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.    Sr. Supdt. Of Post Offices NIT, Faridabad 

2.    Shri Babu Ram Postman C/o Sub Post Master Post Office Sector 16-A, Faridabad

....... Petitioners 

Versus 

1.    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 

2.    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 :     4 th   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 was not delivered to Shri Manoj Kumar on

23.12.2004, Shri Babu Ram postman went to the said address for 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 non-delivery 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 non-

adherence 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 CarsH. 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 MEMBERHON’BLE MRS. REKHA GUPTA, MEMBER. For the Petitioner   :         Ms. Indu Malhotra Advocate with Mr. Kush                                      Chaturvedi and Ms. Nishita, Advocates. PRONOUNCED ON:       4 th   JULY, 2013                                                 O R D E R 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)

                                                                            MEMBERSSB/

                      

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

 

 BEFOREHON’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. The appeal of the

complainant/Dasari Janardhan was allowed and the appeal filed 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

 

BEFOREHON’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, complainant-Company 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 MEMBERs./-                             

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       4 TH   July, 2013                                                   O R D E RJUSTICE J.M. MALIK 

1.      The key question involved in this case is “Whether this

Commission  can  travel  outside  the Insurance Policy and grant  relief to 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 documents and drawings were immediately

furnished  whenever the same were required.  A Structural Engineer,

was  appointed  by  the  Surveyor   but  he  did  not  have any interaction with the

complainant.  No joint  meeting  was  held  with  the surveyor.   On  receipt

of  the  survey  report,  the  complainant again contacted M/s.Gossian &

Associates.  They  supervised  the construction 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 College

Testing and Consulting  Cell, Ludhiana, which vide their report, dated

15.03.2013,  gave  the  opinion   that  structural  design  was ‘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 was also of the

opinion  that  the  collapse  was  due  to  faulty  construction of sewer line by

Punjab  Sewerage  Board,  due to which soil underneath had become bad.  The

complainant also met Shri Kunwar Sunil Kumar, Chartered Engineer for

his  expert  report  and  he  opined  that  if the total  vibration of  the 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 and supervision,

etc.                                                So, non-compliance

of  building construction Codal 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 made  by  the

Experts  appointed  by  the  private  party.   There 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 DELHICONSUMER 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         :    Mr.S.C.Dhanda and Ms.Sagari Dhanda,                                            Advocates For the Opposite Party     :    Mr.Kishore Rawat, Advocate

PRONOUNCED   ON :     05 th     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 DELHIREVISION 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

........ PetitionerVs.

1. State Bank of India Hissar Road Branch, Hissar Road, Rohtak Through its Manager 2.  The Oriental Insurance Company Ltd. Through its Divisional Manager, Rohtak-124001, 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 :     05 th   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 DirectorShri 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 :     05 th     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

15.00 crores

Extra interest liability on borrowings from other sources for a period of three years

10.00 crores

Loss of income from the Hotel for the period of last three years i.e. Rs.10.00crores each year

30.00 crores

Loss of reputation30.00 crores

Mental torture and physical discomfort15.00 crores

                 Total Rs.                                                                            90.00 crores           

 

3.         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 self-

employment. 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 theAndhra 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 MEMBERHON’BLE DR.S.M.KANTIKAR, MEMBER  For the Petitioner(s)              :         Mr.S.M. Tripathi, Advocate For the Respondent(s)                   :         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 expenses-

1)   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 order-

The 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

  

BEFOREHON’BLE MR. JUSTICE J.M. MALIK,                              PRESIDING MEMBERHON’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, 3 rd 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                                      7.950 M.T.

2.    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 9,829,766  M.Ts  at 2.5% based on

analysis.                                                245.755 M.T.

4.   Total loss of cargo                                                288.127 M.T.   

17.    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)

MEMBERs./-

 

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), 808-809, 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 :     5 th     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 –OP-

2 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 31st 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 2009-

10, 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?

12.      During the Surveyor’s visit, he was told that

due to firing from pistol of miscreant, glass got

broken.  Subsequently, in all statements, police 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/S-

13(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:     5 th   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)         To pay Rs.22,000/- as litigation expenses.

5.     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 MEMBERHON’BLE MR.SURESH CHANDRA, MEMBER

 For the Petitioner         : Ms.Surekha Raman, Advocate

For the Respondent    : Mr.Maiban N. Singh, Advocate

 PRONOUNCED ON:               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 16-

11-2000.  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. 11-9-

2000 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, Kolkata- 700047

.........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)          Rs.15,000/- on 26.10.2009.

4.      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)              :         Ms.Ruhi, Advocate 

PRONOUNCED ON               JULY, 2013

ORDER

PER DR. S.M. KANTIKAR1.      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:. 

