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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 1894 OF 2013 (Against order dated 04.04.2013 in Complaint Case No. 10 of 2011 of the State Consumer Disputes Redressal Commission, Panaji-Goa) Mr. Mario Joseph, Flat S-4, ‘B’ Wing Sansha La Joy Bldg, Opp. Mahindra Cars H. No. 895/38, V Socorro Porvorim – Goa – 403521 Ph. 09820199134

… Petitioner.

Versus Mrs. Mary Fernandes, R/o. Sushma Sadan, Parel, Mumbai 400012.

….Respondent BEFORE: HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING 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

BEFORE

HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER For the Petitioner : Mr. Bhagabati Prasad Padhy, Advocate

PRONOUNCED ON: 4th July, 2013

ORDER

PER MR.VINAY KUMAR, PRESIDING MEMBER

Both parties to this revision petition had filed two cross appeals before the A P State

Consumer Disputes Redressal Commission. 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./-


FIRST APPEAL NO. 88 OF 2013

(Against the order dated 13.12.2012 in Complaint Case No.CC/12/274 of the State Commission, Maharashtra)

PDC Marketing Private Limited, A company incorporated under the Provisions of Companies Act, 1956, having its Head office at 12, Esteem Tower, Ambedkar Road, Nashik Road, Nasik 422101, Maharashtra Through its Director Mr. Vijaykumar Chaurasia

……….Appellant

Versus

Axis Bank Limited, A Company incorporated under the Companies Act 1956, carrying on Banking business under the Banking Regulation Act, 1949, and having its Concerned branch office at Thakkar Bazar, Nashik Maharashtra Through its Manager AND Having it registered office at “Thirshul”, Third Floor, Opp. Samartheshwar Temple, Near Law Garden, Ellisbridge, Ahmedabad 380006, Gujarat

.........Respondent

BEFORE

HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER For the Petitioner : Mr.Dilip Annasaheb Taur, Advocate PRONOUNCED ON: 04th July, 2013ORDER

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 MEMBER

s./-


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

VersusM/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


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

Versus1. 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:



For the Petitioner : Mr. Rakesh Kakar, Advocate

For Respondent No. 1 : N E M O

For Respondent No. 2 : N E M O


O R D E R


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.

.……………….………………


PRESIDING MEMBER

.……………….………………

( DR. B.C. GUPTA)

MEMBERaj



(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

DisputesRedressal 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



(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


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


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 4th Pay Commission recommendations, the

pensioners who were drawing less than basic pay of Rs.2501/- could not get nursing home

facility. This had been duly communicated to the complainant / petitioner vide letter dated

12.3.2011 issued by the OPs. The claim in respect of the reimbursement of medical bill, as stated

above, was rejected because the OPD patients could not be reimbursed for purchase of the

medicines.

4. On appraisal of the evidence adduced by the parties before it, the District Forum vide its

order dated 14.7.2009 partially allowed the complaint in terms of the following directions:-

“A) To pay the sum of Rs.12,832/- with interest @ 9% per annum. The interest shall be payable from the date of filing of the complaint i.e. 23.5.2008 till the realization of the amount. It is so because in the complaint, the date of purchase of the medicines or submitting the bills for reimbursement has not been mentioned.

B) Compensation for harassment and agony, amounting to Rs.3,000/- and litigation charges amounting to Rs.2,000/- shall also be paid to the complainant.”

5. Not satisfied with the aforesaid order of the District Forum, the petitioner filed an appeal

bearing No.10/156 before the Delhi State Consumer Disputes Redressal Commission against this

order praying for direction to the OPs to provide the petitioner with a CGHS I-Card allowing

nursing home facility since this request was turned down by the District Forum. The OPs did not

challenge the order of the District Forum. The State Commission vide its order dated 19.5.2010

held that the petitioner as a pensioner could not be regarded as a consumer within the meaning of

section 2(1)(d) of the Consumer Protection Act, 1986 and as such dismissed his appeal

in limine by observing that the facility provided to a Government servant cannot be provided to a

pensioner even on contribution since he cannot be held to be a consumer within the meaning of

section 2(1)(d) of the C.P. Act. However, keeping in view the fact that the OPs did not challenge

the order of the District Forum, the State Commission did not disturb the partial relief already

granted by the District Forum. It is against this order of the State Commission that the present

revision petition has been filed by the petitioner.

6. We have heard the petitioner who has pleaded his case himself

and learned counsel Mr. Rajat Guar, Advocate for the respondents. Learned counsel

pointed out that since the respondents have already paid the medical bill in accordance with the

order of the District Forum, the grievance of the petitioner in regard to payment of his bills has

been satisfied. The petitioner submitted that in view of the impugned order, the revision petition

now is for direction to treat the petitioner as a consumer within the meaning of the provisions of

the C.P. Act and for issuance of a CGHS I-Card with nursing home facilities. In respect of the

first prayer, petitioner submitted the State Commission gravely erred in ignoring the settled law

which recognises a pensioner and beneficiary of the CGHS as a consumer under the provisions

of the C.P. Act, 1986. In this context, he drew our attention to the order dated 20.10.2005 in the

case of Jagdish Kumar Bajpai Vs. Union of India which has been delivered by 6-Member Bench

of this Commission holding that a pensioner and beneficiary of the CGHS would be a consumer

under the provisions of the C.P. Act, 1986 for the alleged deficiency in service by the CGHS

officials. A copy of this order has been placed by the petitioner on the paper-book. This 6-

Member Bench order is in line with the law settled by the Apex Court.

7. Referring to the view taken by the Apex Court in V.P. Shantha’s case [(1995) 6 SCC

651], this Commission has observed as under:-

“This aspect is considered in para 49 of the V.P.Shantha’s case (Supra).

