in the affidavit that Option Form
was not received by him. Despite filing of reply to the affidavit on
behalf of the non-applicant, complainant has neither filed affidavit
in rebuttal nor denied the above averments of the non-applicant
that he had received the Option Form, as desired under the
approved Scheme. Therefore, there is no reason to discard this
averment mentioned in the reply of the non-applicant that the
Option Form was received by the complainant, under the
Scheme. In such circumstances, when according to the Scheme,
non- applicant had the right to buy back the share under the
Scheme, in case option form of the complainant was not received
and in exercise of the above right, chequeof
Rs. 11,600/-
at the rate of Rs.100/- per share, towards 116 shares held by the
complainant was sent
to
him
and
580
Non-Convertible
Debentures were deposited in his De-mat Account. Thus,
complainant is not entitled to any relief, as sought in the
complaint”.
5.
Aggrieved by this order, the complainant filed First Appeal before the State
Commission. The State Commission allowed the complaint. It was held:
“In our opinion, respondent, without sending the Option Forum,
cannot convert the shares into debentures. Thus, complaint of
the complainant is liable to be allowed against the respondent.
Thus, after allowing the appeal and complaint, respondent is
directed to deposit 116 shares of the complainant again and
provideDemat account to him and also pay the dividend and
bonus accrued on it, from time to time. He is further directed to
pay Rs. 5000/- as compensation and Rs. 1000/- towards costs of
proceedings. Accordingly, appeal and complaint are allowed”.
6.
In this revision petition, we have heard the counsel for the parties. The main
question
which
falls
for
consideration
‘Consumer’?”. Learned counsel for
the
is,
“Whether the complainant
complainant/respondent
is
a
vehemently
argued that the revisional jurisdiction is limited. The National Commission can
decide
the
legal
question, if any, but
should
interfere into facts, which have already been adjudicated
not
by
the Fora below. It was also submitted that this issue was never raised. The OP did
not
raise
any
objection
on
this
point. This
is
explained
that
there is no dispute between the parties. He submitted that shares are goods and
there is deficiency on the part of the petitioner/OP.
7.
Counsel for the respondent has cited few authorities reported in the cases
of “Lakshmi Engineering Works V. P.S.G. Industrial Institute” [AIR 1995
Supreme
1428], “Kalpavruksha Charitable
Court
Trust
versus Toshniwal Brothers (Bombay) Pvt. Ltd.” [(2000) 1 Supreme Court
Cases 512], “Saurashtra Oil Mills Association, Gujarat versus State of Gujarat
&
Another” [AIR
2002
Supreme
Court
PalChoudhary versus Sheirly Weigal Nain
Court 3011]”.
1130]
&
“Subhadra Rani
and others [AIR 2005
Supreme
In the first two authorities, it was held that whether purpose for
which person has bought goods is a commercial purpose within the meaning
of the definition of expression consumer in Section 2 (d) of the Act is always a
question of fact to be decided in the facts and circumstances of each case. In the
last two authorities, it was held that dismissal of Special Leave Petition is a nonspeaking order, what remains a dismissal simplicitor, in which permission to file
the appeal to this court is not granted, it would not mean to be the declaration of
Law by the Apex Court.
8.
The above said authorities are not of much help to the respondent. We have
perused the reply and affidavit filed before the District Consumer Disputes Redressal
Forum, Shriganganagar. In para No. 6, the petitioner/OP clearly, specifically and
unequivocally, made the following averments:
“Non-applicant again submits in reference to paras 1 to 6 of the
complaint and saves its above averments and whichever is
contrary and irrelevant, they are denied. No comments in regard
to Para 1. As per the definition given under CP Act, in reply
to para 2, it is not admitted that the complaint is a ‘consumer
complaint’ ……..”.
9.
It is clear that the objection was raised by the respondent at the earliest
possible opportunity. It must be borne in mind that the Complainant is a Private
Limited Company, which is registered under the Companies Act 1986. The shares
were
purchased
by
the
Complainant Company and not
by
any
individual. It was not established that these shares were not purchased for any
commercial purpose. It must be borne in mind that the disputes between the
parties
relating
to
commercial
purposes are excluded
under
the
Act. This view stands fortified by a recent judgment of this Commission, reported
in “Vijay Kumar Vs. Indusind Bank, II 2012 CPJ 181 (NC)”, wherein it was held:
“10. Again, such like question arose for consideration
before National Commission in case of Som Nath Jain Vs.
R.C. Goenka &Anr, reported in 1 (1994) CPJ 27 (NC). In that
case, dealing with sale-purchase of shares, National Commission
expressed serious doubt, whether the complaint, qua, it would
be maintainable under the Consumer Protection Act. Because,
qua such transactions, elaborate evidence need to be taken
regarding purchase and sale of shares, their prevalent price in
the market and evidence regarding passing of instructions by
client to the broker. Resultantly, the complainants were relegated
to get the dispute decided through civil court.
10.
West Bengal State Consumer Disputes Redressal Commission, Kolkata, in
case Ramendra Nath Basu Vs. Sanjeev Kapoor & Anr., reported in 1 (2009) CPJ
316 qua share trading has held that transactions between parties do not come under
purview of Consumer Protection Act, 1986.
11.
Similar
view
was
taken
Disputes Redressal Commission,
New
by
the
Delhi
Delhi
in
State
Consumer
case Anand Prakash Vs.
A.M. Johri & Ors., reported in III (2000) CPJ 291, by holding that “sale-purchase of
shares are commercial transactions, so, the complainant is not a ‘consumer’, in such
cases”.
12.
The
same
view
was
“A. Asaithambi Vs. Company Secretary Satyam
& Ors.”
by
this
Bench. The Hon’bleSupreme
also
taken
Computer
Court,
vide
Services
order
in
Ltd.
dated
14.12.2012, in Special Leave to Appeal (Civil) No. 36840 of 2012 (A. Asithambi Vs.
Company Secretary Satyam Computer Services Ltd. & Orts.), dismissed the case
in limine.
13.
This view is further supported by the case of Dr. V.K.Agarwal Vs. M/s Infosys
Technologies Ltd. & Ors. in OP No. 287 of 2001, decided on 24.07.2012, by this
Bench .
14.
In Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 SCC 225, paras 26,
27, 33, 34 & 35, are relevant. However, paras 33, 34 and 35, are reproduced, as under
:
“33. Certainly, clauses (iii) and (iv) of Section 2(1) ( c) of the Act do not
arise in this case. Therefore, what requires to be examined is, whether any
unfair trade practice has been adopted. The expression ‘unfair trade
practice’ as per rules shall have the same meaning as defined under
Section 36-A of Monopolies and Restrictive Trade Practices Act,
1969.That again cannot apply because the company is not trading in
shares. The share means a share in the capital. The object of issuing the
same is for building up capital. To raise capital, means making
arrangements for carrying on the trade. It is not a practice relating to the
carrying of any trade. Creation of share capital without allotment of shares
does not bring shares into existence. Therefore, our answer is that a
prospective investor like the respondent or the association is not a consumer
under the Act.
34. From the above discussion, it is clear that the question of the appellant
company trading in shares does not arise.
35. In view of our answers to questions 1 and 2, it follows that the
Consumer Disputes Redressal Forum has no jurisdiction, whatsoever”.
15.
In a recent authority in the case of Ganapati Parmeshwar Kashi & Anr. Vs.
Bank of India & Anr. First Appeal No. 362 of 2011, the National Commission, headed
by Hon’ble Justice Ashok Bhan, was pleased to hold :
“Apart from this, State Commission also held that since the
appellants had alleged that they had suffered loss as they could
not trade due to suspension of accounts, were not consumers as
the dispute related to loss and profit from the share business of
the appellants.
We agree with the view taken by the State Commission. Bank
could not continue the Demat Account, in violation of the terms
and conditions laid down by the NDSL and RBI. Appellants had
admittedly failed to furnish the identity proof by submitting
copies of PAN cards, etc., as per directions of NDSL and
RBI. For Demat Accounts, Respondent Bank is bound by the
directions issued by NDSL and RBI. Dismissed”.
16.
The
aggrieved
party
went
to
the
Supreme
Court. The
Apex Court dismissed the Special Leave Petition on 14.01.2013 and held, as
under :
“ii) The
concurrent finding
recorded by
the
State
Consumer
Disputes Redressal Commission, Maharashtra and the National Consumer
Disputes Redressal Commission that the petitioners cannot be treated
as ‘consumer’ within the meaning of Section 2(d) of the Consumer
Protection Act, 1986, is based on analysis of the pleadings filed by the
parties. The DMAT Account was opened by the petitioners purely for
commercial transactions. Therefore, they were rightly not treated as
‘consumer’
so
as
to
entitle
them
to
claim
compensation by filing complaint under the 1986 Act”.
17.
Consequently , we accept the revision petition and dismiss the
complaint. However, there shall be no order as to costs.
..…………………………
(J. M. MALIK,J.)
PRES IDING MEMBER
…………….……………
(DR.S.M. KANTIKAR)
MEMBER
Jr/2
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2862 OF 2008
(From the order dated 13.5.2008 in Appeal No. 541/2007 of the State Consumer
Disputes Redressal Commission, UT, Chandigarh)
M/s. Tata AIG General Insurance Co. Ltd. A Company incorporated under the
Companies Act, having its Registered Office at Peninsula Corporate Park,
Nicholas Piramal Tower, 9th Floor, Ganpathrao Kadam Marg, Lower Parel, Mumbai –
400 013 and Zonal Office at 1st Floor, Barjeye Towers, Community Centre, New Friends
Colony, New Delhi – 110065
…Petitioner/Opp. Party (OP)
Versus
M/s. Balaji Medicos, SCO No. 355, Sector – 32, Chandigarh, through its Proprietor
Shri Kewal Krishan
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Anjalli Bansall, Advocate
For the Respondent
:
Mr. Vijay Kr. Mangla, Advocate
PRONOUNCED ON 12th July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the
order dated 13.5.2008 passed by the State Consumer Disputes RedressalCommission,
UT Chandigarh (in short, ‘the State Commission’) in Appeal No. 541/2007 –
M/s. Balaji Medicos Vs. Tata AIG General Insurance Co. Ltd. by which, while allowing
appeal, order of District Forum dismissing complaint was set aside.
2.
Brief facts of the case are that complainant/respondent was doing business of
sale of drugs and pharmaceuticals as a wholesaler and retailer at shop Nos. 2 & 3, Iron
Market, Sector 29, Chandigarh and was also running retail business at Sector 32,
Chandigarh under the name and style of M/s. Balaji Medicos. Complainant took
insurance policy for the goods lying at its godown in Sector 29 for Rs.10 lakhs from OP
No. 1/petitioner which was valid from 18.10.2003 to 17.10.2004. On account of heavy
rains on the intervening night of 2/3-8-2004, drugs and medicines stored in
the godown were damaged, as water had entered into godown. Complainant informed
to the OP and submitted claim of Rs.10,08,126.20. OP appointed assessor to assess
the loss and at the instance of surveyor, complainant revised claim and lodged claim of
Rs.9,08,846/-. OP sent cheque of Rs.6,00,533/- on 26.10.2004 towards full and final
settlement, which was received by the complainant under protest. After legal notice, OP
did not release payment of Rs.3,08,313/- and in such circumstances, alleging deficiency
on the part of OP, complainant filed complaint before District Forum. OP contested
complaint and submitted that stocks of Sector 29 as well as Sector 32 were damaged.
Due to rains, surveyor assessed loss of Rs.6,00,533/- for the stocks lying in Sector 32
and this amount was paid to the complainant as full and final settlement and prayed
dismissal of complaint. Learned District Forum after hearing both the parties dismissed
complaint against which, appeal filed by the complainant was allowed by the impugned
order against which, this revision petition has been filed.
3.
Heard learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that, as the amount was accepted
by the complainant in full and final satisfaction of the claim, learned District Forum
rightly dismissed complaint. It was further submitted that stocks of godown of Sector 29
were only insured and as per survey report, payment of assessed loss had been made;
even then learned State Commission had committed error in allowing appeal for rest of
the amount; hence, revision petition be allowed and impugned order be set aside. On
the other hand, learned Counsel for the respondent submitted that learned State
Commission after elaborate discussion has rightly allowed complaint and order passed
by the learned State Commission is in accordance with law, which does not call for any
interference; hence, revision petition be dismissed.
5.
First question to be decided by this Commission is; whether complainant
accepted cheque of Rs.6,00,533/- towards full and final settlement of the claim, or
not. Complainant in para 10 of the complaint has clearly stated that cheque of
Rs.6,00,533/- has been received by the complainant towards full and final settlement of
the claim on 26.10.04. It appears that later on by hand “and was received under protest”
has been inserted.
Affidavit in support of this complaint has also been filed by the
complainant and para 10 of the affidavit does not depict receipt of payment under
protest. In such circumstances, it can very well be held that cheque of Rs.6,00,533/was
received
by
complainant
towards
full
and
final
settlement
to
the
claim. OP/petitioner has clearly mentioned in paragraph 10 of its reply before District
Forum that complainant has received aforesaid amount as full and final settlement of
the claim. Thus, it becomes clear that complainant after receiving Rs.6,00,533/- on
26.10.2004 towards full and final settlement of the claim issued legal notice to the OP
for release of rest of the amount and filed Complainant No.274/05. Ld. Counsel for the
respondent could not apprise the date, when legal notice was given for release of rest of
amount and on which date complaint was filed. Perusal of complaint case number
reveals that complaint might have been filed in mid of year 2005, whereas complainant
received cheque of Rs.6,00,533/- on 26.10.04. Filing complaint after many months and
that too without pleading, coercion, fraud, undue influence, etc., it cannot be believed
that amount was received under protest. Once the amount is received towards full and
final settlement of the claim, complaint for rest of the amount is not maintainable, as
held by Hon’ble Apex Court in JT 1999 (6) SC 23 – United India Insurance V. Ajmer
Singh Cotton & Gen. Mills & Ors. etc. and (2000) SCC 334 – New India Ass. Co.
Ltd. Vs. Sri Venkata Padmavathi R&B
Rice
Mill. Ld.
State
Commission
has
committed error in allowing complaint, though, complainant received amount towards
full and final satisfaction of the claim.
6.
As far value of stocks lying in the godown in Sector 29 are concerned, surveyor
has clearly mentioned in its survey report that goods worth Rs.7,39,230/- was lying in
Sector 29 and goods worth Rs.3,14,270/- was lying in shop situated in Sector
32. Cross-examination of Mr. Shiv Kumar, Chartered Accountant of complainant clearly
reveals that Annexure P-8 was the consolidated statement of Sector 32 and Sector 29,
which was signed by him as well as by proprietor of complainant firm. Closing stock of
both the places was of Rs.10,53,500/-. In such circumstances, learned State
Commission has committed error in holding that closing stock of Sector 29 was worth
Rs.10,61,150/- and allowing appeal of the complainant.
7.
In the light of aforesaid discussion, it becomes clear that, as complainant had
accepted payment towards full and final settlement of the claim and failed to prove stock
worth Rs.10,61,150/- in godown of Sector 29, learned District Forum rightly dismissed
complaint and learned State Commission has committed error in allowing appeal and
impugned order is liable to set aside.
8.
Consequently, revision petition filed by the petitioner against the respondent is
allowed and impugned order dated 13.5.08 passed by Ld. State Commission in Appeal
No. 541/07 – M/s. Balaji Medicos Vs. Tata AIG Gen. Ins. Co. Ltd. & Ors. is set aside
and order of District Forum dismissing complaint is affirmed. There shall be no order as
to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1895 OF 2013
(Against order dated 30.11.2006 in First Appeal No. A/38/2007 of the Maharashtra
State Consumer Disputes Redressal Commission, Mumbai) Circuit Bench at
Aurangabad
Shailendra S/o Madanlal Malara, Proprietor of M/S Vardhman Computers, Plot No. 9,
Shriram Colony, Samarth Nagar, Aurangabad -431001 (Maharashtra State)
…Petitioner
Versus
1. M/S Kulkar Corporation, 4, Gazi Industrial Shed, Hare Ram Industrial Estate, I.V.
Patel Road, Cross lane Goregaon (East), Mumbai- 400063
2. M/S Kulkar Corporation, 6, Akruti, 76-A, J.P. Nagar Road No. 5, Goregaon
(East), Mumbai- 400063
3. Shri M.D. Shirodkar, One of the Partner of M/S Kulkar Corporation, 4, Gazi
Industrial Shed, Hare Ram Industrial Estate, I.V. Patel Road, Cross lane Goregaon
(East), Mumbai- 400063
4. Shri M.D. Shirodkar, One of the Partner of M/S Kulkar Corporation, 6, Akruti, 76-A,
J.P. Nagar Road No. 5, Goregaon (East), Mumbai- 400063
…Respondent(s)
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner(s)
:
Ms. Meenakshi Midha, Advocate
PRONOUNCED ON 15th JULY, 2013
ORDER
PER DR. S.M. KANTIKAR
Brief Facts:
1.
The Petitioner / Complainant had filed the complaint against the Opposite
Parties/Respondents for providing the defective offset printing machine to him.
The case of the Complainant in brief is that, he had placed a confirmed order on
17.08.1998 for “Pack to Pack Offset Printing Machine” from M/S Kulkar
Corporation, Mumbai by paying necessary advance. That, although the
respondent had promised to deliver the machine by 31.12.1998, it had actually
delivered on 12.01.2000 i.e. after the delay of about one year. At the time of
delivery the entire amount was paid to the respondent. It was contended that, the
respondents had assured that, if any defect is occurred, it would be rectified from
their end and would also help the installation and final trial of the said machine
would be taken at Aurangabad. However, the respondents did not arrange for
sending their engineers for the installation of the said machine and it was installed
by the complainant himself. It was further contended that, after its installation and
trial, it was found that the machine was not giving proper result. The respondent
was informed but the defects were not removed. Therefore, complainant filed a
complaint before District Forum on 19.04.2001 for total compensation of
Rs.3,55,540/-.
2.
The respondents (OP) appeared before the District forum contended that as per
the contract the Complainant was to pay 40% cost of the machine at the time of
placing of the order. However the Complainant paid only Rs.50,000/-. It was
further contended that after placing of the order for the machine the Complainant
suggested so many changes in the machine. Therefore it was necessary for the
OPs to take trial again and again as per the suggestion of the Complainant. It was
contended that after having rigorous five trials of the machine Complainant had
accepted delivery of the said machine. The said machine was installed by the
Complainant himself and had not followed the instructions as per the manual
about the installation. It was contended that the District Forum Aurangabad had
no jurisdiction to entertain the complaint as cause of action arose in Mumbai. It
was also averred that the said machine was purchased for commercial purpose to
earn profit. As the Complainant himself has admitted in his compliant that he had
employed labours, workers etc. and he had to pay their salary and wages from his
own pocket and hence as per definition given under the Consumer Protection Act,
he was not a “consumer” and the complaint filed by him was not maintainable
before Forum. It was thus requested to dismiss the complaint.
3. The District Forum heard the parties. District Forum appointed a Commissioner
for verification of the performance of the said machine. On the basis of
Commissioner’s Report and the available records the District Forum allowed the
Complaint and directed the OPs to refund cost of machine of Rs.4,05,000/- along
with other reliefs.
4. Aggrieved by this order of District Forum the Respondents preferred an Appeal
before the State Commission. The learned Counsel for Respondent therein
contended that machine was purchased for commercial purpose with the motive
of getting profits and hence the Complainant was not covered under the definition
of Consumer as per Consumer Protection Act. He also contended that
the Complainant has not proved the manufacturing defects, the Commissioner
was not an expert and the machine was installed by the Complainant on his own.
Therefore, the OPs are not liable. The OPs further relied upon the judgments of
Hon’ble Supreme Court:
1) Laxmi Engineering Works Vs. PSG Industrial Institute, reported in
AIR 1995 S.C. 1428.
2) Poly Products Factory, Jalgaon and another, Vs. Shri. Girish Vs.
Shah and Anr. in F.A. No. 1781/2005.
5. The Learned Counsel for the Complainant vehemently argued the matter before
the State Commission and relied upon few authorities of this Commission.
6.
The State Commission allowed the appeal considering the machine was
purchased for commercial use and not for earning livelihood by the Complainant.
7.
Against this order of the State Commission the Petitioner/Complainant
preferred this Revision Petition.
8.
We have heard the Learned Counsel for the Petitioner who stressed her
arguments that the Complainant was consumer. She contended that since
the machine was lying with respondent company from 2004 for last 9 years,
the same has now become total scrap.
9.
The counsel for
petitioner
relied upon
the
judgments of
this
Commission. The case of Hindustan Power Plus Ltd. vs. Santosh
Drillers & Ors., IV (2007) CPJ 161 (NC) and several other judgments of
this Commission. But, we do not find any relevance of those judgments in
this petition.
10.
11.
We have perused the documents available on the file which clearly
raises the question that whether the Complainant is a consumer as per
Section 2 (1) (d) of the CPA. The respondent’s objection was that the
machine purchase by the Complainant for commercial purposes to earn
profit, hence, he was not a consumer.
The livelihood is depending upon the earnings by the way of profits. 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
him”, “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
emphasize what we say. A person who purchases an auto-rickshaw to ply
it himself on hire for earning his livelihood would be a consumer.
12.
On perusal of the Complaint and affidavit in support of the Complaint was
filed by the Complainant before the District Forum it is revealed that the
Complainant has nowhere mentioned that the said machine is purchased
for earning livelihood by means of self-employment. As per explanation
given under section 2 (1) (d) (ii) of C.P. Act “commercial purpose” does
not include use by a person of goods bought and used by him and
services availed by him exclusively for the purposes of earning his
livelihood by means of self-employment. In fact, as pointed out by the
appellant while claiming the compensation the complaint has sought
compensation in respect of expenses incurred by him towards salaries,
wages, of the employees etc. He has also mentioned in his complaint that
due to defective machine he had to sustain loss in his business. The very
nature of the complaint reveals that Complainant had purchased the
machine not only to earn profit out of it. Hence the Complainant does not
fall within the explanation given under section 2 (1) (d) (ii) C.P. Act.
13. Therefore, the District Forum erred in allowing the complaint. We agree
with the view of the State Commission. Therefore, no need to interfere in
the order of State Commission. Accordingly, we pass the order that this
Revision Petition, stands dismissed. No order as to costs.
14. The Petitioner/Complainant is given opportunity to file the complaint before
the appropriate Forum except Consumer Fora for Redressal of his
grievance, if any. He can seek help from Laxmi Engineering Works Vs.
PSG Industrial Institute, A.I.R. 1995 S.C. 1428.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR)
MEMBER
MSS
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4493 OF 2012
(From the order dated 07.08.2012 in First Appeal No. 617/2008
of the Haryana State Consumer Disputes Redressal Commission,Panchkula)
Alka Narwal W/o Sh. Balinder Singh House No. 194, Shastri Colony, Yamunanagar,
Tehsil Jagadhri District Yamunanagar Haryana 15-A/1, Model Town, Patiala
…Petitioner
Versus
1. Haryana Urban Development Authority Through its Chief Administrator,
HUDA, Haryana
2. The Estate Officer, HUDA, HUDA Office Jagadhri, Harayana
…Respondents
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner
:
Mr. Keshav Kaushik, Advocate with
Mr. Balinder Singh, Petitioner’s Husband
PRONOUNCED ON 16th JULY, 2013
ORDER
PER DR. S.M. KANTIKAR
1. That the present Revision Petition is directed against the Impugned Order dated
07.08.2012, whereby the Hon’ble State Commission had been pleased to allow the
First Appeal No. 617 of 2008 filed by the Respondents herein and set aside the
order dated 11.12.2007 passed by the Ld. District Forum in Consumer Complaint.
The Hon’ble State Commission had also dismissed the complaint filed by the
Petitioners before the Ld. District Forum.
2. The brief facts :
The Complainant was allotted plot No. 146 located in Sector-15, HUDA, Jagadhri
in the lot of draw held on 30.07.1991. The possession of the plot was offered to
the Complainant vide letter No. 691 dated 28.01.1999. The Complainant neither
deposited the balance amount with respect to the price of the plot including the
enhancement price nor came forward to take possession. Complainant filed
complaint No. 343/2000 which was accepted by the District Consumer Disputes
Redressal Forum, Yamunanagar at Jagadhri vide order dated 23.11.2000 with
the direction to the Opposite Parties to refund the amount deposited along with
10% interest and other relief.
3. Thereafter, the Complainant did not want to implement the said order of the
District Consumer Forum, she filed an affidavit on 28.01.2002. But, the higher
authorities of HUDA, Jagadhri decided to implement the order of the District
Forum subject to the decision of the State Commission. Accordingly, as per the
direction and in pursuance of the letter issued by the Chief Administrator, HUDA,
Panchkula, the Opposite Parties sent a cheque to the complainant bearing No.
466017 dated 14.10.2005 for an amount of Rs.8,53,491/- through speed post on
29.11.2005 but the same was received back by the Opposite Parties with the
report as “not met” dated 29.11.2005, 30.11.2005 02.12.2005, 05.12.2005,
06.12.2005 and 08.12.2005.
4. Further in 2007 the complainant filed another compliant No. 813 of 2007 before
the District Forum seeking direction to the Opposite Parties to hand over the
actual and physical possession of the plot and to grant other relief as prayed for
in the prayer clause of the Complaint. The subject matter of complaint was that
the HUDA authorities instead of complying with the order dated 23.11.2000 had
asked the Complainant to take back the plot in question. Accordingly, she had
submitted her affidavit dated 29.04.2002 to retain the plot and not to execute the
order dated 23.11.2000. She was ready to pay the entire price of the plot along
with interest and extension fee as well as the enhanced price of the plot but the
OPs did not accede to her request. For that reason she filed in the instant
complaint before the District Forum.
5. On the other hand, the OPs resisted the complaint’s averments, also contended
that an appeal No 2766/2004 filed by HUDA against the order of District Forum
was dismissed by the State Commission vide order dated 22.03.2007. Therefore,
in compliance of the order of the District Forum as well as of the State
Commission, the OPs again sent a cheque bearing No. 541011 dated
06.04.2007 for an amount of Rs.8,53,491/- through registered post on
26.04.2007 which was received back with the report “not met” on 3/5/2007.
Thereafter, the cheque duly was sent to the Complainant twice on 28/8/2007 and
7/9/2007 through Charanjit Singh, Field Chowkidar, HUDA but the Complainant
refused to accept the said cheque which was reported by the said Chowkidar.
Thus, OPs prayed for dismissal of complaint.
6. On appraisal of the pleadings of the parties and the evidence adduced on the
record, District Forum accepted complaint and passed an order as
“the respondents to handover the actual physical possession of the plot
no. 146 in Sector-15 HUDA to the complainant and till the actual physical
possession is delivered not to demand any extension fees from the
complainant and pay Rs. 50,000/- as cost of escalation charges on
account of mental agony, harassment and unfair trade practice and pay
Rs. 5500/- as litigation expenses.”
7. Aggrieved by the order of the District Forum, the Opposite Parties filed an Appeal
No.813/2007 before State Commission. The state commission accepted the
appeal and passed an order on 7/8/2012 with following observations:Before parting with the order it is material to mention here that the
Complainant has been able to manage for allotment of the plot from
the office of Estate officer HUDA, Jagadhri/Chief Administrator,
HUDA, Panchkula which is totally against the spirit of the order dated
23.11.2000 of the District Forum as well as the State Commission
order dated 22.03.2007 (qua judicial order). During the pendency of
this appeal, three applications were moved by the Complainant with
the prayer to decide this Appeal at earlier possible time to enable her
to raise the construction on her plot, which shows the collusion of
the Complainant with the official of HUDA to bypass the order of the
District Forum with respect to refund of the amount, instead the
authorities have allotted the plot of their own against the spirit of the
order dated 23.11.2000, maintained by State Commission vide order
dated 22.03.2007. This act of Complainant and the erring officials of
HUDA has caused huge financial loss to the state Exchequer. Under
the facts and circumstances of the case, it is ordered that
Chairman/Chief Secretary to Government of Haryana HUDA will hold
a discrete enquiry in the matter to punish the erring officials of HUDA
for acting against the spirit of the order of the District Forum dated
23.11.2000 which was maintained vide order dated 22.03.2007 by
State Commission. This is one of the numerous cases which have
come to our notice after the consumer lost his/her case before the
Consumer For a. The erring officials of HUDA who are involved in
this illegal act, are burdened with Rs.50,000/- as cost, which on
recovery will be deposited with the Legal Service Authority, Haryana.
Copy of this order be sent to the Chief Secretary to Government of
Haryana for doing needful.
8. Against the said order of State Commission this revision petition filed before us.
9. We have heard the counsels and perused the material on
record. It is clear that
after dismissal of appeal No 2766/2004 filed by HUDA the HUDA authorities
have complied with the order of District Forum. OPs have sent cheque for
amount of Rs.8,53,491/- by post and as well through Chowkidar several times
to the complainant but the complainant refused it. The act and conduct of
complainant shows that she doesn’t want refund amount but, wants to get the
plot from HUDA as the prices increased drastically.
10. The complainant filed another complaint which is barred by the
principles of Res Judicata as the present complaint
No.813/2007 and previous
complaint No. 343/200 based on same cause of action despite matter has been
decided in favor of complainant. We uphold the observations and order of Sate
Commission.
11. Hence, we dismiss this revision petition. No order as to costs.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
MEMBER
Mss
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 342 OF 2013
(From the Order dated 10.10.2012 in Appeal No. 441/2008 of
Haryana State Consumer Disputes Redressal Commission, Panchkula)
New India Assurance Co. Ltd. Yamuna Nagag Through its Manager Regional Office,
S.C.O. No.36-37 Sector 17-A, Chandigarh
Petitioner
Versus
M/s Uni Ply Industries Village Jorian Yamuna Nagar Through Sh. Rajiv Gupta
S/o Shri H.R. Gupta R/o House No.523-L Model Town, Yamuna Nagar Haryana
Respondent
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
:
Shri Mohan Babu Aggarwal, Advocate
Pronounced on : 16th July, 2013
ORDER
PER SURESH CHANDA, MEMBER
The petitioner Insurance Co. which was OP before the District Forum has filed this
revision petition against the concurrent finding of both the Fora below holding the
petitioner company liable for deficiency in service in terms of the impugned order
passed on 10.10.2012 by the State Consumer Disputes Redressal Commission,
Haryana, Panchkula in FA No.441/2008. By its order, the State Commission dismissed
the appeal of the petitioner Co. and upheld the order dated 3.1.2008 passed by the
District Forum, Yamuna Nagar in consumer complaint No.1115 of 2007. The District
Forum had allowed the complaint of the respondent / complainant by granting the
following reliefs:“Resultantly we allow the complaint of the complainant and
direct the respondent to pay the balance amount of
Rs.10,86,592/- along with interest at the rate of 12% per
annum after three months of the causing of fire till realization
and
to
pay
Rs.11,000/as
litigation
expense.
Order be complied within one month.”
2.
Briefly stated, the respondent/complainant had insured stock of its factory for a
sum of Rs.30 lakhs vide cover note valid from 10.4.2005 to 9.4.2006 issued by the
petitioner Co. The insurance cover was renewed for next year also by the respondents
and was valid upto 9.4.2007. According to the respondent/complainant, the petitioner
Insurance Co. issued one page cover note only of the said policy and never issued the
terms and conditions with this policy to the complainant. On the intervening night of 56th April 2006, a fire broke out in factory premises resulting into huge loss of stock. The
complainant lodged the DDR on 6.4.2006 with the local police followed by intimation to
the petitioner Co. which deputed spot surveyor who verified the fact of fire along with
Branch Manager of the petitioner Co. The petitioner Co. appointed another surveyor for
assessing the loss. The complainant lodged a claim with the petitioner Co. for
Rs.19,46,800/- along with necessary documents for settling the claim. The petitioner
Co. informed the complainant about the settlement of the claim at Rs.8,60,208/- for
which a cheque dated 1.12.2006 was issued by the petitioner Co. to the complainant
after making certain deductions from the sum of Rs.10,86,592/- which had been
assessed as loss by the surveyor. The respondent / complainant received the said
amount and signed the discharge voucher indicating it to be only a partial settlement
and thereafter the respondent continued to represent against the deduction made from
the sum of Rs.10,86,592/-. Since the differential amount which had been deducted from
the figure of loss assessed by the surveyor was not allowed by the petitioner Co., the
respondent / complainant filed a consumer complaint alleging it a case of deficiency in
service on the part of the petitioner Co. On being noticed, the petitioner Co. contested
the complaint and raised the plea that it had already settled the case of the complainant
within a reasonable time and paid a sum of Rs.8,60,208/- as full and final settlement
and nothing remained due to the complainant by the OP Co. It was further submitted by
the OP Co. that the claim was settled as per the report of an IRDA approved
independent surveyor and loss assessor who had arrived at a net loss figure of
Rs.8,60,208/ subject to terms and conditions as well as limitations and exceptions
provided in the insurance policy. Since certain amount was deducted as per excess
clause and the net amount had been disbursed as per full and final settlement, the OP
Co. denied any kind of deficiency in service on its part and prayed for dismissal of the
complaint.
3.
The District Forum after hearing the parties and appraising the evidence placed
before it, allowed the complaint in terms of the aforesaid order which after challenge by
the OP insurance co. before the State Commission came to be confirmed in appeal.
4.
We have heard arguments of learned counsel Sh. Mohan Babu Aggarwal,
Advocate for the petitioner. Learned counsel submitted that petitioner had appointed
IRDA approved surveyor and loss assessor to give his preliminary surveyor report and it
had also appointed another surveyor to certify and assess the final loss in the premises
of the insured. He submitted that based on the surveyor’s report which assessed the
loss to the tune of Rs.8,60,208/- after making necessary deductions on account of
excess clause, the amount was immediately disbursed to the complainant and the
complainant accepted it. He contended that the surveyor is the best person to assess
and ascertaining the loss and its recommendations should have been accepted as
provided in the Insurance Act. Another contention raised by learned counsel was that
the payment made by the insurance co. was by way of full and final settlement of the
claim lodged by the complainant and since he accepted the amount sent by cheque and
signed the discharge voucher, the complainant is not entitled for any further relief. In
view of this, learned counsel submitted that the Fora below erred in ignoring
these aspects while awarding further compensation over and above that recommended
by the surveyor and already accepted by the complainant towards full and final
settlement of its claim. In the circumstances learned counsel prayed for setting aside of
the impugned order and acceptance of the revision petition.
5.
We have considered the arguments of learned counsel and perused the reports
of the surveyors as well as the orders of the Fora below. The points raised by learned
counsel have been considered at length by the District Forum in its order which has
been upheld by the State Commission by the impugned order. The submission of the
learned counsel regarding settlement of claim by way of full and final settlement is
obviously not correct since it was submitted by the complainant and upheld by
the Fora below that the respondent / complainant had accepted the cheque of
Rs.8,60,208/- as partial relief and that too under protest. Nothing has been placed
before us to rebut this fact. Besides this, it is settled law that surveyor’s report cannot be
treated as last word and a gospel truth. The District Forum after considering the report
has given its cogent reasons to disagree with the final figure of loss while giving the
desired relief to the complainant. The State Commission has agreed with the finding.
The State Commission while dismissing the appeal of the petitioner has made the
following observations in its impugned order:“After gone through the file as well as arguments of counsel for
both the parties, we are of the considered view that it is admitted
fact the factory of the complainant namely Unit Ply Factor was
insured with the OP for amounting to Rs.30,00,000/- and the said
factory was enjoying CC limit against the stock statement with
Oriental Bank of Commerce, Yamuna Nagar. It is also admitted
that on intervening night of 5/6.4.2006 the fire broke out in the said
factory and intimation in this regard was given to the OP and the
complainant also lodged DDR with the police. It is also admitted
that on intimation the OP appointed two surveyors, one for spot
survey and second for conduct the final survey. It reveals from the
final survey report that maximum quantity of insured stock of
material was burnt and mixed up beyond recognition and it was not
possible to prepare inventory of the damage stock. The surveyor
after inspect the stock statement which are issued by the bank, the
surveyor observed that on an average the insured is having stock
worth Rs.29 lacs comprising of finishing raw material and made
clear that the statement of account dated 31.3.2006 is shown the
stock of Rs.29,29,067/- vide which this is clear that after deducting
the said stock which was not damaged the insured suffered a loss
to the tune of Rs.19,46,800/- lying in the factory premises due to
fire. The surveyor after using the excess clause deduct the 20% as
is clear from the surveyor report. But in our view if the ambiguity in
terms and surveyor apply the excess clause of the policy which
were not supplied the OP cannot claim benefit of the said clause.
Moreover, the full and final settlement was not matured because
the complainant accepted the amount under protest and
endorsement to this effect was made on the voucher that it is part
payment.
Thus,
deficiency
in
service
on
the
part
of
appellant/opposite party stands proved. District Consumer Forum
after considering each and every aspect of the case, rightly
allowed the complaint of complainant.”
6.
The powers of National Commission flows from section 21(b) of the
Consumer Protection Act, 1986 which reads thus:“(b)to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by
any District Forum within the State, where it appears to the
State Commission that such District Forum has exercised a
jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested or has acted in exercise of its jurisdiction
illegally or with material irregularity.”
7.
On reading of the above, it is obvious that the National Commission under
its revisional jurisdiction have very limited powers in exercise of revisional jurisdiction.
The National Commission can interfere with the orders of the Fora below if they have
exceeded their jurisdiction under law or failed to exercise their jurisdiction or have acted
in exercise of its jurisdiction with illegality or material irregularity. In the instant case on
perusal of the record, we find that both the Fora below have returned their concurrent
finding of fact. On perusal of the impugned order, we find that the State Commission
has based its finding on analysis of the evidence produced. Counsel for the petitioner
has failed to point out any material evidence ignored by the State Commission.
Therefore, it cannot be said that the State Commission while passing the impugned
order has committed any material irregularity, illegality or jurisdictional error which may
call for interference by this Commission, in exercise of its revisional jurisdiction under
section 21(b) of the Act. We, therefore dismiss the revision petition in limine with no
order as to costs.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………Sd/-….……………
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1137 OF 2011
(From the order dated 19.05.2010 in First Appeal No.156/2010 of the Delhi State
Consumer Disputes Redressal Commission)
Mr. Ved Prakash Juneja GD-176, Pitam Pura Delhi-34
..…. PETITIONER
Versus
1. Director, CGHS Nirman Bhawan New Delhi
2. Additional Director, CGHS New Rajender Nagar Shankar Road New Delhi
.... RESPONDENTS
BEFORE:
HON’BLE MR.SURESH CHANDRA, PRESIDING MEMBER
For the Petitioner
For the Respondents
:
:
In person
Mr. Rajat Gaur, Advocate
PRONOUNCED ON: 16th July, 2013
ORDER
PER SURESH CHANDRA, MEMBER
There is a delay of 180 days in filing this revision petition for which the petitioner
has filed an application for condonation. We have considered the submissions made by
the petitioner and for the reasons given in the application, we condone the delay in filing
this revision petition.
2.
This revision petition has been filed by Sh. Ved Prakash Juneja who is the
original complainant in this case against the respondents – Director, CGHS and
Additional Director CGHS who were the opposite parties No.1 & 2 respectively before
the District Forum.
3.
The factual matrix of this case are that the petitioner who retired on
superannuation from Government’s service under the Delhi Police on 30.6.1988 was
drawing Rs.2000/- p.m. as basic pay and Rs.40/- per month as special pay. Based on
his pay, he was entitled for nursing home facilities in accordance with the circular of
Ministry of Health No.S-50/1974-CGHS(P) dated 30.10.1974. On his superannuation,
his pension was fixed at Rs.988/- per month w.e.f. 1.7.1988 but he was denied CGHS ICard with nursing home facility. Besides this, he had also submitted a claim for
reimbursement of medical expenses amounting to Rs.12,832/- incurred by him for
treatment. This claim, however, was rejected by the OPs on the ground that the claim
was regarding purchase of medicines as an OPD patient and hence it was not
admissible because the medicines are to be procured by the concerned patient from
the CGHS dispensary where the beneficiary is registered. Aggrieved by the decision of
the respondents/opposite parties, he filed a consumer complaint bearing No.339/2008
before the District Forum (Central), Kashmere Gate, Delhi with two-fold grievance,
namely, denial of CGHS I-Card with nursing home facilities and non-reimbursement of
his medical claim bills amounting to Rs.12,832/. It was pleaded by him before the
District Forum that since he retired w.e.f. 1.7.1988 and was drawing pension of more
than Rs.750/- per month (his actual pension being fixed at Rs.988/- per month), he was
entitled to nursing home facilities under Ministry of Health order dated 30.10.1974
(supra). Regarding the reimbursement of his claim on account of purchase of
medicines etc, it was his submission that CGHS dispensary normally kept medicines for
general use and procurement of a number of medicines prescribed by the specialist
would take 4-8 days which would also require several visits to the dispensary. Since his
treatment was in respect of injuries sustained by him in an accident, he had purchased
the medicines from the market and hence there was no reason that his claim should
have been disallowed. The OP department resisted the complaint. In respect of his
claim for nursing home facilities, it was submitted that the order dated 30.10.1974
(supra) was superseded by a later government order No.S-11011/9/86-CGHS (P) dtd.