 

 

 

 

 

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

1. Total Sale Consideration: Rs. 65,07,000/-2. Early Payment discounts (if applicable) Rs.60,000/-3. Amount received till date Rs.59,40,000/-4. Balance Payable Rs.5,07,000/-5. Interest on delayed payment, if any Rs.2,96,094/-6. Maintenance Security Rs.25,000/-        

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 in-convenience 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

O R D E R

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 re-conveyance 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 THE RESPONDENTS/ COMPLAINANTS IN BOTH SET OF APPEALS

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)    The first party shall have a further grace period  of three

months. 

(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 re-

constitute 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 were

being   made   by   the   Ld.  Counsel   appearing   for   the

Developer,   we   asked   the   Developer   to   file   a   fresh   affidavit

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 of construction at the

project   site  contrary  to   the   provisions of 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 of construction of  the  flats  for

which  loans  were  sanctioned. Due  to  the  lack  of supervision  on

part  of  the  Appellant  Bank, 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           8 th         JULY, 2013

O R D E R 

 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), Mumbai- 400099 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 Jaipur- 302004 (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 Hong-

Kong.  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

OP-1/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            : Dr. Sukhdev Sharma, Advocate

PRONOUNCED ON           10 th       JULY, 2013

O R D E R 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 22-02-

2006.  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 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 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 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 10-

01-2006  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)

MEMBERaj

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                             : Dr. Sukhdev Sharma, Advocate

                                                 

PRONOUNCED ON         10 th         JULY, 2013

O R D E R 

 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 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

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 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 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 10-

01-2006 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         10 th         JULY, 2013

O R D E R

 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?                                        No”

 

 

6.      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                             : Mr. Rakesh Kakar, Advocate

For Respondent No. 1           : N E M O

For Respondent  No. 2                  : N E M O

PRONOUNCED ON           10 th       JULY, 2013

O R D E R

 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 was not maintainable.  Explanation to Section 2(d)

(i)  has  been  added w.e.f. 15-03-2003 whereas dealership 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         ,   PRESIDING MEMBER

 

For the Petitioner                         Mr R S Badhran, Advocate

For the Respondent                      IN PERSON

Pronounced on 10 th   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            :      In person

                                                 

PRONOUNCED ON           11 th       JULY, 2013

O R D E R 

 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.      As far as defects in the flats are concerned, as per delivery possession receipt, flat

was in good condition.  In such circumstances, it cannot be inferred

that   construction   of   flat was   defective.    As far as providing two lifts

and   generator   set,   petitioner could not place any

document   to  substantiate  that  respondent was to provide two lifts and generator  set

for  inhabitants of   the building.   Learned State

Commission   and   District   Forum   rightly   observed that   as 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 :     12 th     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 Non-

Convertible 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 is, “Whether  the complainant is a

‘Consumer’?”.  Learned  counsel  for the complainant/respondent vehemently

argued that the revisional jurisdiction is limited.  The National Commission can

decide the legal question,  if any,  but should not

interfere  into  facts,  which  have  already  been  adjudicated 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 Court 1428], “Kalpavruksha Charitable 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 1130] & “Subhadra Rani

PalChoudhary versus Sheirly Weigal Nain and others [AIR 2005 Supreme

Court 3011]”.    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 non-

speaking 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 by the Delhi State Consumer

Disputes Redressal Commission, New Delhi in 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 also taken in

“A. Asaithambi Vs. Company  Secretary Satyam Computer Services Ltd.

& Ors.” by this Bench.  The Hon’bleSupreme Court, vide order 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)

                                          VersusM/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       12 th     July ,     2013

 O R D E R

 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 )

 MEMBERk

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       15 th   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.    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.

11.       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 16 th   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 GuptaS/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 :   16 th     July, 2013    O R D E R  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 5-

6th 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 con-

sumer 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                 :           In person

For the Respondents          :           Mr. Rajat Gaur, Advocate

 

PRONOUNCED ON:       16 th     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 I-

Card 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 4 th 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 Sub-

Postmaster 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 : 16 th   JULY   2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 against the 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)

MEMBERRS/

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     17 th   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    “Post-

Operative 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       18 th   July ,     2013

 O R D E R

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 - Ramrameshwari Devi &   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 )

 MEMBERk

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, Delhi-110092 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                   :  Mr. Rajeev Shukla, Advocate with                                                  Mr. Rajesh Srivastava, Advocate For the Respondent    :           Nemo

 

PRONOUNCED ON     19 th   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

                                                                              … PetitionersVersus

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, AdvocateFor 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 some time.  Even if  there  is some

negligence on the part of the petitioners, the same can be 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 co-sharer 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-2-92/2071, 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.    We  also decided  another  case, titled  as Om Prakash (deceased), Through

LRs., 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                 :     Mr. Rajan P. Kaliyath, Advocate

PRONOUNCED ON         19 th   July ,     2013

O R D E R 

 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

OP-3/Respondent-3, which was manufactured by OP-1/Respondent-1 and marketed by

OP-2/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 )