The Court dealing with a similar situation illustrates that where a person

has taken an insurance policy for medicare whereunder all charges,

consultation, diagnosis and medical treatment are borne by the Insurance

Company. In such a case the person receiving treatment is a beneficiary

of services and the payment for such services would be made by the

Insurance Company to the medical practitioner. The rendering of such

service by the medical practitioner cannot be said to be free

charge. Similarly, where as part of conditions of service the employer

bears the expense of medical treatment of the employee and his family

members dependant upon him, the service rendered to him by the medical

practitioner would not be free of charge and would, therefore, constitute

service under Section 2(1)(o). The same analogy would apply in case of

retired employee. As stated above, past service would be consideration

for providing such medical facility or other facilities.”

8. In view of above position, we are convinced that the State Commission gravely erred in

holding that the petitioner is not a consumer. Its impugned order in this regard, therefore, cannot

be sustained in the eye of law and must be set aside.

9. So far as the second issue in this revision petition regarding issuance of a CGHS I-Card

with nursing home facility to the petitioner is concerned, the petitioner has submitted that he

retiredw.e.f. 1.7.1988 and as on that the Government order dated 30.10.1974 (supra) was

applicable which entitled him to nursing home facilities in terms of para 1(c) since his pay as

well as pension both were more than Rs.750/- per month. His contention was that the

Government order dated 1.2.1989 (supra) which has been heavily relied by the respondents to

reject his representations and denying him the issuance of CGHS I-Card with nursing home

facility has become effective from the date of its issue, i.e., 1.2.1989. He submitted that keeping

in view his date of retirement which was prior to this Government order and his eligibility to the

nursing home facilities as on that date under the then existing instructions vide OM dated

30.10.1974, denial of the nursing home facility was absolutely wrong on the part of the

respondent authorities. To support his understanding in this regard, the petitioner referred to

the clarificatory OM No.S-11011/9/86-CGHS(P) dated 11.10.1989 issued by the Ministry of

Health which lays down that “contribution can be made by the pensioner and pensioner family

on the basis of the last pay drawn and they are entitled to avail the treatment at the same level as

on the date of retirement / date of death of the employee.” The petitioner submitted that

this clarificatory OM which was issued after issuance of the OM dated 1.2.1989 clearly supports

his plea that the government cannot deny him the facility which was already available to him on

the date of his retirement and much before the issuance of the OM dated 1.2.1989 which

obviously came into effect only from 1.2.1989 and not before. The petitioner has also referred to

the two instant cases of S/Shri P.R. Sethi, retired Inspector of Delhi Police to whom CGHS I-

Card No.407942 was issued on 11.8.1988 and B.D. Relan who retired as 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 4th 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/


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



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 RPER 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/-…………


PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk


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

Versus1. 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



For the Petitioner : Mr. Rajan P. Kaliyath, Advocate

PRONOUNCED ON 19 th July , 2013

O R D E R


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/-………………


PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

MEMBERk



(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



(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


ORDER


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.)RESIDING MEMBER

.…..…………………………(Dr. S. M. KANTIKAR)MEMBER

MSS/5


REVISION PETITION NO. 1233 OF 2012 (From the order dated 24.11.2011 in Appeal No.202 of 2010 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad) Sahara India First Floor, Chhikniwala Bldg., Beside Bank of India, Opp. Naroda, Police Station, Naroda, Ahmedabad.

… Petitioner/Opp. Party (OP)

Versus

1. Ashok Kumar Ranchand Gunani2. Minaben Ashok Kumar Gunani3. Haresh Ashok Kumar Gunani4. Kamlesh Ashok Kumar Gunani All R/o A-1, Sindhunagar Society Kubernagar, Ahmedabad

… Respondents/Complainants BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Gautam Awasthi, Advocate For the Respondent : Mr. Akhil Dave, Advocate

PRONOUNCED ON 1 st August, 2013 O R D E R


This revision petition has been filed by the petitioner/OP against the order dated

24.11.2011 passed by the Gujarat State Consumer Disputes RedressalCommission, Ahmedabad

(in short, ‘the State Commission’) in Appeal No. 202 of 2010 – Sahara India Vs.

Ashok kumar Ranchand Gunani & Ors. by which, while allowing appeal partly, order of District

Forum allowing complaint was confirmed, but words ‘Insurance Policy and ‘Bond’ mentioned

in the order of District Forum were substituted by the word ‘Insurance Order’ and ‘Bank Order’,

respectively.

2. Brief facts of the case are that Sangitaben obtained insurance policy from OP-Petitioner on

31.7.1998 for Rs.10,000/- for a period of 10 years and deceased Sangitaben nominated each of

the complainants/ as a nominee in the ratio of 25% each. On 12.10.2007, Sangitaben died.

Complainant No. 1 was paid Rs.10,000/- as death maturity, but Death Health Facility Benefit

was not granted. Alleging deficiency on the part of OP/petitioner, complainant filed complaint

before District forum. OP was proceeded ex-parte and learned District Forum vide order dated

6.1.2010 allowed complaint and directed OP to make payment of Rs.12,00,000/-. Appeal filed by

the petitioner was dismissed by State Commission vide impugned order against which, this

revision petition has been filed.

3. Heard learned Counsel for the parties and perused original record of District Forum.

4. Learned Counsel for the petitioner submitted that notice for appearance on 2.12.2009

before District Forum was issued on 9.12.2009 and on account of non-appearance of petitioner,

petitioner was proceeded ex-parte on 22.12.2009 and ex-parte order was passed on 6.1.2013

without taking any evidence and learned State Commission committed error in dismissing

appeal; hence, revision petition be allowed and impugned order of District Forum be set

aside. Learned Counsel for the respondent admitted that as per record, by notice dated 9.12.2009,

petitioner was asked to appear on 2.12.2009 before District Forum and apparently, District

Forum committed error in allowing complaint ex-parte; hence, revision petition be allowed and

matter may be remanded back to the District Forum for disposal in accordance with law.

5. Perusal of record of District Forum clearly reveals that notice for appearance of petitioner

on 2.12.2009 has been issued by District Forum on 9.12.2009. Learned Counsel for the

respondent submitted that by inadvertence 9.12.2009 has been mentioned whereas apparently

notice was issued on 9.11.2009. This contention cannot be accepted because the date 9.12.2009

has been mentioned on the notice at two places, on the top as well as at bottom. Thus, it

becomes clear that notice for appearance on 2.12.2009 has been issued on 9.12.2009 and ex-parte

order has been passed against the petitioner on 22.12.2009, which could not have been passed by

learned District Forum without service of proper notice for 2.12.2009. Further, it also reveals

that District Forum allowed complaint even without recording any evidence of the complainant.