1.2.1989 and as per the new government order after the implementation of 4th Pay
Commission recommendations, the pensioners who were drawing less than basic pay
of Rs.2501/- could not get nursing home facility. This had been duly communicated to
the complainant / petitioner vide letter dated 12.3.2011 issued by the OPs. The claim in
respect of the reimbursement of medical bill, as stated above, was rejected because the
OPD patients could not be reimbursed for purchase of the medicines.
4.
On appraisal of the evidence adduced by the parties before it, the District
Forum vide its order dated 14.7.2009 partially allowed the complaint in terms of the
following directions:“A) To pay the sum of Rs.12,832/- with interest @ 9% per
annum. The interest shall be payable from the date of filing of
the complaint i.e. 23.5.2008 till the realization of the amount. It is
so because in the complaint, the date of purchase of the
medicines or submitting the bills for reimbursement has not
been mentioned.
B) Compensation for harassment and agony, amounting to
Rs.3,000/- and litigation charges amounting to Rs.2,000/- shall
also be paid to the complainant.”
5.
Not satisfied with the aforesaid order of the District Forum, the petitioner filed an
appeal
bearing
No.10/156
before
the
Delhi
State
Consumer
Disputes Redressal Commission against this order praying for direction to the OPs to
provide the petitioner with a CGHS I-Card allowing nursing home facility since this
request was turned down by the District Forum. The OPs did not challenge the order of
the District Forum. The State Commission vide its order dated 19.5.2010 held that the
petitioner as a pensioner could not be regarded as a consumer within the meaning of
section 2(1)(d) of the Consumer Protection Act, 1986 and as such dismissed his appeal
in limine by observing that the facility provided to a Government servant cannot be
provided to a pensioner even on contribution since he cannot be held to be a consumer
within the meaning of section 2(1)(d) of the C.P. Act. However, keeping in view the fact
that the OPs did not challenge the order of the District Forum, the State Commission did
not disturb the partial relief already granted by the District Forum. It is against this order
of the State Commission that the present revision petition has been filed by the
petitioner.
6.
We
have
heard
the
petitioner
who
has
pleaded
his
case
himself
and learned counsel Mr. Rajat Guar, Advocate for the respondents. Learned counsel
pointed out that since the respondents have already paid the medical bill in accordance
with the order of the District Forum, the grievance of the petitioner in regard to payment
of his bills has been satisfied. The petitioner submitted that in view of the impugned
order, the revision petition now is for direction to treat the petitioner as a consumer
within the meaning of the provisions of the C.P. Act and for issuance of a CGHS I-Card
with nursing home facilities. In respect of the first prayer, petitioner submitted the State
Commission gravely erred in ignoring the settled law which recognises a pensioner and
beneficiary of the CGHS as a consumer under the provisions of the C.P. Act, 1986. In
this context, he drew our attention to the order dated 20.10.2005 in the case
of Jagdish Kumar Bajpai Vs. Union of India which has been delivered by 6-Member
Bench of this Commission holding that a pensioner and beneficiary of the CGHS would
be a consumer under the provisions of the C.P. Act, 1986 for the alleged deficiency in
service by the CGHS officials. A copy of this order has been placed by the petitioner on
the paper-book. This 6-Member Bench order is in line with the law settled by the Apex
Court.
7.
Referring to the view taken by the Apex Court in V.P. Shantha’s case [(1995) 6
SCC 651], this Commission has observed as under:“This aspect is considered in para 49 of the V.P.Shantha’s case
(Supra). The Court dealing with a similar situation illustrates that
where
a
person
has
taken
an
insurance
policy
for medicare whereunder all charges, consultation, diagnosis and
medical treatment are borne by the Insurance Company. In such a
case the person receiving treatment is a beneficiary of services
and the payment for such services would be made by the
Insurance Company to the medical practitioner. The rendering of
such service by the medical practitioner cannot be said to be free
charge. Similarly, where as part of conditions of service the
employer bears the expense of medical treatment of the
employee and his family members dependant upon him, the
service rendered to him by the medical practitioner would not be
free of charge and would, therefore, constitute service under
Section 2(1)(o). The same analogy would apply in case of
retired employee. As stated above, past service would be
consideration for providing such medical facility or other facilities.”
8.
In view of above position, we are convinced that the State Commission gravely
erred in holding that the petitioner is not a consumer. Its impugned order in this regard,
therefore, cannot be sustained in the eye of law and must be set aside.
9.
So far as the second issue in this revision petition regarding issuance of a
CGHS I-Card with nursing home facility to the petitioner is concerned, the petitioner has
submitted that he retiredw.e.f. 1.7.1988 and as on that the Government order dated
30.10.1974 (supra) was applicable which entitled him to nursing home facilities in terms
of para 1(c) since his pay as well as pension both were more than Rs.750/- per month.
His contention was that the Government order dated 1.2.1989 (supra) which has been
heavily relied by the respondents to reject his representations and denying him the
issuance of CGHS I-Card with nursing home facility has become effective from the date
of its issue, i.e., 1.2.1989. He submitted that keeping in view his date of retirement
which was prior to this Government order and his eligibility to the nursing home facilities
as on that date under the then existing instructions vide OM dated 30.10.1974, denial of
the nursing home facility was absolutely wrong on the part of the respondent authorities.
To
support
his
understanding
in
this
regard,
the
petitioner
referred
to
the clarificatory OM No.S-11011/9/86-CGHS(P) dated 11.10.1989 issued by the Ministry
of Health which lays down that “contribution can be made by the pensioner and
pensioner family on the basis of the last pay drawn and they are entitled to avail the
treatment at the same level as on the date of retirement / date of death of the
employee.” The petitioner submitted that this clarificatory OM which was issued after
issuance of the OM dated 1.2.1989 clearly supports his plea that the government
cannot deny him the facility which was already available to him on the date of
his retirement and much before the issuance of the OM dated 1.2.1989 which obviously
came into effect only from 1.2.1989 and not before. The petitioner has also referred to
the two instant cases of S/Shri P.R. Sethi, retired Inspector of Delhi Police to whom
CGHS I-Card No.407942 was issued on 11.8.1988 and B.D. Relan who retired as SubPostmaster on 1.10.1988 and whose pension was fixed at Rs.985/- per month and yet
he was issued CGHS Card No.416692 on 12.10.1988 with nursing home facility. He
submitted that besides the specific instructions of the government in the government
orders referred to by him, he had been pleading time and again with the respondent
authorities to give him the same treatment as was given to the other retired offers in
similar circumstances but the respondents persistently rejected his representations and
when he asked for information under the RTI Act which would disclose the basis and
authority of the government for such rejection, the information was not furnished to him
on the ground that the same being part of their old record, it was not available. He,
therefore, submitted that the District Forum order which is based on the wrong
interpretation of the applicability of OM dated 1.2.1989 and which ignores the later
clarifications issued on 11.10.1989, is liable to be set aside. He clarified that so far as
the contribution for availing the CGHS facility for his entitlement is concerned, he has
never refused to contribute as per the instructions in force and in fact, he placed on
record (page 45 of the paper-book) copy of a document which indicates that a higher
contribution of Rs.15 was taken from him by the department.
10.
Per contra, learned counsel for the respondents submitted that even though the
petitioner was eligible for nursing home facility I-Card as on the date of his retirement,
admittedly he did not get the pensioner’s card issued soon after his retirement and
applied for the card only on 13.9.1989 by which time the revised instructions as per OM
dated 1.2.1989 had been issued. He further submitted that even though the petitioner
has sent representations to the respondent authorities from time to time, he had been
given suitable reply indicating that after the implementation of the 4 th Pay Commission’s
recommendations, the pensioners who were drawing a basic pay of Rs.2501/- and
above are alone entitled for nursing home facilities. He, therefore, submitted that the
order of the District Forum which turned down the plea of the petitioner regarding his
eligibility to the nursing home facility is in accordance with the revised instructions of the
Ministry of Health and the same deserves to be upheld and confirmed. He further
submitted that the respondents have already sent a cheque dated 26.11.2009 for
Rs.19,372/- in compliance of the District Forum order in respect of the other prayer of
the petitioner/complainant. Hence the revision petition should be dismissed.
11.
We have given our anxious thoughts to the rival contentions and have also
perused the record. There is no dispute that the petitioner was eligible for nursing home
facility in terms of the instructions of the government contained in OM dated 30.10.1974,
a copy of which is placed at pages 23-24 of the paper-book. It is also not in dispute that
the instructions of this OM which came into effect on 1.11.1974 were in force till
31.1.1989 when they came to be superseded/revised by another OM issued on
1.2.1989 which admittedly became effective only from the date of its issue, i.e.,
1.2.1989. It appears that the whole confusion arose because of the fact that the
petitioner did not get the CGHS I-Card issued as a pensioner immediately after the
retirement and by the time he applied for it on 13.9.1989, the situation, as interpreted by
the respondents, had changed because of the OM of 1.2.1989. A plea was also taken
by the learned counsel for the respondents that the petitioner himself had chosen to
contribute differently to the CGHS kitty which rendered him ineligible to avail all the
benefits of the earlier OM at a belated stage after issuance of OM of 1.2.1989. We are
not impressed by the plea taken by the counsel for the respondents. If we go by his
submission in this regard, it would be contradictory to the instructions issued by the
government vide OM dated 11.10.1989 (supra) which clarifies that contribution can be
made by a pensioner and pensioner family on the basis of last pay drawn and they are
entitled to avail the treatment at the same level as on the date of retirement/date of
death of the employee. Learned counsel has not been able to convince us as to how
this clarification which clearly entitles the pensioner to avail the treatment at the same
level as on the date of retirement can be ignored because this has been issued
consciously by the government keeping in view the contents of both the earlier orders
dated 30.10.1974 and 1.2.1989. We are, therefore, of considered view that learned
District Forum erred in wrongly interpreting the instructions contained in OM dated
11.10.1989 by holding that the petitioner lost his eligibility to the nursing home facilities
by opting for medical facilities on the basis of last pay drawn pension and not on the
basis of last pay drawn. In spite of opportunities given, nothing has been produced
before us by the respondents which would establish that the petitioner had either given
such an option consciously at the time of the retirement or even if assuming that he had
given such option, the petitioner would stand to lose the eligibility to nursing home
facilities in terms of the later clarification issued on 11.10.1989 which restores the same
facility to every pensioner / family pensioner if he/she was prepared to contribute
according to his/her last pay/pension. In this context, we reproduce below the extracts
from the later OM dated 11.10.1989 which contains the aforesaid clarification:“All Central Government pensioners including CPF
retirees (except those of Railway and Armed Forces) are
eligible for availing CGHS facilities if they were eligible to
avail the same while in service irrespective of whether
they actually availed of such facilities or not prior to their
retirement”.
12.
Learned counsel for the respondents has not filed any instructions of the
government contrary to the clarification contained in the OM of 11.10.1989 which clearly
makes the petitioner eligible for the nursing home facility on payment of the required
contribution as per rules. In this context, we may also note that on superannuation,
every pensioner can either contribute on a monthly basis to the CGHS or make a
payment of 10 times of the annual contribution as may be applicable in his case. If we
go by the contribution of Rs.4 per month as on the date of retirement,
the petitioner would be entitled for availing the treatment of his level as on the date of
his retirement by making a lump sum payment of Rs.480/- which is equivalent of 10
years contribution in lump-sum. Unfortunately, what learned counsel for the
respondents has filed before us on 18.7.2012 is copy of OM in respect of
reimbursement of medical expenses when pensioners take the treatment immediately
after retirement but before getting CGHS card and condonation of delay for
reimbursement of such expenses. The claim regarding reimbursement of medical bill
preferred by the petitioner having already been settled by the respondents in
accordance with the District Forum order, the OM dated 5.11.1993 filed by the counsel
for the respondents has no relevance to the issue which remains to be decided by us.
We may also note that in spite of repeated representations the respondents have
miserably failed to give any explanation regarding issuing different CGHS I-Cards in two
other cases of retired employees referred to by the petitioner.
13.
In view of the above discussion, we hold that the petitioner is eligible to issuance
of CGHS pensioner’s I-Card with nursing home facility in terms of instructions contained
in para 1 (c) of the Department of Health OM dated 30.10.1974 (supra) read
with clarificatory instructions contained in the later Om dated 11.10.1989 (supra). We,
therefore, direct respondent No.1 Director, CGHS, Ministry of Health and Family
Welfare, Govt. of India to issue Pensioner’s I-Card with nursing home facilities to the
petitioner within a period of 6 weeks from the date of receipt of this order subject to the
petitioner making payment of lump sum amount of contribution to the CGHS for
issuance of such a card in accordance with the instructions of the government based on
the contribution applicable to the petitioner under the OMs dated 30.10.1974 read
with clarificatory OM dated 11.10.1989.
14.
Impugned order of 19.5.2010 passed by the State Commission is accordingly
set aside and the revision petition stands allowed in terms of the aforesaid directions
with the parties bearing their own costs.
……………Sd/-….……………
(SURESH CHANDRA)
PRESIDING MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1240 OF 2008
(From the order dated 10.12.2007 in First Appeal No. 247/A/2007 of West Bengal State
Consumer Disputes Redressal Commission)
Amarendra Kumar Roy Thikana Apartments 38, Girish Ghosh Sarani Hakimpara P.O.
and PS Siliguri District – Darjeeling
... Petitioner
Versus
1. Branch Manager Life Insurance Corporation of India Siliguri Branch – II, Station
Feeder Road, Silliguri
2. Administrative Officer Life Insurance Corporation of India J.P. Building, J.S.
Department 16, C R Avenue Kolkata – 700072
3. Branch Manager Life Insurance Corporation of India Balurghat Branch,
Chakbhabani P.O. Balurghat – 733101 Through its Branch Manager
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Niranjan Saha, Advocate
For the Respondent(s)
Mr. Mohan Babu Aggarwal, Advocate
PRONOUNCED ON : 16th JULY 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 against the impugned order dated 10.12.2007 passed by the West
Bengal State Consumer Disputes Redressal Commission (for short ‘the State
Commission’) in FA No.247/A/2007, “Branch Manager, LIC versus Amarendra Kumar
Roy”, vide which, while allowing appeal, the order passed by the District Forum dated
25.5.2007 in consumer complaint case number 9/S/2007 was set aside and the
complaint was ordered to be dismissed.
2.
Brief facts of the case are that the complainant/petitioner Amarendra Kumary Roy
obtained one Life Insurance Corporation of India (LIC) policy named “Jeevan Suraksha
(Endowment Funding)” bearing no. 452384400 from Balurghat Branch of the LIC on
13.07.2001. This was a policy for five years with yearly instalment of Rs.55,299/- and
the date of last payment was 13.07.2006. LIC issued the policy showing monthly
pension at Rs.3,366/- and from 13.08.2006 and the capital sum with guaranteed
addition was Rs.3,43,750/-. The complainant gave his option under option ‘F’ for life
pension under which the pension fund was to be returned to the nominee/legal heirs on
the death of the annuitant. After completion of five years, LIC sent 13 cheques to the
complainant, out of which one cheque was for Rs.1,787/- for the period 13.08.2006 to
31.08.2006 and 12 cheques were for Rs.2,916/- for the period September 2006 to
August 2007. The complainant took the plea that he was entitled to get pension of
Rs.3,366/- per month as stated on the policy. The case of the LIC, however, is that a
sum of Rs.3,366/- per month is payable under option ‘D’ and not under option ‘F’.
Moreover, under option ‘D’, the capital sum amounting to Rs.3,43,750/- is not payable to
the nominee / legal heirs after the death of the annuitant. This sum is payable under
option ‘F’ only and consequently the payment being made per month was less than that
allowed under option ‘D’. The complainant approached the District Forum, which
allowed his complaint and ordered that he was entitled to get pension @Rs.3,366/- per
month and also the capital sum of Rs.3,43,750/- for his nominee / legal heirs after his
death. The District Forum ordered the LIC to make payment for the shortfall in the
cheques already issued. An appeal was filed by the LIC against this order which was
allowed, holding that there was printing error on the policy by which an amount of
Rs.3,366/- had been written. In fact, this amount is allowed under option ‘D’, whereas
the complainant had exercised option ‘F’ for getting the pension. It is against this order
that the complainant has filed the present revision petition.
3.
While arguing the case, the learned counsel for the petitioner vehemently argued
that under the “Jeevan Suraksha (Endowment)” type plan and the tables released by
the LIC, the petitioner was entitled to get a sum of Rs.3,366/- per month as pension and
this sum has been mentioned on the body of the policy as well. The LIC had, therefore,
made grave injustice with the petitioner by allowing pension @Rs.2,916/- per month.
He admitted that while exercising option, he had opted for type ‘F’ for getting pension
and this factor was mentioned on the ‘cover note’ as well.
4.
Learned counsel for the LIC, however, stated the amount, Rs.3,366/- had been
wrongly written on the policy. In fact, this was the amount under option ‘D’ and not
under option ‘F’. They could not give him pension under option ‘D’ and also allow him
the benefit of capital sum after the death.
5.
We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us.
6.
The factum of obtaining the Jeevan Suraksha policy by the complainant and the
amount of premium and capital sum with guaranteed addition at Rs.3,43,750/- are
admitted by both the parties. It is also an admitted fact that the complainant had given
option for getting life pension under option ‘F’ with return of pension fund to the nominee
/ legal heirs on the death of the annuitant. However, simply because of the fact that the
LIC committed a mistake by printing Rs.3,366/- as amount payable per month on the
policy, does not entitle the complainant to get the best under both the options ‘D’ & ‘F’.
The complainant can only be eligible to get the benefit under option ‘D’ or option ‘F’ and
the LIC is agreeable to allow him to choose any of the two options. It is quite obvious
that the amount payable under option ‘D’, i.e., Rs.3,366/- is higher than the amount
payable under option ‘F’, i.e., Rs.2,916/- because the persons opting to get pension
under option ‘D’ are not eligible to get the payment of the capital sum with guaranteed
addition whereas the same is payable to their nominees / legal heirs under option ‘F’.
7.
We, therefore, hold that the petitioner cannot be given pension under option ‘D’
and the benefit of return of capital sum under option ‘F’. He has to choose between one
of the two options. We, therefore, do not find any infirmity, illegality or irregularity in the
order passed by the State Commission and the same is upheld. The revision petition is
ordered to be dismissed with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4020 OF 2012
(Against order dated 11.04.2012 in First Appeal No. 2674/2007 of the
M.P. State Consumer Disputes Redressal Commission, Bhopal)
Shri Shyam Lal Ladia S/O Khuman Singh Ladia, R/O Near Shyam Diary, Beejasen
Ward, Gadarwara, Tehsil, Gadarwara, District Narsinghpur (M.P.)
…Petitioner
Versus
1.
Dr. O.P. Nayak Ophthalmologists Near Aamgaon Naka, Gadarwara
District Narsinghpur (M.P.)
2. Dr. S.P. Kurchania Savitri Nursing Home, Gadarwara, Tehsil,
Gadarwara, District Narsinghpur (M.P.)
…Respondents
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
:
Md.Izhar Alam, Advocate with
Shyam Lal, In-person
PRONOUNCED ON 17th JULY, 2013
ORDER
PER DR. S.M. KANTIKAR
1. This Revision Petition filed under Section 21 (b) of the Consumer Protection Act,
1986 directed against the Impugned Judgment and order dated 11.04.2012
passed by the State Consumer Disputes Commission, Bhopal (in short ‘ State
Commission’) in F.A. No. 2674 of 2007 whereby the State Commission had
dismissed the F.A. aforesaid preferred by the Petitioner against the Judgment
and order dated 20.09.2007 passed by the District Consumer Disputes
Redressal Forum Narsinghpur, M.P. (in short ‘District Forum’) in C.C. No. 42 of
2005 whereby the District Forum allowed the entire claim of the Respondents of
Rs.2,00,000/-.
2. Brief Facts:
For cataract of Right eye of the Complainant was advised by the OP No 1, Dr.
O.P. Nayak for an operation. He got admitted in the Government Eye Camp at
Gadarwara, but the doctor told him that he would treat him personally at OP No
2- Savitri Nursing Home. He was admitted at Savitri Nursing Home and operated
there by OP 1. He was admitted for 5 days. He could not see properly after the
surgery, so he consulted Dr. O.P. Nayak who again treated by giving an injection.
As his sight still did not improve, OP 1 referred him to Dr. Gurdeep Singh at
Hamidia Hospital, Bhopal. Dr. Gurdeep Singh demanded Rs.5,000/- towards the
operation. As he could not afford it, he went back to OP 1 who also demanded
Rs.20,000/-. The Complainant then consulted Dr. R.K. Mishra at Jabalpur who
told him that his vision would not come back. His Right eye was ultimately
removed. Alleging negligence in the cataract operation and infection in the eye
due to poor quality of lens, he has sought a relief of Rs.5, 50,000/-.
3. The OP No.-1, Dr. O.P. Nayak, stated that he is an experienced and qualified
ophthalmologist who examined complainant at the eye camp on 07.10.1996. He had
cataract in both his eyes. As the cataract in his right eye had matured, he was
advised surgery, but he did not get admitted in the camp. He came again later and
was told that 7 lens had been donated by the Lions Club. Two were still left and one
of them would be implanted in his eye free of cost. As Savitri Nursing Home had
equipments like operating microscope etc., which were not available in the Civil
Hospital at Gadarwara, the lens was implanted at Savitri Nursing Home. The surgery
was successful and the Complainant was advised to stay away from the sun and
avoid smoking. Since he was a mason, he was also advised to avoid dust. However,
he did not heed the instructions and started working which caused infection in the
eye. He was given medication and watched for 2 days. When his condition did not
improve he was referred to Dr. Gurdeep Singh at Hamidia Hospital, Bhopal. He was
admitted at Hamidia Hospital at Bhopal but got discharged against medical advice.
The Complainant consulted him again on 27.11.1996, and he prescribed some
medicines. He also referred him to Dr. R.K. Mishra at Jabalpur.
4. Opposite Party No.2, Dr. S.P. Khurchania of Savitri Nursing Home states that in
1996, Lion’s club organized an eye camp and donated 7 lenses. One of these lenses
was used in the cataract surgery of the Complainant. No charges were taken for the
lens. The Complainant was admitted for 5 days and had no complaints till his
discharge.
5. The District Forum allowed the complaint on three grounds (i) the tests required
prior to cataract surgery was done one month back. (ii) It was a case of Res ipsa
loquitor as the OPs admitted that the Complainant was suffering from endopthalmitis
and (iii) referral letters did not mention the type of endopthalmitis.
6. Against the order of District Forum, two cross appeals were filed in State
Commission as Appeal No.2325/07 by OPs and Appeal No 2674/07 by the
Complainant.
7. The State Commission heard both the counsels and perused documents filed on
record. The State Commissions allowed Appeal No.2325/07 filed by OPs and
dismissed Appeal No 2674/07 filed by the Complainant.
8. Aggrieved by the order of state commission the complainant preferred this revision
petition.
9. The advocate for petitioner and complainant were present. The application for
condonation of delay heard, the justification was satisfactory and accordingly delay
is condoned.
10. Complainant’s main grievance was negligence in the operation and implantation
of poor quality of lens which led to infection resulting in removal of his right eye.
The State Commissions order clearly pointed out that the affidavit filed by Dr.
Akhilesh Gumastra of Lions Club mentioned that the lenses were from Aurolab,
Madurai, one of the best qualities. Those seven lenses were donated in the
memory of his mother. The six other patients who have received the lenses did
not show any infection. Therefore, infection was not due to quality of the
lens. The Complainant has not filed any evidence to prove that the lens were of
low quality.
11. Even the pre-operative laboratory tests and medical check- up which were
conducted one month prior to the surgery were normal. Hence, there was no
necessity to repeat the test again unless the patient had any signs or symptoms
which is not negligence.
12. There were no hospital case papers or treatment records for the period the
Complainant was in Savitri Nursing Home. There was no discharge card. The
Opposite Party has handed over all medical records to the Complainant. The
post-operative
prescription dated 17.11.1996
clearly mentions that the
Complainant had vision of 6/24. OP referred the complaint to Dr. Gurdeep Singh
at Hamidia Hospital, Bhopal and Dr. R.K. Mishra, Emeratus Professor in Medical
College, at Jabalpur for management of infection like endopthalmites; but it could
not be controlled and ultimately the Right eye was removed. Therefore, referring
a patient to higher centre is not a negligent act.
13. We have gone through several medical texts, literature and reported articles in
the journals which revealed that the endophthalmitis is a known complication of
cataract
surgery. As
per
medical
literature
on
various
EVS
studies
the Postoperative endophthalmitis is defined as severe inflammation involving
both the anterior and posterior segments of the eye after intraocular surgery.
Typically, postoperative endophthalmitis is caused by the perioperative
introduction of microbial organisms into the eye either from endogenous source
like the patient's normal conjunctiva and skin flora or from contaminated
instruments. Once organisms gain access to the vitreous cavity, overwhelming
inflammation is likely to occur, making rapid recognition, diagnosis, and treatment
critical in optimizing final outcomes. Although most cases of postoperative
endophthalmitis occur within 6 weeks of surgery, infections seen in high-risk
patients or infections caused by slow-growing organisms may occur months or
years after the procedure. The other referred journal articles are:
i)
Review Article-ISRN Orthalmology Volume 2011 titled as “PostOperative Endophthalmitis following cataract Surgery in Asia” by authors
Jin A Choi and Sung Kun Chung.
ii)
“Post-Operative Endophthalmitis” Author: William Lloyd Clark, MD;
Chief Editor: Hampton Roy, Sr.
MD. fromhttp://emedicine.medscape.com/article/1210260-clinical#a0218
14. In this case the OP was a qualified and experienced ophthalmic
surgeon. Also
there was no iota of evidence that other six patients have any signs of
endophthalmitis who were undergone cataract surgery and lens implantation.
Hence, there was no evidence of cluster of infection.
15. Intra-ocular infection has always brought disrepute to the ophthalmologist and
this problem is not only rampant at eye-camps but also in hospitals, which
include the five star ones. Only surgeon who does not have endophthalmitis is
the one who does not operate. The problem is general and it is not the surgeon
who is to be blamed although he is responsible for surgery. Despite the best
possible care, mishaps cannot always be avoided.
16. In view of aforesaid findings and discussions we are of considered view that
OPs acted as per standards of practice and there was no negligence or
deficiency in service.
17. Therefore, the revision petition is dismissed. No order as to costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(S. M. KANTIKAR)
MEMBER
MSS/21
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2108 OF 2013
With IA/3467/2013, IA/3468/2013 and IA/3675/2013
(Stay, Exemption from filing the certified copy, Modification of Order)
(From the order dated 21.05.2013 in Appeal No. 838/2012 of the State Consumer
Disputes Redressal Commission, Delhi)
Castrol India Ltd. Through its: General Manager-Legal & Secretary 5th Floor, NBCC
Place East Tower, Pragati Vihar Bhisham Pitamah Marg, New Delhi -110003
…Petitioner/Opp. Party (OP)
Versus
1. Neerja D/o Prof. Ram Prakash R/o 212, Sukhdev Vihar New Delhi – 110025
2. MCS Ltd. Office No.21/22, Ground Floor Kashi Ram Jamnadas Building 5, PD Mello
Road, (Ghadiyal Godi) Masjid Mumbai – 400009 (Maharashtra)
Also at: F-65, 1st Floor Okhla Industrial Area Phase 1, New Delhi – 110020
3. IM Morgan Stanley Pvt. Ltd. 141, Makers Chambers III Nariman Point Mumbai
400021.
Also at: 114, Himalaya House, 11th Floor 23, Kasturba Gandhi Marg, New Delhi –
110001
…Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Sukumar Pattjoshi, Sr. Advocate and
Ms. Divya Jain, Mr. S.K. Dubey and Mr.
Vikas Nautiyal Advocates with him.
For the Respondent-1
:
Mr. Ram Parkash, Auth. Rep.
For the Respondent-2
:
Ms. Vandana Sharma, Advocate
For the Respondent-3
:
Mr. Kishore M. Gajaria, Advocate
PRONOUNCED ON 18th July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the
order
dated
21.5.2013
passed
by
the
Delhi
State
Consumer
Disputes RedressalCommission, (in short, ‘the State Commission’) in Appeal No.
838/2012 – Castrol India Ltd. Vs. Ms. Neerja & Ors. by which, the stay order passed in
favour of the petitioner was not extended.
2.
Brief facts of the case are that complainant/respondent no.1 filed complaint
before District Forum and alleged that complainant was holding 3476 equity shares of
OP-1/Petitioner. As per offer letter for purchase of shares by OP-1, complainant
submitted the form of acceptance duly filled along with duly signed transfer form and
share certificates, but complainant’s offer was rejected. Alleging deficiency on the part
of OPs, complainant filed complaint before District Forum for grant of difference of share
price @ 150/- per share on 1745 equity shares. OPs resisted complaint. Learned
District Forum after hearing both the parties, allowed complaint and directed OPs to pay
a sum of Rs.3,80,218/- along with 12% p.a. interest and Rs.50,000/- as compensation
and Rs.10,000/- as litigation charges. Petitioner filed appeal along with stay application
before learned State Commission and learned State Commission after hearing
petitioner on stay application, vide order dated 10.10.2012, stayed operation of order of
District Forum dated 24.5.2012 till next date and case was adjourned to 21.1.2013. On
21.1.2013, none appeared for the petitioner, but respondent-1 appeared in person and
State Commission directed petitioner to furnish correct latest address of Respondent-2
within 7 days and thereafter to issue notice to Respondent-2. Service on Respondent-3
was presumed and matter was adjourned to 22.7.2013. It appears that learned District
Forum in the light of orders dated 10.10.2012 and 21.1.2013 passed by the learned
State Commission, stayed execution proceedings and adjourned execution proceedings
to 29.7.2013. It appears that in the meantime, warrant of attachment was issued for
recovery and in such circumstances, petitioner moved an application before learned
State Commission and learned State Commission passed following impugned order:
“A prayer is made by the Counsel for the appellant to extend stay
order dated 10.10.2012, but we do not find any force in the prayer
of the Counsel for the appellant in as much as the direction of the
State Commission as per order dated 21.3.2013 (21.01.2013) has
not been followed by which the appellant was directed to file correct
address of the respondent no.2. Prayer rejected.
Now the correct address of respondent no. 2 has been filed. Issue
notice on the fresh address furnished by the appellant, under the
registered cover with AD, for the date already fixed in this case for
filing reply and for further orders”
against which, this revision petition has been filed.
3.
Heard learned Counsel for the petitioner, Auth. Rep. of Respondent No.1 and the
Counsel for the Respondents No.2 & 3.
4.
Learned Counsel for the petitioner submitted that even after furnishing correct
and latest address of Respondent-2; though, not in time, learned State Commission has
committed error in not extending stay order dated 10.10.2012; though, it was impliedly
extended upto 22.7.2013 by order dated 21.1.2013; hence, revision petition be allowed
and impugned order be set aside and stay order may be extended upto 22.7.2013, the
date already fixed for hearing the matter before the State Commission. On the other
hand, learned Authorized Representative of Respondent no. 1 submitted that revision
petition be dismissed, as it is not maintainable as well as time barred and Courts should
not grant ex-parte interim stay. Learned Counsel for the Respondents no. 2&3
submitted that they have no objection in allowing revision petition.
5.
Perusal of record reveals that petitioner filed appeal before learned State
Commission along with stay application and learned State Commission vide order dated
10.10.2012 stayed operation of order of District Forum till next date i.e. 21.1.2013. On
21.1.2013, as notice issued to Respondent-2 was received back unserved, learned
State Commission directed petitioner to furnish correct and latest address within 7 days
and thereafter to issue notice to Respondent-2. On that date, Respondent-1 filed reply
against the stay order. Matter was adjourned to 22.7.2013. It is true that order of
10.10.2012 was not extended by learned State Commission expressly, but at the same
time, stay was not vacated and it appears that inadvertently, the extension of stay order
was not recorded in order sheet dated 21.1.2013, but it can be inferred that impliedly
stay order was extended upto 22.7.2013 and it was withdrawn on 21.5.2013. Order
sheet dated 22.4.2013 in execution application filed before District Forum runs as under:
“JD has filed an application along with the copy of the orders dated
10.10.2012 and 21.01.2013 and which disclosed the operation of
the order under execution was stayed by Hon’ble State Commission
and next date of hearing is fixed as 22.07.2013. Therefore, the
proceeding of this execution application stands stayed. Now,
for awaiting of the further order therefrom, it is adjourned to
29.07.2013”.
6.
According to this order sheet, which was drawn in presence of both the parties, it
was inferred by District Forum that stay order has been extended upto22.7.2013 and
proceedings of the execution application was stayed and matter was adjourned to
29.7.2013. It appears that on the request of complainant/Respondent-1, warrant of
attachment was issued. On the application of petitioner for extension of stay order, stay
was not extended on account of non-filing of correct address of Respondent-2 within 7
days; though, that had been filed before State Commission, before the date of
impugned order. Only on account of non-filing of fresh address of Respondent-2 within
time, it was not appropriate on the part of learned State Commission to not extend stay
order, which was granted on 10.10.2012 and impliedly extend on 21.1.2013.
7.
Authorized Representative of Respondent-1 submitted that revision petition is not
maintainable against interlocutory order. This submission is devoid of force. In the light
of Section 21 (b) of the Consumer Protection Act, 1986, National Commission can pass
appropriate orders in any consumer dispute, which is pending before or has been
decided by any State Commission, which makes it clear that revision petition is
maintainable before this Commission against any order passed by the State
Commission in the matter pending before that.
8.
Authorized representative of Respondent-1 further submitted that revision petition
is barred by limitation. This argument is also devoid of force, as this revision petition has
been filed on 23.5.2013 against the impugned order dated 21.5.2013 meaning thereby,
within two days from the date of passing order. This revision petition is not against the
order dated 21.1.2013; hence, revision petition is well within limitation.
9.
Authorized Representative of Respondent-1 further submitted that in the light of
judgment of Hon’ble Apex Court reported in 2011 (6) SCALE - RamrameshwariDevi
& Ors. Vs. Nirmala Devi & Ors., Courts should be cautious while granting ex-parte ad
interim injunctions or stay orders. We agree with the proposition of law laid down by
the Hon’ble Apex Court in the aforesaid judgment, but this aspect is to be considered by
learned State Commission, who has granted stay on 10.10.2012 and we are not to
comment on grant of stay at this stage.
10.
In the light of aforesaid discussion, impugned order passed by learned State
Commission is liable to be set aside and stay order dated 10.10.2012 is to be
extended till 22.7.2013, the date on which, the matter has already been fixed for
hearing before State Commission.
11.
Consequently, the revision petition filed by the petitioner against the respondent
in Appeal No. 838/2012 – Castrol India Ltd. Vs. Ms. Neerja & Ors. is allowed and
impugned order dated 21.5.2013 to the extent of non-extension of stay order dated
10.10.2012 is set aside and order dated 10.10.2012 passed by learned State
Commission is extended till 22.7.2013, the date on which the matter has already been
fixed for hearing. There shall be no order as to costs.
..…………………Sd/-…………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3560 OF 2012
(Against order dated 01.06.2012 in First Appeal No. 372/2008 of the
Haryana State Consumer Disputes Redressal Commission,
Panchkula)
M/S Ayurvet Ltd. 6th Floor, Sagar Plaza District Centre, Vikas Marg Laxmi Nagar, Delhi110092 Through its Authorized Representative
Petitioner
Versus
Shri Gopal Krishan Gaushala Gurukul, Kurukshetra Haryana Through its Authorized
Representative
…Respondent
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
For the Respondent
: Mr. Rajeev Shukla, Advocate with
Mr. Rajesh Srivastava, Advocate
:
Nemo
PRONOUNCED ON 19th JULY, 2013
ORDER
PER DR. S.M. KANTIKAR
1. The present Revision Petition is filed under Section 21(b) of the Consumer
Protection Act, 1986, challenging the order of the State Consumer Disputes
Redressal Commission, Haryana, Panchkula (in short, ‘State Commission’) dated
01.06.2012 passed in First Appeal No. 372/2008 titled as “Ayurvet Ltd. Vs. Shri
Gupal Krishan Gaushala”’ which dismissed the Appeal by non-interference in the
order passed by the Ld. District Consumer Disputes Redressal Commission (in
short, ‘District Forum’), Kurukshetra in Complaint No. 357/2006 decided dated
24.12.2007.
2. Brief Facts of this case as:
That the Complainant purchased 100 bags of Uttam Super Gold Diary
Special feed manufactured by Dabour Ayurvet Pvt Ltd. (OP No 2) and Uttam
Super Gold Diary Special, Ayurvet Ltd (OP No. 3) from OP No.1 i.e. P.K.
Traders. It is alleged that the Complainant is Gaushala and had 25 numbers of
Hostern Fridgian Category cows. It was further alleged that above said feed was
given to cows as suggested by representative of Co. by mixing the said feed
with Banola Khal. Thereafter, on 03.02.2006, the cows started feeling unwell and
some of the cows felt weakness and milk was decreased. One of the cows died
due to this reason and the same was buried by the Complainant without any
post-mortem taking the death as natural death. It was further alleged that all the
cows were treated by the doctors of NDRI, Karnal, HAU, Hissar and the local
veterinary surgeon inspite of treatment 11 cows have died from 03.06.2006 to
16/07/2006 and postmortems of all cows were performed by veterinary surgeon,
Kurukshetra. On F.I.R. police sent visra to FSL Madhuban, Karnal. The FSL
report dated 17.07.2006 stated that organo phosphorous pesticide was detected
in Exhibits sent to FSL for testing. In this way feed was found poisonous feed and
due to this reason the cows have died and suffered a loss of Rs.1335773/-.
Therefore, there was deficiency in service on the part of the Opposite Parties.
3. Notice being issued, Opposite Parties appeared and contested the complaint,
raising plea that OP No.2 and 3 are dealing in the manufacturing of best quality
feed and the same is supplied in the market after proper checking through OP
No.1. There is no complaint whatsoever from any corner except the Complainant.
It was submitted that sample of feed has neither been sent in presence of OPs
nor necessary measures have been adopted for sending the sample and as such
the alleged report of FSL, Madhuban the analysis is not sustainable. It was
further submitted that the cows of Complainant might have died due to some
other factor. As per blood report dated 26.06.2006 the cows have died due to
Theilerisis which was an outcome of stress and existing environment of
Gaushala. Thus, there was no deficiency in service on their part.
4. On appraisal of the pleadings of the parties and evidence brought on record, the
District Forum allowed the complaint and directed the OPs to pay Rs.2,74,000/cost of ten dead cows, medicines charges of Rs.1,03,273/-, cost of feed
Rs.32,500/- and Rs.50,000/- as compensation for harassment .
5. Aggrieved by the order of District Forum respondent filed an appeal
No.372/2008. The State Commission heard the parties and dismissed the appeal
with observation as
“Undisputedly, the Complainant purchased 100 bags of Uttam Super Gold,
Diary Special Dabaur Ayurvet Ltd. feed on 24.05.2006 at the rate of
Rs.325/- per bag from OP No.1, which was manufactured by OP No.2 and
OP No.3. It is also not disputed that on 03.06.2006 the cows started
feeling unwell and 11 cows have died from 03.06.2006 to 16.07.2006. It is
also disputed that F.I.R. was registered. The Counsel for Respondent has
placed on record of FSL report and as per report of FSL an
organophosphorous pesticide was detected by the FSL while testing.
Since, the FSL report clearly mentioned that cows of the Complainant
taking poisonous feed, thus the Appellant/Opposite Party is held liable for
compensation.”