 MEMBERk

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     19 th   July     2013

ORDERREKHA 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 Amount

(i) 210377 26/08/2000 ANZ Bank DSP Coop. Bank

965/-

(ii) 216855 14/06/2011 Standard Allahabad 655/-

Chartered Grindlays Bank

(iii) 652335   Std. Ch. Bank HDFC Bank 400/-

(iv) 186267 11/05/2003 -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) Mumbai-400063

 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 :     19 th   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 :   19 th   JULY 2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 against 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)

MEMBERRS/

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 :       22 nd     JULY     2013

O R D E R 

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)

MEMBERPSM

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     22 nd   July,     2013

 O R D E R

 

  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 by the Maharashtra State Consumer

DisputesRedressal Commission, Circuit Bench, Nagpur (in short, ‘the State

Commission’) in Appeal No. A/11/169 – Nirmal Land 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 General and Ors. Vs. Living Media India Ltd.

and Anr. and (3) 2012 (2) CPC 3 (State Commission)

– Anshul AggarwalVs. New Okhla Industrial Development Authority.

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       22 nd   July ,     2013

 O R D E R

 

 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.       In the light of aforesaid discussion, it becomes clear that, as complainant did not

fall 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       22 nd   July,     2013

 O R D E R

 

 

 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)

VersusMr. 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         22 nd   July,     2013

 O R D E R

  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 COMMISSIONNEW 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 GorakhpurPetitioner

  VersusDr. (Smt.) Shobha Agarwal W/o Dr. M.C. Head of the Department T.B. & ChestB.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 :       22 nd     July, 2013   

O R D E R 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 non-

delivery 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 : 22 nd   JULY   2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER         This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 against the  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)

MEMBERRS/

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     :  Mr. Kunwar Singh, Advocate                                               For the Respondent in both cases         :  Mr. Abhishek Kumar, Advocate

 

PRONOUNCED ON     23 rd   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 COMMISSIONNEW 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 : 23 rd   JULY   2013 O R D E R

 

PER DR. B.C. GUPTA, MEMBER         This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 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)      Invasive Procedures or devicesii)     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)

MEMBERRS/

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, 14 th 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 : 23 rd   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 LANDRECORDS OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST MALVAN, DISTRICT: SINDUDURG 416606

..... RESPONDENTS 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBERHON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner         :  In person

 

PRONOUNCED ON:       23 rd   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 2000/1986-2004 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

Versus1.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         23 rd   July ,     2013

O R D E R  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. 0326-

2201457 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 )

 MEMBERk

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

                                          Versus1.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       23 rd   July,     2013

 O R D E R

 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 )

 MEMBERk

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          :         Ex-parte                                  

 

PRONOUNCED ON         23 rd     July ,     2013

O R D E R  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 )

 MEMBERk

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 non-

performing 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     24 th   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 COMMISSIONNEW 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: 25 th   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

                               NOTICEThis 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 or liabilityWhatsoever for any such dealings done by them

                       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                                                 MEMBER

 

For the Petitioner                               Mr Sarfaraz Khan, Advocate

For the Respondent                            IN PERSON

 

Pronounced on       24 th   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     25 th   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)

MEMBERRaj/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION  NO. 4513  OF  2012

(Against the order dated 05.09.2012 in First Appeal No. A/12/630of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

1. M/s Raviraj Abhinandan Associates  Millenium Star, 2nd Floor, Dhole PatilRoad, 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       26 th     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 : 26 th   JULY   2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 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)

MEMBERRS/

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 : 29 th   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:     31 st   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 andAnr. II (2013) CPJ 102(NC);

 

(iii)       Maya Seeds Development Corpn. Vs. Sandhu 2005CPJ 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 14-2-2007, 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.            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.

        12.             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 .

      13.           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 5% of

plants.                                                                                        

    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 Palli under

Koilkuntia division

          

Pamulapadu Iskala,

Santhinilayam and

Abdullapuram under

Atmakur division

,

1. Plant Population

Normal Normal

2. Plant height (cm)

45-60 45-60

3 Leaf size Small to medium Small to medium

4. Petal color White White

5. Pollen Color Green Green

6 Pod color Dark green at

developmental stage, red at maturity

Dark green at developm-ental stage, red at maturity

7 Length of the Pod (cm)

 

   6 to 9

 

6 to 9

8 Productive plant

Very poor i.e , 1  or 2% only, rest poor productive

(10 to 25 pods/ plant )

 

Very poor i.e 1 or2% 2 only, rest poor productive (10 to

25 pods/plant)

9 Pest Sucking pest observed

 

Sucking pest observed

10. Yield Q/acre 2 to 3 poor yields are expected

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 Pest Sucking pest observed Sucking pest observed”.

30.       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/