Thus, it becomes clear that District Forum committed error in allowing complaint ex-

parte. Learned State Commission further committed error in dismissing appeal by impugned

order without considering aforesaid contention of the petitioner made in the memo of appeal

before State Commission and in such circumstances, impugned order is liable to set

aside. Learned Counsel for the respondent also admitted this mistake on the part of District

Forum and State Commission and prayed that after setting aside impugned order, matter may be

remanded back to learned District Forum for deciding the matter after giving opportunity of

being heard to both the parties.


24.11.2011 passed by learned State Commission in Appeal No. 202 of 2010 - Sahara India Vs.

Ashok Kumar Ranchand Gunani & Ors. is set aside and order of District Forum dated 6.1.2010

is set aside. District Forum is directed to decide the matter afresh after giving opportunity of

being heard to petitioner/OP.

7. Parties are directed to appear before District Forum, Ahmedabad City, Gujarat on 9.9.2013. ..………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk


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


VersusTansing h Chauhan S/o Sh. Sujansingh Chauhan Resident of –Gandhinagar, Badmer, Jodhpur

…Respondent/Complainant

BEFORE



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



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.


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/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k


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 110 019


Versus Mr. Om Singh Deswal 14, Green Avenue Behind Sector D-3, Vasant Kunj New Delhi


BEFORE



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



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/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k



(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



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/


REVISION PETITION NO.2273 OF 2012(From the order dated 03.04.2012 in First Appeal No.A/09/1082 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

DR. CHANDRAKANT VITTHAL SAWANT, PATEL RESIDING AT: 6, SHRI MATRUCHAYA, SANT MUKTABAI MARG, VILE PARLE (EAST), MUMBAI-400 057, MAHARASHTRA STATE

..…. PETITIONER Versus

1. SHRI L.R. PILANKAR INSPECTOR OF LAND RECORDS, DEPARTMENT OF LAND RECORD OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST MALVAN, DISTRICT: SINDHUDURG-416 606. 2. SHRI R.S. MALANKAR SURVEY OFFICER, DEPARTMENT OF LAND RECORDS OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST MALVAN, DISTRICT: SINDUDURG 416606.

..... RESPONDENTS

BEFORE:

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


PRONOUNCED ON: 23 rd JULY, 2013

ORDER


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


Versus1.The General Manager, BSNL, Dhanbad, Jharkhand

2.Accounts Officer, Telecom Department B.S.N.L. Dhanbad, Jharkhand

… Respondents/Opp. Parties (OP)

BEFORE



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


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/-………………


PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL 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


Versus1.Om Tara Maa Construction Block E-6, Tagore Park Main Road, P.O. – Tiljala, P.S. – Kasba, Kolkata – 700039

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 – 700039

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 – 700039


BEFORE



For the Petitioner : Mr. G. Ghoshal, Auth. Representative

PRONOUNCED ON 23 rd July, 2013

O R D E R


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.


no order as to costs...………………Sd/-……………


PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2752-2754 OF 2011 (From the order dated 17.06.2011 in Appeal No. 2165-2167 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Sh. Shashikant S Timmapur Aged about 40 years, Occ: Business, R/o Subhash Galli, 2nd Cross, Old Gandhi Nagar Belgaum – 590016


Versus1. Karvy Stock Broking Ltd., A Registered Company Karvy Center/House, 46, Avenue – 4, Street No.1 Banjara Hills, Hyderabad 500034

2. The Branch Manager Karvy Stock Broking Ltd., FK 1 Khimjibhai Complex, Opp. Civil Hospital, Dr. B.R. Ambedkar Road, Belgaum 590002


REVISION PETITION NO. 3300-3301 OF 2011

(From the order dated 17.06.2011 in Appeal No. 2612 & 2613 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Sh. Shashikant S Timmapur Aged about 40 years, Occ: Business, R/o Subhash Galli, 2nd Cross, Old Gandhi Nagar Belgaum – 590016


Versus1. The Managing Director The Karvy Stock Broking Ltd., 529, Road No. 4, Banjara Hills, Hyderabad 500034

2. The Territory Manager The Karvy Stock Broking Ltd., FK 1 Khimjibhai Complex, Opp. Civil Hospital, Dr. Ambedkar Road, Belgaum – 590002


REVISION PETITION NO. 3721 to 3725 OF 2012

(From the order dated 28.05.2012 in Appeal Nos. 4656 to 4660 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Shashikant S Timmapur Aged about 42 years, Occ: Business, “SIDDA-GANGA NIVAS” CTS No.11758/B, Subhash Galli, 2nd Cross, Main Road, Old Gandhi Nagar Belgaum – 590016 KARNATAKA, INDIA


Versus1. The Managing Director Karvy Stock Brocking Ltd., 529, Road No. 4, Banjara Hills, Hyderabad 500034 ANDHRA PRADESH, INDIA

2. The Territory Manager The Karvy Stock Brocking Ltd., FK 1 Khimajibhai Complex Opp. Civil Hospital, Dr. B.R. Ambedkar Road, Belgaum – 590002 KARNATAKA, INDIA


BEFORE




PRONOUNCED ON 24 th July, 2013

O R D E R


Revision Petition Nos. 2752-2754 of 2011, 3300-3301 of 2011 and 3721-3725 of 2012

have been filed by the petitioner/complainant against the impugned orders dated 17.06.2011

and dated 28.5.2012 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal Nos. 2165-2167 of 2010, in Appeal Nos.

2612 & 2613 of 2010 and in Appeal Nos. 4656 to 4660 of

2010– Shashikant STimmapur Vs. The Managing Director, Karvy Stock Broking Ltd.

& Anr. by which, while dismissing appeals, orders of District Forum dismissing complaints

were upheld.