6. Against the said dismissal order of State Commission the petitioner preferred this
Revision Petition.
7. The Respondent/Complainant, Sh. Gopal Kishen Gaushala, was served in this
case. Mr. Ravi Kumar, clerk for Mr. Ajay Pal Nookala Sumanth, Advocate for
Respondent appeared in this case on 18.02.2013. Counsel for the Respondent
was given time to file Vakalatnama and counter affidavit on 18.02.2013. However,
on 15.07.2013, none appeared on behalf of the Respondent. Therefore, final
arguments were heard in the absence of the Respondent or his Counsel. It may
be mentioned here that the record reveals that the memo of appearance was filed
on behalf of Respondent, which was taken on record. Proof of receipt of costs of
Rs.10,000/- is placed on record, which was received by the Respondent, as per
the postal receipt.
8. We have heard the counsel for petitioner who argued vehemently and have
perused the documents on record like Post mortem and FSL Repot. It is noted
that the FSL reported “cause of death of cow only”. The FSL report did not
comment upon quality and contents of the feed supplied/manufactured by the
Petitioner was poisonous and due to which the death of cows was occurred. We
do not find any proximity on the death of the cow with the cattle feed. Petitioner
further contention that the Complainant/Respondent is not a consumer as it is
being a body corporate involved in the commercial activities and earning profits. It
is not an individual, who is earning for his livelihood.
9. The document on record i.e. report of cattle feed sample from Director General,
Dairy Development, Haryana, Panchkula which was addressed to Dy. Director
Animal Husbandry, Kurukshetra mentioned that after analysis of approved lab
regarding sample (KKR-17, KKR-18) found as per Bureau of Indian Standard.
10. The veterinary doctor who has conducted the post mortem and issued a report
did not specify anything about the feed which was taken by the cows and no toxic
level mentioned about the quantity of organophosphorous pesticide. No samples
of feed were referred to the FSL laboratory to establish that it contains organ
phosphorous poison. Even otherwise the post-mortem done by the veterinary
doctor did not say anything about the lethal dose.
11. Therefore, firmly we cannot say that the cows which died only by such feed. The
grazing animal can eat many substances and therefore it is not possible to locate
the source of poison. There is evidence on record that those cows were suffering
from Theilerisis a tick borne disease, which was confirmed by blood smear
examination. Therefore, the death of cows attributed to the disease Theilerisis.
12. Therefore, we are of considered view that both the Fora below erred in
appreciation of evidence and records on file. Accordingly the orders passed by
the Fora below are set aside and we allow this revision petition. No order as to
costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..…………………………
(Dr. S. M. KANTIKAR)
MEMBER
MSS/5
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 267 OF 2012
(From order dated 01.08.2011 in First Appeal No. 1697/2009 of the
State Consumer Disputes Redressal Commission, Haryana, Panchkula)
WITH IA/2/2012 (FOR CONDONATION OF DELAY)
& IA/3/2012 (FOR IMPLEADMENT OF PARTIES)
1. Haryana Urban Development Authority Through its Chief Administrator, Sector-6,
Panchkula
2. Estate Officer Haryana Urban Development Authority Panchkula
… Petitioners
Versus
Jitender Nath Sharma S/o Late Janardhan Sharma R/o H.No. 1125, Sector-7,
Panchkula
… Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioners : Ms. Anubha Agrawal, Advocate
For the Respondent : Mr. Himanshu Gupta, Advocate
For the Applicants
: Mr. Mahurendra Kumar, Advocate
PRONOUNCED ON_19.07.2013
ORDER
JUSTICE J.M. MALIK
1.
This case revolves around the question “Whether the oustees, complainant or
the other Co-sharers are entitled to a plot under the Oustees Policy?”. The
petitioners/Opp.parties acquired the
land
of
Sh.Jitender
Nath
Sharma, the complainant and 39 other Co-sharers, on 09.10.2003. As per the
Oustees Policy, Harayana Urban Development Authority (HUDA) invited applications
for allotment of 1 (one) Kanal plot in Sector-6, MDC, Panchkula. Sh. Jitender Nath
Sharma, the complainant applied for the same and deposited the earnest money in the
sum of Rs.2,10,000/- with the petitioners/opp.parties. HUDA allotted plot No. 18-P in
Sector 6, MDC, Panchkula, vide allotment letter, in favour of the complainant along
with 69 other co-sharers, whereas, there are only 39 co-sharers in the acquired
land. The other oustees did not apply for the allotment of plot. The complainant
further deposited 15% of Rs.36,78,500/-, on 31.01.2007. The complainant made an
enquiry and the officials of HUDA replied that they cannot allot plot in the sole name of
the complainant as per HUDA Policy unless and until No Objection affidavits were
furnished by the remaining Co-sharers. Aggrieved by that decision, the complainant
filed a complaint before the District Forum.
2.
The District Forum allowed the complaint and directed the OPs to issue
allotment letter dated 04.01.2007 in the sole name of the complainant in respect of the
same plot after deleting the names of other co-sharers or in the alternative, allot any
other plot as per his entitlement, according to the Policy of HUDA, in the same Sector
or adjoining Sector at the same price and the same conditions. Liberty was granted to
HUDA to recover the dues in respect of the plot in question, if any, from the complainant
alone.
3.
HUDA preferred an appeal before the State Commission. The State Commission
dismissed the appeal vide its order dated 01.08.2011. Thereafter, the present revision
petition was filed. There is delay of 34 days in filing this revision petition. Counsel for
the respondent/complainant argued that the petitioner has failed to establish “sufficient
ground” for condonation of delay. He alleged that it has taken lame excuse and the
application should be dismissed.
4.
We have perused the application for condonation of delay in filing this revision
petition. The delay is explained in para No.2 of the said application, which is
reproduced, as under:-
“That after receipt of the copy of the impugned order from the
counsel of the petitioner, the same was analysed by the
petitioner in view of the financial implications and policy
issues involved therein. Considering the importance of the
matter, it was thereafter decided by the petitioner
that revision petition may be filed challenging the orders
passed
by the
Forums
below. Hence,
necessary approvals were taken for filing the said revision
petition. The Governmental procedures in respect of
seeking sanctions, collecting relevant documents from
concerned departments and preparing and filing the
present revision petition has resulted in unavoidable delay
of 34 days, which is unintentional, unavoidable and highly
regretted”.
5.
In the said application reference was also made to the authorities, State
of Nagaland Vs. Lipok Ao (2005) 3 SCC 752, Bhag Singh & Ors. Vs. Major Daljit
Singh & Ors., 1987 Supp SCC 685. Counsel for the petitioner has also invited our
attention towards the affidavit of Sh.Ashwani Sharma, Estate Officer, HUDA,
Panchkula, wherein an effort has been made to explain the day-to-day delay.
6.
Learned counsel for the respondent vehemently argued that it is only
administrative and procedural delay and the petitioners do not deserve any leniency
from this Commission.
7.
There is delay of 34 days only. This cannot be said to be ‘inordinate delay’. The
procedural
and
administrative steps take
negligence
on
the
part
of
the
some
petitioners,
time. Even
the
same
if there is
can
be
some
met by
payment of costs. Last but not the least, we also see some merit in the case of the
respondent. The application for condonation of delay is allowed subject to deposit of
Rs.25,000/- with Prime Minister Relief Fund, towards Uttarakhand Tragedy, within 90
days, otherwise, the application shall be deemed to have been dismissed along with
the revision petition. The Registrar is directed to see the compliance of the order and
shall submit the report, within 30 days’, thereafter.
8.
Now,
we
turn
to
the
merits
of
the
case. Learned
counsel
for
the
petitioner/complainant vehemently argued that this case is different from the other
cases. In this case, the allotment letter was issued and as such, the petitioner is to be
considered as a “consumer”. He has also invited our attention towards allotment letter
dated 18.03.1992, wherein, para III of the said letter reads, as under :“III. The above policy shall also apply in case there are a number
of co-sharers of the land which has been acquired. If the acquired
land measures more than one acre. Then, for the purpose of
granting benefits under this policy, the determining factor should
the area owned by each co-sharer, respectively, as per his/her
share in the joint-holding. In case the acquired land of the cosharer is less than one acre, only one plot of 250 sq.yd., would be
allotted in the joint name of the co-sharers”.
9.
However,
counsel for
the
petitioners has
pointed
out
that the
said Policy has been amended and has invited our attention towards letter dated
12.03.1993, the relevant para of which, reads as follows:-
“I am directed to address you on the subject cited above and to
inform that pursuit to the review of the oustees policy by the
Authority in its meeting held on 20.02.1992, revised
instructions were circulated on the subject vide memo No.S-292/2071, dated 18.03.1992. While the said policy laid the
guidelines to determine the eligibility of claimant oustees for
allotment of residential commercial sites, the procedure to
examine such claims remained open-ended”.
10.
All the arguments advanced by the counsel for the respondent are bereft of
merit. As a matter of fact, the case of oustees does not come within the domain
of consumer fora. In a judgment of this Commission, titled HUDA Vs. Uday Singh,
(RP No.3456 of 2009), it was held :
“Learned counsel for the petitioner would also place reliance
on a decision of this Commission in the matter of Premkanta
& Ors., Vs. HUDA & Anr., for unsuiting respondents, they
being not consumers, as defined under Section 2(1)(d) (ii) of
the Act. We can take notice of the fact that since owners of
land had received compensation for land acquired by HUDA,
allotment of residential plot under the Scheme was only a
gesture of goodwill and there being no element of
‘hiring’ service for consideration of petitioner authority from
respondents. The ratio of decision of the case in Premkanta
(Supra) applies with all force with the case under
consideration before us with identical factual backgrounds”.
11.
A Special Leave Petition (Civil Appeal No. 10379/2010, titled Udai Singh Vs.
HUDA & Anr.) was filed before the Hon’ble Supreme Court against the above said
order and the same was dismissed by the Hon’ble Apex court, vide order dated
16.04.2010.
12.
This Bench consisting of Justice J.M.Malik and Mr.Vinay Kumar, Member,
took the same view in Prem Singh Vs. Chief Administrator, HUDA, III (2012) CPJ
320 (NC) and also followed the judgment of Premkanta & Ors., Vs. HUDA, III (2008)
CPJ 146 (NC).
13.
LRs.,
We also decided another case, titled as Om Prakash (deceased), Through
Vs.
HUDA
&
Ors., (RP
No.
2007
of
2011,
decided
on
03.09.2012), and took the same view, wherein a number of other authorities were
also cited. It, therefore, appears that the District Forum as well as the State
Commission arrogated to themselves those powers with which they were not armed
with. The consumer fora has no jurisdiction.
14.
An application has been moved by Co-sharers through Sh.Madhurendra Kumar,
Advocate. That application has become infructuous. We set aside the orders passed
by the fora below and dismiss the complaint. There shall be no order as to
costs. However,
the complainant is
given liberty
to file
this
case before the
appropriate forum for redressal of his grievances. He can seek help from Laxmi
Engineering Works vs.PSG Industrial Institute – (1995) 3 SCC 583, on the point of
limitation.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(DR.S.M. KANTIKAR)
MEMBER
dd/1
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 485 OF 2013
(From the order dated 19.10.2012 in Appeal No. 525 of 2010 of the Kerala State
Consumer Disputes Redressal Commission, Thiruvananthapuram)
Sasi P.K., S/o Kochukutty Thadikal House, Padiyoor, P.O. Padiyoor, Kannur Distt.
…Petitioner/Complainant
Versus
1. The Director H & J Infomark Industrial Estate, Ettumanoor, Kottayam 686631
2. H & P Estate Pvt. Ltd. 43/1495 Benedict Road, Ernakulam North Cochin 682018
3. Malanad Agencies Nediyodichal, Padiyoor Post PIN 670703
…Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
PRONOUNCED ON
Mr. Rajan P. Kaliyath, Advocate
19th July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/Complainant against the
order
dated
19.10.2012
passed
by
the
Kerala
State
Consumer
Disputes RedressalCommission, Thiruvananthapuram (in short, ‘the State Commission’)
in Appeal No. 525 of 2010 – Sasi P.K. Vs. Director, H & J Infomark & Ors. by which,
while dismissing appeal, order of District Forum dismissing complaint was upheld.
2.
Brief facts of the case are that complainant/petitioner planted 227 rubber plants in
1 acre of land. Complainant purchased 8 Kg. Well Coat @ 55% from OP3/Respondent-3, which was manufactured by OP-1/Respondent-1 and marketed by OP2/Respondent-2. Complainant applied Well Coat to the plants, but after a week, all
plants dried up and perished. Matter was reported to the OPs and authorities of Rubber
Board collected sample from the remaining portion of Well Coat and reported that plants
dried up and perished on account of application of the Well Coat which is defective and
harmful Well Coat. Alleging deficiency on the part of OP, complainant filed
complaint. OPs resisted complaint and submitted that OPs had not given any promise
or issued printed plan tips to the complainant regarding the application of Well Coat to
the entire trees. OPs further denied supply of injurious or defective pesticides. It was
further alleged that, as complainant is an inexperienced and incompetent rubber planter,
plants dried and prayed for dismissal of complaint. Learned District Forum after hearing
both the parties dismissed complaint against which, appeal filed by the petitioner was
dismissed by learned State Commission vide impugned order against which, this
revision petition has been filed.
3.
Heard learned Counsel for the petitioner at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that even after proving the fact that
on account of defective Well Coat, petitioner’s plants dried, learned District Forum
committed error in dismissing complainant and learned State Commission further
committed error in dismissing appeal; hence, revision petition be admitted.
5.
Perusal of record reveals that as per complaint, complainant purchased 8 Kg.
Well Coat bottles of 1 Kg. each, whereas he has filed Bill No.757 only for 3 bottles of 1
Kg. each. Complainant has not produced Bill of another 5 Kg. Well Coat for the reasons
best known to him. Complainant has also not placed any expert opinion to show that
Rubber plants perished due to application of Well Coat though sample was collected by
Rubber Board from remaining portion of Well Coat. As per report of PW2, all 217
Rubber Plants were found completely dried and recommended replanting. It was
further observed that chemical contamination has to be confirmed pertaining to dried
plants. During cross-examination, he admitted that if 10 gms Rubber kot is applied, it
will not dry meaning thereby, 1 Kg. Well Coat was to be applied to 100 plants, whereas
complainant purchased 8 Kg Well Coat and applied to the plants. In such
circumstances, it can very well be presumed that on account of excess application of
Well Coat plants dried up. He has further admitted that approx. 12 Kg of Rubber kot has
been applied in the plantation of complainant. It appears that only due to excess
application of Well Coat, petitioner has not filed Bill of purchase of rest of 5 Kg. Well
Coat. He further admitted that he cannot say whether drying of the plantation was not
due to application of Rubber Kot, but due to some other thing. He has simply
expressed possibility of drying due to application of Well Coat. He is even not aware;
whether any other product is added to Well Coat or not, whereas 100 gms. tyroid was
purchased only for the purpose of mixing with the Well Coat. He has further admitted
that for confirmation of drying up of plantation due to application of Well Coat, chemical
analysis is required.
6.
Complainant has not placed any laboratory report and in the absence of
laboratory report, it cannot be inferred that on account of application of injurious Well
Coat Rubber plants dried. Learned Counsel for the petitioner submitted that as sample
of Well Coat could not be sent to laboratory for test, as whole the quantity purchased
was used and in the light of judgment passé by Apex Court in I (2012) CPJ 1 (SC) –
National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy &Anr., laboratory test
is not required where whole quantity of purchased article has been used. We agree
with the law propounded by Hon’ble Apex Court, but in the present case, witness of the
petitioner has admitted in his cross-examination test, there was sufficient quantity of
sample in the tin and complaint reveals that sample was collected by Rubber Board. In
such circumstances, it was obligatory on the part of complainant to get sample tested by
laboratory to prove that Well Coat purchased from OP-1 and manufactured by OP-3
was injurious.
7.
Learned State Commission has not committed any error in upholding order of
learned District Forum dismissing complaint. We do not find any illegality, irregularity or
jurisdictional error in the impugned order, which calls for any interference.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 891 of 2013
(From the order dated 30.01.2013 of the West Bengal State Consumer Disputes
Redressal Commission, Kolkata in SC Case no. FA/446 of 2012)
Sujit Roy 2/44 Udaynagar, P O Amroi Durgapur – 713203 Formerly A /2 Akbar Road
Durgapur – 713204
Petitioner
Versus
1.
In-charge Standard Chartered Bank SN/10 Ambedkar Sarani City Centre,
Durgapur – 713216
2.
Branch Manager Standard Chartered Bank 19, Netaji Subhash Road Kolkata –
700001
3.
Head of Customer Care Unit Standard Chartered Bank 19 Rajaji Salai, Chennai –
600001
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
IN PERSON
Pronounced on 19th July 2013
ORDER
REKHA GUPTA
Revision petition no. 891 of 2012 has been filed against the impugned order
dated 30th January 2013 passed by the West Bengal State Consumer
Disputes RedressalCommission, Kolkata (‘the State Commission’).
The brief facts of the case as per the petitioner/complainant are that the petitioner
opened an account with ANZ Grindlays Bank at Kolkata long back, for share
tradingbusiness vide ID no. 11871890. Subsequently, Standard Chartered Bank has
entered into the Banking business with the said ANZ Grindlays Bank in the title of
Standard CharteredGrindlays Banks. Thereafter, the name of the Bank has been
renamed as Standard Chartered Bank.
The petitioner had made payments as per bill of the Bank as under:
S No.
DD no.
Date
In favour of
Issued by
(i)
210377
26/08/2000
ANZ Bank
DSP
Bank
(ii)
216855
14/06/2011
Standard
Allahabad
Amount
Coop. 965/-
655/-
(iii)
652335
(iv)
186267
11/05/2003
Chartered Grindlays
Bank
Std. Ch. Bank
HDFC Bank
400/-
-do-
-do-
700/-
Rs. 700/- was paid against their billing instruction dated 06.10.2002 for Rs.320/i.e., an extra amount of Rs.380/- was paid as advance for next billing instruction, which
was lying in my account as credit balance. On the other hand, the bill as outstanding in
petitioner’s account dated 05.01.2005 states that on 04.10.2002 the pending amount
was Rs.17/- only for which the respondent/ opposite party charged Rs.8/- as interest,
whereas in the statement of transaction dated 06.10.2002 exhibits that a total due
amount is Rs.320/-. It reveals that respondent does not maintain their records and
accounts correctly having no authenticity and as such the complainant has been
suffering financial losses. On 10/12/2003 the respondent intimated that there was an
outstanding bill of Rs.969/- as on 10.12.2003 which the petitioner should pay within 7
days, failing which the respondent would suspend the account.
The demand of the respondent had no authenticity and the petitioner felt that this
claim had no basis since he had already deposited all the legitimate amounts and
hence, he did not make further payment resulting, he his account being suspended
without giving him any information by the respondent and till then no transaction,
whatever was made. And thus the petitioner had to incur loss in share transaction. In
February 2004, he had given a written notice to the Bank about the suspension of my
account under their acknowledgement. But no reply was given by them.
The petitioner has not filed the copy of the written statement of the respondent
before
this
Commission.
However,
the
District
Consumer
Disputes Redressal Forum,Muchipara, Burdwan (‘the District Forum’) vide their order
dated 11th July 2011 have stated that “the respondent bank has contested the case by
filing written statement denying inter alia all the material allegations in the complaint. It
is specifically stated in the written version that subject matter of the petitioner pertains to
the years 2000 to 2003 and the latest whisper on the same was made, as alleged, in the
year 2004-2005 and even thereafter more than four years have elapsed for which the
case is barred by limitation under section 24 A of the C P Act. It is further contended
that simply by letter dated 05.11.2009 as submitted by the petitioner where the
reference of the letter dated 24.06.2008 of the respondent denying the allegations of the
petitioner, the cause of action for the case cannot be extended and for the reasons that
the case is definitely barred by limitation”.
The District Forum then gave the following order:
“Both the points are taken up together for a compact discussion in this case.
During the argument learned lawyer of the respondent has referred to the order
no. 15 as passed by this Forum on 14.09.2010 and submitted that the Forum has
allowed opportunity to the petitioner to incorporate the fact of its letter dated
05.11.2009 with reference to respondent’s letter dated 24.06.2008 by way of
amendment of the complaint. The order was very clear and explicit. But the same
was not done by the petitioner. If in a particular allegation is not incorporated in
the pleading the same cannot be relied on for getting any benefit out of it. The
complaint as it is without amendment is definitely barred by limitation. As such
the case is not maintainable. That apart the allegation of the petitioner regarding
the fact that the respondent Bank never intimated regarding suspension of his
account is baseless in view of the letters of intimation as sent by the respondent
on 15.03.2004 and 05.02.2005, as it appears from the Xerox copies filed under
Annexure A. Admittedly the petitioner took no step as it appears from his
averments in paragraphs 7 & 8 of the complaint. In such view of the fact the case
of the petitioner fails as it is time barred and not maintainable. Hence, that the
case be dismissed without cost”.
Aggrieved by the order of the District Forum, the petitioner filed an appeal before
the State Commission. Along with the appeal an application for condonation of delay
was filed. In the application for condonation of delay nowhere has the period of delay
has been mentioned. The reasons given are as follows:
Before the order is passed the petitioner shifted his residence from 1a/2
Akbar Road Durgapur to 2/44 Udainagar PO Amroi Durgapur – 713 204.
For this reasons he was not in touch with his authorised representative who
was handling the case before the District Consumer Forum on his behalf. He was
thus not aware of the order so passed.
The petitioner is earning for his bread and butter by giving private tuition to
the school and college students. For that he cannot take frequent leave from his
students.
He got the certified copy of the order of the Hon’ble District Consumer Forum
only on 30.01.2012.
After receipt of the order the appellant handed over all the papers to Sri
Banerjee an Advocate of High Court at Calcutta.
It is difficult to follow up the matter regularly with the Advocate at Calcutta
from Durgapuri. As a result the appeal was not filed in time.
When information regarding progress of the appeal was not received he met
the Advocate. After meeting him at Calcutta in the month of July 2012 he came to
know that no appeal since then was filed.
On the same date the papers were taken back and handed to the present
lawyer to file the Appeal.
Meanwhile the petitioner’s wife became sick due to rheumatic Arthritis for
which the petitioner could not move of Durgapur. He is having a daughter who is
aged about 3 years.
The delay was totally unintentional and beyond the control of the petitioner
and for that the petitioner is begging pardon for the delay.
The State Commission vide their order dated 30.01.2013 heard the submissions
of the Counsel for the Appellant and on perusal of the material on record
for condonationof delay of 353 days in filing the appeal and dismissed the application
for condonation of delay as also the appeal being time barred stating that “we have
heard the submission made by the learned and perused the papers on record. It
appears that the judgment was delivered on 11.07.2011 and the certified copy was
applied for on 30.01.2012. In the petitioner for condonation of delay and also in the MA
18 of 2013 there is no mention as to the reasons for delay in filing the application for
certified copy. The certified copy was delivered on the very same day i.e., 30.01.2012.
The appeal was filed on 30.07.2012. The medical certificate was issued on 31.12.2011.
Having heard the submission made by the learned Counsel for the appellant and on
perusal of the materials on record we find that the delay in filing the appeal has not
been sufficiently explained”.
Dissatisfied by the order of the State Commission, the petitioner – Mr Sujit Roy
has filed this present revision petition before us.
The main ground for the revision petition is that the State Commission has not
considered the merit of the case and “instead wanted an explanation for each and every
day delay”.
We have heard the petitioner in person and have gone through the records. With
regard to the application for condonation of delay before the State Commission, the
State Commission vide impugned order dated 30.01.2013 have correctly came to the
conclusion that the delay in filing the appeal has not been sufficiently explained in spite
of every opportunity being given. The petitioner could not give any cogent reasons or
‘sufficient cause’ for condonation of delay of 353 days in filing the appeal before the
State Commission.
The petitioner has failed to prove sufficient cause for condonation of delay. It is
well settled that ‘sufficient cause’ for condoning the delay in each case is a question of
fact.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial
Development Authority, IV (2011) CPJ 63 (SC), has held that:
“It is also apposite to observe that while deciding an application filed in such
cases for condonation of delay, the Court has to keep in mind that the special
period of limitation has been prescribed under the Consumer Protection Act, 1986
for filing appeals and revisions in consumer matters and the object of expeditious
adjudication of the consumer disputes will get defeated if this Court was to
entertain highly belated petitions filed against the orders of the Consumer Foras”.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of
2006), decided by the Apex Court on 08.07.2010 it was held:
“The party should show that besides acting bona fide, it had taken all possible
steps within its power and control and had approached the Court without any
unnecessary delay. The test is whether or not a cause is sufficient to see
whether it could have been avoided by the party by the exercise of due care
and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition,
2005]”.
In view of the above, we find that there is no jurisdictional error, illegality or
infirmity in the order passed by the State Commission warranting our interference. The
revision petition is accordingly dismissed with no order as to cost.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 397 OF 2007
(Against the order dated 17.02.2007 in Complaint Case No. 240/1998 of the
Maharashtra State Consumer Disputes Redressal Commission)
1. Narsimha Kamath
2. Ms. Kanchan N. Kamath
3. Ms. Aditi N. Kamath (Through Mr. Narsimha Kamath) A8/4, ‘Dahivali’, Laxman
Mhatre Road Kandarpada, Dahisar (West) Mumbai-400068
…
Appellants
Versus
1. M/s Ghai Gas Service Sayadri Building, Aarey Road Goregaon (East) Mumbai400063
2. M/s Bharat Petroleum Corporation Ltd. (LPG Division), Bharat Bhawan Ballard
Estate Mumbai-400038
…
Respondents
BEFORE:
HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Appellant
:
Ms.Garima Parshad, Advocate
For Respondents
:
Mr. Ashok Mathur, Advocate for R-1
Mr. Sanjay K. Shandilya, Advocate for R-2
Pronounced : 19th July, 2013
ORDER
PER VINEETA RAI, PRESIDING MEMBER
1.
This first appeal has been filed by Narsimha Kamat, Complainant No.1 before the
Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to
as the State Commission) and Appellant No.1 herein (other 2 Appellants being his
minor daughters) being aggrieved by the order of that Commission which had dismissed
their complaint filed against M/s Ghai Gas Service and Bharat Petroleum Corporation
Limited, Opposite Parties before the State Commission and Respondents No.1 and 2
respectively herein.
2.
In his complaint before the State Commission, Appellant stated that on
02.07.1996 his wife Anushri Kamath (hereinafter referred to as the Deceased)
suspected gas leakage from the cylinder used in the kitchen and complained about the
same to Respondent No.1. The complaint was attended to only after 2 days i.e. on
04.07.1996 and that too after she had personally visited the office of Respondent No.1.
The mechanic who attended to the complaint changed some parts and thereafter made
out a bill for Rs.340/- as also Rs.10/- as service charges. As the said amount was
considered high, Deceased paid only Rs.150/- to the mechanic and told him that she
would settle the remaining payment after visiting the office of Respondent No.1 next
day. At about 3.45 a.m. on the night intervening
4-5.07.1996 Deceased
experienced a strong smell emanating from the kitchen and she went there and
immediately put off the gas regulator. Thereafter to ensure that there was no further
gas leakage she triggered the gas lighter near the burner since she had seen the
mechanic also test for leakage by lighting a match during his visit and thereafter there
was a loud explosion in which she sustained burn injuries on her face, hands and
feet. She was admitted to KEM Hospital with 37% burn injuries and succumbed to the
same following Septicemia 4 days later. According to the Appellant, although the news
of the incident and the death of the Deceased was conveyed to Respondent No.1, no
one visited the site to make any enquiries, including reporting of the incident to the
Controller of Explosives as required under the law. Appellant alleged that the accident
and the unfortunate death of the Appellant’s wife occurred because the mechanic of
Respondent No.1 had rendered deficient service in not attending properly to the
complaint and the parts that were replaced appeared to be defective. He also left the
place without completing the repairs as he himself admitted to a neighbor of the
Appellant one Shri Mehta. Appellant further stated that because of the trauma suffered
by him he could not follow up the case after the letter that he had written on 14.10.1996
until 05.05.1998 when he asked the Respondent No.1 to pay a compensation of Rs.20
Lakhs for causing the premature death of his wife due to deficiency in service and
negligence. Since he did not receive a satisfactory response to this communication, he
filed a complaint before the State Commission against Respondents No. 1 and 2 and
requested that they be directed to jointly and severally pay Rs.5 Lakhs for loss of
company and deprivation of marital life; Rs.5 Lakhs to his children for deprivation of
maternal care; Rs.5 Lakhs on account of future loss of income earned by the Deceased;
Rs.4.50 Lakhs as compensation and Rs.10,000/- as litigation costs.
3.
Respondents on being served filed a written rejoinder denying the allegations
pertaining to any deficiency in service. Respondent No.1 stated that the complaint
regarding gas leakage was lodged on 04.07.1996 by the Deceased and on the same
day itself a mechanic was deputed to attend the complaint. It was further stated that
thereafter the Deceased paid a sum of Rs.340/- to the mechanic and denied that only a
part payment was made inter alia on the ground that some repairs were still
pending. Respondent No.1 further denied that it had been informed about the incident
immediately after the incident and stated that they were informed about it vide letter
dated 05.05.1998 i.e. almost two years after the incident, after which Respondent No.2
was also informed. It was further stated that it was well established by investigations
conducted by the police as also the dying declaration of the Deceased herself that the
unfortunate incident occurred due to the negligence on the part of the Deceased since
she failed to switch off the gas regulator and tested for gas leakage by using a lighter, a
practice which had been widely publicized as being very hazardous. It was also
contended that the LPG cylinders are manufactured from special steel and due care is
taken regarding its safety. In case of any mishap like leakage, the safety precautions
have to be taken by the customers themselves, including switching off the regulator. In
the instant case the Deceased herself had admitted in the dying declaration that the gas
was not properly put off by her which was likely to result in the leakage of the
gas. Thus, the negligence, if any, lay on the part of the Deceased and the Respondents
cannot be blamed for the same. Therefore, the question of deficiency in service or
settling the insurance claim with the insurance company (which has not been impleaded
as a party) did not arise.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it dismissed the complaint by observing as follows:
“7. There is no proof placed on record to show that O.P.no.1 was deficient
in service or negligent in rendering service to the customer. The dying
declaration of Anushri Kamath was recorded by the Investigating officer.
Police agency also recorded statements of close relatives of Anushri
Kamath, including husband and father of deceased Anushri. They have
not attributed any negligence to O.P.no.2. The dying declaration and
police statements are part of the record and proceeding of this complaint.
8. Ld.Advocate Mr.Shirish Deshpande submitted that dying declaration of
Anushri Kamath cannot be considered on the ground that there is nothing
on record to show that Anushri was conscious at the time of recording of
dying declaration. He also submitted that dying declaration cannot be
considered as a piece of evidence.
9. Dying declaration, which is properly recorded is a best piece of
evidence. In criminal trials the dying declaration is regarded as a legal
proof, provided all the legal requirements are complied with before
recording of Dying declaration. Dying declaration can be the basis for
conviction. A statement made by a person who is on the deathbed under
expectation of death, is called a dying declaration. If the person is mentally
conscious, then statement of a person who is on the deathbed, can be
recorded in presence of doctor. It is said that a person on the deathbed
and who is likely to embrace death within short time, is reluctant to speak
a falsehood. Such a person does not want to meet the God with a
falsehood on the tongue. Therefore dying declaration is regarded as a
best kind of proof.
10. In the case in hand, Dr.A.K.Deodhar attached to KEM Hospital
examined Anushri Kamath and found that she was fully conscious and
was in a condition to give statement. Doctor Deodhar accordingly made
endorsement about mental condition of injured in the margin of the dying
declaration. Sub-Inspector of Police attached to Dindoshi police station
thereafter recorded dying declaration of Anushri Kamath. Anushri Kamath
has given full account of the mishap. After narrating the entire of the
incident, she concluded at the fag end of the dying declaration that she did
not properly switched off the gas stove and because of that there was
explosion of gas cylinder. The husband and father of deceased have also
given similar kind of version before the police. All the necessary
precautions, which were required by law were taken before dying
declaration of injured was recorded. Dr.Deodhar examined the physical
and mental condition of the injured. He found that injured was mentally
alert and was in a position to give statement. Thereafter the police officer
recorded the dying declaration. No fault can be found in the dying
declaration of deceased Anushri Kamath.
11. Complainants have miserably failed to prove that O.P.no.1 was
negligent in any manner. There was no deficiency in service.”
5.
Being aggrieved by the order of the State Commission, the present appeal has
been filed.
6.
Learned Counsels for both parties made detailed oral submissions.
7.
Counsel for the Appellant contended that the State Commission erred in
concluding that there was no deficiency in service on the part of Respondents by relying
primarily on the dying declaration of the Deceased and without taking into account other
important evidence, which clearly confirmed that Respondent No.1 was negligent,
resulting in the gas explosion and death of the Deceased. Counsel for the Appellant
reiterated that while the complaint regarding leakage of gas from the gas cylinder
supplied by Respondent No.1 was made on 02.07.1996 no action was taken by
Respondent No.1 till two days later and that also after the Deceased had personally
visited the office. Since the leakage of gas can prove to be very hazardous and
dangerous, the delay in attending to this serious complaint by Respondent No.1 itself
indicates deficiency in service. Thereafter an inexperienced mechanic was sent to
repair the same and on the first day i.e. on 04.07.1996 he only changed some parts of
the cylinder leaving some repairs for the next day. This is evident from the fact that
against a total payment of Rs.340/-, only sum of Rs.150/- was paid the first day and the
remaining amount was to be paid after the major work was done. Counsel for the
Appellant contended that these facts had been submitted before the State Commission
and in support the names of the mechanic as also a neighbor Shri Mehta to whom the
mechanic informed that the work was incomplete were stated before the State
Commission. The very fact that Respondent No.1 did not produce the mechanic to
support their case confirms the Appellant’s version of the matter. Further, that there
was a complaint of leakage of gas was accepted by Respondent No.1 in the written
rejoinder filed by it before the State Commission (Annexure P-8). Counsel for the
Appellant further stated that the contention of Respondent No.1 that the Deceased
herself was responsible for the accident since she did not take due care in switching off
the knob of the gas cylinder from the regular is also not correct and in fact she had
turned off both the gas cylinder knobs and the regulator. Regarding the dying
declaration of the Deceased, Counsel for the Appellant contended that this statement
was made by her because Deceased wanted to convey that there was no foul play
relating to dowry or marital issues which led to the incident and the State Commission
erred in misinterpreting the dying declaration. Counsel for the Appellant also stated that
the State Commission erred in concluding that the Respondents were not informed
about the incident. In fact, they were informed about the same vide letter dated
14.10.1996 i.e. soon after the incident and the death of the Deceased and the delay in
filing the complaint before the State Commission was because the Appellant was
hoping for a favourable response from the Respondents and also because he was in a
traumatized state and was busy in the repairs of his house, which was damaged in the
gas explosion.
8.
Counsel for Respondent No.1 stated that the above contentions made by the
Counsel for the Appellant are not borne out by the evidence on record, including the
documentary evidence. Regarding the dying declaration of the Deceased, it was clearly
stated by her as follows :
“The said incident has occurred as gas was not properly put out by me
and I have therefore no complaint or any suspicion on anybody.”
This statement clearly indicates that the Deceased admitted that she had not properly
switched off the gas cylinder and had turned off the gas to prevent leakage only after
she had detected the smell on the early morning of 05.07.1996. Further the action of
the Deceased in using the gas lighter to check that there was no leakage was highly
hazardous and dangerous and it was, therefore, because of this action on her part that
the very unfortunate incident occurred.
Counsel for Respondent No.1 denied that there was any delay in attending to the
complaint which was made on 04.07.1996 and within hours a mechanic was dispatched
to attend to the complaint. As per the bill filed in evidence, he had completed the
repairs and in acknowledgment the total amount due i.e. Rs.340/- was paid. Appellant’s
contention that the mechanic had come back the next day to complete the repairs and
had also informed a neighbor about the same is not supported by any credible and
independent evidence by the Appellant. No affidavit was for example filed by Shri
Mehta, the neighbor, to support this contention.
Counsel for Respondent No.1 further stated that there is nothing on record to
support Appellant’s contention that he immediately informed Respondent No.1 about
the incident and in fact Respondent No.1 only came to know about the same on
05.05.1998 and it had also informed the Appellant vide letter dated 29.05.1998 that it
never received the letter purported to have been sent by the Appellant in 1996. Police
investigations conducted into the matter also confirmed that the Respondents were not
guilty of any deficiency in service and negligence in this case. The State Commission,
which is a first court of fact, had gone into the entire facts of this case and had rightly
concluded that there was no negligence or deficiency in service on the part of
Respondents.
9.
Counsel for
Respondent
No.2
stated
that
Respondent
No.2
are
the
manufacturers of the gas cylinders and they had not been informed about the incident.
Further, the relationship between Respondent No.1 and Respondent No.2 was on
principal-to-principal basis and, therefore, Respondent No.1 was not their agent. Under
the circumstances, the State Commission had rightly concluded that they could not be
held guilty in rendering deficient service or being responsible for the incident.
10.
We have heard learned Counsels for the parties and have also carefully gone
through the evidence on record. The facts pertaining to the gas explosion in which
Deceased received 37% burn injuries for which she was admitted to KEM Hospital on
05.07.1996 and her subsequent death on 08.07.1996 is not in dispute. It is further a
fact that in her dying declaration Deceased had clearly stated that the gas was not
properly put off by her and, therefore, she had no complaint against anyone else. In the
same dying declaration she had also stated that at about 3.45 a.m. on 05.07.1996 when
she detected a smell emanating from her kitchen, she went to the kitchen and turned off
the gas to prevent leakage of gas, which further indicates that the gas was not properly
turned off by her. Apart from this, she further confirmed that to make sure that there
was no further leakage she triggered the gas lighter causing the explosion. At the time
she made the dying declaration, it was certified by Dr. A.K. Deodhar at KEM Hospital
that she was fully conscious and in a condition to make her statement. The contention,
therefore, of Counsel for the Appellant that the dying declaration was made by her only
to rule out any foul play or involvement of any third party is not borne out by the
evidence on record. Regarding the allegation of negligence against Respondent No.1
that they failed to respond to the complaint immediately and that the mechanic did not
complete the work, we are unable to accept the contention of Counsel for the Appellant
since again there is no independent evidence in support of the same. From the records
on file, the mechanic did the entire repairs on 04.07.1996 itself and in acknowledgment
he was paid the total amount as clearly indicated in the receipt. The contention of
Counsel for the Appellant that the mechanic came the next day to complete the
remaining repairs and that he had informed the same to a neighbor (Shri Mehta) is not
confirmed by any evidence in respect of the same except the verbal contention of the
Appellant. Appellant in support of the case could have produced the affidavit of Shri
Mehta before the State Commission, which he failed to do. It is also a fact that the
complaint was made before the State Commission almost two years after the
incident. The
reasons
given
for
the
same
do
not
adequately explain
the
delay. Undoubtedly, the Appellant suffered a great trauma in losing his wife in such a
tragic manner and a delay of few months in filing the complaint could have been well
explained but not such a long period of almost two years. Because of this delay, it was
not possible for any meaningful enquiry to have been conducted by Respondent No.2
i.e. the manufacturer when it was informed about the incident. The State Commission
after considering all these facts has rightly concluded that the Appellant has failed to
prove that there was any deficiency in service or negligence on the part of
Respondents.
11.