2. Brief facts of the cases are that complainant/petitioner filed 10 complaints, which are as

under:

1. Complaint No. 348/07 dated 12.12.07 – Complainant submitted that he is a

businessman and deals in shares trading. Complainant is availing services of OP

for the purpose of earning his livelihood by means of self-employment of trade in

shares and securities. It was further alleged thatinspite of credit balance in his

account, his order for selling 150 shares of ICRA, 20 shares of TITAN Industries

Ltd. were not sold on 22.10.2007 and caused loss of Rs.50,000/-. It was further

alleged that his request for purchase of 1000/- shares of Siemens India Ltd. was

dishonoured and he suffered loss of Rs.3,00,000/- on account of deficiency on the

part of OPs.

2. Complaint No. 349/07 dated 10.12.07 – Complainant alleged that on 31.10.2007,

OP stopped trading in complainant’s account illegally. Complainant handed over

cheque of Rs.20,08,000/- to OPs operator and placed order for purchase of 4,000

shares of IVRCL and sale of 150 shares of ICRA Company, but orders were not

executed and claimed compensation of Rs.3,12,000/- for deficiency.

3. Complaint No. 18/08 dated 11.01.08 - Complainant placed order for purchase of

6000 shares of IVRCL, 4,000 shares of GBN Ltd., 2000 shares

of Mindtree Consulting Ltd. These shares were purchased by OP, but order for

sale placed on 16.3.2007 were not executed and caused loss of Rs.6,25,000/- and

claimed aforesaid loss along with unliquidated damaged Rs.12,50,000/-.

4. Complaint No. 19/08 dated 11.01.08 – Complainant placed order for sale of some

shares, but order was not executed. OP-1 agreed to pay Rs.1,78,000/- for

deficiency in service and out of that credited Rs.20,000/- in account of

complainant, but has not paid balance Rs.1,58,000/-.

5. Complaint No. 20/08 dated 11.01.08 – OP unauthorisedly transferred 150 shares of

ICRA Ltd. from complainant’s account and withdrawn Rs.42,354.50 from

complainant’s account without complainant’s request and caused loss of

Rs.1,53,027.37 and thus claimed Rs.3,53,000/- as compensation and Rs.7,00,000/-

as unliquidated damages.

6. Complaint No. 21/08 dated 11.01.08 – Complainant purchased 3950 shares of

ICRA on 17.4.2007. On 18.4.2007, OP sold 3800 shares without complainant’s

consent and caused loss of Rs.8,20,000/-. On 25.4.2007, complainant purchased

1000 shares of Tulip IT Services Ltd., but in spite of sale order, shares were not

sold and caused loss of Rs.88,000/- and thus, claimed loss of Rs.9,08,000/-

and unliquidated damage of Rs. 10,00,000/-.

7. Complaint No. 04/09 dated 06.01.09 – Complainant submitted that he is doing large

scale transaction with the OP. OP blocked his account and did not allow to

transact allotted 200 equity shares of Tata Steel Ltd. and thus, claimed

compensation of Rs.7,00,000/-.

8. Complaint No. 471/09 dated 23.7.09 – Complainant alleged that on account of non-

providing of exposure to his account by OP, he could not book profit of shares of

ICRA Ltd. and claimed Rs.3,56,400/-.

9. Complaint No. 472/09 dated 23.07.09 – Complainant was not allowed to sell 100

shares of Bank of Maharashtra and claimed compensation of Rs.32,275/-.

10. Complaint No. 473/09 dated 23.07.09 - Complainant alleged that he was not

allowed to sell 250 shares of CIPLA Ltd. and claimed unliquidateddamage of

Rs.3,00,000/-.

3. OP/respondent contested complaints, filed reply and submitted that complainant does not

fall within the purview of consumer and further submitted that on account of Arbitration Clause,

District Forum had no jurisdiction to entertain the complaint. Further denied any deficiency on

the part of OPs and submitted that on account of not maintaining margin money in the account

for trading and complainant had already filed complaints before District Forum, he was not

allowed to operate his trading account and prayed for dismissal of complaints.

4. After hearing both the parties, learned District Forum dismissed complaints. Appeals filed

by the petitioner were dismissed by learned State Commission vide impugned orders against

which, these revision petitions have been filed.

5. Heard the petitioner in person at admission stage and perused record.

6. Petitioner submitted that, as the petitioner was having Demat account with respondents and

was availing services of respondent in doing transactions of sale and purchase of shares,

respondent committed deficiency in not executing his orders, even then, learned District Forum

committed error in dismissing complaints and learned State Commission further committed error

in dismissing appeals; hence, revision petitions be admitted.

7. Admittedly, complainant has filed 10 complaints, out of which, 4 complaints on

11.1.2008, 3 complaints on 23.7.2009 against the OP, though; he could have filed consolidated

complaints on 11.1.2008 and on 23.7.2009. In all the complaints, complainant admitted that he is

a businessman and deals in share trading. No doubt, he has mentioned in the complaints that he

has availed the services of the respondents exclusively for the purpose of earning his livelihood

by means of self-employment, but looking to the volume of his transactions, it cannot be inferred

that complainant availed services exclusively for the purpose of earning his livelihood by means

of self-employment, but it can very well be presumed that he was availing services of OP for

commercial purposes for sale and purchase of shares and in such circumstances, the complainant

does not fall within the purview of consumer under Section 2 (d) (ii) of the Consumer Protection

Act.

8. West Bengal State Consumer Disputes Redressal Commission, Kolkata, in 1 (2009)

CPJ 316 - Ramendra Nath Basu Vs. Sanjeev Kapoor & Anr . has held that share trading

transactions between parties do not come under purview of Consumer Protection Act, 1986.

9. Learned Delhi State Commission in case III (2000) CPJ 291 - Anand Prakash Vs. A.M. Johri & Ors . held that “sale-purchase of shares are commercial transactions and complainant does not fall within the purview of ‘consumer’.

10. This Commission in R.P. No. 1179 of 2012 – A. Asaithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors .” also held that sale and purchase of shares are commercial transactions and does not fall within the purview of ‘consumer’. Special Leave to Appeal (Civil) No. 36840 of 2012 (A.Asithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors.) filed against this judgment was dismissed in limine by Hon’ble Supreme Court on 14.12.2012. This Commission also took same view in O.P. No. 287 of 2001 - Dr. V.K. Agarwal Vs. M/s. Infosys Technologies Ltd. & Ors . Decided on 24.7.2012 and in R.P. No. 3345 of 2012 – M/s. Sterlite Industries (India) Ltd. Vs. Ganapati Finsec Pvt. Ltd. decided on 12.7.2013. In F.A. No. 362 of 2011 –Ganapati Parmeshwar Kashi & Anr . Vs. Bank of India & Anr ., this Commission observed as under:

“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.

Special Leave Petition filed by the Appellant was dismissed by the Hon’ble Supreme Court on

14.1.2013 and observed 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”.

11. In the light of aforesaid judgments, as complainant/petitioner was a businessman and

availing services of OPs for sale and purchase of shares in heavy volume for earning huge

profits, complainant does not fall within the purview of consumer and learned State Commission

has not committed any error in dismissing appeals and affirming order of District Forum

dismissing complaints.

12. We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petitions are liable to be dismissed at admission stage

13. Consequently, revision petitions filed by the petitioner are dismissed at admission stage

with no order as to costs.

..……………………………


PRESIDING MEMBER

..……………………………

( DR. B.C. GUPTA )

MEMBER

k


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 COMMISSION NEW DELHI REVISION PETITION NO. 1184 OF 2011

(From order dated 01.02.2011 in First Appeal No. 4571 of 2010 of the State Consumer Disputes Redressal Commission, Karnataka)

New Holland Fiat (India) Pvt. Ltd. Formerly known as Fiat India Pvt. Ltd. 303, Central Plaza, 166, C. S. T. Road, Kalina, Mumbai-400098, Maharashtra

...…Petitioner

Versus

1. Govindkar Vinod Krishnamurthy, S/o Late G. M. Krishnamurthy, No. 46, 3rd Cross, Aga Abbash Alli, Road, Halsur, Bangalore

2. Genesh G. K. S/o Late G. K. Krishnamurthy, No. 46, 3rd Cross, Aga Abbash Alli, Road, Halsur, Bangalore

3. Manx Auto Ltd. No. 16/A, KKMP Building, Miller Tank Bund Road, Vasnathnagar, Bangalore, Rep. By its MD Prabhakar.

4. Kotak Mahindra Prime Ltd. Formerly Kotak Mahindra Primus Ltd. No. 20, 3rd Floor, Uniworth Plaza, Sankey Road, Palace Guttahalli, Bangalore 20, Rep. By its Authorized Signatory Mallikarjuna Jaliahal.

.... Respondents

BEFORE:

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

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Puneet Agrawal, Advocate

For the Respondents : Mr. Shekhar G. Devasa Advocate for R-1 and R-2

Respondent no. 3 is already ex parte.

Mr. Abhishek Dwivedi, Advocate for R-4

Pronounced on: 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 DELHIREVISION PETITION NO. 4513 OF 2012(Against the order dated 05.09.2012 in First Appeal No. A/12/630 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

1. M/s Raviraj Abhinandan Associates Millenium Star, 2nd Floor, Dhole Patil Road, Pune-01. 2. Ravindra Kumar Sakla Millenium Star, 2nd Floor, Dhole Patil Road, Pune-01. 3. Abhinandan R Sakla Millenium Star, 2nd Floor, Dhole Patil Road, Pune-01.

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

Mrs. Surekha K Dang 505/B-2, Excel Corner 1, 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


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/



(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, Andheri (East), Mumbai- 400099

.....Respondent

BEFORE:

HON’BLE MRS. VINEETA RAI, PRESIDING 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./-


(1) REVISION PETITION NO. 1451 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

AND others in Revision Petition No. 1452 to 1489 of 2011

BEFORE:



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


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/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2809 OF 2012 (Against the order dated 03.04.2012 in Appeal No. A/12/285 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

Alok Kumar Roy Bldg No-A/2, Flat No.06 (Ist Floor) Opp Raolicamp Gurdwara, MA Road Sion Koliwada, Sion (E), Mumbai – 400037, Maharastra

...........Petitioner

Versus

1. Head of the Sales & Service (Lap Top Computer) Hewlett Packard India Sales Pvt. Ltd., 1st Floor, Central Plaza, 106, Vidhyanagari Marg, Opp Maha Auto, Kalina Santacruz (East) Mumbai – 400098 Maharashtra

2. The Proprietor Demesne, SP Infosys Retail Venture, 1D Vorkar House, 385 Lamington Road, Grant Road (E), Mumbai – 400007 Maharashtra

...........Respondents

BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : In person PRONOUNCED ON 1 st AUGUST, 2013 ORDER


1. The Revision Petition is filed against the impugned order of Maharashtra State

Commission Disputes Redressal Commission, Mumbai (in short, State Commission,

Maharashtra) in First Appeal No. A/12/285 against the Consumer Complaint No.

CC/09/618 of Consumer Disputes Redressal Forum, Mumbai –Sub-District (in short

District Consumer Forum).

2. Facts in Brief:

The complainant purchased a Lap Top from the OP-2 for Rs. 56,500/- which was

manufactured by OP-1 with warrantee of one year from 05.06.2007. It went frequently out

of order and for which repairs were undertaken by the OP-2 even after warrantee. The

complainant had spent Rs. 1400/- for repairing the said Lap Top and hence it was the

negligence of OP-2 which incurred loss to the complainant. The complainant is an Engineer

and he was expecting job in U.S. Due to break-down of Lap Top, he was unable to contact

the U.S. Company in time and hence lost the opportunity. The complainant also requested

the OP-2 to replace the Lap Top. But OP-2 had not paid any heed to his request, therefore,

the complainant filed a complaint before the District Forum for the compensation, mental

agony and the price of Lap Top totaling an amount of Rs. 9,73,436/-.