In view of the above facts, we see no reason to disagree with the order of the
State Commission and uphold the same. The first appeal is dismissed. No costs.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1975 OF 2013
(From the order dated 16.11.2012 in First Appeal No. 662/2011 of Kerala State
Consumer Disputes Redressal Commission)
1. SKARIAH MATHAI S/O THOMAS SKARIAH,
2. P.M JOHNYKUTTY, S/O SKARIAH MATHAI,
3. MATHEW VARGHESE, S/O SKARIAH MATHAI,
4. P.M. SAJIMON , S/O SKARIAH MATHAI,
5. ANNAMMAS MATHEW, D/O THOMAS SKARIAH, REP BY MATHEW VARGHESE
BROTHER, all r/o PUTHENCHIRAYIL HOUSE, MEKOZHOOR P.O,
PATHENAMTHITTA KERALA
...........Petitioner(s)
Versus
1. MAR GREGORIOUS MEMORIAL MUTHOOT MEDICAL CENTRE REP BY ITS
CHIEF MEDICAL OFFICER/ MANAGING DIRECTOR, COLLEGE ROAD,
KOZHENCHEERY – 689641 KERALA
2. DR. JOLLY V. MATHEW, MGM MUTHOOT MEDICAL CENTRE, COLLEGE ROAD,
KOZHENCHEERY – 689641 KERALA
3. DR. SUSAN THARIAN, MGM MUTHOOT MEDICAL CENTRE, COLLEGE ROAD,
KOZHENCHEERY – 689641 KERALA
4. D. DEVARAJAN, CARDIOLOGIST, MGM MUTHOOT MEDICAL CENTRE,
COLLEGE ROAD, KOZHENCHEERY – 689641 KERALA
5. ICICI LOMBARD GENERAL INSURENCE, ICICI BANK TOWERS, BANDRA KURLA
COMPLEX, MUMBAI – 400051 MAHARASHTRA
...........Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. K.P. Toms, Advocate
PRONOUNCED ON : 19th JULY 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 against impugned order dated 16.11.2012 passed by the Kerala
State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in
FA No. 662/2011 “Mar Gregorious Memorial Muthoot Medical Centre Vs. Skariah
Mathai,” vide which, while allowing appeal against the order dated 16.08.2011, passed
by District Forum, Pathenamthitta, the consumer complaint no. 121 of 2007 was
ordered to be dismissed.
2.
Brief facts of the case are that Mrs. Sosamma Mathew, who was the wife of
petitioner/complainant no. 1 and mother of petitioners/complainant nos. 2 to 5 was
admitted at respondent/OP No. 1 Medical Centre on 1.2.2007 with complaints of pain in
the neck and pleuritic pain on the right side of the chest for two weeks before
admission. She was diagnosed as a patient of Type II Diabetic Mellitus / Hypertension,
Bronchogenic Carcinoma with pleural metastasis, malignant mesothelioma and
Coronary Artery Heart Disease. She was admitted in the Intensive Care Unit (ICU)
under the direct supervision of respondent nos. 1 to 4. It has been stated that the
condition of the patient worsened on 3.2.2007 when she had chest pain followed by
cardio-respiratory arrest. She was intubated and put on ventilator by respondent no. 3
who was anaesthetist on duty. It has been alleged that the relatives and family
members of the patient were not allowed to see her when she was in the ICU, neither
they were given any information about the condition of the patient and her treatment. It
has also been alleged that the patient was put on ventilator by the OPs without the
consent of the relatives. The complainants have stated that the condition of the patient
worsened due to wrong medication, medical negligence, improper management and
care, due to which she developed oedema and other respiratory heart complications
and she had to be put on ventilator. The OPs also served huge medical bills upon the
complainants which was not bearable for them. They were asked to pay a sum of
Rs.43,000/- which included Rs.27,000/- as hospital charges and Rs.16,000/- for
medicines. They had to pay that money by borrowing from others. The complainants,
therefore, requested the OPs to discharge the patient so that she could be taken to
some other hospital for treatment. The patient was discharged on 08.02.2007 and
admitted to Fellowship Mission Hospital at Kumbanad on the same day. In the said
hospital, she was never put on ventilator and given treatment and medication of a mild
nature and she remained their till 15.02.2007. The patient, Mrs. Sosamma Mathew,
issued a notice to the respondent hospital on 5.03.2007 and also made a complaint
before the Chief Minister who asked the District Medical Officer to enquire into the
matter and submit report. Mrs. S. Mathew, however, died on 31.07.2007 due to lung
cancer. The present complaint has been filed by her husband and children. The
District Forum allowed the complaint on 16.08.2011 and directed the first OP to return
50% of the treatment expenses along with compensation of Rs.25,000/- and cost of
Rs.10,000/-. The District Forum also allowed interest @10% p.a. from the date of the
order till realisation. It was also stated that the OP Hospital could realise the decreed
amount from OP No. 5, Insurance Company, if there was a valid insurance policy. An
appeal was filed against this order before the State Commission which was allowed by
the Commission and the order of the District Forum was set aside and the complaint
was dismissed. It is against this order that the complainants have filed the present
revision petition.
3.
Heard the learned counsel for the petitioners and examined the entire material on
record.
4.
Learned counsel for the petitioner invited our attention to copies of discharge
summary made by two hospitals where the patient was admitted for treatment. He
vehemently argued that at the first hospital, i.e., OP No. 1, the patient was constantly
kept on ventilator, which was not required. The moment the patient was discharged by
the first hospital, she walked away on her own and was taken to the Fellowship Mission
Hospital where no life-saving support was given. The patient was fit to be discharged
on 06.02.2007 but the OPs, with an intention to make money, kept the patient with them
in the ICU. The discharge summary given by the first hospital indicates that the patient
was being discharged against medical advice on the written consent given by the
relatives. The discharge summary made by Fellowship Mission Hospital, however,
shows that the patient was admitted for palliative care and was given normal treatment.
On the date of discharge, the oedema had improved as compared to the time of
admission.
Learned Counsel also invited our attention to the complaint dated
06.12.2007 in which it has been alleged that the complainants had to pay through their
nose for hospitalisation and follow-up treatment and medicines, due to wrong
medication, medical negligence and improper management and care of a critical and
terminally-ill patient.
5.
An examination of the facts of the case make it very clear that as stated by the
petitioners/complainants themselves, the patient Mrs. Sosamma Mathew was a critical
and terminally-ill patient, who was admitted in the OP No. 1 Hospital with multiple
problems. As stated earlier, the complainants had made a complaint to the Chief
Minister against OP No. 1 Hospital and the matter was enquired into by the District
Medical Officer (Health), Pathenamthitta. The DMO (Health) submitted a detailed report
after recording the statements of the complainants and the concerned doctors. The
report of the DMO shows clearly that the patient was brought to OP No. 1 Hospital on
1.02.2007 with fluid accumulation in the right side of the chest. After check-up, it was
detected that the accumulation of fluid in chest was Misothilioma, a type of cancer. In
order to confirm the same, CT scan of the chest was done and it was found that she
was suffering from bronchogenic cancer that had spread to pleura, and it was confirmed
that the disease was Misothilioma. The relatives of the patient were informed that for
expert treatment and diagnosis, the patient had to be taken to Regional Cancer Centre,
Thiruvananthapuram. The report of the DMO makes it very clear that on 3.2.2007, after
midnight, the functioning of heart and lungs of Mrs. Sosamma Mathew had suddenly
stopped and in order to save her life, she was put on ventilator with the consent of
relatives. Her life was saved due to the emergency treatment given to her. The report
has further highlighted that the complainants had financial difficulties and was unable to
bear the expenses. The complainant no. 3, Mathew Varghese is the clerk of an
Advocate.
6.
It is also made out from the facts on record that on 07.02.2007, the hospitals
doctors tried to remove the ventilator from the patient, but the same had to be
reconnected after three hours. On 08.02.2007, the ventilator was disconnected on the
insistence of the complainants. The patient was discharged and taken to other hospital
where she remained in treatment for another one week. From the material on record,
especially the report of the DMO, it becomes clear that OP No. 1 Hospital tried their
best to take care of the patient, who was in a critical and terminally ill stage. She was
put to examination by doctors belonging to all concerned specialists and in fact, they
were able to save her life when her heart and lungs stopped functioning on 3.02.2007.
We, therefore, tend to agree with the findings of the State Commission that the
allegation of medical negligence against the respondents does not stand proved. The
complaint has been made for the reason that the complainants had difficulty in meeting
the expenditure of the Hospital and they even approached the Chief Minister for getting
a relief from the Distress Relief Fund. We, therefore, find no reason to interfere with the
well-reasoned order passed by the State Commission which does not suffer from any
irregularity, illegality or jurisdictional error. The revision petition is, therefore, ordered to
be dismissed and the order of the State Commission upheld with no order as to costs.
SD/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
SD/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1449 OF 2012
(From the order dated 28.02.2012 in First Appeal No. 1622/2010
of Gujarat State Consumer Disputes Redressal Commission)
Proprietor of Zuber Transport Sohaibbhai Unusbhai Vohra Res. at: Paramount Society,
Bungalow No. 62, Polson Dairy Road Anand, Gujarat State
... Petitioner
Versus
Reliance General Insurance Co. First Floor, P.N. Square, Opp. Cafe Coffee Day, Opp.
Petrol Pump, Anand, District Anand Gujarat State
… Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Ms. Girija Wadhwa, Advocate
For the Respondent(s)
Mr. Navneet Kumar, Advocate
PRONOUNCED ON : 22nd JULY 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under Section 21 of the Consumer Protection
Act, 1986 against the order dated 21.02.2012 passed by the Gujarat State Consumer
Disputes Redressal Commission (hereinafter referred as ‘State Commission’) in appeal
no. 1622 of 2010, ‘Proprietor of Zuber Transport Vs. Reliance General Insurance
Company’ and appeal no. 1778 of 2010, ‘Reliance General Insurance Company Vs.
Proprietor of Zuber Transport’ vide which appeal no. 1622 of 2010 filed by the
complainant/petitioner as per Consumer Complaint No. 46 of 2009 before the District
Forum was dismissed, while appeal of the opposite party, Reliance General Insurance
Company was accepted and the order passed by the District Forum dated 30.09.2010
was set aside. The District Forum vide said order had directed the opponent, the
Insurance Company to pay Rs. 1 lakh with 9% interest from 01.03.2009 to the
complainant and also ordered to pay Rs. 5,000/- for mental agony and cost of litigation.
2.
Briefly stated, the facts of the case are that the petitioner/complainant
carried on business under the name of Zuber Transport in District Anand, Gujarat
having truck no. GJ 9Y6891 since 22.02.2008. The said truck was insured with the
opposite
party,
Reliance
General
Insurance
Company
vide
policy
no.
1611782334002087 and premium amount of Rs. 25,777/- was paid by the
complainants. The policy was valid from 16.01.2008 to 15.01.2009. It is stated that the
said truck was parked outside the office of Zuber Transport in common plot, when it was
stolen early morning and FIR No. 2/09 dated 01.01.2009 was filed with the police, and
the insurance company was also informed. The aforesaid truck was later recovered
from the area of Bodeli Police Station, District Vadodara, Gujarat State. As per the
Panchnama prepared by the police, 11 tyres and plates, nuts were stolen which valued
at Rs. 1,75,000/-. The complainant sent the requisite documents and original bills of
Rs. 2,53,908/- to the Insurance Company, but the company sent a cheque of Rs.
45,441.50/- as full and final settlement. The complainant returned the said cheque to
the Insurance Company and filed Consumer Complaint in the District Consumer
Forum. The stand taken by Insurance Company was that under the terms and
conditions of the policy, the tyres of the truck were not covered, and hence the
complainant could not be given compensation for the loss of tyres. The District Forum
vide their order dated 30.09.2010, allowed the complaint and directed the Insurance
Company to pay a sum of Rs. 1 lakh with 9% interest with effect from 01.03.2009 and
also to pay Rs. 5,000/- for mental agony and cost of litigation. Against this order, two
cross appeals were filed before the State Commission. The State Commission
dismissed the appeal filed by the complainant for enhancement of the award as given
by the District Forum. On the other hand, the State Commission accepted the appeal
filed by the opposite party and set aside the order passed by the District Forum. It is
against this order that the present petition has come up.
3.
Heard the learned counsel for the parties and examined the record.
4.
It has been contended by the learned counsel for the petitioner/complainant that
the claim should have been allowed, at least on non-standard basis by the Insurance
Company. The learned counsel invited our attention to the order passed by Hon’ble
Supreme Court of India in Amalendu Sahu Vs. Oriental Insurance Company as
reported in 2010 (2) CACC 103 (SC) in which it has been stated that in case of violation
of conditions of policy, the claim ought to be settled on non-standard basis. Further, in
another judgment given by the Hon’ble Apex Court in National Insurance Company
Vs. Nitin Khandelwal, as reported in IV (2008) CPJ 1(SC), it has been stated that in
the case of theft of vehicle, breach of condition is not germane. The Insurance
Company is liable to indemnify the owner of the vehicle when the insurer has obtained
comprehensive policy for the loss caused to the insurer. The claim should be settled on
a non-standard basis. The learned counsel argued that the factum of truck being stolen
is an admitted fact and the District Forum has rightly allowed the complaint, though
partly.
5.
In response, the learned counsel for the respondent vehemently argued that in the
instant case, the truck in question had been recovered, and hence the Insurance
Company is liable to pay for “own damage” only. Had the truck not been recovered, the
Insurance Company was liable to pay compensation as per the total loss, but in this
case, the position was different, as the truck had been recovered. There was no
deficiency on the part of the Insurance Company, because they had sent a cheque of
Rs. 45,441.50/- to the complainant in accordance with the reports submitted by the
surveyor. The learned counsel invited our attention to a number of rulings of the
Hon’ble Supreme Court of India in ‘Export Credit Guarantee Corporation of India
Ltd. Vs. Garg Sons International’, as reported in 2013 (1) SCALE 410, Suraj Mal
Ram Niwas Oil Mills (P.) Ltd. Vs. United India Insurance Co. Ltd. and Anr. as
reported in (2010) 10 SCC 567 and Oriental Insurance Company Ltd. Vs. Sony
Cheriyan as reported in AIR 1999 SC 3252. The learned counsel argued that the
insured can not claim anything more than what is covered by the insurance policy and
that the insurance policy between the insurer and the insured represents a contract
concluded between the parties.
6.
We have examined the entire matter on record and given a thoughtful
consideration to the arguments advanced before us. A perusal of the record indicates
that the terms and conditions of the insurance policy in question state as follows:“The company shall not be liable to make any payment in respect of:
(B) Damages to tyres and tubes unless the vehicle insured is damaged
at the same time in which case the liability of the company shall be limited to
50% of the cost of replacement and as per the clause (a) of paragraph TMT
21 special exclusions and compulsory deductible of policy.
(A) Except in the case of total loss of the vehicle insured the insured
shall not be liable under section of the policy for loss or the damages to
lumps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint work
….”
7.
A plain reading of the above terms and conditions indicates that the
Insurance Company is not liable to pay compensation for the loss of tyres
and tubes, unless it is a case of total loss of the vehicle. It is an admitted fact
that in this case, the stolen truck was recovered later, but the tyres etc. were
missing. There is no force in the contention of the complainant that the claim
could at least be settled on a non-standard basis. The citations submitted by
the complainant do not provide him any benefit, as this is not a case where
there has been a violation of terms and conditions. It is clearly one of the
conditions of the insurance policy that damage of tyres and tubes is not
covered under the policy. The Insurance Company has, therefore, not
committed any deficiency in disallowing the claim of the complainant for the
loss of tyres etc. It is clear, therefore, that the State Commission has made a
correct appreciation of the facts and circumstances of the case, and came to
the conclusion that the Insurance Company had not committed any deficiency
in service and provided compensation in accordance with the report of the
surveyor. We do not find any illegality, irregularity or jurisdictional error in the
order passed by the State Commission and hence, the same is ordered to be
upheld. The petition is ordered to be dismissed, with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
PSM
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1051 OF 2013
(From the order dated 04.01.2013 in MA/11/76 in Appeal No. A/11/169 of the
Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench, Nagpur)
Nirmal Land Developers & Builders Through its Proprietor Shri Mahendra Jayram
Borkar Aged about 49 years Occ – Business R/o Nirmal Colony, Nara Road, Nagpur
Maharashtra
…Petitioner/Opp. Party (OP)
Versus
Rameshchandra Gopalrao Pande R/o Block No. AG-1 Rahate Colony, Nagpur,
Maharashtra
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Arvind S. Waghmare, Advocate
PRONOUNCED ON 22nd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the order
dated
04.01.2013
passed
DisputesRedressal Commission,
Commission’)
in
Appeal
by
the
Circuit
No.
Bench,
A/11/169
Maharashtra
State
Nagpur
short,
(in
– Nirmal Land
Consumer
‘the
State
Developers
&
Builders Vs. RameshchandraGopalrao Pande by which, appeal filed by the petitioner
was dismissed as barred by limitation.
2.
Complainant/respondent filed complaint before District Forum with a prayer to
direct OP/petitioner to execute sale deed of plot Nos. 57 & 68 in favour of the
complainant and pay Rs.55,000/- as compensation towards harassment. Learned
District Forum after hearing both the parties allowed complaint vide order dated
24.11.2009 and directed OP to execute sale deed and pay Rs.5,000/- as compensation
and Rs.1,000/- as litigation expenses. Appeal filed by the petitioner was dismissed by
learned State Commission, as it was barred by 15 months.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Petitioner filed appeal along with application for condonation of delay before the
learned State Commission and submitted that as soon as the impugned order dated
24.11.2009 was passed by District Forum, petitioner approached to the concerned Clerk
of the Forum and asked about the copy of the order and petitioner was asked by the
Clerk that the copy will be served at his registered address and asked him to
wait. Petitioner waited for two months, but copy was not received. Again in March
2010, petitioner approached to the Clerk and Clerk shown him dispatch entry about the
copy of the order. It was further alleged by the petitioner that he waited till October, but
did not receive copy of the order. After that, he suffered typhoid and remained bed
ridden for two months and later on applied for certified copy on 16.3.2011 and received
it on 18.3.2011 and appeal was filed on 25.3.2011.
5.
Perusal of application clearly reveals that petitioner was aware of the order dated
24.11.2009, but he waited for two months for copy of the order and apparently after four
months in March 2010, he again contacted Clerk of the Forum, who had shown him
dispatch of the copy of the order, but even then he waited till October, 2010 and did not
apply for certified copy of the order as free copy was not received by him. He has not
filed any document pertaining to suffering by typhoid. As per his application, he
remained bed ridden for two months on account of typhoid meaning thereby from
November to December, 2010, but he did not apply for certified copy in January, 2011,
but applied on 16.3.2011 and there is no explanation for delay in applying certified copy
of the order of District Forum. No satisfactory explanation has been given by the
petitioner for condonation of delay and learned State Commission has not committed
any error in dismissing appeal as barred by 15 months.
6.
As there is inordinate delay of 15 months, this delay cannot be condoned in the
light of the judgment passed by the Hon’ble Apex Court and the National Commission in
(1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat
Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The
Chief
Post
Master
and Anr. and (3) 2012
General
(2)
and Ors. Vs.
CPC
3
Living
(State
Media
India
Ltd.
Commission)
–
Anshul AggarwalVs. New Okhla Industrial Development Authority.
7.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order and revision petition is liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner in Appeal No. A/11/169 –
Nirmal Land Developers & Builders Vs. Rameshchandra Gopalrao Pande is dismissed
at admission stage. There shall be no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 863 OF 2013
(From the order dated 09.01.2013 in Appeal No. 243 of 2011 of the Rajasthan State
Consumer Disputes Redressal Commission, Circuit Bench, Jodhpur)
With IA/1549/2013 (Stay)
Trio Elevators Company (India) Ltd. Having its Office at –404, Shivam Complex,
Bhuyangdev Cross Road, Sola Road, Ahmedabad, Gujarat
…Petitioner/Opp. Party (OP)
Versus
Tansingh Chauhan S/o Sh. Sujansingh Chauhan Resident of –Gandhinagar, Badmer,
Jodhpur
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Ms. Anushree Kapadia, Advocate
For the Respondent
:
Ms. Vidushi, Advocate
Mr. R.S. Rana, Advocate
PRONOUNCED ON 22nd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the
order
dated
09.01.2013
passed
by
the
Rajasthan
State
Consumer
DisputesRedressal Commission, Circuit Bench at Jodhpur (in short, ‘the State
Commission’) in Appeal No. 243 of 2011 – Manager, Trio Elevators Co. (India) Ltd. Vs.
Tan SinghChauhan by which, while allowing appeal, order of District Forum allowing
complaint was set aside and matter was remanded back to learned District Forum to
decide after taking evidence.
2.
Brief facts of the case are that complainant/respondent is possessing
Hotel Kalinga Palace at Barmer. As per agreement with OP/petitioner, petitioner was to
install 3 elevators of the capacity of 8 persons, whereas OP installed elevators of the
capacity of 5 persons, which too are not working properly. It was further alleged that on
account of delay in completion of work, complainant has suffered loss of Rs.10
lakhs. Alleging deficiency on the part of OP, complainant filed complaint before District
Forum and prayed for grant of Rs.10 lakhs as compensation for mental agony and
direction to OP to install elevators of the capacity of 8 persons. OP resisted claim and
submitted that proper elevators were installed of the capacity of 8 persons and further
submitted that agreement between the parties was of commercial nature and District
Forum has no jurisdiction and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties allowed complaint and directed OP to replace 3 elevators
of the capacity of 8 persons instead of 5 persons. Appeal filed by the petitioner was
allowed by learned State Commission vide impugned order, but as learned State
Commission remanded for disposing the matter after recording evidence; this revision
petition has been filed by the petitioner.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that, as transaction was of
commercial nature and complainant did not fall within the purview of consumer under
the C.P. Act, District Forum had no jurisdiction to deal with the complaint. It was further
argued that there was no occasion for remand of the matter by learned State
Commission,
as
parties
had
already
placed
evidence
on
record,
revision
petition be allowed and impugned order be set aside and complaint be dismissed. On
the other hand, learned Counsel for the respondent submitted that order passed by
learned State Commission is in accordance with law; hence, revision petition be
dismissed.
5.
Perusal of complaint reveals that as per agreement, petitioner/OP was required to
install 3 elevators in the hotel of complainant/respondent. Complainant has nowhere
mentioned in his complaint that this hotel was for the purpose of earning of his livelihood
by means to self-employment. OP has taken plea in the written statement that, as
agreement was for commercial purposes, complainant does not fall within the purview
of consumer. Admittedly, 3 elevators were to be installed in the hotel, which is run for
commercial purposes and certainly not for the purposes of earning livelihood by
complainant by means of self-employment. Learned Counsel for the petitioner has
placed
reliance
on
AIR
1999
SC
3356
– Kalpavruksha Charitable
Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd. & Anr.
“9.
In the instant case, what is to be considered is whether the
appellant was a “consumer” within the meaning of the Consumer
Protection Act, 1986 and whether the goods in question were
obtained by him for “resale” or for any “commercial purpose.” It is
the case of the appellant that every patient who is referred to the
Diagnostic Centre of the appellant and who takes advantage of the
CT Scan etc. has to pay for it and the service rendered by the
appellant is not free. It is also the case of the appellant that only
ten per cent of the patients are provided free service. That being
so, the “goods” (machinery) which were obtained by the
appellant were being used for “commercial purpose”.
6.
In the light of above judgment, it becomes clear that complainant does not fall
within the purview of consumer under the C.P. Act, as the elevators were to be installed
in the hotel run for commercial purposes. In such circumstances, District Forum had no
jurisdiction to entertain the complaint and complaint was liable to be dismissed. Learned
State Commission has not considered this aspect and remanded the matter and
directed District Forum to record expert evidence to be led by both the parties.
7.
Learned Counsel for the petitioner submitted that there was no occasion to
remand the matter as the parties had already led evidence before District Forum. In
support of her contention she has relied on AIR 2002 SC 771 – P. Purushottam Reddy
and Anr. Vs. M/s. Pratap Steels Ltd. in which it was held that matter should not be
remanded when trial court has recorded finding on all these issues and parties are not
pleading prejudice at trial for want of any issue or specific issue or recording of
evidence. In the matter in hand, parties filed their evidence before District Forum as
they liked and in such circumstances, without any request on the part of any party,
learned State Commission should not have remanded the matter for disposal after
recording evidence of experts.
7.
fall
In the light of aforesaid discussion, it becomes clear that, as complainant did not
within
the
purview
of
consumer
under
the
C.P.
Act,
complaint
was
notentertainable before District Forum and complaint was liable to be dismissed.
8.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 09.01.2013 passed by learned State Commission in Appeal No. 243 of
2011 – Manager, Trio Elevators Co. (India) Ltd. Vs. Tan Singh Chauhan is set aside
and complaint filed by the complainant/respondent is dismissed. There shall be no
order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2370 OF 2010
(From the order dated 28.4.2010 in Appeal No. FA-10/129 of the State Consumer
Disputes Redressal Commission, Delhi)
M/s. Religare Securities Ltd., Having its registered office at: D-3, P3B, District Center,
Saket, New Delhi 110019
…Petitioner/Opp. Party (OP)
Versus
Mr. Om Singh Deswal 14, Green Avenue Behind Sector D-3, Vasant Kunj New Delhi
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Rohit Puri, Advocate
For the Respondent
:
Mr. Sanjeev Nirwani, Advocate
PRONOUNCED ON 22nd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the
order dated 28.4.2010 passed by the State Consumer Disputes Redressal Commission,
Delhi (in short, ‘the State Commission’) in Appeal No. FA/10/129 – M/s. Religare
Securities Ltd. Vs. Om Singh Deswal by which, appeal was dismissed as barred by
limitation.
2.
Brief facts of the case are that complainant/respondent filed complaint before
District Forum for directing OP to compensate loss of Rs.6,07,539/- with interest and
Rs.3,00,000/- as mental compensation and Rs.30,000/- as litigation charges. OP was
proceeded ex-parte by the District Forum and after hearing complainant, learned District
Forum allowed the complaint. Appeal filed by the petitioner before the State
Commission was dismissed as barred by limitation.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that after restoration of the
complaint by District Forum, in absence of petitioner, no fresh notice to the petitioner
was given for further proceedings and learned District Forum committed error in
proceeding ex-parte and in allowing complaint. It was further submitted that learned
State Commission has committed error in dismissing appeal as barred by limitation;
hence, revision petition be allowed and impugned order be set aside. On the other
hand, learned Counsel for the respondent submitted that order passed by learned State
Commission is in accordance with law, which does not call for any interference; hence,
revision petition be dismissed.
5.
Perusal of record of District Forum reveals that on 19.3.2009, complaint was
dismissed in default of the complainant and complainant filed restoration application
before the District Forum. Notices were issued to OP/petitioner for 21.5.2009 and on
that date, as OP did not appear, restoration application was allowed and
simultaneously, OP was proceeded ex-parte and after recording ex-parte evidence, the
order allowing complaint was passed by learned District Forum. Petitioner challenged
the order dated 21.5.2009 and final order dated 10.7.2009 before Hon’ble Delhi High
Court and on 9.12.2009 petitioner did not press prayer with regard to quashing the order
dated 10.7.2009 and sought liberty to take appropriate remedy under the law and vide
order dated 16.12.2009, writ petition was dismissed being infructuous.
6.
By the order dated 21.5.2009, complaint was restored by learned District Forum,
which order was upheld by the Hon’ble Delhi High Court; though, as per judgment of the
Hon’ble Apex Court in IV (2011) CPJ 35 (SC) – Rajeev Hitendra Pathak & Ors.
Vs. Achyut Kashinath Karekar & Anr. , District Forum and State Commission have no
power to review its order.
7.
Prayer for quashing the final order dated 10.7.2009 was withdrawn by petitioner
and Hon’ble High Court allowed that prayer and in pursuance to the order dated
9.12.2009, petitioner filed appeal before the learned State Commission on 10.2.2010
and learned State Commission dismissed the appeal as barred by 30 days.
8.
No doubt, appeal should have been filed by the petitioner before the learned
State Commission within time and appeal has been filed after 30 days with application
under Sections 5 and 14 of the Limitation Act and submitted that after passing of the
order by Hon’ble High Court, on account of winter vacations, Counsel of the petitioner
went out of station and by the time his counsel returned back, the case slipped out of
petitioner’s mind, which caused delay in filing appeal. No doubt, it is not a reasonable
ground for condonation of delay, but as ex-parte judgment has been pronounced by
learned District Forum against the principles of natural justice without notice to the
petitioner, learned State Commission should have condoned delay of 30 days in filing
appeal and decided appeal on merits.
9.
Notices for 21.5.2009 were issued by learned District Forum only regarding
restoration of the complaint and in the absence of OP/petitioner when District Forum
allowed restoration application and restored complaint, apparently, District Forum
should have issued notices for further proceedings to the OP. Apparently, learned
District Forum has committed error and should not have proceeded ex-parte
simultaneously with restoration of complaint.
10.
In the light of aforesaid discussion, we deem it proper to condone the delay of 30
days in filing appeal before learned State Commission subject to payment of cost of
Rs.2000/- to be paid by the petitioner to the respondent and remand the matter back to
the State Commission for disposal of appeal on merits.
11.
Consequently, revision petition filed by the petitioner against the respondent is
allowed and impugned order dated 28.4.2010 passed by learned State Commission in
Appeal No. FA/10/129 – M/s. Religare Securities Ltd. Vs. Om Singh Deswal is set aside
subject to payment of cost of Rs.2000/- to be paid by the petitioner to the respondent
and remand the matter back to the State Commission for deciding appeal on merits
after giving opportunity of being heard to both the parties.
11.
Parties are directed to appear before the Learned State Commission, Delhi on
12.8.2013.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2555 OF 2012
(From the order dated 10.04.2012 in Appeal No.1227 of 2010 of the A.P. State
Consumer Disputes Redressal Commission, Hyderabad)
M/s. Bajaj Alliaz General Insurance Co. Ltd. Through Shri Ashutosh Singh, Dty Manager
2nd Floor, 1, DLF Industrial Estate, Moti Nagar, New Delhi – 110015
…Petitioner/Opp. Party (OP)
Versus
Mr. K. Eswara Prasad S/o K. Durgaiah Car Driver R/o H. No. 1-86-33, Near CMR
Model High School, Sitarampuram, Bowenpally, Hyderabad
…Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Ms. Manjusha Wadhwa, Advocate
For the Respondent
:
Mr. D. Abhinav Rao, Advocate
PRONOUNCED ON
22nd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/opposite party against the
order dated 10.04.2012 passed by the A.P. State Consumer Disputes Redressal
Commission, Hyderabad (in short, ‘the State Commission’) in Appeal No. 1227 of 2010
– Mr. K. Eswara Prasad Vs. M/s. Bajaj Allianz General Insurance Co. by which, while
allowing appeal, order of District Forum dismissing complaint was set aside and
complaint was allowed.
2.
Brief facts of the case are that complainant filed complaint before District Forum
and alleged that his car AP-9-TV2927, which was insured by OP/petitioner for a period
of one year commencing from 14.10.2007 to 13.10.2008 for a sum of Rs.2,60,000/- was
parked by him on 22.6.2008 in front of his house. Complainant locked the car and
handed over the keys to the complainant’s neighbour and left for Bangalore due to
personal reasons. He had to stay in Bangalore for a longer period and when he
returned on 4.10.2008, car was found missing. Complainant immediately lodged FIR,
but car could not be traced. Complainant filed claim with the OP, but OP vide letter
dated 18.3.2009 closed the claim alleging deficiency on the part of OP. Complainant
filed complaint before District Forum. OP resisted claim and alleged that complainant
failed to take reasonable steps to safeguard the vehicle and violated Clause IV of the
policy and prayed for dismissal of the complaint. District Forum after hearing both the
parties dismissed the complaint. Appeal filed by the complainant was allowed by
learned State Commission vide impugned order against which, this revision petition has
been filed.
3.
Heard learned Counsel for the parties at admission stage and perused record.
4.
Learned Counsel for the petitioner submitted that since the complainant failed to
take reasonable steps to safeguard the vehicle and there was delay of more than 3
months in lodging FIR and intimation to Insurance Company, learned District Forum
rightly dismissed complaint and learned State Commission has committed error in
allowing appeal; hence, revision petition be allowed and impugned order be set aside.
On the other hand, learned Counsel for the respondent submitted that order passed by
learned State Commission is in accordance with law, as all reasonable care was taken
by the complainant while parking car; hence, revision petition be dismissed.
5.
Perusal of record clearly reveals that car was parked by complainant in front of
his house on 22.6.2008 and keys and documents of the car were handed over by the
complainant to his neighbour. On 4.10.2008 when complainant returned back, he did
not find his car and lodged report with the police and intimated to the Insurance
Company. This is not clear when the car was actually stolen. Complainant filed his own
affidavit before District Forum in which, he admitted that he enquired from his wife, who
remained in the house itself and neighbours and then lodged complaint at police station.
From this statement it becomes clear that during the period complainant was out of
station for more than 3½ months, complainant’s wife was at home. Complainant also
filed affidavit of Alkesh Kumar who has stated in his statement that complainant was
residing in upper portion of his house and complainant parked his car on 22.6.2008 in
front of his house and returned on 4.10.2008 and found that car was missing from that
place. He has also not revealed when car was stolen. It appears that purposely no date
has been given that when the car was stolen. In such circumstances, it can be
presumed that car must have been stolen long back and complainant’s wife and his
neighbour Alkesh Kumar must be aware about theft of the car. No report was lodged
immediately after theft and report has been lodged by the complainant only after
returning back on 4.10.2008. It is also not clear when information to OP regarding theft
of car was given by the complainant. Only copy of reminder dated 21.1.2009 issued by
OP to petitioner has been placed on record by which, reply was sought from
complainant regarding reasonable steps to safeguard the vehicle. It appears that OP
was also not intimated immediately. In F.A. No. 321 of 2005 – New India Insurance
Co. Ltd. Vs. Trilochan Jane, National Commission dismissed the claim of the
complainant on the ground of delay as theft took place on 8.4.2000, but FIR was lodged
on 10.4.2000 and intimation to Insurance Co. was given on 17.4.2000. Hon’ble Apex
Court in JT 2004 (8) SC 8 – United India Insurance Co. Ltd. Vs. M/s. Harchand Rai
Chandan Lal observed that delay in intimation to Insurance Company is fatal. In the
case in hand, apparently there is long delay in lodging FIR and intimation to Insurance
Company about theft of insured car and in such circumstances, complaint is liable to be
dismissed.
6.
Complainant’s statement is not believable. When his wife was staying at home,
why keys of the car will be given to neighbour instead of his wife. He has not
approached District Forum with clean hands and has purposely suppressed date of
theft.
7.
Consequently, revision petition is allowed and impugned order dated 10.4.2012
passed by learned State Commission in Appeal No. 1227 of 2010 – Mr. K. Eswara
Prasad Vs. M/s. Bajaj Allianz General Insurance Co. is set aside and complaint filed by
the complainant is dismissed at admission stage with no order as to cost.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 602 OF 2013
(From the Order dated 09.11.2012 in Appeal No. 1460/2011 of
U.P. State Consumer Disputes Redressal Commission, Lucknow)
With
IA/1062/2013
(Stay)
Union of India Through its General Manage North Eastern Railway Gorakhpur
Petitioner
Versus
Dr. (Smt.) Shobha Agarwal W/o Dr. M.C. Head of the Department T.B. & Chest
B.R.D. Medical College Gorakhpur
Respondent
BEFORE:
HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner
:
Mr. Rajeshwar Singh, Advocate
For the Respondent
:
Mr. Ajit Sharam, Advocate
Pronounced on : 22nd July, 2013
ORDER
PER SURESH CHANDA, MEMBER
This revision petition is directed against the order dated 9.11.2012 passed by the
U.P. State Consumer Disputes Redressal Commission, Lucknow in appeal No.1460 of
2011 by which the State Commission upheld the order dated 14.7.2011 passed by the
District Forum, Gorakhpur in complaint case No.612 of 1997 and dismissed the appeal
filed by the petitioner. The petitioner was the OP before the District Forum and the
respondent was the original complainant.
2.
The
factual
matrix
of
this
case
are
that
on
10.10.1996
the
complainant/respondent along with her daughter was travelling in a AC second class
sleeper with reserved berth Nos.35 & 36 from Gorakhpur to Beena by 1016 UP
Kushinagar Express. It is alleged that there was lot of disarrangement in the reserved
AC coach and some suspected person was seen snooping here and there about which
a complaint was made to the ticket checker but no action was taken by him. The same
suspected person was again seen in reserved coach at about 2’O clock in the night.
When the complainant woke up at 7’O clock in the morning, she found that her grey
colour suitcase which had been tied under the berth with the help of chain and lock, was
missing from there. As per the allegation in the complaint, the said suitcase had been
stolen by cutting the chain and lock. Information about the said incident was given to the
ticket checker who after some initial reluctance received the same after being forced to
do so by certain co-passengers but the ticket checker refused to receive the list of the
articles. The complainant brought the incident to the notice of the Railway Department
and Railway Minister by writing letters to the authorities and it appears that after about
one year, the railways lodged an FIR in regard to this incident sometime in the year
1987. Alleging negligence on the part of the OP, the complainant lodged a consumer
complaint before the District Forum praying for compensation of Rs.1.5 lakhs along with
interest @ 12% w.e.f. 10.10.1996, i.e., the date of loss of the valuables along with
Rs.30,000/- by way of compensation on account of mental agony. On notice, the
complaint was resisted by the OP and in the written statement filed by the OP, it denied
any negligence on its part and also submitted that railway administration is not liable for
the goods which were not booked with them. It also raised the question of jurisdiction of
the District Forum in the matter.
3.
On hearing the parties and appreciating the evidence placed before it, the
District Forum allowed the complaint vide its order dated 14.7.2011 in terms of the
following directions:“The present of the complainant is accepted against the
opposite party. It has been directed to the respondent to pay
Rs.1,50,000/- along with interest to the complainant from the
date of filing of the application / complaint from the date of filing
of the application/complaint till its realization. Besides this, the
opposite party to pay Rs.50,000/- towards the compensation
account of mental and physical agony and Rs.1000/- towards
the costs of the litigation and the said amount is to be given in
the shape of demand draft before this forum which could be
given to the complainant within one month from the date of
passing of the said order. In case the opposite party failed to
pay the same within stipulated period of one month, then the
same will be recovered from the opposite party as per the law.”
4.
Aggrieved by the aforesaid order of the District Forum, the petitioner carried the
same before the State Commission by filing an appeal against it but the same was
dismissed by the State Commission vide its impugned order which is now under
challenge through the present revision petition.
5.
We have heard learned counsel Mr. Rajeshwar Singh, Advocate for the
petitioner and learned Mr. Ajit Sharma, Advocate for the respondent. Learned counsel
for the petitioner has submitted that there was no negligence on the part of the railway
administration and unless the goods in question are booked with the railways, the
railway administration under the provisions of Railway Act are not liable to pay the
compensation. He further submitted that the luggage in question being carried on by the
complainant along with her daughter, it was under her custody and it was for her to take
care of that. The onus of proof regarding negligence on the part of the railway staff lies
on the complainant which she has failed to discharge.
6.
Learned counsel has also relied on the provisions of sections 97 and 100 of the
Railways Act, 1989 under which the railways cannot be held liable for compensation in
this case and the State Commission erred in wrongly appreciating these provisions.
Another contention raised by learned counsel was that section 15 of the Railway Claims
Tribunal Act, 1987 bars the jurisdiction of the consumer Fora to deal with this case. In
view of these aspects, learned counsel submitted that orders of the Fora below cannot
be sustained in the eye of law and are liable to be set aside. On the other hand, learned
counsel for the respondent submitted that the impugned order is a well-reasoned order
passed in accordance with the provisions of law and the same deserved to be
maintained and the revision petition be dismissed.
7.
We have given our anxious thought to the submissions made by the parties. We
may note that the broad facts of this case not being under dispute, the two Fora below
have returned their concurrent finding in respect of the allegation of negligence on the
part of the petitioner based on the facts placed before them. The order of the State
Commission is in line with the judgements of this Commission in similar cases including
those of Union of India & Ors. Vs. J.S. Kunwar [1 2010 CPJ 90 (NC)] and Union of
India & Ors. Vs. Sanjiv Dilsukhraj Dave & Anr. [2003 CTJ 196 (CP)
(NCDRC) and Mrs. Kanthimathi & Anr. Vs. Govt. of India where the liability of the
railways in such cases has already been examined established in such cases in the
light of the provisions of sections 97 and 100 of the Railways Act. We do not wish to
reiterate here the details of these cases except to refer to the observations of this
Commission in the case of Sanjiv Dilsukhraj Dave & Anr. (supra) and the same are
reproduced thus:“A major responsibility cast on the TTE in addition to examining the
tickets is that of ensuring that no intruders enter the reserved
compartments…………..This is certainly a gross dereliction of duty
which resulted in deficiency in service to the Respondents.
The price difference between the unreserved ticket and a reserved
ticket is quite high and the traveling public who buy a reserved
ticket would expect that they can enjoy the train journey with a
certain minimum amount of security and safety.
………. …… One has to presume that passenger would take
reasonable care of his luggage. But, he cannot be expected to take
measures
against
intruders
getting
easily
into
reserved
compartments and running away with goods, when the railway
administration is charged with the responsibility to prevent such
unauthorized entry. We have entered the 21st century and we
cannot carry on our daily life in the same age old fashion with
bearing brunt of indifferent service provided by public authorities
like Railways. People expect in the 21st century a modicum of
efficient and reliable service, which provides at least safety of
person and property while traveling in reserved compartments”.
8.
Undisputedly, the complainant and her daughter were travelling in a reserved
coach and it was the duty of the TTE to ensure that no intruders entered the reserved
compartment. Since apparently there was a failure on the part of the TTE to prevent
entry of unauthorized person in the coach during the night, the Fora below were right in
holding the petitioner liable for deficiency in service to the respondent in this regard. So
far as the applicability of section 15 of the Railway Claims Tribunal Act, 1987 is
concerned, we cannot agree with the contention of learned counsel because this
section bars jurisdiction of the other courts only “in relation to the matters referred to in
sub-sections (1) and (1A) of section 13”. Section 13 is reproduced thus:“13. Jurisdiction, powers and authority of Claims Tribunal - (1)
The Claims Tribunal shall exercise, on and from the appointed day, all
such
jurisdiction,
powers
and
authority
as
were
exercisable
immediately before that day by any Civil Court or a Claims
Commissioner appointed under the provisions of Railway Act,(a) relating to the responsibility of the railway administrations as
carriers under Chapter VII of the Railways Act in respect of claims for(i) compensation for loss, destruction, damages, deterioration or nondelivery of animals or good entrusted to a railway administration for
carriage by railway ;
(ii) compensation payable under Sec. 82-A of the Railways Act or the
rules made thereunder; and
(b) in respect of the claims for refund of fares or part thereof or for
refund of any freight paid in respect of animals or goods entrusted to a
railway administration to be carried by railway.
[(1-A) The Claims Tribunal shall also exercise, on and from the date of
commencement of the provisions of Sec.124-A of the Railways Act,
1989 (24 of 1989), all such jurisdiction, powers and authority as were
exercisable immediately before that date by any Civil Court in respect
of claims for compensation now payable by the Railway Administration
under Sec. 124-A of the said Act or the Rules made thereunder.]
(2) The provision of the [Railways Act, 1989] and the rules made
thereunder shall, so far as may be, be applicable for inquiring into or
determining any claims by the Claims Tribunal under this Act.”
9.
Plain reading of section 13 indicates that the case of the respondent does not
fall under any of the categories mentioned in the section. In view of this, the jurisdiction
of the Consumer Fora cannot be barred by virtue of the provisions of section 15.
10.
In view of the foregoing discussion, we do not find any infirmity or jurisdictional
error with the concurrent finding of the Fora below which could justify our intervention
under section 21(b) of the Consumer Protection Act, 1986. The scope of powers of this
Commission while exercising its revisional jurisdiction under section 21(b) of the
Consumer Protection Act, 1986 being very limited, we do not find any justification to
interfere with the impugned order. We, therefore, dismiss the revision petition in limine
with no order as to costs.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………Sd/-….……………
(SURESH CHANDRA)
MEMBER
SS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2061 OF 2008
(From the order dated 10.03.2008 in First Appeal No. 1084 / 2007
of Rajasthan State Consumer Disputes Redressal Commission)
Examination Controller Maharshi Dayanand Saraswati University Ajmer
... Petitioner
Versus
1.
Kumari Atia Rasheed d/o Shri Rasheed Ahmed r/o Mehandi Bagh, Patel Circle,
Tonk Rajasthan
2.Principal, Government College Tonk Rajasthan
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. S.K. Bhattacharya, Advocate
For the Respondent-1
Mr. Bhopal Singh Gahlani, A.R.
For Respondent – 2
NEMO
PRONOUNCED ON : 22nd JULY 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 against the impugned order dated 10.03.2008 passed by the
Rajasthan State Consumer Disputes Redressal Commission (for short ‘the State
Commission’) in Appeal No. 1084/2007 “Examination Controller, Maharishi Dayanand
Saraswati University versus Kumari Atia Rashid & Anr.”, vide which, appeal against the
order dated 10.04.2007 passed by District Forum, Tonk in consumer complaint no.
33/2007 was ordered to be dismissed.
2.
Briefly stated, the facts of the case are that the complainant/respondent no. 1 Atia
Rashid had appeared in M.Com. final year examination in 2006, conducted by the
petitioner/OP No. 1 against roll number 70771 and deposited the necessary fee etc.
When the result of the examination was declared by the petitioner, it was found that in
the paper, “Direct and Indirect Taxes”, she had obtained 61 marks, whereas she was
expecting 85% to 90% marks in that paper. The complainant requested for revaluation
of marks by depositing the necessary fee. However, on revaluation, the marks obtained
by her were reduced from “61 to 41”. The petitioner took into account 41 marks in that
paper for the purpose of preparing the final result for the complainant. However, the
case of the complainant is that since the difference between the marks obtained earlier,
i.e., 61, and the marks obtained after revaluation, i.e., 41, was more than 20%, the
University should have taken into account the marks obtained earlier, while preparing
the final result. The complainant has based her assertion upon Rule 6 B of Ordinance
157 ‘A’ of the University, in support of her arguments. The District Forum vide their
order dated 10.04.2007 allowed the complaint and directed the University to pay a sum
of Rs.2,000/- to the complainant for mental torture and litigation expenses. The appeal
against this order was dismissed by the State Commission vide order dated
10.03.2008. It is against this order that the present revision petition has been filed
before us.
3.
At the time of hearing before us, the petitioner moved an application for deletion of
the name of respondent no. 2, the Principal, Government College, Tonk, and the same
was allowed.
4.
Learned counsel for the petitioner while arguing the matter, stated that in the
instant case, the complainant does not fall under the definition of ‘Consumer’, and
hence the proceedings under the Consumer Protection Act are bad in the eyes of law.
He invited our attention to judgement of the Hon’ble Apex Court in ‘Bihar School
Examination Board versus Suresh Prasad Sinha’ [(2009) 8 SCC 483], in which it has
been held that the Board does not provide any service to the examinee and the
examination fee paid by an examinee is also not a consideration for providing any
service. Any dispute relating to fault in holding of examination or non-declaration of
results of an examinee, does not fall within the purview of the Consumer Protection Act.
Learned counsel further invited our attention to Rule 6 B of Ordinance 157 ‘A’ of the
University saying that if the difference of marks obtained earlier and those obtained after
revaluation, is upto 20% of the totalmaximum marks, this rule is applicable and the
marks obtained after revaluation are to be counted for preparing the final result. In the
instant case, the difference between the marks obtained earlier and those obtained after
revaluation is exactly 20% of the total maximum marks and hence the University had
rightly taken into account 41 marks for the purpose of preparing the final result. The
complaint should, therefore, have been dismissed by the courts below.
5.
Learned counsel for the respondent no. 1, however, stated that the Universities are
covered under the provisions of the Consumer Protection Act and hence in this case
also, she had right to file consumer complaint against the OP. Learned counsel further
argued that the change of marks on revaluation from 61 to 41, makes it clear that the
difference was more than 20% and hence based on Rule 6 (B), original marks obtained,
i.e., 61 should have been taking into consideration for preparing the final result. The
orders passed by lower courts were, therefore, as per law and the petition deserves to
be dismissed.
6.
We have examined the material on record and given a thoughtful consideration to
the arguments advanced before us. As mentioned in the revision petition, the rules
regarding revaluation are given under Ordinance 157(A) Rule 6(B), which are
reproduced as follows:“Ordinance 157 (A) Rule 6(B)
(i)
In case the marks are increased or decreased upto 20%
consequent upon revaluation, full marks secured shall be
counted for working out the result. But marks can be decreased
to the extent that the result of the candidate will not be affected
adversely, the division of the candidate will also not be changed
adversely and the candidate will not be declared from pass to
fail / supplementary. In such cases the original marks will
remain unchanged.
(ii)
In cases a candidate applies for revaluation in subject(s) in
which he had been declared pass, the marks worked out after
revaluation will be taking into for working out the result.
(iii)
In cases a candidate who applies for revaluation in subject in
which he was declared supplementary or fail, if after the
revaluation the result remains fail or supplementary to
supplementary, the result will be declared as no change.
(iv) If the difference of the awards of the re-valuator and the original
examiner is more than 20% of the maximum marks, the answer
books shall be referred to third examiner and average of two
nearest awards shall be taking into account and the result will
be worked out and declared accordingly.”
7.
An examination of the above provisions indicate that there is a mention of 20% of
maximum marks in clause (iv), whereas clause (i) mentions only about the increase or
decrease upto 20%. Since the words ‘maximum marks’ have not been incorporated in
clause (i), the implication is that the percentage mentioned relates to marks obtained
only and not the maximum marks.
8.
In the instant case, the marks of the candidate upon revaluation have been
reduced from 61 to 41 indicating that there was change of more than 20% upon
revaluation. Clause (i) talks about the increase or decrease upto 20% only and hence it
is not applicable to the present case because the decrease in marks is more than 20%
marks.
9.
Clause (iii) is also not applicable in the present case because the candidate was
not declared fail or was not given supplementary.
10. Clause (iv) is applicable only if the difference of award of revaluator and original
examiner is more than 20% of the maximum marks. In the present case the difference
is exactly 20% of the maximum marks; hence clause (iv) is also not applicable in the
present case.
11. Clause (ii) shows it clearly that if a candidate applies for revaluation in the subject
in which he had been declared pass, the marks worked out after revaluation will be
taken into account for working out result. It is clear that the clause (ii) is applicable to
the facts of the present case and the marks obtained by the candidate after revaluation,
i.e., 41 marks are to be taken into account for the purpose of preparing the result.
12. In the light of above discussion, the above petition succeeds and the action taken
by the petitioner University is held to be in accordance with the rules and regulations.
The revision petition is, therefore, accepted and the orders passed by the State
Commission and District Forum are set aside and the action taken by the University is
held to be in order. There shall be no order as to costs looking into the facts and
circumstances of the case.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3775 OF 2012
(Against order dated 01.06.2012 in First Appeal No. 378/2010 of the
H.P. State Consumer Disputes Redressal Commission, Shimla)
Suresh Kumar S/o. Sh. Manohar Lal Sharma, R/o. Village & Post Office Rajgarh, Tehsil
Sadar, District Mandi, Himachal Pradesh
…Petitioner
Versus
National Insurance Company Ltd. Divisional Office, Himland Hotel Circular Road,
Shimla, Himachal Pradesh Through Its Deputy Manager
…Respondent
AND
REVISION PETITION NO. 3776 OF 2012
(Against order dated 01.06.2012 in First Appeal No. 378/2010 of the
H.P. State Consumer Disputes Redressal Commission, Shimla)
Suresh Kumar S/o. Sh. Manohar Lal Sharma, R/o. Village & Post Office Rajgarh, Tehsil
Sadar, District Mandi, Himachal Pradesh
…Petitioner
Versus
National Insurance Company Ltd. Divisional Office, Himland Hotel Circular Road,
Shimla, Himachal Pradesh Through Its Deputy Manager
…Respondent
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
in both cases
For the Respondent in both cases
: Mr. Kunwar Singh, Advocate
: Mr. Abhishek Kumar, Advocate
PRONOUNCED ON 23rd JULY, 2013
ORDER
PER DR. S.M. KANTIKAR
1. By this order we are disposing of two Revision Petitions No. RP/3775/2012 and
RP/3776/2012 filed by Mr. Suresh Kumar, Complainant against the impugned
order dated 01.06.2012 passed by State Consumer Disputes Redressal
Commission, Shimla, H.P. (in short, ‘State Commission’) in FA/393/2010 filed by
National Insurance Company, OP, was allowed in FA/378/2010 filed by the
Complainant for increase in the awarded amount, was dismissed. As per order
passed in FA/393/2010, Appeal was allowed, which resulted in dismissal of
Complaint No.299/2009, dated 07.09.2009 before District Consumer Disputes
Redressal Forum, Mandi, Himachal Pradesh (in short, ‘District Forum’).
2.
The Complainant is owner of a Swaraj Mazda Tipper Vehicle with registration
No.HP33 7445 for carriage of goods. It was insured with the respondent for the
sum of Rs.2,00,000/-, for one year during period from 21.04.2008 to 20.04.2009.
Said vehicle met with an accident on 06.02.2009, and was extensively
damaged. Intimation of the accident was given to the Respondent who
assessed the loss through his deputed surveyor. Claim was repudiated by the
Respondent on the ground that the person, who was driving the vehicle at the
time of the accident, did not possess a valid and effective driving license, in as
much as his license was endorsed for driving a ‘light transport vehicle’, whereas,
the vehicle, in question, was a ‘medium goods vehicle’, as its gross weight was
more than 7500 kilograms.
3. Complainant then filed a complaint before District Forum seeking a direction to
the Opposite Party to pay the insurance claim and also to pay damages to the
tune of Rs.2,00,000/-. Opposite Party contested the complaint and took the
same plea, on which it had repudiated the claim.
4. The District Forum allowed the complaint and directed the Opposite Party to
pay 75% of 1,98,000/-, the amount assessed by the surveyor, on total loss
basis, i.e. Rs.1,48,500/-, subject to return of salvage and transfer of the
registration certificate by the Complainant in favour of the Opposite Party.
5. Aggrieved by the order of District Forum two appeals were filed in State
Commission. Complainant filed an appeal No.378/2010 as aggrieved by
quantum of insurance claim was filed and the OP filed an appeal No 393/2010
on the grounds that reason for repudiation of claim had been established hence
seeking of dismissal of complaint.
6. The State Commission heard counsels of both parties and perused the
evidence on record like Registration Certificate of vehicle in question , the
driving license. Also referred the Section 2(21) and Section 10(2) of Motor
Vehicle Act.
According to section 2(21) of the Motor Vehicles Act, “light motor vehicle”
means, a transport vehicle or omni bus, the gross vehicle weight of either of
which does not exceed 7500.00 kilograms.
In the present case, as per registration certificate, the gross weight of the
vehicle, in question was 8000.00 kilograms. That means, it was not a ‘light
motor vehicle’. Person, who was driving it, was authorized to drive only a light
motor vehicle (transport), and therefore, apparently, he did not have the license
to drive the vehicle, in question. The State Commission relied upon judgments
of this commission Oriental Insurance Company Ltd. v. Ashok Verghese, III
(2009) CPJ 73 (NC) and allowed the appeal filed by OP i.e.(FA 393/2010) and
dismissed appeal FA 378/2010 filed by complainant.
7. Against the order of State Commission the complainant filed this revision
petition.
8. We heard the counsels for both parties. The counsel for petitioner argued that
an amendment in the Motor Vehicle Act has been carried out in 1994 and
therefore the Section 10(2) has only defined single category of vehicles like
Transport Vehicle as per clause (E) of sub- section (2) of Section 10 and
therefore, there will not be any differentiation with a person to have a license to
drive transport vehicle can drive any type of transport vehicle that is Light Motor
Vehicle and Medium or Heavy Motor Vehicle. Therefore, the Section 10(2)
which classifies the vehicles for the purpose of grant of license does not clarify
about Heavy or Medium Motor Vehicle.
9. The Ld. Counsel for the Complainant brought our attention to the decision of his
own State Commission in FA No. 108/2010 Mubarak Singh Vs. The Oriental
Insurance Company decided on 11.08.2010; as per order the Complainant was
entitled to least 75% of the amount as assessed by the Surveyor. We relied
upon another judgment of Hon’ble Apex Court in the case titled Amalendu
Sahoo Vs. Oriental Insurance Co. Ltd. II (2010) CPJ-9 (SC) and held that if a
driver holding a driving license to drive a light transport vehicle but driving a
medium goods vehicle, it would be a case of breach of the terms/conditions and
warranties including “limitation as to use” and the insured will be entitled to 75%
of the Amount assessed by the Surveyor. The relevant portion of the aforesaid
portion judgment reads as under:
“4. Now coming to the alternate submission urged on
behalf of the appellant. Suffice it to say in this behalf that this question
need not detain us in the light of the decision of the Hon’ble Supreme
Court in the case of Amalendu Sahoo Vs. Oriental Insurance Co. ltd.
(supra), relied upon by Mr. Thakur in support of his Alternate submission.
As according to us, driver holding the driving license whereby he was
licensed to drive a L.T.V., whereas he was driving a Medium Goods
Vehicle, would be a case of breach of any of the terms/conditions and
warranties including limitation as to use. Therefore, we are of the view that
the appellant is entitled to Rs. 4,20,750/- being 75% of the amount
assessed by the surveyor who is an independent expert appointed by the
appropriate authority for assessing the loss. Once this conclusion is
arrived at, then there us no escape but for allowing this appeal. Order
accordingly.”
10. We put more reliance upon the judgment of Hon’ble Apex Court Amalendu
Sahoo Vs. Oriental Insurance Co. Ltd. II (2010) CPJ-9 (SC) which prevails over
the judgment of this commission in case Oriental Insurance Company Ltd. v.
Ashok Verghese, III (2009) CPJ 73 (NC). Hence, the State Commission is not
justified to give preference to the judgment passed by this Hon’ble Commission
by surpassing the judgment delivered by the Hon’ble Apex Court. It was held
that a breach of driving clause in the basis of guidance/notification issued by
the Insurance Company while dealing with own damage matter has directed to
settle the claim of the insured on non-standard claim basis which means the
75% of the insured amount.
11. On perusal of Surveyor report placed by OP on record clarify that he has
assessed the loss on repair basis at Rs.1,97,268/- on total loss basis at
Rs.1,98,000/- and on the net of salvage basis Rs.1,23,000/-. Since the
Insured Declared Value of the vehicle is Rs.2,00,000/-. In the interest of
justice we are of considered view that claim should be settled on total loss
basis at Rs.1,98,000/- as assessed by the Surveyor; accordingly the
complainant is entitled to 75% of this amount.
12. With reference to aforesaid discussion, we set aside the order passed by
State Commission in F.A.393/2010 and F.A.373/2010 and restore the
order of District forum. We allow these revision petitions. No order as to
costs.
…..…………………………
(J. M. MALIK, J.)
PRESIDING MEMBER
.…..……………
……………
(Dr. S. M. KANTIKAR)
MEMBER
MSS/5-6
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2251 OF 2008
(From the order dated 29.02.2008 in FA No. 1042/07 @ MA 1389/07
of Maharashtra State Consumer Disputes Redressal Commission)
Chandrakant S. Kothari Ruby Apartment, Mahavir Nagar, Dahanukar Wadi, Kandivali
(West)
... Petitioner
Versus
1. Dean, Sir Hurkirondas Norrotumdas Hospital & Research Centre Padamshir
Gordhanbega Chowk, Raja Rammohan Roy Marg, Mumbai
2. Dr. Nitul Parikh Hospital & Research Centre Padamshir Gordhanbega Chowk, Raja
Rammohan Roy Marg, Mumbai
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. A.K. Panigrahi, Advocate
For the Respondent(s)
Mrs. Pankaj Bala Varma, Advocate
PRONOUNCED ON : 23rd JULY 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 29.02.2008
passed by the Maharashtra State Consumer Disputes Redressal Commission (for short
‘the State Commission’) in FA No.1042/2007, “Sir Hurkisondas Narrotumdas Hospital &
Research Centre versus Chandrkant S. Kothari” vide which the order dated 26.06.2007
passed by District Consumer Disputes Redressal Forum, Mumbai in complaint no.
SMF/MUM/98/2003 was set aside. The District Forum vide that order had allowed the
complaint filed by the petitioner / complainant and ordered the respondents / OPs 1 & 2
to pay a sum of Rs.5 lakh severally and jointly to the complainant within one month
along with interest @9% p.a. till final payment with effect from 4.4.2003 and also pay a
sum of Rs.5,000/- to the complainant for mental harassment and cost of the litigation.
2.
Briefly stated, the facts of the case are that Ms. Chandrakant Vora, who was
daughter of present complainant was admitted in OP hospital on 10.04.2001 for the
treatment and surgery of “Infertility Chocolate Cyst of the Ovary”. She was operated
upon by Dr. S.S. Sheth in the hospital on 11.4.2001. It has been stated that the patient
was alright after the surgery, but she developed post-operative complications with effect
from 12.04.2001.
She had complaints of vomiting along with diarrhoea and
breathlessness. She had patches and swelling on the body and darkness on face and
legs. She was unable to pass urine.
The complainants have alleged that on
12.04.2001, no doctor examined the patient from 11:00 AM to 5:30 PM and no medical
treatment was given to her during this period. It has been alleged that because of the
negligence of the hospital and the doctors, the patient died because of septicaemia on
20.04.2001. The complainant, father of the deceased, filed a consumer complaint
before the District Forum which was allowed by the said fora on 26.06.2007 as stated in
the preceding paragraph. The OPs filed an appeal against this order before the State
Commission, which was allowed vide impugned order and the order of the District
Forum was set aside and the complaint was dismissed. It is against this order that the
present revision petition has been filed.
3.
Heard the learned counsel for the parties and examined the record.
4.
Learned counsel for the petitioner narrated the facts of the case and stated that the
hospital has shown grave negligence by not attending to the patient from 11:00 AM to
5:30PM on 12.04.2001. No doctor attended to the patient during this period, because of
which the condition of the patient deteriorated and she developed septicaemia which is
a highly infectious disease, resulting in blood poisoning. Learned counsel has drawn
our attention to the synopsis attached with the revision petition in which it has been
stated that as per medical literature, the probable causes for developing septicaemia
could be as follows:-
i)
ii)
Invasive Procedures or devices
Indwelling urinary catheter
iii)
Diverticutitis, perforated viscus
5.
Learned counsel maintained that it was a case of sheer medical negligence at the
post-operative stage which led to the death of the patient.
6.
Learned counsel for the respondent, however, denied that the patient was not
properly attended to by the hospital on 12.04.2001. She stated that the patient was
properly attended and medications / injections were also given to her. She was
examined by all senior doctors and even taken to the Intensive Care Unit (ICU). She
stated that in cases of surgery, septicaemia may develop in the patients and it was
wrong to state that this condition developed due to any negligence by the doctors or
hospital. She further stated that if the attending doctors performed their duties as per
the normal procedures, no medical negligence can be attributed to them.
7.
A perusal of the record of the case indicates that the impugned order has been
passed by the State Commission after careful examining the relevant papers of the
hospital. It has been observed by the State Commission that these case-papers had
come from the custody of the complainant. The entries in the case-papers show that
the opposite party examined patient at 7:00 AM on 12.04.2001 and oral medicines /
injections were also administered. The patient was seen by Dr. Priya, Gynaecologist on
12.04.2001 and she had no complaints. Another injection was given for fever at
12:00PM on 12.04.2001. The patient was seen by gynaecologist house surgeon at
5:30PM on 12.04.2001 and at that time they noticed breathlessness and side shoulder
pain. The case was also discussed with operating surgeon Dr. S.S. Sheth and the
patient was also referred to other medical specialists. The patient was sent to ICU
where the treatment was monitored by Dr. Rajesh Sharma, MD (Medicine) who is a
critical care specialist. The State Commission has observed that all possible care was
taken by the Hospital to save the life of the deceased.
8.
The State Commission have also referred to Bolam test as stated in the case of
“Bolam versus Friern Hospital Management Committee [(1957) 2 AII.E.R. 118 McNair
J.] The following are the important features in the said case:“(i)
A doctor is not negligent, if he has acted in accordance with
a practice accepted as proper by a responsible body of
medical men skilled that particular art…. Putting it the other
way round, doctor is not negligent, if he is acting in
accordance with such a practice, merely because there is
a body of opinion that takes a contrary view. At the same
time, that does not mean that a medical man can
obstinately and pig-headedly carry on with some old
technique contrary to what is really substantially the whole
of informed medical opinion.
(ii)
When a doctor dealing with a sick man strongly believed
that the only hope of cure was submission to a particular
therapy, he could not be criticised if, believing the danger
involved in the treatment to be minimal, did not stress them
to the patient.
(iii)
In order to recover damages for failure to give warning the
plaintiff must show not only that the failure was negligent
but also that if he had been warned he would not have
consented to the treatment.”
9.
Further the Hon’ble Supreme Court in the case of “Indian Medical Association
versus V.P. Shantha” [III (1995) CPJ 1 (SC) = 1995 (6) SCC 651] has observed as
under:
“The approach of the Courts is to require that professional men
should possess a certain minimum degree of competence and
that they should exercise reasonable care in the discharge of
their duties. In general, a professional man owes to his client a
duty in tort as well as in contract to exercise reasonable care in
giving advice or performing services.”
10. From the entire factual matrix of the case, it becomes clear that there is no doubt
that the patient developed post-operative complications in the Hospital which led to
septicaemia resulting in her death after few days, but the charge of medical negligence
on the part of Doctors or the hospital is not established on any account. The patient has
been handled and treated by the concerned specialists and they did their best to save
her life.
11.
In view of these facts, it is held that the State Commission have committed no
illegality, irregularity or jurisdictional error in passing the impugned order. The said
order is upheld and the present revision petition is dismissed with no order as to costs.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3265 OF 2011
(Against the order dated 22.07.2011 in Appeals No.5000/2010, 534/2011 & 1156/2011
of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)
B.T. Shivaprasad S/o Shri B.S. Thippeswamy Residing at No.407, 14th Cross 2nd Stage,
2nd Phase, West of Chord Road Mahalakshmipuram Bangalore-560086
…
Petitioner
Versus
President/Vice President/Secretary Vyalikaval House Building Cooperative Society Ltd.
No.100, 11th Cross, Malleswaram Bangalore-560003
…
Respondent
BEFORE:
HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mr. B.T. Shivaprasad, Petitioner-in-person
For the Respondent
:
NEMO
Pronounced : 23rd July, 2013
ORDER
PER VINEETA RAI, PRESIDING MEMBER
1.
Petitioner-in-person was present on 18.07.2013 when the orders were reserved in
this matter. Counsel for Respondent, who was present on the last date of hearing i.e.
on 02.05.2013 and was aware that the case was to come up on 18.07.2013, was not
present.
2.
Briefly stated, the facts of the case are that the Petitioner/Complainant had
become a member of the Opposite Party/Society, Respondent herein, with a view to
own a residential site and had paid a sum of Rs.21,050/- on various dates from
21.04.1985 to 23.01.1999. The total value of the site was Rs.54,000/-. There was no
progress in the allotment of the site and also despite contacting the Opposite
Party/Respondent
through
letters
there
was
no
response. Being
aggrieved
Petitioner/Complainant filed a complaint before the District Forum. District Forum
directed
the
Opposite
Party/Respondent
to
pay
Rs.20,900/-
to
the
Petitioner/Complainant with interest at the rate of 12% per annum from the respective
dates of payment till actual payment as also compensation of Rs.2,00,000/- towards
sufferings and deprivation of the site in Bangalore alongwith Rs.5000/- as costs. In the
cross-appeals filed before the State Commission by both the Petitioner/Complainant
and the Opposite Party/Respondent, the State Commission modified the order of the
District Forum by setting aside the direction as to compensation of Rs.2,00,000/- by
observing as follows :“10. This Commission in the earlier cases has taken a decision following
the decision of the Hon’ble Supreme Court and the National Commission
that the complainants are not entitled for both compensation and
interest. The District Forum while allowing the complaint of the
complainant has directed to refund the amount of Rs.20,900/- with 12%
(interest) pa from the date of respective dates of payment till actual
payment. But the complainant in his appeal No.5000/10 sought for
enhancement of both compensation and interest.”
The State Commission further directed that interest be enhanced from 12% to 18% per
annum on the refunded amount of Rs.20,900/- alongwith payment of costs of Rs.5000/-.
3.
The present appeal has been filed by the Petitioner seeking restoration of
compensation of Rs.2,00,000/- awarded by the District Forum.
4.
We have heard the submissions made by the Petitioner-in-person and have also
gone through the evidence on record. We agree with the order of the State
Commission that the Petitioner/Complainant is not entitled to both compensation and
interest. This view has been taken by us in Mohit Bindal V. Haryana Urban
Development Authority (First Appeal No. 173 of 2008) and New India Assurance Co.
Ltd. V. Tauseful Hassan & Anr. (Revision Petition No. 91 of 2009). In the latter case,
this Commission had observed as follows :“The complainant cannot be given double benefit of compensation as well
as interest on the insured amount. Interest be taken as by way of
compensation.”
Therefore, the order of the State Commission is in accordance with our own orders on
the subject.
5.
In view of the above, we see no reason to interfere with the order of the State
Commission,
which
is
upheld. The
revision
petition
is
dismissed. Opposite
Party/Respondent is directed to refund the sum of Rs.20,900/- with interest at the rate of
18% per annum from the respective dates of payment till actual payment with Rs.5000/as costs within a period of four weeks from the date of receipt of copy of this
order. Registry is directed to send a copy of this order to the Opposite
Party/Respondent immediately.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.2273 OF 2012
(From the order dated 03.04.2012 in First Appeal No.A/09/1082 of the
Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
DR. CHANDRAKANT VITTHAL SAWANT, PATEL RESIDING AT: 6, SHRI
MATRUCHAYA, SANT MUKTABAI MARG, VILE PARLE (EAST), MUMBAI-400 057,
MAHARASHTRA STATE
..…. PETITIONER
Versus
1. SHRI L.R. PILANKAR INSPECTOR OF LAND RECORDS, DEPARTMENT OF
LAND RECORD OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST
MALVAN, DISTRICT: SINDHUDURG-416 606.
2. SHRI R.S. MALANKAR SURVEY OFFICER, DEPARTMENT OF LAND
RECORDS OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST MALVAN,
DISTRICT: SINDUDURG 416606
..... RESPONDENTS
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
: In person
PRONOUNCED ON: 23rd JULY, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition is directed against the order dated 03.04.2012 passed by
the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in F.A.
No.A/09/1082 by which the State Commission disposed of the appeal filed by the
petitioner challenging the order dated 07.08.2009 of the Sindhudurg District
Consumer Forum in Complaint no.24/2009 dismissing the complaint of the petitioner
asking him to approach Civil Court or other suitable Appellate Court within the
prescribed time.
2.
The facts of this case leading to filing of the present revision petition are that
the petitioner who is the original complainant approached the respondents on
19.04.2007 requesting for urgent measurement of his land (S.No.234/P.H. No. 1A &
1B) and paid a fee of Rs.2,000/- for the purpose. The first measurement was
arranged on 18.07.2007 but when the petitioner reached the place, he found that the
procedure had been cancelled because of the rains. It was rescheduled for
15.02.2008 and when the procedure was completed, the petitioner was advised to
collect the map in 15 days. It is alleged that thereafter in spite of repeated attempts
the petitioner failed to get the map and hence he sent an application to the
respondent authority on 11.05.2008. On 16.07.2008, the complainant was informed
that re-measurement of the land was done on 15.07.2008. Thereafter, on
20.07.2008, the petitioner/complainant made complaint to the Superintendent of
Land Records and measurement of land was rescheduled for the fourth time on
20.08.2008 and again got cancelled. He was also informed that the land will not be
divided for the time being and the application of the complainant was cancelled. He
also thereafter applied under the RTI Act on 15.09.2008 but was denied the required
data. Feeling harassed on account of repeated cancellation of the measurement
and the delay involved as also the refusal of the respondents to give the map, the
complainant filed a consumer complaint before the District Forum asking for
compensation.
3.
The
complainant
filed
affidavit
in
support
of
his
allegations. The
respondents/OPs contested the complaint and filed their affidavits refuting the
allegations of the complainant. The District Forum after considering the evidence
and hearing the parties, dismissed the complaint holding that even though fees has
been paid by the complainant for the job requested to be done by the respondents,
the land measurement to be done by the respondents as per the request of the
complainant
is
a
sovereign
function
and
hence,
the
complaint
is
not
maintainable. The District Forum, therefore, dismissed the complaint in terms of the
aforesaid order which was challenged through an appeal before the State
Commission which disposed it of as stated above.
4.
We have heard the petitioner who has argued his case himself and perused
the record.
5.
We may note that the appeal of the complainant against the dismissal of the
complaint on the ground of maintainability under the Consumer Protection Act has
been disposed of by the State Commission by a brief order, which may be
reproduced as under:“Adv. Rajendra Pai is present on behalf of the Appellant. Adv.
Dipak Atmaram Andhari is present on behalf of the
Respondents. Respondent No.1 namely – Mr. L. R. Pilankar,
in person is present. In view of the fact that the Respondent
no.1 has ultimately measured the land and the report has been
submitted a copy of which is already given to the Appellant
pursuant to the direction given by this Commission we now
think that purpose of filing of this appeal is over and we record
statement of the Respondent No.1 that henceforth he will be
helping all the consumers in like fashion we dispose of the
appeal. No order as to costs. Inform the parties accordingly.”
6.
Since the State Commission has simply disposed of the appeal without
touching upon the question of maintainability of the complaint against the
respondents who have claimed to be government servants discharging sovereign
function, two issues have arisen for our consideration in the present revision petition,
namely, whether the District Forum was right in holding the function of the
respondent authority in carrying out measurement on paying of fees and supplying a
map after the measurement as a sovereign function and hence, rejecting the
complaint as not maintainable under the Consumer Protection Act and if not,
whether the complainant is entitled for any compensation as prayed for by him in the
given facts and circumstances of this case.
7.
So far as the issue regarding the claim of the respondents discharging
sovereign function as government servants is concerned, we do not agree with the
view taken by the District Forum while rejecting the complaint. No doubt both the
respondents are government servants and were carrying out their functions in their
official capacity. However, carrying out of measurement of land for payment of
prescribed fees as per the application made by the petitioner before the respondents
cannot be regarded as a sovereign function. This is part of their administrative
functions which they were required to perform for a prescribed fee. This function,
therefore, cannot be called a ‘sovereign function’. This view is in line with the
judgment of this Commission dated 08.07.2002 in the case ofShri Prabhakar
Vyankoba Aadone v. Superintendent Civil Court [R.P. No.2135 of 2000/19862004 Consumer 7211 (NS)] on which reliance has been placed by the petitioner. It
was held in this case that while judicial officers may be protected from being arrayed
in legal proceedings for their judicial function, they do not enjoy immunity for the
administrative functions performed by them or by their staff and as such the grant of
certified copies of orders of courts is not a sovereign function but is an administrative
function. It was also held that since this is not a judicial function, it does not partake
the character of a ‘sovereign function’. It was also held by this Commission in that
case that an applicant for certified copy of a judicial order, who deposits a fee for
obtaining such copy is a “Consumer” within the meaning of the Consumer Protection
Act, 1986 and the processing of such application and the preparation and delivery of
the copy in consideration of the copying charges/fee by the concerned staff attached
to the court would be a service within the meaning of the Act. We find that the ratio
of this case is squarely applicable to the present case where the petitioner had
approached the respondent authority for carrying the measurement of the land in
question and for which purpose the applicant had paid the requisite fees to the
respondents. In this circumstances, the petitioner is a consumer within the meaning
of the Consumer Protection Act qua the functions discharged by the respondents
since these functions of the respondents while dealing with the application of the
petitioner for measurement of the land would constitute service.
8.
In view of the above position, we have to examine whether the State
Commission was right in simply disposing of the appeal after noting that the
measurement had been carried out and report thereof had already been submitted
or whether the petitioner is entitled for any compensation for the alleged harassment
and delays suffered by him. In this context, we have perused the affidavits of both
the respondents no.1 and 2. The respondent no.2 being Junior Officer Incharge of
Survey under the control of respondent no.1, who is Inspector of Land Records, the
submissions made by the respondent no.1 in his affidavit before the District Forum,
are more relevant. He has stated on oath the circumstances in which the delay took
place and the measurement dates had to be changed for reasons beyond their
control. The following points brought out by respondent no.1 in his affidavit before
the District Forum explain the situation appropriately and hence the same are
reproduced thus:“1. In the matter of land measurement, until the final decision is
reached, the map cannot be given to the applicant. In the current
problem due to objection raised, the decision was delayed. For this
reason Shri Sawant could not be given the map.
2. In measuring pothissa, all co-farmers have to show their share of
land under occupation and the old boundaries. During the
measurement done on 15/02/2008, only Shri Sawant was present.
His co-farmers were absent to show their share of land. Unless
their share was confirmed, the decision could not be made. This
delayed the final outcome.
3. Shri V.V.Rane is heir to the property of late V.S. Rane. On
objection raised by Shri V.V.Rane on 09/06/2008 the higher office
ordered enquiry on 20/08/2008. During inquiry unlike shown on
15/02/2008, Shri Sawant seems to have his share of land in two
separate pieces. Therefore measurements done on 15/02/2008
were cancelled. Hence complaint by Shri Sawant is false,
mischievous and misleading.
4. On 20/08/2008, Shri Sawant & co-farmer Shri Rane settled the
matter and requested to keep land temporarily in “ status qua’’ and
signed the agreement in presence of witnesses. Therefore
complaint by Shri Sawant is false, mischievous and misleading.
5. The complainant has intentionally given false information and
addresses of his co-farmers. Shri V.S. Rane was dead and his heir
Shri V.V. Rane raised objection. Thus map could not be given to
complainant.
6. The objection to land measurement was sent by Shri Rane to
Supdt Land Records at Sindhudurg. Hence Shri Sawant could not
be given its copy under R.T.I. (2005). Since Shri Sawant is insisting
that there was no objection, the copy of Rane’s objection was
obtained from office of Supdt Land Records on 29/11/2008 and Shri
Sawant was asked to collect it from me on 05/03/2009.
7. Shri Rane’s objection was lying in the office of Supdt Land
Records, Sindhudrg. My report of inquiry of that no objection was
sent to the office of Superintendent on 28/08/2008.
8. The reply given to Shri Rane and Shri Sawant and list of
witnesses is kept on record.”
9.
The petitioner has not denied any of the aforesaid averments made by
respondent no.1 in his affidavit. It is also not under dispute that the measurement in
question has already been carried out and report to that effect has been given to the
petitioner in pursuance of the directions given by the State Commission. In the
circumstances, we cannot hold the respondents liable for deficiency in service which
would justify any compensation as such. No doubt the dates of the measurement
were postponed and delay took place but apparently there were reasons for the
same which could not be helped. The petitioner needs to keep in mind that although
he is a consumer and the respondents have rendered a service to him while
processing and dealing with his application for measurement of land, his being
consumer does not necessarily entitle him to get compensation unless the delays
involved could be regarded as deficiency in service. In this view of the matter, while
we set aside the order of the District Forum and hold the petitioner as a ‘Consumer’
within the meaning of the Consumer Protection Act, 1986, there is no case for
compensation as prayed for by him in his complaint. The revision petition is,
accordingly, disposed of with these observations with no order as to costs.
10.
While on the subject, we wish to make it clear that since the respondents like
any other government servants discharged their functions in their official capacity, no
liability for deficiency in service could have been fastened on them by name and as
such, the complaint would not be maintainable against them individually but only by
their designation. However, this aspect loses its relevance at this belated stage
when this complaint has already completed its journey upto the present revision
petition, which is now disposed of as above.
……………sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………sd/-….……………
SURESH CHANDRA)
MEMBER
bs
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 2910 OF 2008
(From the order dated 28.02.2007 in Appeal No.252 of 2006 of the Jharkhand State
Consumer Disputes Redressal Commission, Ranchi)
Sri Tapas Kumar Roy S/o Late Shankar Kr. Roy, R/o Quarter No. E-13, C.C.W.O.
Colony P.O. & P.S. Saraidhela, Dhanbad, Jharkhand
… Petitioner/Complainant
Versus
1.The General Manager, BSNL, Dhanbad, Jharkhand
2.Accounts Officer, Telecom Department B.S.N.L. Dhanbad Jharkhand
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
NEMO
For the Respondents
:
Mr. Pavan Kumar, Advocate
Mr. Prithivi Pal, Advocate
PRONOUNCED ON
23rd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant party against the
order
dated
28.02.2007
passed
by
the
Jharkhand
State
Consumer
DisputesRedressal Commission, Ranchi (in short, ‘the State Commission’) in Appeal
No. 252/2006 – General Manager, BSNL Vs. Sri Tapas Kumar Roy by which, while
allowing appeal, order of District Forum allowing complaint was set aside.
2.