3. The OP denied the allegations about the faulty Lap Top. Also they have stated that the

defects were promptly repaired and the defect was in DVD writer which they have replaced

hence there is no deficiency of service. The District Forum partly allowed this complaint and

directed the OP-1 to pay Rs. 30,000/- to the complainant within six weeks, failing which, the

amount will carry interest @ 9% per annum.

4. Aggrieved by this order of the District Forum, the complainant filed an Appeal No. 12/285

before the State Commission for enhancement of amount of compensation.

5. The State Commission heard the complainant and perused the documents on record. The

main contention of the complainant before the State Commission was that the unfair trade

practices were adopted by the OP. They sold the defective Lap Top. The State Commission

dismissed the appeal on the ground that the complainant has not produced any expert

evidence to prove that his Lap Top was defected and the OP has repaired the Lap Top and

removed the defects properly within warranty period. Therefore, the State Commission

dismissed the appeal. Against the order of the State Commission, the complainant/petitioner

filed this revision petition before us.

6. We have heard the petitioner and perused the documents, bills and evidence on record. We

find that the OP has repaired the Lap Top, done the servicing during the warranty

period. He has replaced the defective DVD drive. On perusal of the email communications

we do not find any corroborated evidence from the complainant about his confirmed job or

lost job opportunity at U.S. Even otherwise, if his Lap Top goes out of order, for a short

period he had other alternatives for internet access through various internet/cyber cafes.

Therefore, the Complainant’s claim for Rs.9,73,436/- appears to be unjust enrichment. The

award of Consumer Court is not a jackpot or a lottery. Hence, the contention of the

Complainant is quite surprising and mischievous.

7. The award of Rs.30,000/- by the District Forum is just and proper. We endorse the view taken

by both the Fora below in disposing the Complainant’s case. Hence, this Revision Petition is

dismissed. No orders as to cost.

..…………………..………J

(J.M. MALIK) PRESIDING MEMBER ……………….…………… (DR.S.M. KANTIKAR) MEMBERJr/2

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1852 OF 2007(From the order dated 07.03.2007 in First Appeal No. 405/2004of Orissa State Consumer Disputes Redressal Commission)

1. The Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Bhavishya Nidhi Bhawan, Unit – IX, Bhubaneswar – 751022 District – Khurda Orissa

2. The Regional Provident Fund Commissioner, Employees Provident Fund Organisation,

Regional Office, 28, Bhavishya Nidhi Bhawan, 7th Floor, Wazirpur Industrial Area Delhi - 110052

3. Assistant Provident Fund Commissioner-cum- Officer-in-Charge, Sub-Regional Office,

Berhampur District Ganjam.... Petitioner(s)

Versus1. G. Eswaramma c/o UIP Hospital At/PO – Khatiguda District - Nabaranpur 2. Executive Engineer Podagada Dam Division At/PO – KhatigudaDistrict – Nabarangpur

…. Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Rajesh Manchanda, AdvocateFor the Respondent-1 Mr. Dhruv Mohan, AdvocateFor the Respondent-2 Mr. Shibashis Misra, Advocate

PRONOUNCED ON : 1 st AUGUST 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 by the petitioner against the impugned order dated 07.03.2007 passed by the Odisha State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

405/2004, “Regional Provident Fund Commissioner, Bhubaneswar vs. G. Eswaramma &

Ors.” by which while dismissing the appeal, the order dated 29.03.2004 passed by District

Consumer Disputes Redressal Forum, Nabrangpur allowing the complaint no. 81/03 was upheld.

2. Brief facts of the case are that the complainant/respondent no. 1 is the widow of a deceased

workman G.S.M. Reddy who joined duty on 18.07.81 in Podagada Dam Division, which was

allotted PF Code No. OR/3156. He was working as carpenter (WC) in the office of respondent

no. 2, Executive Engineer, Podagada Dam Division, District Nabarangpur. The Podagada Dam

Division establishment was covered under the Employees Provident Fund Act (EPF) 1952, with

effect from 31.07.1983. A deduction from the salary of the deceased was made with effect from

August 1983. However, subsequently, the deceased along with some other employees was

transferred to another establishment in November 1983, namely, Kapur Dam Division. The said

establishment was not covered by the Provident Fund Scheme. The deceased was transferred

from Podagada Dam Division on 9.11.1983 and joined the new establishment on 11.11.83. Later

on, Kapur Dam Division was also covered under the EPF Act with effect from 30.11.86 vide

code number OR/3244. Unfortunately, G.S.N. Reddy died on 07.03.87, meaning thereby that he

remained covered under the EPF Act for a period of little over three months. The plea taken by

the complainant says that her husband was entitled for payment of EPF dues and pension under

the relevant rules. The District Forum vide their order dated 29.03.2004 directed the

petitioner/OP No. 1 to take immediate necessary steps to regularise the matter by collecting the

information/document from OP No. 2 for payment of EPF claims and also sanction pension in

favour of the complainant according to relevant rules. An appeal was filed against this order by

the petitioner before the State Commission, but the same was dismissed with costs by the State

Commission. It is against this order that the present petition has been made.

3. It was argued by the learned counsel for the petitioner that G.S.N. Reddy was first working

in Podagada Dam Division since 1981, but since the said establishment was covered under the

EPF Act from 31.07.83 and the deceased employee was transferred to another establishment on

9.11.83, he remained covered under the EPF Act for a period of three months and 9 days only.

He was transferred to Kapur Dam Division when he joined on 11.11.83 but the said

establishment was not covered under the EPF Act. Kapur Dam Division was covered under the

EPF Act from 30.11.86 and hence the deceased who died on 07.03.87 was covered at the new

establishment for three months and 6 days only. In this way, the deceased remained covered

under the EPF Act for 6 months 15 days only, which works out to be less than one year and

hence he was not entitled for the grant of pension in accordance with provisions of Employees

Family Pension Scheme 1971. Learned counsel argued that the said provision had been

amended with effect from 1.04.88 and now this period has been reduced from one year to 3

months, but at the time of death of G.S.N. Reddy, the period was one year only. He further

stated that the order passed by the District Forum, in which they observed that late G.S.N. Reddy

had completed more than two years of reasonable service and is entitled for benefits under the

relevant rules, does not reflect a correct appreciation of facts.