Brief facts of the case are that petitioner/complainant filed complaint before
District Forum in respect of telephone bills dated 11.4.2003, 11.6.2003, 11.8.2003,
11.10.2003, 11.12.2003 and 11.2.2004 in respect of landline telephone no. 03262201457 and alleged that bills were too excessive and inflated and telephone
connection
was
disconnected
in
March,
2004
without
rectifying
those
bills. OP/respondent contested the matter and submitted that there was no technical
fault in the metering equipment during the relevant period; hence, complaint be
dismissed. District Forum after hearing the parties, allowed complaint and directed OP
to issue revised telephone bills on the basis of average 5 previous bills. Appeal filed by
the OP was allowed by learned State Commission vide impugned order against which,
this revision petition has been filed.
3.
None appeared for the petitioner even in second round. Heard learned Counsel
for the respondents and perused record.
4.
Petitioner filed complaint regarding excessive and inflated 6 telephone bills
pertaining to his landline telephone. Learned Counsel for the respondent submitted that
Consumer Forum has no jurisdiction in the matter in the light of judgment
of Hon’ble Apex Court in – 2009 (12) SCALE – General Manager, Telecom Vs. M.
Krishnan & Anr.; hence, revision petition be dismissed.
5.
It is admitted case of the complainant that he filed complaint on the basis of
inflated telephone bills. In the aforesaid judgment, Hon’ble Apex Court held that when
there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding
disputes in respect of telephone bills, then the remedy under the Consumer Protection
Act is by implication barred. In the light of aforesaid pronouncement of Hon’ble Apex
Court, District Forum had no jurisdiction to entertain complaint and learned State
Commission has not committed any error in allowing appeal and dismissing complaint,
though, on other grounds.
6.
Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESAL COMMISSION NEW DELHI
REVISION PETITION NO. 2509 OF 2013
(From the order dated 25.04.2013 in S.C. Case No.: FA/448/2012 of the West Bengal
State Consumer Disputes Redressal Commission, Kolkata)
Smt. Alaka Roy W/o Tapan Kumar Roy E-2, Tagore Park, Laskarhat P.O. – Tiljala P.S.
– Kasba Kolkata – 700039
…Petitioner/Complainant
Versus
1.Om Tara Maa Construction Block E-6, Tagore Park Main Road, P.O. – Tiljala, P.S. –
Kasba, Kolkata – 700 039
2.Mr. Santanu Kanjilal S/o Gouranga Kanjilal, one of the Partner Representing M/s. Om
Tara Maa Construction Residing at – 149F, Picnic Garden Road, P.O. & P.S. – Tiljala,
Kolkata – 700 039
3.Mr. Sanjib Das S/o late Sankar Ch. Das, one of the Partner Representing M/s. Om
Tara Maa Construction Residing at E-6, Tagore Park Main Road, P.O. – Tiljala, P.S. –
Kasba Kolkata – 700 039
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. G. Ghoshal, Auth. Representative
PRONOUNCED ON 23rd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order dated 25.4.2013 passed by the West Bengal State Consumer Disputes Redressal
Commission, Kolkata (in short, ‘the State Commission’) in S.C. Case No. FA/448/2012 –
Om Tara Maa Construction & Ors. Vs. Mrs. Alaka Roy by which, while allowing appeal
partly, order of District Forum allowing complaint was partly set aside.
2.
Brief facts of the case are that complainant/petitioner filed complaint before
learned District Forum and alleged that OP/respondent delayed delivery of possession
of the flat by 4 months and failed to construct the flat with standard and good quality of
materials. It was further alleged that OP is guilty of not paying electric charges
amount Rs.1,120/- and have also failed to handover clearance certificate, fit certificate,
soil test report and other documents. OP contested complaint and submitted that delay
in delivery of possession was not intentional, but beyond control of OP and construction
is as per standard and prayed for dismissal of complaint. Learned District Forum after
hearing parties, allowed complaint and directed OP to pay Rs.5,000/- for delayed
possession, Rs.9,000/- for rent for 3 months along with Rs.1,00,000/- as compensation
and Rs.3,50,000/- towards cost and expenses for proposed construction and Rs.2,000/as cost, totalling Rs.4,66,000/-. OP filed appeal before learned State Commission and
learned State Commission vide impugned order partly allowed appeal and set aside
order of awarding compensation of Rs.3,50,000/- towards cost and expenses for
proposed construction against which, this revision petition has been filed.
3.
Heard Authorized Representative for the petitioner at admission stage and
perused record.
4.
Authorized Representative of the petitioner submitted that learned District Forum
rightly allowed Rs.3,50,000/- as cost and expenses for plastic paints and learned State
Commission vide impugned order has committed error in modifying order of District
Forum; hence, revision petition be admitted.
5.
Perusal of record reveals that complainant has claimed Rs.3,50,000/- as
compensation for proposed cost and expenses for the plastic paint of the floor and for
the grill and doors.
6.
Perusal of agreement for joint venture reveals that plastic paint was to be
provided inside the wall. This agreement nowhere depicts that plastic paint was to be
provided on the floor, grill and doors. Learned State Commission rightly observed as
under:
“But so far as it relates to awarding of compensation in favour of the
complainant in respect of the proposed construction, we are of the
considered opinion that since there is no adequate and sufficient
material on record in this regard in respect of the complainant’s
case and regard being had to the fact that the complainant has not
been able to produce cogent and reliable evidence in support of her
case of failure on the part of the OPs to effect proposed
construction, we think it was not just and proper on the part of the
Ld. District Forum to award a sum of Rs.3,50,000/- in favour of the
complainant”.
7.
We do not find any illegality, irregularity or jurisdictional error in the impugned
order and revision petition is liable to be dismissed at admission stage.
8.
Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2788 OF 2012
From the order dated 17.4.2012 in M.A. No. 170/2011 in Appeal No. 91/2011 of the H.P.
State Consumer Disputes Redressal Commission, Shimla)
The Managing Director, H.P. State Cooperative Housing Federation, Shimla – 171009
… Petitioner/Complainant
`
Versus
1.Shri Gian Chand S/o Sh. Sohnu Ram, Ward No. 1, Krishna Nagar,’ Hamirpur
2.The Hamirpur Cooperative House Building Society Ltd., Hamirpur,
through its President
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. H.S. Upadhyay, Advocate
For the Respondent No. 1
:
Mr. Santosh Kumar, Advocate
Mr. Sunil Kumar, Advocate
For the Respondent No. 2
PRONOUNCED ON
:
Ex-parte
23rd July, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the order
dated 17.04.2012 passed by the H.P. State Consumer DisputesRedressal Commission,
Shimla (in short, ‘the State Commission’) in M.A. No. 170/2011 in Appeal No.
91/2011 –
The
Managing
Director,
H.P.
State
Co-Op.
Housing
Federation
Vs. Gian Chand & Anr. by which, appeal was dismissed as barred by limitation.
2.
Brief facts of the case are that learned District Forum allowed complaint of the
complainant/Respondent No. 1 vide order dated 2.8.2001 and directed OP-1 Society to
handover possession of the house to the complainant after receiving balance
amount. In Execution Proceeding 15/2007 on account of compromise between the
parties, Execution Petition was disposed of as partly satisfied against which, appeal
filed by the petitioner was dismissed by learned State Commission vide impugned order
against which this revision petition has been filed.
3.
None appeared for Respondent No. 2. Heard the petitioner and Respondent No.
1 and perused record.
4.
Learned Counsel for the petitioner submitted that learned State Commission has
committed error in dismissing appeal being barred by limitation, as delay occurred due
to fault of Advocate; hence, impugned order be set aside and revision petition be
allowed. On the other hand, learned Counsel for the Respondent No. 1 submitted that
order passed by leaned State Commission is in accordance with law; hence, revision
petition be dismissed.
5.
In application for condonation of delay filed before the State Commission,
petitioner submitted that appeal could not be filed in time, as their Counsel did not
inform about the order. Further, it was submitted that petitioner came to know about the
order only, when it received copy of the order dated 3.8.2010 on 3.9.2010. Then,
petitioner issued letter to the Counsel on 19.10.2010 and called his explanation and
Counsel assured that he will get the order modified, but as he had not taken any steps;
hence, delay of 7 months was caused in filing appeal.
6.
There appears to be no explanation at all for condonation of delay. When the
petitioner came to know about the District Forum’s order on 3.9.2010, petitioner should
have filed appeal immediately before the State Commission, but appeal has been filed
after a delay of 7 months that too without any affidavit of the Counsel, who orally
assured to get the order modified. This application has also not been supported by
letter calling explanation of the Advocate. Law does not permit review of order by
District forum or State Commission and in such circumstances instead of waiting for the
Counsel to get the order modified from the District Forum; petitioner should have filed
appeal immediately. As appeal has been filed after 7 months, learned State
Commission has not committed any error in dismissing application for condonation of
delay in turn dismissing appeal being barred by limitation.
7.
As there is inordinate delay of 7 months, this delay cannot be condoned in the
light of the following judgment passed by the Hon’ble Apex Court.
8.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been
observed:
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
9.
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.”
10.
Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries
Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC
459 as under;
“We have considered the respective
submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they
do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the remedy
within the stipulated time.”
11.
Hon’ble Apex
Court
in
(2012)
3
SCC
563
– Post
Master
General
& Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal
even by Government department and further observed that condonation of delay is an
exception and should not be used as an anticipated benefit for the Government
departments.
12.
Hon’ble Apex
Court
in
2012
(2)
CPC
3
(SC)
–
Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as
under:
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the
Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act,
1986, for filing appeals and revisions in Consumer matters and
the object of expeditious adjudication of the Consumer
disputes will get defeated, if this Court was to entertain highly
belated
petitions
filed
against
the
orders
of
the
Consumer Foras”.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of
inordinate delay of 7 months. Revision petition is liable to be dismissed on the ground of
delay alone.
13.
In the light of aforesaid judgments, revision petition is liable to be dismissed, as
we do not find any infirmity, illegality, irregularity or jurisdictional error in the impugned
order.
14.
Consequently, the revision petition filed by the petitioner is dismissed at
admission stage with no order as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1660 OF 2013
(Against the order dated15.01.2013 in FA No.437 /2012 of the State Commission, UT
Chandigarh)
Ramesh Chandra Singh, CPL RC Singh, C.P.R.U., Air Force Station Palam,
New Delhi 110010
…..Petitioner
Versus
1. State Bank of India through its Chief Manager, Punjab University Branch, Sector 14,
Chandigarh
2. Regional Zonal Office of the State Bank of India through its General Manager Sector
17B, Chandigarh
.....Respondents
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
:
Mr. Ramesh Chandra Singh, In Persom
PRONOUNCED ON: 24-7-2013
ORDER
PER MR. VINAY KUMAR, MEMBER
Revision Petition No.1660 of 2013 has been filed against concurrent orders of
the District Consumer Disputes Redressal Forum, Chandigarh and the State Consumer
Disputes Redressal Commission UT of Chandigarh. Both have dismissed the complaint
of the petitioner Mr. Ramesh Chandra Singh.
2.
The matter pertains to an EMD loan of Rs.2,91,405/- taken by the Complainant
from OP/State Bank of India, Chandigarh branch. Allegedly, OP/bank failed to inform
the Complainant about progress of EMD loan and made changes in the chargeable rate
of interest, from time to time. It also wrote to the Chandigarh Housing Board for
cancellation of the allotment to the Complainant as well as to CIBIL to add the loan
given to the Complainant in the list of non-performing assets. Even intimation through
e-mail or mobile phone was not sent before taking such action. The Complainant being
an officer of Indian Air Force, had to move from location to location as part of his duty
and was therefore unable to keep track of his loan account on regular basis.
3.
De hors, the case of OP/State Bank of India was that for the purposes of this EMD
loan the Complainant had opened a saving bank account on 26.4.2008. The EMD loan
was sanctioned as he had been allotted a flat under the relevant scheme of the
Chandigarh Housing Board. Subsequently, a number of letters were sent to the
Complainant at his local address furnished by him in the application form. But, he never
informed the bank about his transfer and shifting from Chandigarh. Nor was any
address given to the bank for further correspondence. In this background, the OP was
left with no alternative but to write a letter to the office of the Complainant. The
Complainant took no action to repay the EMD loan. Nor did he respond to the letters
from the bank. In this background, the bank was forced to write to the Chandigarh
Housing Board for cancellation of the allotment. While dismissing the complaint, the
District Forum has categorically observed that:“9. However, otherwise also the facts speak for themselves, beyond any
doubt about the dilly-dallying, irresponsible & careless attitude of the
complainant, who himself failed to perform his agreed/legal duty to repay the
said loan availed from the OP Ban, which is a public Financial Institution.
10. The Complainant had utilized the public money through OP Bank in the
shape of loan, in order to get a Flat under CHB Scheme, but did not return
it. By such illegal acts, the complainant has abused his office of serving in
Essential Services, by not paying the instalments of loan on the pretext that
he was transferred & shifted from the place where he was residing initially.
11. Though the onus to prove this fact was squarely lies upon the
complainant, but he has not been able to prove it, by leading/adducing any
certain documentary & convincing evidence that he ever informed the OP
Bank about the change of his address or about his transferred locations, from
time to time.”
4.
Similarly, the State Commission has observed that from a perusal of the loan
application form it was seen that the Complainant gave ‘No.543/C, Sector 46A,
Chandigarh -160047’ as his present residential address as well as his permanent
address. All correspondence between July, 2009 and March, 2011 was made on this
address. However, the bank received no reply from him. Thereafter, the bank wrote
letters to his official address in July and December, 2011, again with no response from
the Complainant. In this background, the State Commission has observed that:
“Undisputedly, the appellant/complainant defaulted in repaying the
loan amount within the stipulated period, and thus, violated Clause No.3 of
the Arrangement Letter (Annexure C-1) at Page 23 of District Forum’s
file). In this view of the matter, in default of re-payment of loan amount, the
Opposite Parties rightly declared the Loan Account of the
appellant/complainant as Non-performing Asset (NPA). In our considered
opinion, the District Forum, after taking all these facts into consideration,
rightly dismissed the complaint of the appellant/complainant.”
5.
We have heard the petitioner/Complainant Mr. Ramesh Chandra Singh, in person
and perused the record submitted by him. He was also allowed to file his written
argument. We find that the entire thrust of the revision petition and his written
arguments is to show that the respondent/State Bank of India did not make enough
effort to contact the petitioner/Complainant before declaring EMD loan as a nonperforming asset. It is also alleged that the respondent/bank should have informed the
Complainant over mobile phone or through SMS or E-mail. But, nowhere in the revision
petition or in the written arguments any attempt is made to explain what steps were
taken by the petitioner himself either to repay the loan or even to acknowledge the
letters written by the OP/Bank.
6.
Documents placed on record by the revision petitioner himself show that the loan
was sanctioned on 26.4.2008. The details terms of repayment of this loan are also
contained therein. In the event of non-allotment, the entire refund of the earnest money
was to be adjusted towards the EMD loan and in the event of successful allotment, the
entire outstanding amounts including interest was to be repaid within 15 days from the
allotment. In his case, it meant an obligation to repay within 15 days of allotment. In this
background, the contention of the petitioner in his written arguments that he visited the
office of the respondent in September, 2011 to get details and to repay the loan carries
no conviction whatsoever. It also does not explain his long silence since sanction of the
loan in 2008.
7.
In view of the above, we find no substance in this revision petition. It fails to carry
any conviction against categorical and concurrent findings of facts reached by
the fora below. The revision petition is consequently dismissed for want of merit. No
orders as to costs.
…..…………….Sd/-…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………Sd/-….…….……
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2814 of 2011
(From the order dated 20.06.2011 of the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai in Appeal no. 771 of 2006)
M/s SAS Motors Ltd., B 14-20 Industrial Estate Baramati District Pune
Petitioner
Versus
Anant Haridas Choudhari Atahrdi Tal – Kalamb Osmanabad District
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
MEMBER
For the Petitioner
Mr Manan Batra, Advocate
For the Respondent
Mr Amol V Deshmukh, Advocate with
Mr Dilip A Taur, Advocate
Pronounced on 24th July 2013
ORDER
REKHA GUPTA
Revision Petition no. 2814 of 2011 has been filed against the order dated
26.02.2011
passed
by
the
Maharashtra
State
Consumer
Disputes Redressal Commission, Mumbai (‘the State Commission’) in appeal no. 771 of
2006.
Complaint of the respondent/ complainant in brief is as follows:
Respondent
no.
1
is
a
progressive
farmer
residing
at Atahrdi Tal Kalamb District Osmanabad. Petitioner/ OP no. 2 manufactures and
sells Angad tractors and is a sole distributor for Maharashtra and respondent no. 2/ OP
1 is the authorised dealer for selling this tractor. He paid Rs.1,09,500/- as a tractor cost
and Rs.24,100/- as a cost of plough thus the total amount was Rs.1,33,600/- and he
received a discount of Rs.2,600/-. Thus respondent no. 2 handed over this tractor by
taking Rs.1,31,000/-. Respondent no. 2 had orally committed to one year free service
and given free service card along with service manual. Respondent no. 1 observed so
many defects after working in actual field and hence he took the tractor to the
showroom of respondent no. 2 and on 16.02.2005. Respondent no. 1 requested
respondent no. 2 to resolve all the defects in this tractor and to repair it. The residence
of respondent no. 1 is at Athardi and distance from residence to showroom is 30 km
thus the total to and fro is 60 km and respondent no. 1 has to travel 60 km every time
for getting his tractor repaired and this leads to unnecessary expenses. After the
purchase of tractor from respondent no. 2, from 23.02.2005 to 20.06.2005 for a total of
38 days, the tractor was lying idle at the show room of respondent no. 2
Learned counsel for the petitioner, who was opposite party no. 2 before the
District
Consumer
Disputes Redressal Forum, Osmanabad (‘the
District
Forum’)
confirmed that they had filed no reply before the District Forum and had chosen to go
with the reply of OP 1. However, a reading of the District Forum order does not confirm
this fact. The District Forum’s order dated 04.04.2006 only refers to the reply of
respondent no. 1. The District Forum dismissed the complaint.
Aggrieved by the order of the District Forum the respondent no. 1/ complainant
filed an appeal before the State Commission. After perusing the records and hearing the
counsels for the parties the State Commission considered the following points:
(i)
“Vehicle admittedly was taken to the respondent for repeated repairs
immediately after purchase.
(ii)
Instead of free servicing complainant was required to get the repaired
vehicle for many defects.
(iii)
It is admission of respondent that they tried to repair tractor by going to
village of complainant. This itself shows that tractor was not of quality as
advertised.
(iv)
Respondent did not produce any evidence of expert to show that vehicle is at
par. Neither made application before Forum to get inspected the tractor from
the expert.
(v)
Immediately after purchase of vehicle, complainant was compelled to take
tractor to respondent many times for repairs. This fact shifts the burden on
respondent to prove that though repairs were carried out they were not
manufacturing defects.
(vi)
Appellant many times approached for repairs then issued legal notice which
was also not replied by respondent. Appellant was constrained to leave the
tractor with respondent as it was not in condition to use the same. Therefore,
we are of the view that brand new tractor immediately after purchase was
found to have manufacturing defects. This is unfair trade practice to supply
the vehicle with defects. District Forum without appreciating the facts and
circumstances, proceeded on the ground that tractor was used by unskilled
person. IN the absence of any proof about it Forum decided complaint on
assumptions and presumptions. We are therefore, quashing the said order.
We are directing respondent to refund the price of tractor with 9% interest
from the date of purchase”.
The State Commission then passed the following order:
“Hence, the appeal is allowed. Judgment and order passed by the District Forum
is hereby quashed and set aside. Respondent is directed to pay Rs.1,31,000/with 9% interest from 09.02.2005 i.e., from the date of purchase. Respondent
has to pay Rs.15,000/- towards compensation and cost”.
Hence, the present revision petition.
The main grounds of the revision petition are as follows:
The State Consumer Disputes Redressal Commission had on its own without
any satisfactory material on record, concluded that the said tractor was defective.
It is pertinent to note here that the burden of proving any manufacturing defect in
the said tractor was upon the respondent no. 1. It is reiterated that neither the
complaint C R No. 217/ 2005 before the District Forum nor the appeal no. 771 of
2006 had placed on record any documentary evidence to show that the said
tractor was suffering from any manufacturing defects as alleged or at all.
The State Commission erred in taking note of the normal wear and tear of the
said tractor and misinterpreted the same as the defects in the said tractor.
We have heard the counsels and gone through the record.
It is an undisputed fact that while the tractor was purchased on 05.02.2005 and it
was taken for repairs within 12 days i.e., 17.02.2005. As mentioned in the complaint
from 23.02.2005 to 20.06.2005 the tractor remained in the show room of the petitioner
for 38 days for repairs. The defects listed in the complaint are corroborated by the job
cards placed on file. Respondent no. 2/OP no.1 was situated at a distance of 30 km
from the residence of the petitioner and hence, the journey to show room and back was
around 60 km so the respondent no. 1 would hardly make frivolous and unwarranted
trips unless required. A perusal of the job cards indicated that on 17.02.2005 itself the
customer had a complaint regarding broken lower link pin, oil leakage, clutch setting. All
these were attended to. Thereafter there were complaints relating to lower link pin,
clutch and the fact that the tractor was not moving even in gear also. After 20.04.2005,
the water pump had to be changed, dynamo belt had also broken. On 05.05.2005, the
alternator failed and had to be changed. On 10.05.2005, there was hydraulic arm oil
leakage and the battery failed. The tyre rim of the front left side tyre had also to be
changed.
Counsel for the petitioner stated that no expert opinion had been taken with
regard to the manufacturing defects. When there were so many defects which started
occurring within 12 days of purchase of the tractor and as the job cards confirmed that
the same defects had to be rectified to by respondent no. 2, the facts speak for
themselves.
In the circumstances, we find that no expert advice is required to be obtained by
Respondent no.1. If the petitioner felt it was imperative he could have pleaded for the
same before the State Commission.
In view of the foregoing reasons, we find that there is no jurisdictional error,
illegality or infirmity in the order passed by the State Commission warranting our
interference. The revision petition is accordingly dismissed with cost of Rs.10,000/(Rupees ten thousand only).
Revision petitioner is directed to pay Rs.5,000/- to the respondent no. 1 directly
by way of demand draft and the balance amount of Rs.5,000/- be deposited by way of
demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within
four weeks from today. In case the revision petitioner fails to deposit the said amount
within the prescribed period, then it shall be liable to pay interest @ 9% per annum till
realisation.
List on 30th August 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1184 OF 2011
(From order dated 01.02.2011 in First Appeal No. 4571 of 2010
of the State Consumer Disputes Redressal Commission, Karnataka)
New Holland Fiat (India) Pvt. Ltd. Formerly known as Fiat India Pvt. Ltd. 303, Central
Plaza, 166, C. S. T. Road, Kalina, Mumbai-400098, Maharashtra
...…Petitioner
Versus
1. Govindkar Vinod Krishnamurthy, S/o Late G. M. Krishnamurthy, No. 46, 3rd Cross,
Aga Abbash Alli, Road, Halsur, Bangalore
2. Genesh G. K. S/o Late G. K. Krishnamurthy, No. 46, 3rd Cross, Aga Abbash Alli,
Road, Halsur, Bangalore
3. Manx Auto Ltd. No. 16/A, KKMP Building,Miller Tank Bund Road, Vasnathnagar,
Bangalore, Rep. By its MD Prabhakar.
4. Kotak Mahindra Prime Ltd. Formerly Kotak Mahindra Primus Ltd. No. 20,
3rd Floor, Uniworth Plaza Sankey Road, Palace Guttahalli, Bangalore 20, Rep. By its
Authorized Signatory Mallikarjuna Jaliahal
.... Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
: Mr. Puneet Agrawal, Advocate
For the Respondents : Mr. Shekhar G. Devasa Advocate for R-1 and
R-2
Respondent no. 3 is already ex parte.
Mr. Abhishek Dwivedi, Advocate for R-4
Pronounced on: 25th July, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/O.P. No.1 being aggrieved by impugned order dated 1.2.20121,
passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore(for
short, ‘State Commission’) has filed the present revision petition.
2.
Brief facts are that Complainant no. 2/respondent no.2 has paid Rs.1,50,000/- to
respondent no.3/opposite party no. 2 on 11-1-1999 for purchase of FIAT UNO car and
requested to get registered Fiat car in the name of his mother Smt. Tara Bai. The
request was accepted by respondent no.3 who is the authorized dealer of petitioner,
while respondent no. 4/opposite party No.3 is the financer. However, the car was not
delivered to Smt. Tarabai. Respondent No.4 has financed Rs.2,86,000/- and the amount
was paid to respondent no. 3. In spite of payment of full car amount i.e., Rs.4,38,000/which includes cash paid by respondent no.1 and loan released by the respondent no.
4, respondent no. 3 has not delivered the vehicle. Smt. Tara Bai died on 13-11-2007
and respondents no.1 and 2 are her legal heirs. It is alleged that petitioner and other
respondents have allegedly misappropriated the payment made by respondents no.1
and 2, in collusion with respondent no.4 without giving delivery of vehicle. Therefore,
there is deficiency of service.Respondents no.1 and 2 have came to know that
respondent no.4 has initiated recovery of loan proceedings against them. Thus,
petitioner and other respondents have played fraud. Hence, respondents no.1 and 2
have claimed that petitioner and other respondents be directed pay Rs.4,38,902/- with
interest.
3.
After admitting the complaint, notice were sent to the opposite parties by the
District Forum. Petitioner was well as respondent no. 3 did not appear before District
Forum despite service. Hence, they were proceeded ex parte.
4.
Respondent no.4, in its written version has admitted that respondents no. 1,2 and
Smt. Tara Bai have made request for sanction of loan of Rs.2,86,000/-. However, matter
is pending before Civil Court, hence, the complaint is not maintainable.
5.
District
Consumer
Disputes Redressal Forum, Seshadripuram, Bangalore(for
short, ‘District Forum’) vide order dated, 13.07.2010 passed the following directions;
“Opposite party No.1 Fiat India Pvt. Ltd., is directed to pay
Rs.1,50,000/- to the complainants within 60 days from the date of
this order. The complainants are entitled for 9% interest p.a. from
the date complaint till payment / realization”.
6.
Being aggrieved by the order of District Forum, petitioner filed an appeal before
the State Commission, which was dismissed, vide impugned order.
7.
Now petitioner has filed the present revision petition. Notice of this petition was
issued to all the respondents. However, respondent no.3 has not appeared despite
service by publication. Hence, respondent no. 3 has been proceeded ex parte in these
proceedings.
8. We have heard the learned counsel for the parties and gone through the record.
9.
It has been contended by learned counsel for the petitioner that petitioner was
never served with notice of the complaint. However, petitioner had shifted to a new
address but no notice was served upon the new address.
10.
Other contention is that there was no relationship of Principal–Agent between
the petitioner and respondent no.3, herein.
11.
Lastly, the claim of respondents no.1 and 2 is hopelessly barred by limitation
since cause of action arose in the year 1999, when respondents no.1 and 2 had
allegedly paid a sum of Rs.1,50,000/- to respondent no.3. However, the complaint was
filed only in the year 2009 and as such impugned order is liable to be set aside.
12. On the other hand, it has been contended by learned counsel for respondents no.1
and 2 that this plea of petitioner’s counsel at this stage, that no notice was served upon
the petitioner as it has shifted to a new address, is patently false and mischievous one.
The address of the petitioner as mentioned in the complaint filed before the District
Forum as well as in the memo of appeal filed before the State Commission, are same.
Secondly, as respondents no.1 and 2 have not been delivered the car in question till
date, it is continuous cause of action. Hence, there is no ambiguity or illegality in the
impugned order.
13.
District Forum in its order held;
“ Since, Rs.1,50,000/- is paid by the complainant to the opposite party
No.2 by way of cheque this has not been denied by opposite party
No.2. Therefore, the payment has to be believed and accepted.
The complainants has produced a public Notice was issued in Times
of India news paper, dated 14-10-2002, it is as under:
FIAT
NOTICE
This is to inform all our clients and other concerned
Members of the public that
M/s. MANXAUTOLTD.
16-A, KKMP Building
Miller Tank Road, Vasant Nagar, Bangalore-52.
is no longer a Dealer of the Company w.e.f. 2-10-2002
Customers are therefore advised not to book orders
Or
deal
in
any
manner
with
the
said
M/s.
MANX
AUTO
LTD.
Bangalore
The
Company shall owe
no
responsibility
Whatsoever for any such dealings done by them
or
liability
After the said date.
Fiat India Private Ltd.
Regd. Office LBS Marg, Kurla Mumbai- 400070
So, as per this public notice it is clear that the opposite party No.1
company has admitted that opposite party No.2 was their dealer and
the company has owed the responsibility or liability of dealings done by
the opposite party No.2 before 2-10-2002. The opposite party No.2
was dealer of the opposite party No.1 till 2-10-2002, and his dealership
was removed after that date. In this case the complainants have paid
Rs.1,50,000/- to the opposite party No.2 by cheque on 11-1-1999.
Therefore, the opposite party No.1company has to owe the
responsibility and liability of the opposite party No.2. Since, the booked
car was not delivered to the complainants it is the duty and obligation
of the opposite party No.1&2 to refund Rs.1,50,000/- to the
complainants”.
14.
The State Commission, while dismissing the appeal at admission stage
observed;
“8 At the out set, it is not in dispute that the complainant booked FIAT
UNO Car manufactured by OP 1 through its dealer/agent OP 2
and paid a lump-sum amount of Rs.1,50,000/-.For the remaining
amount the mother of the complainant Smt. Tarabir in whose
name the car was booked, availed financial assistance from OP 3.
Though OP 1 and 2 received the said amount they failed to deliver
the said car. Ultimately Tarabai died on 13.11.2007. Thereafter,
through complainants being the heirs made repeated requests and
demands to OP, OP 1 and 2 failed to deliver the car. Hence they
felt deficiency in service.
9.
The
evidence
and
the
pleadings
of
the
complainant has remained
unchallenged
which
finds
full
corroboration with the contents of undisputed documents. There is
nothing to discard the testimony of the complainant. Though OP 1
was duly served with notice as could be seen from the postal
acknowledgement remained absent without any reason or cause.
Though paper publication was issued against OP 2, he did not
appear. So the absence of the Ops does not appears to
be bonafide and reasonable.
10.
The DF has rightly assessed both and documentary evidence and
come to the conclusion that there is a deficiency in service. Of
course by public notice, OP 1 terminated the agency or the
dealership of OP 2 with effect from 02.10.2002, whereas the said
car was booked on 11.1.1999 and the amount is paid. So on that
date OP 2 was the agent-cum-dealer of OP 1. Naturally there is
liability on the OP 1 in all aspects. The very fact of issuance of the
notice that the said dealership comes to and with effect from
02.10.2002 speaks to the fact that OP 1 admits the status of OP 2
prior to 02.10.2002. When that is so, OP 1 is liable to refund the
said cost.
11.
Complainants through invested their hard earned money they
are unable to reap the fruits of their investments. Neither they got
back the money nor the vehicle. Under the circumstances, naturally
they must have been put to greater hardship and prejudice. We
don’t find any error in the findings recorded by the DF. On the other
hand, appellant has failed to show before this Commission that the
impugned order is erroneous, unjust and improper and that it
suffers from any legal infirmity, unsustainable in law much less it
suffers from any error apparent on the face of record requiring our
interference.
12.
There are no substantial grounds and reasons made out by the
appellant so as to admit this appeal. In addition to that, there is an
inordinate delay of 61 days in filing this appeal. There is no
satisfactory explanation for the said delay. So on this score also the
relief claimed by the appellant cannot be considered. Accordingly,
we answer Point No.1 and proceed to pass the following:
ORDER
Appeal is dismissed at the stage of admission”.
15.
This plea of the petitioner that no notice has been received by him from the
District Forum since he has changed his address is patently wrong and false and the
same has been taken only just to mislead this Commission as address of the petitioner
as mentioned in the complaint filed before the District Forum as well as in the memo of
appeal filed before the State Commission are same. There has been no change in the
address of the petitioner.
16.
Secondly, there was relationship of Principal-Agent between petitioner and
respondent no.3, when respondent no. 3 took a sum of Rs.1,50,000/- from the
respondents no.1 and 2.
17.
With regard to question of limitation, District Forum in its order has held;
“The complainants alleged that the opposite party No.1 & 2 have
committed the deficiency in service in not delivering the vehicle
booked, therefore, the cause of action being a running cause of
action, it will continue till the delivery of vehicle.The Complainants
several time approached the opposite party No.2 and requested for
delivery of vehicle, but the opposite party No.2 did not deliver the
vehicle for the reasons best known to him”.
18. Present revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 (for short, ‘Act’). It is well settled that the powers of this
Commission as aRevisional Court are very limited and have to be exercised only, if
there is some prima facie jurisdictional error in the impugned order.
19.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed;
“Also, it is to be noted that the revisional powers of the National
Commission are derived from Section 21 (b) of the Act, under which the
said power can be exercised only if there is some prima facie
jurisdictional error appearing in the impugned order, and only then, may
the same be set aside. In our considered opinion there was no
jurisdictional error or miscarriage of justice, which could have warranted
the National Commission to have taken a different view than what was
taken by the two Forums. The decision of the National Commission
rests not on the basis of some legal principle that was ignored by the
Courts below, but on a different (and in our opinion, an erroneous)
interpretation of the same set of facts. This is not the manner in
which revisional powers should be invoked. In this view of the matter,
we are of the considered opinion that the jurisdiction conferred on the
National Commission under Section 21 (b) of the Act has been
transgressed. It was not a case where such a view could have been
taken by setting aside the concurrent findings of two Fora”.
20.
Thus, no jurisdiction or legal error has been shown to us to call for interference in the
exercise of power under section 21 (b) of the Act, since two fora below have given cogent
reasons in their order, which does not call for any interference nor they suffer from any
infirmity or revisional exercise of jurisdiction.
21. 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.
22.
Under these circumstances, present petition is without any legal basis and having no
merit is hereby dismissed with cost of Rs.10,000/-.(Rupees Ten Thousand only) to be paid
to respondents no.1 and 2.
23.
Petitioner is directed to pay the cost by way of draft to the respondents no.1 and 2,
within four weeks from today. In case, petitioner fails to pay the aforesaid cost within the
prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
24.
List on 30.08.2013 for compliance.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2479 of 2008
(From the order dated 01.02.2008 of the Delhi State Consumer
Disputes Redressal Commission, Delhi in First Appeal no. 550 of 2007)
UCO Bank (Through its Manager) Patiala House Court New Delhi – 110 001
Petitioner
Versus
Shri S D Wadhawa D – 3, G K Enclave - I New Delhi – 110 048
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA
For the Petitioner
MEMBER
Mr Sarfaraz Khan, Advocate
For the Respondent
IN PERSON
Pronounced on 24th July 2013
ORDER
REKHA GUPTA
Revision petition no. 2479 of 2008 is against the final order and judgment dated
1st February
2008
passed
by
the
Delhi
State
Consumer
Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 550
of 2007.
The brief facts of the case as given by the respondent/complainant are as follows:
The respondent is a practicing lawyer and has been availing the services of the
petitioner/ OP Bank right from the inception of his practice/ profession vide his S B
Account no. 1802.
The service of the petitioner which is a nationalised institution, have been (in
totality) reasonably up to the mark with the exception of 3 stray unfortunate incidents
(out of respondent’s seven cheques) whereon his signatures were forged and were
issued in three different names by some unknown culprit/ mischief monger with the aid
and abetment of his court clerk Pooran Chandra Pant on the one side joined by some
bank staff on the other side who actively connived, collaborated/ colluded in the matter
of fraudulent withdrawal of total of Rs.40,000/- from the respondent’s aforesaid S B
Account.
Respondent’s first cheque bearing no. 557529 dated 05.08.2002 for Rs.10,000/purported to have been issued in fictitious/ imaginary name of one Rajesh Kumar with
the forged signature of the respondent beneath it were got encashed the same day from
the Bank vide its token no. 132.
The respondent’s second cheque bearing no. 557532 dated 14.08.2002 for
Rs.10,000/- was issued in the name of one Rajbir Singh, again with the forged
signatures of the respondent beneath it, was got encashed the same day vide its token
no. 192.
The respondent’s third cheque bearing no. 618832 dated 23.07.2003 for
Rs.20,000/- was issued in the name of one Gopal Singh against, with the forged
signatures of the respondent beneath it, was got encashed the same day vide its token
no. 1834.
Intimation of the first stop payment advice for the remaining 2 uncashed cheques
had been given on 26.08.2002 to the petitioner Bank.
Whereas intimation of the second stop payment advice for the remaining
two uncashed cheques was made on 24.07.2003 to the petitioner Bank.
In the first incident a complaint was made only to the petitioner Bank with a
written request to compensate the respondent for the loss of Rs.20,000/- suffered by
him due to lack of its vigilance and carelessness in the matter of properly tallying and
comparing the signatures appended beneath the said two forged cheques.
The proceeds of these three cheques seemingly have been collected by one and
the same individual on the respective dates as is amply evident from the style of the
signing done by the bearer at the back of the three cheques. The noteworthy point in
this context is that during this period the computer network system of the petitioner
Bank was non-functional and thus the respondent’s routine of getting his passbook
update on weekly basis with the debit-credit entries was disturbed and disrupted and as
a consequences thereof the culprit/ offender took advantage of the situation and got all
the three cheques encashed on different dates/ occasions. In essence, this kind of loss
suffered by the respondent is attributable to ‘Glaring Deficiency in Service’ on the part of
the petitioner Bank in the following manners inter alia others:
Firstly, by not doing the posting job of the passbook due to the defects in the
petitioner’s computer system.
Secondly, the laches in the form of hastily, heedlessly and negligently verifying
tallying/ comparing the forged signatures on the said three cheques.
Thirdly, by not looking at the signatures made on the back of the first cheque
dated 05.08.2002 where the bearer has signed as R Singh on the back thereof instead
of Rajesh Kumar and the second cheque dated 14.08.2002 also carrying the signature
in the handwriting of the same individual as R Singh on the back thereof while the
cheque had been issued in the name of Rajiv Singh and in the third case even though
the signatures were that of the bearer on the back of the cheque but the handwriting
shows that the signatory had been one and the same individual as is apparent to the
naked eye.
In their reply, the petitioner/ OP 1 – Bank have denied the allegations made in the
complaint. They have stated that the respondent nowhere in his FIR and other
communication to the police made any allegation against the petitioner Bank and its
staff members. His needle of suspicion centres around his own staff members, i.e., his
clerk and driver. This itself amounts an admission by the respondent that there is no
deficiency in service on the part of the petitioner Bank and the loss if any is because of
vicarious liability for the negligence on the part of respondent himself.
The complaint is hopelessly time barred and no plausible explanation has been
given to account for inordinate delay in filing the complaint. The respondent has lodged
a complaint with the police on 24.07.2003 whereas he has filed the present complaint
as an after thought and on account of fall out of the FIR.
The payment of all the cheques which are uncrossed and bearer were made in
due course without negligence to the holder of the cheques in the circumstances which
to the judgment of the official of the petitioner Bank did not reveal any reasonable doubt
particularly about the genuiness of the cheque. There was not an iota of doubt that the
holder of the cheque was not entitled to payment thereof. The loss if any is not because
of the alleged deficiency in service but because of negligence on the part of the
respondent in not keeping his cheque book in lock and key and or safe custody and
over reliance/ dependence on his own driver and clerk.
The District Consumer Disputes Redressal Forum – II, Udyog Sadan, New Delhi
(‘the District Forum’) vide order dated 13.06.2007 has stated that “the opinion is based
on the examination made from the Photostat of the documents and not from the original
documents. The opinion is subjected to confirmation after the examination from the
original documents.
The complainant is also negligent is suffering loss. He suffered fraud in the year
2002. Instead of taking care and caution, he kept the pass book unlocked in his car and
in possession of his clerk. The conduct of complainant is like maxim ‘volenti non
fit injuria’. His careless attitude caused loss to him. A banker is not supposed to
compare the signature of account holder on the cheque with the same technique is
adopted by CFSL. The complainant did not care to be vigilant”.
The District Forum did not find any deficiency in service on the part of the
petitioner Bank. Consequently, the complaint was dismissed.
Aggrieved by the order of the District Forum, the respondent/ complainant filed an
appeal before the State Commission. State Commission differed with the findings of the
District Forum and stated that “it is settled principle that every skilled person has to be
trusted in his art and no court can replace the opinion by its own opinion even by
comparing the admitted and disputed signatures. Unless and until the reports of the
expert are so diametrically opposite and suffer from such irreconcilable contradictions
no different opinion can be framed. Once the District Forum was equipped with two
reports of handwriting expert it was not open to it to introduce its own opinion by
stepping into the shoes of an expert.
Another observation of the District Forum which also suffers from inherent
infirmity is that the respondent who had suffered a fraud in the year 2002 should have
kept the pass book and cheque book under lock and key and not in his car in the
possession of his clerk and therefore his conduct is that of ‘volenti non fit injuria’ and the
careless attitude caused loss to him. Such an observation was not at all apt in the given
facts and circumstances of the case, particularly when the person who forged the
signature is none but his own clerk.
In ordinary course of business and transactions of the Bank the officials of the
Bank sitting at the counter are not supposed to avail the service of handwriting expert in
each and every case. But at the same time they are required to take sufficient
precaution and exercise utmost care in encashing cheque which are bearer or self and
since in the instant case the petitioner bank did not take care to exercise sufficient care
the caution as is demonstrated from the two reports of the handwriting expert petitioner
bank has to be held guilt for deficiency in service. Since there was no malafide intention
nor was there only conspiracy of the bank officials, we hold the petitioner bank guilt for
limited deficiency in service to the aforesaid extent and deem that compensation of
Rs.20,000/- besides Rs.5,000/- as cost of litigation would meet the ends of justice.
In the result, we allow the appeal, set aside the impugned order with the
directions respondent/ appellant to pay Rs.20,000/- as compensation and Rs.5,000/- as
cost of litigation”.
Hence, this present revision petition.
The main ground for the revision petition are that the State Commission has failed
to appreciate the facts regarding day to day transaction of the bank is ordinary course of
business and the official staff of the bank who are sitting at the bank counter are not
handwriting expert to avail these type of service to check every stroke, turns, curvature,
place of joining letter of the bearer cheque in normal course of day. It is pertinent to
mention that all the signature of the cheques where duly tallied/ verified from the
specimen of the record of the customers.
For that the State Commission has failed to appreciate the facts that the
negligence in the part of the respondent for loss of his blank cheque twice not once. He
did not keep his cheque in a secured place.
We have heard the learned counsel for the petitioner and respondent in person
and gone through the records.
Learned counsel for the petitioner - Bank drew our attention to the fact that the
complaint before the District Forum ought to have been dismissed on limitation. He
drew our attention to paragraph 2 of the complaint wherein three cheques had
been encashed by some unknown culprit/ mischief monger with the aid and abetment of
his court clerkPooran Chandra Pant. Cheque bearing no. 557529 dated 05.08.2002 for
Rs.10,000/-, the second cheque bearing no. 557532 dated 14.08.2002 for Rs.10,000/and the third cheque bearing no. 618832 dated 23.07.2003 for Rs.20,000/-. Intimation of
the first stop payment advice for the remaining two uncashed cheques had been given
on 26.08.2002 to the petitioner, whereas intimation of second stop payment advice for
the remaining two uncashed cheques was made on 24.07.2003. However, the
complaint was filed after two years from 24.07.2003 on 17.08.2005, hence, it is time
barred. Learned counsel for the petitioner also stated that respondent had also not filed
thecondonation of delay application along with the complaint. He drew our attention to
the
Apex
Court
judgment
in
the
case
of Dr
V
N Shrikhande vs Mrs
Anita Sena Fernandes – AIR 2011 Supreme Court 212, wherein the Apex Court
considered whether the Consumer Forum established under the Act can refuse to admit
the complaint on the ground that the same is barred by time. The decision of this
question depends on the interpretation of sections 12(1), (3), (4), 18, 22 and 24 A of the
Act. The Apex court held that “in other words, the Consumer Forums do not have
jurisdiction to entertain a complaint if the same is not filed within 2 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 seek condonation of delay
under section 24 A (2) by showing that there was sufficient cause for not filing the
complaint within the period prescribed under section 24 A (I). If the complaint is per se
barred by time and the complainant does not seekcondonation of delay under section
24 A (2). The Consumer Forums will have no option but to dismiss the same. Reference
in this connection can usefully be made to the recent judgments in State Bank of
India vs B S Agricultural Industries (I) (2009) 5 SCC 121 : (AIR 2009 SC 2210)
and Kandimalla Raghavaiah and
Company vs National
Insurance
Company
and
Another – (2009) 7 SCc 768 : (2010 AIR SCW 2528)”.
Learned counsel for the petitioner has also argued that the respondent in his
complaint has alleged that signatures were forged on the cheques and money was
withdrawn from his account. Counsel for the petitioner have cited two cases of National
Commission (Bright Transport Co. vs Sangli Sahakari Bank Ltd - II (2012) CPJ 151
(NC), decided on 12.01.2012 and Prempreet Textiles Industries Ltd., vs Bank of
Baroda and Ors. – III (2006) CPJ 218 (NC) decided on 15.05.2006) and one case
pertaining to Delhi State Commission (Srikrishan Dass vs Dena Bank – I (2003) CPJ
276 decided on 08.07.2002).
In the case of Bright Transport Co. (Supra) the National Commission has held
that “we must consider the question whether this Commission in exercise of its
summary jurisdiction would be able to adjudicate all those issues arising on the
complaint in an effective manner. If this Commission ventures to do it, it may have to
record the evidence of all those persons whose evidence was collected by the CBI. It is
only after detailed examination and cross examination of those witnesses and the
documentary evidence i.e. voluminous record involved in the said bank transactions that
the Commission may perhaps be able to adjudicate on the said question. We have,
therefore no hesitation to hold that the complaint indeed raises very complicated
question of facts and law which can only be answered by a regular Civil Court and the
complainants should be relegated to the Civil Court to work out their remedy for the
entire claim made by them in the present complaint or this Commission can decide
upon the claim in regard to which there is no dispute between the parties.
It also appears to us that filing of present complaints before this Commission are
nothing but an attempt to misuse the jurisdiction of this Commission only with a view to
save on the court fee payable in a suit before the Civil Court.
Having considered the matter from different angles and having given our
thoughtful consideration to the submissions made by the learned counsel for the
complainants, we are of the view that these consumer complaints are not maintainable
before this Commission. However, the complainants shall be free to work out its
remedy in accordance with law before the appropriate court / Tribunal. With these
observations, the consumer complaints are dismissed”.
In the case of Srikrishan Das (Supra), the State Commission has held that “if the
above criterion is applied to the present case, it is noticed by us that the complaint filed
by the complainant before this Commission requires adjudication in respect of
complicated and complex questions of fact, such as whether in fact on the basis of
forged cheque the amount in question has been fraudulently withdrawn from the
account of the complainant and whether there was any connivance/ conspiracy to cause
wrongful loss to the complainant by the staff members of the Bank. The above complex
and complicated questions, which require taking of elaborate evidence and adducing
documentary/ expert evidence also and thereafter a detailed scrutiny and assessment
of
such
evidence,
decidedly
cannot
be
adjudicated
upon
satisfactorily
by
a redressal agency, established under the Act.
In view of the position explained above, the present complaint filed by the
complainant is directed to be dismissed in limine. However, the complainant is given the
liberty to approach the appropriate Civil Court for redressal of his grievances being
raised by the complainant in the present complaint, as the complainant may be
advised”.
Counsel for the petitioner also argued that it was for the respondent to keep his
cheque book under lock and key and it was indeed surprising that his staff could access
his cheque book and allegedly forged the signature to withdraw Rs.40,000/- on no less
than three occasions.
Learned counsel for the petitioner also drew our attention to the case
of Prempreet Textile Industries Ltd., (Supra) have stated that “it was the duty of the
above Director to have ensured that the cheque book was kept under locked key at a
safe place. In this backdrop, there was hardly any occasion for the respondent bank to
have doubted the genuineness of the signatures on the cheque in question if any
embezzlement was made by the employee of company the respondent Bank cannot be
held responsible for it. Respondent Bank had, thus, been rightly exonerated of the
liability arising out of the cheque in question by the State Commission in terms of the
aforesaid order dated 01.02.2006 which does not call for any interference in revision
jurisdiction under section 21 (b) of the C P Act, 1986. Dismissed”.
Respondent who has appeared in person admitted that he used to keep his
cheque book and other papers in his car or his office drawer and his staff had ready
access to the cheque book at both the places. He further admitted that on the first
occasion when the two cheques were encashed, he had not even lodged an FIR with
the police, as he was not sure who on his own staff could have had access to his
cheque book and encashed the cheques. It was only on the third occasion that he
lodged an FIR with the police. Hence, it is an admitted fact that the respondent failed to
keep the cheque book under lock and key.
In view of the above circumstances all the citations cited above are applicable to
the case on hand. It is clearly established that the respondent had failed to take due
care of his cheque book due to which his own staff could access the same and withdraw
the money fraudulently from the bank account. He came to know the same on updating
his pass book. Bank cannot be held for deficiency in service in this regard.
Secondly, complaint regarding fraudulent withdrawal from the respondent account
on the basis of forged cheques, involve complicated and complex questions which
require elaborate evidence and hence, the dispute is not adjudicable in summary
jurisdiction. As such the complaint is not maintainable in the Consumer Form.
The facts of the case also clearly indicate that the complaint was filed beyond the
period of limitation of two years and hence, it should have been dismissed by the
District Forum.
In view of the foregoing, the revision petition is allowed and the order of the State
Commission is set aside.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.1834 OF 2012
(From the order dated 17.01.2012 in Appeal No.20/2012 of the Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
The Manager, Bharti AXA General Insurance Co. Ltd. 1-Floor, Fems Icon, S.No.28,
Doddanekkundi Village, K.R. Puram, Bangalore, Pin Code-560037 Through Its Area
Manager, (Legal) Bharti AXA General Insurance Co. Ltd. 2nd Floor, Bigjos Tower,A-8,
Netaji Subhash Place, Pitampura, New Delhi-110034
..…. Petitioner
Versus
B.A. Lokesh Kumar S/o B. Aswatha Raju R/o Door .1532/2, Raghavendra Nilaya,
Opp. To Venkatenhalli, Narasimhaih Choultry, B.B. Road, Chickballapur Town & District
Pin Code-562 101
..... Respondent
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners
: Mr. Navneet Kumar, Advocate
For the Respondent
: Mrs. Vijayshanthi Girish, Advocate
PRONOUNCED ON 25th JULY, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition is directed against order dated 17.01.2012 passed by the
Karnataka
State
Consumer
Disputes Redressal Commission,
Bangalore
(“State
Commission” in short) in appeal No.20/2012. Petitioner is the opposite party/Insurance
Company and the respondent herein is the original complainant. By its impugned order
the State Commission dismissed the appeal filed by the petitioner/Company and upheld
the
order
dated
24.10.2011
passed
by
the
Additional
District
Consumer
Disputes Redressal Forum, Seshadripuram, Bangalore wherein the petitioner company
was directed to pay to the respondent/complainant a lumpsum compensation of
Rs.13,31,997/- alongwith interest @ 12% p.a. from 13.6.2011 till realization along with
Rs.2,000/- as cost of litigation.
2.
Briefly stated, the facts of this case, which are relevant for its decision, are that
the respondent/complainant had purchased a new Innova vehicle with temporary
registration No.KA-01/TR-MB-2979 and got it insured under a comprehensive package
with insured declared value (I.D.V) of Rs.11,63,284/- from the petitioner/company for
the period from 25.10.2010 to 24.10.2011. Admittedly the validity of the temporary
registration certificate of the vehicle expired on 23.11.2010 after which the
respondent/complainant did not obtain a registration number. On 9.6.2011, the
complainant sent this vehicle to Dharamasthala on a pilgrimage trip for the conveyance
of his family members and relatives and on the way toDharmsasthala when the vehicle
was proceeding on NH-48, it met with an accident and in that it got toppled and fell into
a road side ditch in a topsy turvey position. The respondent intimated about the accident
and the damage to the vehicle on account of this accident to the petitioner/insurance
company. It is alleged that after inspection of the damaged vehicle, damage to the tune
of around Rs.13,16,997/- was assessed besides expenditure of about Rs.15,000/incurred by the respondent towards lifting and shifting charges. The petitioner-company
after considering the survey report and other relevant documents repudiated the claim
of the respondent vide its letter dated 30.6.2011 stating that the vehicle in question did
not have a permanent registration number and thus there was blatant violation of
Section 39 of the Motor Vehicles Act, 1988. It was also indicated in its letter that the
temporary registration of the vehicle had already expired on 23.11.2010 and because of
this at the time of the accident the vehicle did not have either a valid temporary
registration or a permanent registration. Aggrieved by the repudiation of his claim, the
respondent filed a consumer complaint bearing No.1303/2011 before the District
Consumer Forum seeking compensation of Rs.13,16,997/- alongwith other reliefs. The
District Forum vide its order dated 24.10.2011 allowed the complaint in terms of the
aforesaid directions against which the petitioner filed an appeal before the State
Commission which came to be dismissed by the impugned order. Thus the petitioner
has approached this Commission challenging the concurrent orders of the fora below
through the present revision petition.
3.
We have heard learned Shri Navneet Kumar, counsel for the petitioner and
learned Mrs.Vijayshanthi Girish, counsel for the respondent. While admitting the validity
of the insurance policy under a comprehensive cover and the occurrence of the
accident in question involving the vehicle in dispute, learned counsel for the petitioner
submitted that the forabelow had failed to appreciate that the temporary registration of
the vehicle had expired on 23.11.2010 itself and the respondent did not get the vehicle
permanently registration and thus there was clear violation of the policy condition and
the provisions of the Motor Vehicles Act, 1988. He submitted that it was made
abundantly clear to the respondent by the petitioner company while repudiating his
claim that since the vehicle did not have valid registration number on the date of the
accident, it was violation of a mandatory requirement of law and also breach of
contractual obligations by the respondent, the claim submitted by him could not be
allowed. Later on, when the respondent filed the consumer complaint before the
consumer forum, the petitioner-company took the same plea in addition to other
submissions in the written version filed by it before the District Forum and reiterated the
same before the State Commission while challenging the order of the District Forum. He
submitted that in spite of this, both the fora below have rejected this plea while allowing
the complaint by their concurrent finding as confirmed by the impugned order. Besides
referring to the provisions of Section 39 of the Motor Vehicles Act, 1988, learned
counsel
has
relied
on
two
judgments
of
this
Commission
in
the
cases
of Kaushalendra Kumar Mishra vs. The Oriental Insurance Co. Ltd. (Order dated
16.2.2012 in R.P. No.4043/2008) and NiranjanKumar Yadav vs. National Insurance
Co. Ltd. (Order dated 29.3.2011 in R.P. No.2926/2010). He summed up his arguments
by submitting that since the crucial point regarding the expiry of the temporary
registration of the vehicle before the date of the accident and non-issuance of a
permanent registration to the vehicle on the date of the accident are not under dispute,
the impugned orders cannot be sustained and are liable to be set aside as
being violative of the express provisions of law. Per contra, learned counsel for
respondent/complainant has submitted that there is no merit in the revision petition and
that there is no case for interference with the concurrent finding of the two Fora below
under section 21(b) of the Consumer Protection Act, 1986 and hence the revision
petition should be dismissed.
4.
Having considered the submissions of the parties, the short point that has arisen
for our decision is as to whether the two Fora below were right in returning their
concurrent finding in favour of the respondent in spite of the undisputed fact that the
vehicle in dispute did not have a valid registration number on the date of the accident
and hence was being used in violation of the law and condition of the insurance policy.
In this context, we may note that that registration of the vehicle is a mandatory
requirement of the law and the relevant provisions as contained in Section 39 of the
Motor Vehicles Act, 1988 may be reproduced as under: “39. Necessity for registration. – No person shall drive any
motor vehicle and no owner of a motor vehicle shall cause or permit
the vehicle to be driven in any public place or in any other place
unless the vehicle is registered in accordance with this Chapter and
the certificate of registration of the vehicle has not been suspended
or cancelled and the vehicle carries a registration mark displayed in
the prescribed manner:
Provided that nothing in this section shall apply to a motor
vehicle in possession of a dealer to such conditions as may be
prescribed by the Central Government.”
5.
In view of the aforesaid requirement of law, it is clear that both
the fora below gravely erred in ignoring and rejecting the plea taken by the petitioner
while returning their concurrent finding accepting the complaint. They should have
appreciated that the use of the vehicle in question was in violation of the law itself and
hence would take it beyond the protection of the insurance policy. We have therefore no
hesitation in setting aside the impugned order and accepting the revision petition. The
present case is squarely covered by the ratio of the two judgments relied upon by the
counsel for the petitioner. We, therefore, allow the revision petition and set aside the
impugned order leaving the parties to bear their own cost.
……………Sd/-……..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
……………Sd/-….……………
(SURESH CHANDRA)
MEMBER
Raj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4513 OF 2012
(Against the order dated 05.09.2012 in First Appeal No. A/12/630
of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
1. M/s Raviraj Abhinandan Associates Millenium Star, 2nd Floor, Dhole Patil
Road, Pune-01.
2. Ravindra Kumar Sakla Millenium Star, 2nd Floor, Dhole Patil Road, Pune-01.
3. Abhinandan R Sakla Millenium Star, 2nd Floor, Dhole Patil Road, Pune-01.
Vs.
Mrs. Surekha K Dang 505/B-2, Excel Corner, Guruwar Peth, Pune-411042
......... Respondent
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner
:
Mr.Chetan Sharma, Sr. Advocate
Alongwith Mr.Vaibhav Gaggar, Advocate
And Ms. Aparna, Advocate
For the Respondent
:
Mr.(Dr.) R.R.Deshpande, Advocate
Alongwith respondent in person
PRONOUNCED ON 26th JULY, 2013
ORDER
PER HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of the State Consumer Disputes
Redressal Commission Maharashtra, Mumbai dated 05.09.2012 whereby the State
Commission dismissed the appeal preferred by the petitioner / opposite party passed
against the order of the District Forum whereby the District Forum partly allowed the
complaint in following terms:
“1.
The complaint of the complainant is partially allowed
2. As provided in the agreement, upon payment of the balance
amount payable to the respondents, the respondents shall within six
weeks of such payment, deliver possession of the said flat no.105, first
floor, building no.A-4, ‘Raviraj Colorado’, Survey No.44, Kondwa Khurd,
Pune 48, with all facilities and amenities to the complainant;
3. The respondents shall pay interest @ 12 % per annum on the said
amount of Rs.6,57,000/- from May 2010 till the possession is delivered
to the complainant and further a sum of Rs.1000/- towards costs of this
complaint within six weeks from the receipt of copy of this order”.
2.
Briefly put relevant facts for the disposal of the revision petition are that
respondent Ms. Surekha K Dang filed a consumer complaint, against the petitioner (s)
(builder), alleging deficiency in service on the part of the petitioner for their failure to
hand over the possession of residential flat booked by her within the stipulated time.
3.
The complaint was contested by the petitioners / opposite party, who in their reply
admitted that that complainant / respondent had booked a flat in the scheme floated by
them and made certain payments during the period 14.04.2009 to 13.11.2009 adding
upto the extent of Rs.6,57,000/-. Petitioners in their written version claimed that the
project could not be completed in time because of genuine reasons and it was not
possible to give the exact time frame within which the possession of flat would be given
to the complainant. The petitioners further claimed in the written version that because
of the hurdles in the completion of project and the delay caused. They did not demand
balance consideration of Rs.8,03,000/- from the complainant. The petitioners, however,
admitted having received a sum of Rs.6,57,000/- from the complainant in terms of the
construction linked schedule of payment. The petitioners, however, claimed that as per
the agreement they could cancel the contract, however, they were ready to deliver
possession of the flat to the complainant within next 18 to 24 months without asking for
escalation of price provided the complainant was ready to wait.
4.
The District Forum on consideration of the evidence led by the parties allowed the
complaint and directed the petitioners / opposite parties to deliver the possession of the
flat to the complainant after receiving the balance consideration amount agreed
between the parties. The District Forum, also awarded 12% interest on the amount of
Rs.6,57,000/- already paid to the opposite parties till the handing over of the possession
alongwith litigation cost of Rs.1000/-.
5.
Being aggrieved of the order of the District Forum, the petitioners preferred
appeal before the State Commission. After service of notice of the appeal on
respondent, the petitioners failed to put any appearance on hearing dated 05.09.2012
and the State Commission instead of dismissing the appeal for non-prosecution
dismissed it on merits after considering the record.
6.
Being aggrieved of the concurrent finding returned by the State Commission, the
petitioners have preferred this revision.
7.
Learned Shri Chetan Sharma, Senior Advocate appearing on behalf of the
petitioners have firstly contended that the impugned order is not sustainable in law for
the reason that it has been passed ex parte without giving an opportunity of being heard
to the petitioners. In this regard, he has drawn our attention to the impugned order
where it is mentioned that no one was present at the relevant date before the State
Commission. We do not find any merit in this submission because the State
Commission was compelled to decide the appeal exparte because of conduct of the
petitioners / appellant who opted not to appear either in person or through counsel. The
State Commission could have dismissed the appeal for non-prosecution but opted to
adopt better course in going through the record and deciding the appeal as per grounds
taken in Memorandum of Appeal. Thus the procedure adopted by the State Commission
cannot be faulted.
8.
Next contention of learned counsel for the petitioner is that though a plea was
taken in the appeal that the complaint filed was pre-mature, it was not decided by the
State Commission. This contention is misconceived for the reason that on perusal of
the impugned order, we find that the State Commission has dealt with the aforesaid
plea and dismissed the same with the following observations:
“Furthermore, as per para 7.6 0f the written version he further made
submission that the possession could be given within next 18-24 months
without asking for any escalation of price. Said period is almost over by
this time. Under the circumstances we find that the ground taken in
appeal to justify delay in handing over the possession and on that basis
to advance a submission that the complaint was premature does not
hold good and we find no merit in such submission”.
9.
Thirdly, the impugned order is assailed on the ground that both the fora below
have failed to appreciate the bonafides of the petitioners who were prevented from
delivering the possession of the flat in time because of genuine reasons and who had
offered to refund the amount paid by the complainant, if she so desired vide their reply
dated 25.10.2010 to the legal notice given by the complainant.
10.
We find no merit in the aforesaid contention. Perusal of the notice dated
27.09.2010 sent by the complainant to the partner of the opposite party would show that
vide this notice, the complainant had expressed her concerns about no progress of the
construction work and called upon the petitioners to intimate the likely date on which the
possession would be delivered to her. In response to that notice instead of intimating a
firm date or approximate date of delivery of possession, the petitioner had offered to
repay the amount deposited by the complainant alongwith interest paid by her on the
home loan raised and appropriate interest. This response in our view does not certify
the bonafides of the opposite party. It is a well known fact that during the relevant
period, the rates of the property have gone high, therefore, the offer of the builder to
return the money instead of delivery of flat is no evidence of his bonafides. On the
contrary, it reflects on the malafides of the builder who wanted to make profit due to
escalation of price of property by offering refund of money.
11.
Lastly, the learned counsel for the petitioner has drawn our attention to clause 11
of the agreement between the parties which provides that the purchaser shall use the
unit or any part thereof or permit the same to be used only for residential / commercial
purpose. From this, learned counsel has urged us to conclude that the services of the
opposite party were availed by the complainant for commercial purpose, therefore, the
complainant does not fall within the definition of ‘consumer’ in terms of section 2 (1) (d)
of the Consumer Protection Act, 1986. There is no merit in this contention. Merely
because clause 11 of the agreement provides that the purchaser can use the flat for
residential / commercial purpose, it cannot be concluded that the petitioner booked the
flat for commercial purpose. Opposite party has led no evidence to provide this
fact. Otherwise also, this contention is beyond the pleadings as plea of non
maintainability of the complaint has not been taken in the written version filed in
response to the complaint. Learned counsel for the petitioner has also tried to
emphasise that the complainant is a property dealer and she had entered into the
agreement with the opposite party with a motive to earn profit on account of escalation
of price with the passage of time. This argument is not acceptable because it is beyond
the pleadings. Otherwise also, there is no evidence on record to this effect.
12.
Coming to the impugned order. The State Commission has dismissed the appeal
relying upon the written version of the petitioner particularly para 7.6 wherein it was
stated that opposite parties feel that they would be able to give possession within 18 to
24 months without asking for any escalation of price provided the complainant was
willing to wait. When the appeal was decided the stipulated period of 18 to 24 months
was over, therefore, the State Commission took a view not to interfere with the order of
the District Forum. We do not find anything wrong in the approach adopted by the State
Commission. In our considered view, the petitioner has failed to point out any illegality
or material irregularity committed by the State Commission which may call for
interference by this Commission in exercise of its revisional jurisdiction. The revision
petition is, therefore, dismissed with cost of Rs.10,000/-.
……………………Sd/-…………………
[ AJIT BHARIHOKE, J]
( PRESIDING MEMBER)
..…………Sd/-……………………….
[ SURESH CHANDRA ]
MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2446 OF 2013
(From the order dated 19.03.2013 in First Appeal No. 39/2012
of DELHI State Consumer Disputes Redressal Commission)
1. Canadian Institute for International Studies (Not known as Continental Institute of
International Studies) Village Jalvehra P.O. Nabhipur, G.T. Road, NH-1, District
Fatehgarh Sahib Punjab Through its Authorised Representative Mr. Bharat Lal
2. World Wide Immigration Consultancy Services Ltd (WWICS) A-31, 3rd Floor, Near
Raja Garden Chowk, Rajouri Garden, New Delhi – 110027 Through its Authorised
Representative Mr. Bharat Lal.
... Petitioners
Versus
Ekta Sharma w/o Mr. Rumeet Sharma Q/1A, Jangpura Extn. New Delhi – 110014
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
Mr. Sunil Goyal, Advocate
PRONOUNCED ON : 26th JULY 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 by the petitioner against the impugned order dated 19.03.2013
passed by the Delhi State Consumer Disputes Redressal Commission (for short ‘the
State Commission’) by which FA No. 39/2012 filed by the petitioner against the order
dated 04.08.2011 passed by District Forum was dismissed on the ground that there was
a delay of 135 days in filing the said appeal.
2.
Brief facts of the case are that the respondent Ekta Sharma filed a consumer
complaint number 703/2006 before the District Forum, saying that she had taken
admission in the “Bachelor of Nursing” degree course being run by the petitioners with
effect from 1.11.2004, and that she deposited the necessary fee amounting to
Rs.2,82,000/- with the petitioners, out of which Rs.2,44,000/- had been raised as loan
from the Bank. She was told later on that she was not eligible for the said course. The
District Forum in their order dated 4.08.2011 directed the petitioners/OPs to refund 50%
of the fee/charges paid/deposited by the complainant within one month of the receipt of
the order. An appeal filed by the petitioners/OPs against this order, was dismissed vide
impugned order by the State Commission, saying that the same had been filed after a
delay of 135 days. It is against this order that the present revision petition has been
filed.
3.
At the time of admission hearing before us, learned counsel for the petitioner
stated that the order passed by the District Forum was dated 04.08.2011, but they had
shifted their working place from Mohali, Punjab to New Delhi in the year 2010 by virtue
of letter dated 17.7.2010. The order, in question, had been received by them on
2.12.2011 and the appeal was filed before the State Commission on 17.01.2012. They
had explained the reasons for delay but the State Commission wrongly relied upon
some orders quoted in the body of the impugned order.
4.
We have examined the material on record and given a thoughtful consideration to
the arguments advanced before us.
5.
The complaint, in question, was moved before the District Forum in the year 2006
and it was decided by the District Forum vide order dated 4.08.2011. In case, the
petitioners had moved their place of work in the year 2010, it was their bound duty to
inform the court about their new place of work. The District Forum, therefore, cannot be
put to blame that they sent the copy of the order, in question, to a wrong address.
Moreover the case has been contested by the petitioners before the District Forum and
they are supposed to be in the knowledge of the order passed by the District Forum.
The State Commission have rightly observed in their order that it was a contested case
and the petitioners were regularly appearing before the District Forum. It is clear,
therefore, that the petitioners have not been able to give any cogent and convincing
explanation for the delay in filing the appeal. As per their own version, they received
copy of the order on 2.12.2011 but the appeal was filed on 17.1.2012, i.e., after another
period of one and a half month, for which they have not been able to give any
explanation.
6.
It has been observed by the Hon’ble Apex Court in many cases, decided recently
that unless there is a convincing explanation about the delay in filing the case, the same
could not be condoned. Reference may be given to the orders passed by the Apex
Court in R.B. RamlingamVs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has
been
observed:
“We hold that in each and every case the Court has to
examine whether delay in filing the special appeal leave
petitions stands properly explained. This is the basic test
which needs to be applied. The true guide is whether the
petitioner has acted with reasonable diligence in the
prosecution of his appeal/petition.”
7.
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court
361, it has been observed:
“It is, however, necessary to emphasize that even after
sufficient cause has been shown a party is not entitled to the
condonation of delay in question as a matter of right. The
proof of a sufficient cause is a discretionary jurisdiction
vested in the Court by S.5. If sufficient cause is not proved
nothing further has to be done; the application for
condonation has to be dismissed on that ground alone. If
sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay. This
aspect of the matter naturally introduces the consideration of
all relevant facts and it is at this stage that diligence of the
party or its bona fides may fall for consideration; but the
scope of the enquiry while exercising the discretionary
power after sufficient cause is shown would naturally be
limited only to such facts as the Court may regard as
relevant.”
8.
Hon’ble Supreme Court after exhaustively considering the case law on the aspect
of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as
under;
“We have considered the respective submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the
remedy within the stipulated time.”
9.
Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General &
Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even
by Government department and further observed that condonation of delay is an
exception and should not be used as an anticipated benefit for the Government
departments.
10. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Ansul Aggarwal Vs. New Okhla
Industrial Development Authority observed as under:
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the
Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act,
1986, for filing appeals and revisions in Consumer matters
and the object of expeditious adjudication of the Consumer
disputes will get defeated, if this Court was to entertain
highly belated petitions filed against the orders of the
Consumer Foras”.
11. Based on the above discussion, this revision petition is ordered to be dismissed at
admission stage and the order passed by the State Commission upheld.
Sd/(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/(DR. B.C. GUPTA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 432 OF 2008
(Against the order dated 08.08.2008 in Complaint Case No. 122/2008 of the
Delhi State Consumer Disputes Redressal Commission)
Canara Bank Head Office at 112, J.C. Road Bangalore, Karnataka And Branch at
Kashmere Gate Delhi
…
Appellant
Versus
1. M/s Jain Motor Trading Company No. 2704, Kashmere Gate Delhi
2. Mr. Virender Kumar Jain R/o 49, Rajpur Road Civil Lines, Delhi
…
Respondents
BEFORE:
HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For Appellant
:
Mr. Manish Chauhan, Advocate
For Mr. Vivek Kumar Tandon, Advocate
For Respondents
:
Mr. Rohit Gandhi, Advocate with
Mr. Virender Kumar Jain (R-2) in person
Pronounced : 29th July, 2013
ORDER
PER VINEETA RAI, PRESIDING MEMBER
1.
This First Appeal has been filed by Canara Bank, Opposite Party before the Delhi
State Consumer Disputes Redressal Commission and Appellant herein being aggrieved
by the order of that Commission which had allowed the complaint of deficiency in
service and unfair trade practice made against it by M/s Jain Motor Trading Company,
Respondent herein and Original Complainant before the State Commission.
2.
In his complaint before the State Commission, Respondent/Complainant had
contended that he had bank account no. 184 with Appellant/Bank from the early 1970s
which it was operating regularly. Since Respondent/Complainant felt need of an OCC
account, it requested for the same to the Appellant/Bank, who converted their above
account into an OCC account after the Respondent/Complainant had duly complied with
the various formalities to open such a account, which included mortgaging his property
at Kashmere Gate as collateral security against the said Account. This facility
continued without any problems till 2004 when due to certain unavoidable reasons,
Respondent/Complainant was unable to pay the outstanding amount of Rs.51.84 Lakhs
as on September, 2004 to Appellant/Bank and, therefore, the OCC account was
declared as NPA by the Appellant/Bank on 31.10.2004 vide its letter dated
28.02.2005. However, with a view to settle the issue Respondent/Complainant entered
into One Time Settlement (OTS) with Appellant/Bank, according to which a sum of Rs.4
Lakhs (apart from Rs.1 Lakh already deposited) was to be paid immediately and the
balance sum of Rs.47 Lakhs was to be deposited within 6 months from the date of issue
of that letter and if this amount was deposited within 90 days then no interest was to be
charged. In case it was deposited thereafter, then interest at PLR(s) was to be charged
till clearance. In terms of the OTS, Respondent/Complainant started making the
payments and requested Appellant/Bank for extension of time by another 6
months. However, despite this, Appellant/Bank cancelled the OTS on the grounds of
non-payment.
Appellant/Bank,
however,
accepted
the
money
tendered
Respondent/Complainant thereafter which amounted to extension of time to clear the
dues. Further, as per verbal assurances given by the officials of Appellant/Bank, the
time had been extended upto 25.06.2008 by which time the entire amount of Rs.52
Lakhs was paid. Respondent/Complainant thereafter approached Appellant/Bank to get
back the property documents in respect of the mortgaged property, which
Appellant/Bank refused to return on the ground that certain dues towards interest were
still to be paid and raised an illegal demand of Rs.22,46,005/- in this respect. Being
aggrieved, Respondent filed a complaint before the State Commission on grounds of
deficiency in service and unfair trade practice and requested that Appellant/Bank be
directed to release the documents of mortgaged property to him with compensation of
Rs.5 Lakhs towards inconvenience, mental agony and harassment and further Rs.5
Lakhs by way of damages.
3.
Appellant/Bank on being served filed a written rejoinder before the State
Commission denying that there was any deficiency in service. It was contended that
Appellant/Bank was fully justified in not releasing the documents of mortgaged property
since there was a clear violation of the OTS. It was specifically stated that the terms
and conditions under the OTS were as follows :
“… the Bank has accepted your compromise proposal on the following
terms and conditions:
To pay Rs.52,00,000/- (Fifty Two Lacs Only) in full and final settlement
payable as –
(a) Rs.1,00,000/- already adjusted deposited by you at the time of
submission of OTS Proposal.
(b) Rs.4,00,000/- to be deposited immediately.
(c) Balance of Rs.47,00,000/- will be deposited within six months from the
date of this letter. If paid within 90 days no interest shall be
charged. Beyond 90 days interest at PLR(s) shall be charged from the
date of communication till clearance.
You may treat the account closed only after depositing the amount
as mentioned above.
The securities will be released only after the liquidation of Bank’s
outstanding as detailed above.
You are to withdraw claim against the Bank, if any.
If we shall not receive the amount as per above stipulations, the
concessions permitted in the above proposal shall be withdrawn
automatically and the bank shall have right to claim the full amount.”
Since Respondent/Complainant did not adhere to the above terms and conditions of the
OTS by not depositing the entire amount within a period of 6 months, the offer in the
OTS became null and void and the Respondent/Complainant was liable to pay interest
as claimed by the Appellant/Bank. It was specifically denied that any assurance, verbal
or otherwise, had been made to extend the time limit for payment of the outstanding
amount. In fact only a sum of Rs.25 Lakhs had been deposited upto 11.07.2007 i.e.
after 6 months and the remaining amount was paid only in 2008.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it allowed the complaint by observing as follows:
“4. It is contended by the Ld. Counsel for the O.P. that since the
applicant/complainant did not adhere to the terms of OTS by depositing
the entire amount within 90 days and deposited the same after more than
six months, the offer in the OTS proposal became null and void making
the complainant liable to pay interest as claimed by the O.P. Bank. …
5.
Let us assure that time was the essence of OTS. But that does not
mean that the late deposit of amount by few months was an act of
malafide. For breach of OTS (One Time Settlement) terms the OP-Bank
was at the most entitled to claim interest on late deposit and should not
have resorted to the act of recovering money which was in the ordinary
course due from him.”
The State Commission, therefore, allowed the complaint in the following terms :
“i)
O.P-Bank shall release the security documents as it has already
received Rs.52.00 Lakhs, but against payment of agreed interest for the
delayed period of six months only on the entire amount of Rs.52.00 Lakhs,
as this will take care of the pleas of the O.P. that time was the essence of
OTS and also in view of the bonafide of the applicant/complainant in
making the payment of the entire amount. However, the O.P-Bank is not
concerned with the internal dispute of the partners. The O.P-Bank shall
issue the documents in the name of the owner of the property whose
property has been mortgaged.
ii)
Amount of Rs.3.00 Lakhs lying deposited with this Commission shall
be released to the applicant/complainant.”
5.
Being aggrieved by the order of the State Commission, the present appeal has
been filed.
6.
Learned Counsels for both parties were present and made oral submissions.
7.
Counsel for the Appellant/Bank reiterated that there was a clear violation of the
terms and conditions of the OTS and Respondent/Complainant was required to clear
entire
amount
which
was
due
by
11.03.2007. However,
by
that
date
Respondent/Complainant had only deposited Rs.25.00 Lakhs and in fact as indicated in
the letter dated 19.02.2008 (Annexure-4 of the paper-book) Appellant/Bank wrote to the
Respondent/Complainant that they would withdraw the OTS if Respondent/Complainant
did
not
liquidate
the
amount
due
within
7
days
of
the
receipt
of
that
letter. Respondent/Complainant was again given additional time of 15 days by the
Appellant/Bank for liquidating the account with interest vide letter dated 15.05.2008
(Annexure-5 of the paper-book). When there was no response, the OTS was withdrawn
on
18.06.2008
i.e.
well
after
the
stipulated
period
for
making
the
entire
payment. Respondent/Complainant in the meantime filed a complaint before the State
Commission for release of the documents of mortgaged property and during this period
also paid the entire money in terms of the OTS. However, since time was the essence
of the OTS, as observed by the State Commission, Appellant/Bank had rightly asked
Respondent/Complainant to pay the amount of interest due once the OTS had been
cancelled. Since this was not paid, Appellant/Bank was justified in not releasing the
property documents which was mortgaged with them. Counsel for the Appellant/Bank
also contended that in the written rejoinder filed before the State Commission they had
stated that the Respondent firm being a commercial concern is not a ‘consumer’ as
defined under the provisions of the Consumer Protection Act, 1986 and this fact has not
been dealt with in the order of the State Commission.
8.
Counsel for Respondent/Complainant on the other hand while agreeing that
Respondent/Complainant had accepted the terms and conditions of the OTS stated that
because of some financial problems it could not pay the entire amount by the stipulated
period and, therefore, sought extension of time for the same. According to the Counsel
for Respondent/Complainant, Appellant/Bank on their request seeking extension of time
had extended the time for payment vide its letter dated 11.07.2007 till 25.06.2008 by
which time the entire dues had been paid to the Bank. This was also the finding of the
State Commission in its order. In fact as is clear from the letter dated 19.02.2008
(Annexure-4), the OTS was revoked after Respondent/Complainant had paid the entire
amount and not before that period. Further, the State Commission had directed
Respondent/Complainant to pay a sum of Rs.2 Lakhs as interest for the slightly delayed
period in settling the OTS which had also been paid by him. Counsel for the
Respondent/Complainant challenged the contention of Counsel for the Appellant/Bank
that Respondent was not a ‘consumer’ in terms of Section 2(1)(d)(ii) of the Consumer
Protection Act, 1986. It was stated that there was no commercial activity, profit or
interest in taking the OCC account and this issue stands well settled by a number of
judgments of the Hon’ble Supreme Court as also National Commission. The present
appeal, therefore, deserves to be dismissed.
9.
We have heard learned Counsels for the parties and have also carefully gone
through the evidence on record. The fact pertaining to the Respondent/Complainant
having an OCC account with the Appellant/Bank to help its financial conditions is not in
dispute. It is also a fact that the said account was declared as NPA on 31.10.2004 and
that subsequently the parties entered into an OTS as per the payment schedule, as has
been reproduced in the order of the State Commission. It is also not disputed that the
Respondent/Complainant could not pay the entire amount as per the payment schedule
i.e. within 6 months during which time he paid only Rs.25 Lakhs upto 11.07.2007. The
State Commission as a first Court of fact had clearly concluded that at the request of the
Respondent/Complainant for paying the remaining amount, the Appellant/Bank had
indeed written a letter extending this period. We see no reason to dispute the same
because
the
first
letter
written
by
the
Appellant/Bank
giving
time
to
Respondent/Complainant to settle the account was dated 19.02.2008 which clearly
indicates that the time for making the payment was extended from 11.07.2007. It is
further a fact that before the filing of the complaint before the State Commission,
Respondent/Complainant had paid the entire amount which was accepted by the
Appellant/Bank. If the Appellant/Bank wanted to scrap the OTS, it should not have then
accepted the delayed payment. Further, as observed by the State Commission, if there
was some delay on the part of Respondent/Complainant, the Bank could have charged
interest on the same instead of not releasing the property documents once it had
accepted the entire amount due from Respondent/Complainant as per the conditions of
the OTS. To sum up, we agree with the finding of the State Commission for not
accepting the contention of Appellant/Bank.