4. Learned counsel for the respondent has drawn our attention to clause 6 of the scheme

entitled as “Retention of Membership”. He argued that the transfer of the employee from one

establishment to another cannot be taken as a break in service.

5. Learned counsel for respondent no.2, Executive Engineer, Podagada Dam Division has also

drawn our attention to clause 6 of 1971 Scheme (hereinafter referred to as ‘Scheme’) saying that

once a person becomes a member of the family pension fund, he does not lose his membership

on being transferred to another establishment. In the present case, the entire Provident Fund for

the whole period, i.e., from August 1983 to December 1986 have already been deposited by

respondent no. 2 and this fact had been admitted by the petitioner in their revision petition as

well. He further stated that clause 3 of the Scheme read with clause 6 makes it clear that the

employee did not lose the membership of the scheme on his transfer.

6. In the reply, learned counsel for the petitioner stated that the word ‘transfer’ had not been

included in proviso to clause 6 of the Scheme and hence break in membership of the family

pension fund after being transferred to another establishment shall not allow him to continue as a

member of family pension fund.

7. We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.

8. It is an admitted case of parties that husband of complainant late G.S.N. Reddy was

appointed as work-charged carpenter and joined Podagada Dam Division on 18.07.81 and then,

he joined the Kapur Dam Division with effect from 11.11.83. It is also admitted that he died on

7.3.87. The case of the petitioner is this that there was deduction of provident fund dues for only

3 months 9 days in the first establishment, and 3 months 6 days in the second establishment and

hence the total period comes out to 6 months 15 days, which being less than one year, the

complainant is not entitled to pension under the 1971 Scheme. However, this version is quite

contrary to facts as per detailed reply filed on behalf of respondent no. 2, Executive Engineer,

Podagada Dam Division. It has been clarified that late G.S.N. Reddy worked in Podagada Dam

Division from 18.07.81 till 10.11.83 and then he was transferred to Kapur Dam Division. The

said establishment was not covered under the provisions of EPF and Miscellaneous Provisions

Act 1952 at that time. Subsequently, vide order no. 8548 dated 27.05.86 of Regional Provident

Fund Commissioner, Bhubaneswar, the Podagada Dam Division came under the purview of the

Act with effect from August 1983 and allotted code No. OR/3156 with effect from August 1986.

Both the employees’ share and employer’s share used to be recovered and deposited regularly

before the RPFC, Orissa. However, regarding deposit of arrears for the pre-discovery period,

i.e., August 1983 to July 1986, the RPFC Orissa waived of the deposit of employees’ share of the

staff of Podagada Dam Division vide order dated 11/08/47 dated 21.10.87. Accordingly, the

employer’s share only for the period August 1983 to July 1986 was deposited with the RPFC. At

that time, the share for late G.S.N. Reddy was not deposited with RPFC as he had already been

transferred to Kapur Dam Division. Kapur Dam Division came under the purview of the EPF

Scheme from Nov. 1986 as per letter number 3351 dated 18.07.87 from RPFC Orissa and was

given code number OR/3244. EPF contribution for the period December 1986 upto 7.3.87 for

late G.S.N. Reddy was deducted by Kapur Dam Division and was deposited with RPFC Orissa.

Subsequently, Kapur Dam Division was merged with Podagada Dam Division and all record of

late G.S.N. Reddy were transferred to it. As per the decision taken by Dy. General Manager

(Finance), the dues pertaining to the period from August 1983 to Nov. 1986 of late G.S.N. Reddy

were deposited with the EPF Authority to finalise the issue. A plea was also made before the

District Forum accordingly and finally vide order dated 29.03.2004, the District Forum decided

the case with a direction to regularise the matter, by collecting the information/documents from

OP No. 2, Podagada Dam Division, for payment of provident fund and also sanction of pension

in favour of the complainant. According to relevant Act and Rules. It is very clear, therefore,

that the deceased employee became a member of the Family Pension Fund with effect from

31.07.83 and was given EPF Account OR 3156/327 in the Podagada Dam Division. Once an

employee is transferred to another division within the organisation, his coverage under the Act is

not suspended.

9. It is very clear from the factual position narrated by respondent no. 2 that late G.S.N. Reddy

became a Member of the Fund with effect from 31.07.83 and the contribution to Provident Fund

was regularly made till his death in March 1987. The contention of the petitioner that by transfer

from one establishment to another establishment his membership got suspended does not have

any force. In this case, it is a transfer from one division to another division within the same

organisation, and by no stretch of imagination, it can be counted as break as stated in clause 6 of

the Scheme. It is held, therefore, that the State Commission or the District Forum have not

committed any illegality or irregularity in passing the impugned orders in favour of the

complainant. It was the duty of the petitioner to collect the necessary information and

documents from the office of OP No. 2 Podagada Dam Division and then pass orders for the

release of Provident Fund dues and sanction of pension in accordance with relevant Act and

Rules. The revision petition is, therefore, ordered to be dismissed and the impugned order is

upheld with no order as costs.

Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 207 OF 2013 M/s Shri Geeta Infratech Pvt. Ltd. Through its Director, Manisha S. Ranasaria D-404, Aditya Elite, B.S.Maktha 6-3-1119, Somajiguda Near Keerthilal Jewellers Lane Hyderabad – 500016

… ComplainantVersus

M/s Lodha Healthy Constructions & Developers Private Limited (LHCPL) East Block, Eden Square Kukatpally Village Hyderabad – 500072 Regd. Office : 216 Shah & Nahar Industrial Estate Dr.E. Moses Road, Worli Mumbai – 400018 Through its Chairman & Managing Director

… Opposite Party BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE DR. S. M. KANTIKAR, MEMBER

For the Complainant : Mr. Venkateswar Rao Anumolu,Advocate

PRONOUNCED ON_07.08.2013 O R D E R JUSTICE J.M. MALIK

1. The key question is “Whether the complainant is a “consumer” and

falls under Section 2(1)(d)(ii) and Explanation appended to it?”.