10.
We also do not accept the contention of Counsel for Appellant/Bank that
Respondent being a commercial firm is not a ‘consumer’ as per the provisions of the
Consumer Protection Act, 1986. Commercial concerns per se are not excluded from
filing a complaint under the Consumer Protection Act, 1986 if it does not involve direct
generation of profits or resale. Also as stated in the instant case, the OCC facility was
sought from Appellant/Bank to help resolve the financial difficulties being faced by
Respondent which was not per se a commercial activity generating profits. As pointed
out by Counsel for Respondent, these aspects are well settled in a number of
judgments, including of this Commission as also of the Hon’ble Supreme Court
e.g. Harsolia Motors Vs. National Insurance Co. Ltd. [I (2005) CPJ 27
(NC)] and Madan Kumar Singh Vs. Distt. Magistrate, Sultanpur [(2009) 9 SCC 79].
11.
In view of these facts, we see no reason to interfere with the order of the State
Commission especially since the Respondent/Complainant has also paid the interest on
the delayed payment as directed by the State Commission. We, therefore, uphold the
order of the State Commission in toto and dismiss the present appeal. No costs.
Sd/(VINEETA RAI)
PRESIDING MEMBER
Sd/(VINAY KUMAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 430 OF 2012
(Against the order dated 03.05.2012 in CC/11/224 of the State Commission,
Maharashtra)
M/s. Tolani Shipping Co. Ltd., [A company registered under The Companies Act, 1956]
Through its Authorised Signatory Seeta Venkatraman] 10- A, Bakhtawar Nariman Point,
Mumbai- 400021
…..Appellant
Versus
Sterling Holiday Resort (I) Ltd. 427, 4th floor, B-Wing, Chintamani Plaza,
Mathuradas Vasanji Road, New Gurunanak Petrol Pump Chakala Andher i (East),
Mumbai- 400099
.....Respondent
BEFORE:
HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant
:
Mr. S.K. Sharma, Advocate
Mr. U.B. Wavikar, Advocate &
Mr. Vikas Nautiyal, Advocate
For the Respondent
:
Mr. Jayant Bhushan, Sr. Advocate with
Mr. Buddy A. Ranganadhan, Advocate &
Mr. Raunak Jain, Advocate
PRONOUNCED ON: 30 July 2013
ORDER
PER MR. VINAY KUMAR, MEMBER
The appellant, M/s. Tolani Shipping Co. has challenged the order of the
Maharashtra State Consumer Disputes Redressal Commission in Complaint Case
No.CC/11/224. The complaint has been dismissed at the stage of admission itself on
the ground of limitation. According to the State Commission, the cause of action had
arisen in the year 2002 while the complaint was filed on 29.8.2011. The State
Commission has made the following observations:“This letter of 2002 must be taken as the date on which cause of
action accrued to the complainant company. By this letter no compliance
was made for the demand made by M/s. Tolani Shipping Co. and from that
day within two years this complaint should have been filed. But this
complaint came to be filed on 29/08/2011 alleging that since Time Share
Agreement permitted M/s. Tolani Shipping Co. employees to use Holiday
Resorts as per membership given to them by M/s. Sterling Holiday Resort
(I) Ltd. upto 2094-95, the complaint is having continuing cause of action
and, therefore, it is within limitation. However, we should not forget the
letter dated 27/02/2002 sent by the complainant to opponent company
wherein demand for refund of 28,00,000/-, besides the liquidated damages
of 30,00,000/- and compensation of 10,00,000/- aggregating to 68,00,000/was made and it was not paid at all by the M/s. Sterling Holiday Resort (I)
Ltd. When this is so, in our view the complainant company should have filed
consumer complaint within two years from 27/02/2002 and since it is not
filed in the year 2004 and since it is filed for the first time on 29/08/2011, in
our view the complaint as filed by the complainant is absolutely barred by
limitation.”
2.
Counsels for the Appellant and for the respondent have been heard and the
records produced have been perused carefully.
3.
Counsel for the appellant has argued that subsequent to the above mentioned
letter of 27.2.2002 from the Complainant to the OP/Sterling Holiday Resort (I) Ltd, the
latter had been acknowledging its liability and assuring to fulfil its obligations. Thereby
the limitation has continued to run as the OP did not discharge its liabilities till the
complaint was filed. In this behalf, learned counsel referred to the letter of 8.9.2010
from AGM (Customer Service) of the OP to Director (Legal and Secretarial) of the
Complainant. The letter reads as follows:“We are in receipt of your letters dated 4.9.2009 and 3.08.2010 with
regard to your memberships at Lonavala. We have already explained the
situation vide letter dated 29th July 2009 due to which the delay in
constructing our own resort at Lonavala has occurred. Having shown
patience all this while we would request you to bear with us for one more
year as we are taking all possible efforts to construct our-resort atLonavala.”
4.
The appellant counsel forcefully argued that this letter has the effect of extending
the cause of action till 8.9.2010. He also sought to rely upon the decision
in Lata Construction
and
others
Vs.
Dr. Rameshchandra Ramniklal Shah and Anr., (2001) 1 SCC, 586. In this case,
under an agreement of 27.1.1987 the developers had undertaken to provide a flat to the
Complainant, but had failed to do so despite receiving payments towards the same. In
1991 the developers entered into a fresh agreement with the Complainant, agreeing to
pay a sum of Rs.9.51 lakhs, in lieu of the flat. The respondent/Complainant entered into
the fresh agreement with the appellant developers without prejudice to their rights under
the agreement of 1987. The developers failed to act as per the commitment under both
the
agreements.
Therefore,
respondent/Complainant
approached
the
National
Commission, which awarded a sum of Rs.9.51 lakhs in favour of the Complainant, with
interest from the date of the agreement in 1991. Hon’ble Supreme Court of India upheld
the decision of the National Commission observing that since rights under the
agreement of 1987 had not been given up, the developer was under continuing
obligation to provide a flat to the Complainant. It was observed that:“11. In the instant case, the rights under the original contract were
not given up as it was specifically provided in the subsequent contract that
the rights under the old contract shall stand extinguished only on payment
of the entire amount of Rs.9,51,000. Since the amount was not paid the
appellants as stipulated by the subsequent contract, the rights under the
original contract were still available to the respondents and they could
legally claim enforcement of those rights. Obviously, under the original
contract, the appellants were under an obligation to provide a flat to the
respondents. This right would come to an end only when the appellants
had, in pursuance of the subsequent contract, paid the entire amount of
Rs.9,51,000 to the respondents. Since they had not done so, the
respondents could legally invoke the provisions of the earlier contract and
claim before the Commission that there was “deficiency in service” on the
part of the appellants.”
5.
The above facts stand on a very different footing from those in the matter before
us. It has been argued by the respondent counsel that no novation of contract was
involved. In fact, alternative facility, offered at other locations, had also been availed by
the appellant. Therefore, it was contended that the question of refund would not arise.
6.
Learned counsel for the respondent also relied upon the decision State of Kerala
Vs. T.M. Chacko, (2000) 9 SCC 722. This was a matter in which the respondent, as a
successful bidder in auction, had acquired a right to collect and remove the forest
produce from the given area, on or before 31.3.1974. Only a part of it had been
collected by him when fire broke out on 21.2.1974 and destroyed the remaining
uncollected forest produce in the concerned area. On the representation of the
respondent to reduce the bid amount on the ground of the fire, the Forest department
granted him further time of 45 days to remove the produce. The respondent neither
removed the produce nor paid the balance bid amount. The Government cancelled the
contract and ordered auction at the risk and loss of the respondent. The respondent
filed a civil suit claiming compensation and refund of the bid amounts. The trial court
and the High Court both came to the conclusion that the suit was not barred by
limitation as the appellant, State of Kerala, had acknowledged the liability, in the
concerned two communications, one rejecting the prayer for remission of balance of the
bid amount and the other communicating confiscation of the un-removed forest
produce.
7.
The Supreme Court disagreed with the above view and allowed the appeal of the
State of Kerala. It was held that for treating a writing signed by the party as an
acknowledgment, the person acknowledging must be conscious of his liability and the
commitment should be made towards that liability. In this case, neither the claim for
refund of the bid amount was under consideration of the department of Forest nor could
the two communications from the department of Forest be treated as acknowledgment
of the liability under the refund claim of the respondent. Hon’ble Supreme Court
therefore, rejected the contention that in view of the fact that period to perform the
contract had been extended by the State of Kerala till 10.8.1974, the failure date i.e. the
date for seeking refund should also be taken as extended till 10.8.1974.
8.
We need to consider the case of the appellant/ Tolani Shipping Company, in the
light of the two decisions of Hon’ble Supreme Court of India detailed above. The cause
of action, as rightly pointed out by the State Commission, arose on 27.2.2002 when the
appellant/Complainant wrote to the respondent/Sterling Holidayh Resort (I) Ltd. that :“As per the terms and conditions of the Time Share Agreement you
are liable to pay to us liquidated damages for delay in providing the holiday
resort at Lonavala.
Under these circumstances, we hereby demand payment of the
principal sum of Rs.28.00 lakhs besides liquidated damages of Rs.30.00
lakhs computed at 18% per annum and compensation of Rs.10.00 lakhs
aggregating to Rs.68.00 lakhs.
It is very disparaging to note that instead of developing the resort
at Lonavala your Company is adopting ways and means to hoodwink the
customers.
We are not agreeable to the allotment at “Kodai Valley View” resort
and we once again demand the amount of Rs.68.00 lakhs, failing payment
of which, appropriate proceedings for recovery of amount and winding up of
the company will be adopted at your risk and consequences.”
9.
As seen from the record, this was followed by correspondence between two sides
but the consumer complaint came to be filed only in 2011, not within the period two
years computed from the letter of 27.2.2002. The appellant has sought to rely upon the
letter of 8.9.2010 written to it by the respondent, discussed earlier in this order. Clearly,
this letter does not even mention the claim for refund and interest thereon. Therefore, in
our view, this letter cannot be treated as acknowledgment of a liability of Rs.68 lakhs,
the issue raised in the Complainant’s letter of 27.2.2002. Therefore, the question of
cause of action having continued from 27.2.2002 till 8.9.2010 or having arisen again on
the later date, would not arise at all.
10.
In conclusion, we find ourselves in complete agreement with the view of the State
Commission that the complaint filed on 29.8.2011 is barred by limitation. Consequently,
the First Appeal No. 430 of 2012 is held to be devoid of any merit and is dismissed as
such. No order as to costs.
…..……………Sd/-.…….……
(VINEETA RAI)
PRESIDING MEMBER
…..…………Sd/-….…….……
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
(1)
REVISION PETITION NO. 1451 to 1489 OF 2011
(Against the order dated 20.12.2010 in Appeal No. 1224/2008
of the State Commission, Andhra Pradesh)
Syngenta India Ltd. Rep. by its Managing Director Seeds Division, H. No.
1170/27,Revenue Colony, Sivaji Nagar, Pune – 411007, Maharashtra
....... Petitioner
Versus
1. P.Chowdaiah S/o P.Naganna, Agriculturist, R/o Pamulapadu Village and Mandal
Kurnool District, Andhra Pradesh
2. P.Sreenivasulu S/o Chowdaiah, Agriculturist R/o Pamulapadu Village and Mandal,
Kurnool District, Andhra Pradesh
3. Sai Agro Agencies Rep. by its Managing Director Distributor of Syngenta Seeds
Near RTC Bus-Stand, Nandyal, Andhra Pradesh
…... Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
: Mr. Subramonium Prasad, Advocate
For the Respondents : Mr. Debojit Borkakali, Advocate
( In RPs No. 1451 to 1473 of 2011)
For the Respondents : Mr. V. Sridhar Reddy, Advocate
(In RP Nos. 1474
to 1489 of 2011 )
Pronounced on: 31st July, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
As common question of facts and law are involved in the above noted revision
petitions, same are being disposed of by this single order.
2.
Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad
(for short, ‘State Commission’) vide common impugned order dated 12.12.2010,
disposed of 39 appeals in all filed by the unsuccessful complainants/agriculturists
against manufacturer of ‘Roshini Chilly Seeds’. State Commission has taken (Appeal
No. 1244 of 2008, Sygenta India Ltd. Vs. P. Chowdaiah and Ors.) that is, RP No. 1451
of 2011 as the lead case.
3.
Case of Complainants in brief is that they are agriculturists owing agricultural land
in Pamulapadu village of Kurnool District. They purchased 40 packets of hybrid chilly
seeds called ‘Roshni’ @ Rs.170/- per packet. manufactured by Petitioner/O.P.No.2 and
sold by its Distributor-cum-Agents/ Respondents, on 7.6.2006. Complainants had sown
the seeds, adopted the agricultural practices and applied fertilizers and pesticides and
incurred an expenditure of Rs.30,000/- per acre. Despite assurance of yield of 25
quintals per acre, complainants hardly could get 2 quintals per acre due to defect in the
seeds. The growth was poor and did not give even the minimum yield. When they
complained to the agricultural department, Joint Director of Agriculture along with
Scientists and Asst. Agricultural Officer visited the crop in the last week of December,
2006 and opined that the seeds were defective. In fact local variety 334 had yielded
around 12-14 quintals per acre. It has been further alleged by the complainants that
then Senior Scientist, Regional Agricultural Research Station, Nandyal along with the
Assistant Director of Agriculture and Agricultural Officer of Atmakur Division, visited to
inspect the crops on 14.2.2007 and opined that the over-all hybrid vigor was very poor
and due to this poor growth, less pod productive plants and more poor productive plants
were observed and due to these reasons poor yields are expected. Thus, complainants
had in all sustained a loss of 90 quintals and therefore claimed Rs. 6,800/- towards
refund of cost of seeds, Rs.3,79,845/- towards compensation, Rs.1,10,000/- towards
cost of fertilizers, pesticides and labour etc. besides Rs.50,000/- towards mental agony
in all Rs.5,46,645/- A tabular form has been given mentioning the claims of each of the
complainants in all these cases at para 19 of the impugned order.
4.
On the other hand, case of petitioner’s company is that as per bills or the
brochure, petitioner has not given any guarantee regarding the growth and yield of the
crop, which depends upon the environmental components. Further, it is a common
knowledge that condition of crop and quality of yield depends upon many factors
including the physical condition of the soil, moisture content at the sowing time, the
sowing methodology, water quality used for irrigation, long dry spell in the atmosphere
and other diseases and virus that may attack the plants. It is further stated that that total
period of crop duration is 6 – 9 months including the nursery period. The field inspection
was done only after six months of sowing by the Scientist. By that time, the crop was at
the end of its life. Further, report of experts shows that the crop was infected with pest
and that too sucking pest.
5. It was further alleged that neither the taking of experts to the field nor the report of
the experts were communicated to the petitioner’s company. Everything was done at
the back of petitioner’s company and without its knowledge. Thus, there is no deficiency
on the part of the petitioner’s company.
6.
The District Consumer Forum, Kurnool (for short, ‘District Forum’) vide its order
dated 1.12.2008, after considering the evidence placed on record, opined that the
printed brochure relating to hybrid Roshini seeds do not anywhere mention the
expected yield or that it was resistant to pests. It further held, that the complainants
could not establish that the seeds were defective and as such dismissed 26 complaints.
However, it had allowed 13 complaints.
7.
Being aggrieved by the order of the District Forum, complainants filed appeals
before the State Commission which allowed the same, vide its impugned order.
8.
Now Petitioner’s Company has filed the present revision petitions.
9.
We have heard Sh. Subramonium Prasad, learned counsel for the petitioner, Sh.
Debojit Borkakali, learned counsel for respondents (in RPs No. 1451 to 1473 of 2011)
and Sh. V. Sridhar Reddy, learned counsel for respondents (in RPs No.1474 to 1489 of
2011). We have also perused the record and have gone through the written
submissions also.
10.
It has been contended by learned counsel for the petitioner that complainants
had to prove that they had taken the precautions at the time of sowing the seeds. In
the cash bill issued by the distributors it is clearly mentioned that they do not give any
guarantee regarding the growth and yield of the crop, which depends upon the
environmental components. Further, factors guaranteed by the petitioner are
specifically printed on the label and printed on the seed packet. There is no
guarantee on the quantum of yield on the resistance from viral diseases and thrips.
Even the pamphlets/brochure issued by the petitioner’s company regarding ‘Roshini’
do not say any guarantee of the resistance to viral diseases thrips of the yield of the
crop. Further, it is a common knowledge that the condition of the crop and the quantity
of the yield depends upon many factors including the physical condition of the soil, the
moisture content at the showing time, the sowing methodology, salt accumulation in
surface layers, water quality used for irrigation, long dry spell in the atmosphere and
other disease and virus that may attack the plant. It also depends upon the remedial
measures applied by the complainants when confronted with such situations.
Strangely, complainants say that the bills for the fertilizers and pesticides used for the
crop are missing. In absence of it, no premium can be given to the complainants for
absence of evidence on crucial point. It is also contended that complaint is also silent
as to the nature of the fertilizers or pesticides or fungicides used in this case. Further,
complaint is also silent as to the nature of the disease to the plant and when it
occurred and in that case what complainants did with it. It is an admitted fact that in
June,2006 the seeds were sown. The correct procedure was that seeds should have
been grown in a nursery and then transplanted to the field. At the very inception, the
complainants went wrong. Further, the total period of crop duration is 6 – 9 months
including the nursery period. In the present case, only after six months of sowing,
complainants took the scientist and their team for field inception. By that time the crop
will be at the end of its life. The reports of the experts show that the crop was infected
with pest and that too sucking pest. Sucking pest is otherwise called thrips. It sucks
under-surface of the leaves and if it is not controlled immediately by using frequently
the required pesticides as advised by the Agricultural Officer or as recommended by
the Agricultural University, it becomes uncontrollable and naturally the plant will be
affected and the yield will be affected. It is also contended that it is clear from the
complaint as well as from the expert report, that the crop failed because of the sucking
pest which was not attended to by the complainants.
11. It is further contended that at the earliest point of time of the attack, the
complainants should have intimated to the petitioner and should have approached the
agricultural officer for proper remedies. Complainants’ action are highly belated, by
which time the whole damage has been done to the crop. Further, neither taking of
expert to the field nor the report of the expert were communicated to the petitioner. The
rules require that such communications should have been conveyed to the petitioner,
so as to help the complainants to prevent the damage. Everything has been done at
the back of the petitioner and without any knowledge to the petitioner. Thus, there is no
deficiency in service on the part of the petitioner and the claims of the complainants
are not tenable. In support, learned counsel has cited a decision of this Commission,
Hindustan Insecticides Ltd. Vs. Kopolu Sambasiva Rao and Ors. 1V (2005) CPJ
47 (NC)
12.
On the other hand, it has been contended by learned counsel for the
respondents that respondents-farmers had sown the seeds on adopting the agricultural
practices, applied fertilizers and pesticides, incurring an expenditure of Rs.30,000/- per
acre. The petitioner-company had given assurance of yield of 25 quintals per acre,
but the respondents could hardly get even 2 quintals per acre due to defect in the
seeds. Further, the growth was poor and it did not give even the minimum yield.
Therefore, farmers complained to the Agricultural Department about the defective
seeds. After receiving the complaint, the Joint Director of Agriculture along with
Scientists and Assistant Agricultural Officer visited the crop of the farmers in the last
week of December, 2006 and opined that the seeds were defective by comparing with
local variety 334 which yielded around 12-14 quintals per acre.
13. It is further contended that the case of respondents have been proved by way of
evidence of the experts. The experts report states that hybrid vigor was very poor and
due to poor growth, complainants got poor yields. Therefore, there are defects in the
seeds as well as deficiency of service in supplying of the seeds.
14.
Learned counsel for respondents in support of their contentions relied
upon following judgments;
(i)
National Seeds Corpn. Vs. P. V. Krishna Reddy 2009
(CTJ) 522;
(ii)
D. J. Damani and Sons Vs. Deepak Madanlal Agarwal and
Anr. II (2013) CPJ 102(NC);
(iii)
Maya Seeds Development Corpn. Vs. Sandhu 2005
CPJ 13(SC);
(iv)
National Seeds Corporation Vs. Madhusudhan Reddy [2012
(1) Scale 367];
(v)
M/s Maharshtra Hybrid Seeds Company Ltd. Vs. Alavalapati
Chandra Reddy Reported in III (1989) CPJ 8 (SC) and
(vi)
H. N. Shankara Sastry Vs. Assistant Director of Agriculture,
Karnataka reported in II (2004) CPJ 37 (SC).
15. The District Forum, while dismissing the complaints, in its order held;
“6.
The complainant did not place any such cogent material which
holds with any definiteness and specificness that the seed
purchased and sowed in their lands was defective and effected the
yield. Nor any material is placed in substantiation of the complaint
averment as to inspection of field by Joint Director of Agriculture
along with scientific in the month of December 2006 and holding
defect in Roshini Hybrid Chilly seed.
7.
The Ex.A1 is the inspection report of Dr.Y.Rama Reddy,
Scientist, RARS Nandyal pertaining to Roshini Chilli Hybrid crop in
the fields of the farmers in Ramireddypalli of Koilakuntala Division
and Pamulapadu, Eskala, Santhinilayam, and Abdullahpuram
Villages of Atmakur Division. The said inspection and observation
was said to have been made on his visit, on 13-2-2007 and 14-22007, along with Assistant Director of Agriculture and Agricultural
Officer of said division. The said observation report nowhere
alleges defect in the seed resulted to this state of circumstances
which it observes in the said Ex.A1 as to the Roshini Chilly Yield in
said fields of the farmers. On the other hand it observes sucking
pest to the crop therein the fields and thereby not rooting out the
possibility for the said state of circumstances to the crop on
account of the sucking pest. Even though it takes further that
Hybrid vigour was very poor (to the crop) and due to this poor
growth ,less pod productive plants and more poor productive
plants, but as the said was not attributed in reference to any defect
of the seed sowed in said fields that to without any scientific test of
the said crop as to Hybrid vigour and further with the said
circumstances to the crop expecting a further two or three poor
yields not assessing the probable quantity of the said probable
yield, the said Ex.A1 observation remains with any cogent reliability
to hold any defect in the seed especially when there is any
complaint as to germination of seed and plant population and its
growth and any other abnormal physiological features of leaf size,
petal colour , pod colour, length of pod . Further the Ex.A1
observation report being on mere physical look at the said crop and
not being arrived on any approved pathological test and there
being any material to hold that the sacking pest to the crop is on
account of the defective seed only, and as the evidence of P.W.1
says that he did not conduct any seed test , the Ex.A1 is remaining
of any much avail to the complainant’s case to hold the loss of
expected yield to the complainant is on account of defect in seed
alone
8.
The P.W.1 is a mere breeder scientist. Entomologists deal
with deceases of the crops and scientific study in respect of pest.
While evidence of P.W.1 says as to several types in sucking pest
such as thrips , mites and aphids , neither his observation report
nor his evidence could classify the kind of sucking pest observed
on the crop in the fields and further he does not appear to be in
know of hybrid as he says at one juncture hybrids are of two types
as F1 & F2 and at other juncture says the F2 is not hybrid as it is
produced in resowing the F1 seed . Hence his evidence appear to
be of any much help to the case of the complainant especially
when Section 12 and 13 of Seeds Act empowers the seed analysis
to seed inspector and the P.W.1 , the author of Ex.A1, was shown
as any such empowered seed inspector for holding any seed
analysis .
9.
The Vyavasaya Panchangam for 2006-2007, published by
Aacharya N.G. Ranga Agricultural University, Rajendra Nagar,
Hyderabad in its Pg.270 to 273 deals with chilly crop and of the
precautionary measures to be taken in crop cultivation for good
yield and for fighting the pest and thrips till harvest . At Pg.No.272 it
envisages of the measures to be taken for crop production from
various pests including thrips and recommends use of Carboril 3
grams, or Fasalone 3 ml or Esiphate 1.5 grams or Fipronil 2 ml or
Spinosad 0.25 ml with 1 litre of water and its spraying on effected
parts. As preventive measure it recommends the use of 8 kilos of
0.3 % Fiprosil Capsules on 15th and 45th day of plantation when
moisture is still in field. It recommends the processing and culturing
of the chilly seed with Imideclofrid and balanced use of organic and
inorganic fertilizers and manures in cultivation of said crop . Neither
the complaint averments nor the evidence of complainant takes
any mention of the adoption of said measures in crop management
in their fields. Nor any bills of purchase of those pesticides,
fertilizers and manuals is filed by the complainant with any
assertion as to its use as recommended to meet the said
contingent state of circumstances to their chilly crop. By this what is
remaining clear is that the complainant had not taken any adequate
required measures in crop management and thereby remaining as
a cause for such state of circumstance to the crop and so cannot
blame anybody and nonetheless attribute it to any defect in seed.
10.
The Ex.A10/Ex.B1 a xerox of printed broucher relating to
Roshini Hybrid Chilies and its beneficial features. It no where says
of the quantum of expected yield for acre or lends any assurance to
any quantity. It says the yield starts its commencement from 55 to
60 days of plantation. As per Ex.A3 chilly seed of Roshini Hybrid
was purchased in the month of June, 2006. As per sworn affidavit
of the complainant the purchased seed was sowed in the same
month in their lands for growing nursery and after the necessary
nourishing they were transplanted. The inspection of the fields,
where said roshini variety was raised, was done by the P.W.1 on
13-2-2007 to 14-2-2007. Hence from the said time factor what
appears is that the said inspection was done about 8 months after
to the purchase of the seed and its sowing. As the yielding of said
variety commences from 55 to 60 days of its transplantation, the
complainant must have got several periodical cuttings of yield of
said chilly crop by the date of inspection of the said fields by P.W.1.
But neither the complaint nor the sworn affidavit of the complainant
nor the evidence of P.Ws.1 and.2 could say of the yield got by the
complainant by the date of said inspection. When the Ex.A1 says a
further probability for 2 or 3 yields to said crop it is not clear from
the complainant side even the quantum of yield got to the
complainant in said 2 or 3 further probable yields.
11.
12.
13.
The complainants side expect alleging it was assured of 25
quintals of yield per acre by the opposite parties, did not
substantiate it. Nor any other cogent material appears from the
complainant side to the effect that the said hybrid variety was made
understood to yield 23 quintals per acre. Nor any material as to
earlier years of yield of said variety was placed to establish the truth
in said contention of the complainant.
A local variety No.334 said to have yielded 12 to 15 quintals
per acre, which is not proved by evidence of persons who raised
said crop is of any avail to the complainant as comparison as to any
merit or demerit must be with the same kind but not with the other
kinds .
Copy of adangal extract in Ex.A4 said to be of land of
complainant in Sy.No.28/1 of Pamulapadu envisaging cultivation of
chillily crop in the extent stated therein is remaining of any avail to
the case of the complainant as it does not envisage to which year
the said account pertains to and the concern of the complainant to
the said land for want of the name of the complainant in relevant
columns of cultivation or pattadar . Another copy of adangal covered
in Ex.A4 said to be pertaining to land in Sy.No.29/1 of Pamulapadu
envisaging cultivation of Chilly crop on an extent of Ac.1.50 cents in
the Fasli year 1416 is also remaining of any avail to the complainant
as it does not show the concern of the said land to the complainant
for want of the name of the complainant in relevant columns of
cultivation or pattadar”.
14.
As discussed in supra paras as to the viability of the Ex.A1
report and evidence of P.W .1 in reference to Ex.A1 against to
complainant’s contentions as to the aspect of defect in seed and in
the absence of any cogent material as to defect in seed the mere
paper clippings in Ex.A5 ,A9 and representations in Ex.A6 & A7
remains any avail to the complainant’s case as they cannot be
substitute proof for holding defect in seed”.
Lastly, the District Forum held ;
“22.
When the defect in seed is not established in an approved
manner and on the other hand the said state of circumstances to
the crop in the field appears to be on account of thrips with which
it was infested and thrips to said crop appears to be at the
deficient crop management of the farmer and after germination the
progress of the crop not only depends upon the crop management
and field management, but also on friendly agro environmental
conditions as no seed yields crop in the mere air , the cause for
said improper yield or less than expected yield is more at the
deficiency of the complainant in crop management rather than any
inherent defect in the seed and thereby there being any material
to hold the defect in seed supplied by the opposite parties which
must have ensured loss of expected yield to complainant, there
appears any liability of the opposite parties for the claim of the
complainant.
23.
Hence, there being any merit and force in the claim of the
complainant the case of the complainant is dismissed”.
. 16. State Commission while reversing the decision of District Forum in its impugned
order observed ;
“For the contention of the learned counsel for the opposite
parties that the shelf life of the seed was over and therefore they
could not send for analysis does not stand in the light of Section
13 of the Seeds Act. If we compare the format and contents of
Ex. B1 with which alone the purchaser was obliged to make do,
with Rule, 8 of Seeds Rules is crystal clear that the respondents
gave a go by even to the barest minimum of compliance with law.
This disobedience to law on the part of respondent becomes all
the more clear if we compare Ex. B1 more so when Rule 13(3) of
Seeds Rules set out above costs an obligation on the part of the
seller of seeds to preserve the samples of seeds in terms thereof
for the purpose of getting them tested if required. The
dispensation in Rule 13(3), thus, amply indicates that when the
quality of seeds sold is called in question the seller has to raise to
the occasion to dispel it. It is for the seller to get them tested for
their efficacy in germination and genetic purity and other purity in
quality especially when such data is not proved by producing the
statutory labels. It is therefore clear from the material available
that the opposite parties totally failed in showing the seeds in
question were free from defect namely standard germination and
genetic purity. This deficiency smacks both the defect in sees as
also deficiency in service of supply of seeds.
13
The complainants are agriculturists who own lands could
find that crop did not grow nor the yield as promised approached
the agricultural authorities in fact gave a report to the Joint
Director of Agriculture, Kurnool, who in turn deputed the Senior
Scientist, Regional Agricultural Research Station, Nandyal. The
Scientist and Agricultural Officers who visited the crop
categorically stated that over all hybrid vigor was very poor. Due
to this, there was poor growth, less productive plants and more
poor productive plants were observed. In fact they compared with
the local variety 334 and opined that there would be very low
yield. Taking cue from the report of the scientists that sucking
pest was afflicted, the learned counsel for the respondents
contended that no where it was stated that it was not resistant to
pests. There is no meaning in creating hybrid variety after
conducting resistance tests etc., if they are not resistant to pests.
In fact the manufacturer ought to have mentioned that it would
resist to pests, and in case if afflicted the precautions to be taken
to contain these pests or viruses.
14.
Obviously the agriculturists do not have wherewithal to
conduct tests etc. as that of a manufacturer. What all they could
do is obtain an opinion of the agricultural officer and expert in the
subject”.
It further observed;
“18.
At the cost of repetition, we may state that the complainants
have proved their cases beyond doubt by examining the Scientist
as well as the Joint Director of Agriculture that the crop had failed.
The Scientists also compared this crop with that of the
neghbouring crop raised with a different variety, and found that it
had yielded 12 – 15 quintals per acre. The manufacturer did not
sent the seeds that were released to the market under the said
batch in order to prove that the seeds were not of inferior in
quality. It did not even file the laboratory test reports that were
conducted before releasing the seeds to the market. The
questions in regard to nature of land, irrigation facilities etc. were
of general nature. As we have earlier pointed out PW1 did not
state that the lands were not suitable for raising chilly crop and
there was any adverse climatic conditions. The very fact that in
the neighbouring lands yield was good show that there was
deficiency in the seeds manufactured by the respondent. There
could not have been total loss of crop for all these agriculturists
had seeds been in conformity with the specifications. We have
absolutely no hesitation to hold that the crops were failed due to
defective seeds. The complainants have proved by leading both
oral and irrefutable documentary evidence that they have
sustained loss in view of defect in the seeds.
19.
Coming to the quantum of compensation, it is not in dispute
that the complainants have raised the chilly crop in an extent of
land as mentioned in the complainants. If we take minimum 12
quintals per acre as deposed by PW1 and computing @
Rs.4,500/- per quintal the loss would come to Rs.54,000/- per
acre. The complainants would get the yield after applying
fertilizers and pesticides etc. All this includes cost of the crop.
Therefore the complainants are not entitled to value of the seeds,
fertilizers and pesticides etc. separately, PW1 in fact deposed
that the expected yield would be 12 quintals per acre. Since the
manufacturer did not dispute the rate of chilly at Rs.4,500/- per
quintal, the complainants are entitled to 12 quintals per acre @
4,500/- per quintal together with compensation of Rs.5,000/- each
besides costs of Rs. 3,000/- each”.
17.
The short question which arises for consideration is as to whether hybrid
chilly seeds called ‘Roshini’ as manufactured by petitioner’s company and sold by
its distributor, were defective or not.
18.
In this regard, complainants have relied upon two inspection reports
conducted by the Officers of Agriculture Department.
19.
First report is dated 6.12.2006 with regard to the Chillies Crops grown in
Alampur village, Allagadda Mandal Kurnool District, copy of which has been placed
(at page no. 567 of the paper-book) and same is reproduced as under;
“COURT ON VISIT OF CHILLIES CROP IN ALAMUR VILLAGE,
ALLAGADDA MANDAL, KURNOOL DISTRICT
On request of Assistant Director Agriculture, Allagada through
letter ROC. No. C/120/06 DATED 1.12.2006 Sri I. J. Michale Ragiv,
Horticultural Officer, Allagadda mandal Sri R. Narasimha Reddy,
Scientist( G& PB), RARs Nandyal and Sri G. V. Bhaskar Reddy,
Assistant Director of Agriculture, Allagadda Agricultural Division
inspected formers’ fields who have grown chilies crop in Alamur village
on 6.12.2006. The team observations are;
Chilies are grown in large area.
Chilies variety is Rhosni and is the product of Syngeta
company.
All plants were infected with thrips.
High Incidence of virus(Poty and Tospo).
No or less fruit set observed.
High incidence of die back and fruit not diseases.
Most of the plants were in stunted in growth due to the
diseases.
Symptoms of Sphondylia capsici insect also observed in
about
plants.
5%
of
On enquiry farmers said they have not observed flowering even
though the crop attained the age of 100 days and they were in distress
mood. Even then they have spent about Rs. 25,000/- till now towards
for cultivating the crop leaving inside their family man power and land
lease. They have harvested two quintals of green chillies only and they
are dropped into bankrupt.
Remarks:
1. The Crop is infected with Thrips and Viruses.
2. Die back and fruit not incidence is more.
Suggestions:
1.
Farmers are requested to approach the concerned officials for
needy help.
2.
It is requested to help the farmers to get rid off from the
bankrupancy”.
Sd/-”
20. The second report is an inspection report conducted by Dr. Y. Rama Reddy,
Senior Scientist, PARS, Nandyal (copy of which has been placed at page no. 559 of
the paper-book). The same is reproduced as under;
“Inspection report of Dr. Y. Rama Reddy, Senior Scientist, PARS,
Nandyal during the month of February 2007, pertaining to
Roshini chilli Hybrid.
I visited Roshini Chilly hybrid plots under revenue divisions of Koilkuntla
and Atmakur on 13.2.2007 and 14.2.2007 respectively along with Assistant
Director of Agriculture and Agriculture Officers of above divisions.
Observations as follows:
S. No.
Characters
Ramireddy
under
Palli Pamulapadu Iskala,
Koilkuntia division
Santhinilayam and
Abdullapuram under
Atmakur division
,
1.
Plant
Population
Normal
Normal
2.
Plant
(cm)
45-60
45-60
3
Leaf size
Small to medium
Small to medium
4.
Petal color
White
White
height
5.
Pollen Color
Green
Green
6
Pod color
Dark green at
Dark
green
at
developm-ental stage,
red at maturity
developmental
stage, red at
maturity
7
8
Length of the
Pod (cm)
Productive
plant
6 to 9
6 to 9
Very poor i.e ,
1 or 2% only,
rest poor
productive
Very poor i.e 1 or2% 2
only,
rest
poor
productive (10 to
25 pods/plant)
(10 to 25 pods/
plant )
9
Pest
Sucking
observed
pest
10.
Yield Q/acre
2 to 3 poor yields
are expected
Sucking pest observed
1 to 2 poor yields are
expected
Over all hybrid vigor was very poor, due to this poor growth, less
pod productive plants and more poor productive plants were observed.
Due to these reasons poor yields are expected. But local variety 334
was observed good performance and yields expected around 12 to 15
Q/acre in all divisions”.
21.
Both the Fora below have considered the above reports.
22. District Forum did not rely upon these reports, whereas State Commission on the
basis of these reports, has allowed the complaints and has awarded the
compensation.
23.
It is an admitted fact that Chilly Seeds were sown in the first week of June,
2006. However, the first inspection was conducted in December, 2006 and second
inspection was conducted in February, 2007.
24.
There is nothing on record to show as to why the complainants did not make any
complaint to the concerned authorities when there was no flowering in the crop for 100
days. There is also no explanation as to why complainants-farmers approached the
concerned authorities only after 6 to 8 months after the crops had been sown.
25.
As per inspection report dated 6.12.2006, complainants have stated that they
did not observe flowering even though crop attained the age of 100 days. There is
also no explanation as to why even after three months of the sowing of the seeds,
complainants did not make any complaint to the manufacturer or seller of the seeds.
26. Further, as per remarks given by the inspecting officials in their report dated
6.12.2006, it categorically states that;
“1
The Crop is infected with Thrips and Viruses.
2. Die back and fruit not incidence is more”.
27.
Moreover, as per this report inspecting officials requested the farmers to
approach the concerned officials for needy help.
28.
The above inspection report dated 6.12.2006, nowhere states that there was
any defect in the seeds. On the other hand, it has been stated that the “Crop is
infected with Thrips and Viruses”. There is nothing on record to show that due to
the quality of the seeds only, the crop can be infected with Thrips and Viruses. The
crop can be affected by so many factors such as, the quality of the soil or due to
nature of the pesticides and fertilizers and other chemicals used, if in excess or in
less quantity. Thus, report dated 6.12.2006, has nowhere put any blame upon the
Petitioner’s Company.
29.
Now coming to the second report which is dated 13/14.2.2007. It also mentioned
about pest as its states:
“9
30.
Pest
Sucking pest observed
Sucking pest observed”.
Thus, from the second report dated 13/14.2.2007 also, it is very clear that the
crops were infected with “Sucking Pest”. However, this inspection was done only after
about eight months after the crop has been shown. Therefore, much reliance cannot
be placed at this belated inspection report.
31.
Further, it is well established that defects in the seeds cannot be detected on
the basis of visual inspection of the fields alone. On the other hand, visual inspection
conducted by the Agricultural Officials shows that plants were infected. Moreover,
complainants have not placed on record any data with regard to the yield of chillies for
the previous years.
32.
Another aspect to be noted in the present cases is that there has been violation
of principles of natural justice. It is an admitted fact that before conducting the
inspection of the fields of the farmers on 6.12.2006 as well as on 13/14.2.2007, no
notice was given to the petitioner’s company to join the inspection. Whatever
inspection have been conducted on these two dates, the same were done at the back
of the petitioner’s company. There is also nothing on record to show that copy of
these reports was ever supplied by the inspecting officials to the petitioner’s company
so as to give an opportunity to the petitioner’s company to present its view. Under
these circumstances, we hold that there has been violation of the principles of natural
justice, for which respondents cannot derive any benefit.
33.
None of the judgments cited by learned counsel for the respondents are
applicable to the facts of the present case.
34. It is well settled that crop can be affected due to various reasons viz. poor quality
of seeds, fertilizers, inadequate rainfall or irrigation, and also due to poor quality or
inadequate or overdose of pesticides/insecticides. In the present cases, the
respondents-farmers have miserably failed to prove that due to the defective seeds
their crops have failed.
35.
Under these circumstances, impugned order passed by the State Commission
cannot be sustained. Accordingly, we set aside the impugned order passed by the State
Commission and restore the order of the District Forum.
36. Accordingly, present petitions stand disposed off.
37.
Parties shall bear their own costs.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
…………………………
(REKHA GUPTA)
MEMBER
SSB/