2. Even if a Private Limited Co. is treated, as a “person”, will the purchase of space/residential

flats can be for earning its livelihood?. The instant complaint has been filed by M/s. Geeta Infratech

Pvt.Ltd. The complainant is a registered Company under Companies Act, 1956 and has its

registered office at 83, Nootan Cloth Market, Raipur, Ahmedabad – 380 022. They were looking

for a facility of its Director, Manisha S.Ranasaria’s family’s comfortable living. They entered into

an agreement with M/s.Lodha Bellezza Constructions and Developers Pvt. Ltd., having its office at

Kukatpally Village, Hyderabad. They were to provide various facilities in the Lodha Bellezza

Complex as listed in the Brochure. The complainant paid a substantial amount towards the price

of the flat.

3. Learned counsel for the complainant vehemently argued that the Director is buying flat for her

own personal use. But there is no inkling in the agreement entered into between the parties. The

agreement clearly states that the same is entered into between the OP and M/s. Geeta Infratech Pvt.

Ltd. 83, Nootan Cloth Market, Raipur, Ahmedabad – 380 022. It is, thus, clear

that any officer of the Complainant Company will stay on, who will transact the business for and

on behalf of the complainant company. Under these circumstances, it cannot be said that the

complainant is a “consumer”.

4. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299

(NC), there was delay in handing over possession. The complainant was a Private Limited

Company. The complainant was nominated for allotment of

showroom. Possession not given. Sale Deed was not executed. Deficiency of service was

alleged. It was held that even if Private Limited Co. is treated as a “person”, purchase of space

could not be for earning for its livelihood. Purchase of space was for “commercial purpose”.

5. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr.,

Concumer Complaint No.296 of 2011, decided by National Commission, on 03.07.2012, it was held

that the business of the complainant extended upto Mumbai. In order to save on the

expenditure incurred on his stay, in hotels, at Mumbai, during his business trips,

he was interested in buying some flats in Mumbai. He took two flats. It was held, “Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of commercial purpose, which has been taken out of the purview of the Consumer Protection Act, 1986, vide Amendment Act No.62 of 2002, effective from 15th of March, 2003. This Commission in the case of Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd. IV (2007) CPJ 199 (NC), in a somewhat similar case, had held that the complaint was not maintainable under the Consumer Protection Act, 1986. It had, therefore, disposed of the complaint with liberty to the complainant to approach Civil Court. The said order has since been upheld by the Hon’ble Supreme Court, as Civil Appeal No.6030-5031 of 2008, filed before the Supreme Court, stands dismissed vide the Apex Court’s order dated 29.09.2008”.

6. Against the said order of this Commission, Special Leave Petition (Civil Appeal No. 6229 of

2012, Satish Kumar Gajanand Gupta Vs. Srushti Sangam Enterprises (I) Ltd & Anr.) was filed

before the Hon’ble Supreme Court. The Hon’ble Apex Court dismissed the said Special Leave

Petition, vide order dated 14.09.2012.

7. In M/s.Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. & Anr., Consumer

Complaint No.112 of 2012, decided by National Commission, on 05.07.2012, it was held that :“Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the

commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for ‘commercial purposes’.

8. Against the said order of this Commission, Special Leave Petition (Civil Appeal Nos.8990-

8991 of 2012, M/s. Purusharath Associates Pvt. Ltd. Vs. M/s. Uppal Housing Ltd. Plaza &

Anr.) was filed before the Hon’ble Supreme Court. The Hon’ble Apex Court dismissed the said

Special Leave Petition, vide order dated 07.01.2013.

The complaint, accordingly, is dismissed in limine.

.…..…………………………(J. M. MALIK, J)PRESIDING MEMBER

.…..…………………………(DR.S. M. KANTIKAR)MEMBER dd/19


REVISION PETITION NO. 2915 OF 2008 (From the order dated 03.03.2008 in Appeal No.371 of 2007 of the State Consumer Disputes Redressal Commission, Delhi)

Delhi Jal Board Through its Zonal Revenue Officer South West III Sector-7, New Delhi – 110022


VersusSh. O.P. Mehra, ACM (Retd.), R/o A-934, Vasant Vihar, New Delhi – 110057

… Respondent/Complainant

BEFORE



For the Petitioner : NEMO

For the Respondent : Ms. Vinita Sasidharan, Advocate

PRONOUNCED ON 8 th August , 2013

O R D E R


This revision petition has been filed by the petitioner/OP against the order dated

03.03.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the

State Commission’) in Appeal No. 07/371 – Delhi Jal Board Vs. Shri O.P. Mehra, ACM (Retd.)

by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that OP/petitioner provided two water connections to the

complainant/respondent. Meters of both the connections were defective right from the year

1999. It was further alleged that there was no water supply from one of the connections;

however, OP continued raising bills against both these connections on ad hoc basis and

complainant made payment under threat of disconnection. Inspite of repeated complaints, OP

did not redress grievances of the complainant. Meters were replaced in April, 2004. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted

complaint. Learned District Forum after hearing both the parties, allowed complaint and directed

OP to refund Rs.26,750/- paid by the complainant on account of illegal bills and further directed

to issue revised bills on the basis of average consumption and further awarded Rs.25,000/- for

mental agony and physical harassment and Rs.5,000/- as cost of litigation. Petitioner filed

appeal before State Commission and during course of arguments, learned Counsel for the

petitioner restricted submissions to the extent of compensation granted by District Forum and in

such circumstances, findings of District Forum were affirmed on merits by learned State

Commission. Learned State Commission vide impugned order upheld grant of compensation and

cost against which, this revision petition has been filed.

3. None appeared for the petitioner even after service. Heard learned Counsel for the

respondent and perused record.

4. District Forum allowed refund of Rs.26,750/- to the complainant paid by him on account

of illegal bills raised by the OP and to this extent, appeal has not been pressed and learned State

Commission upheld this order on merits which aspect does not require reconsideration in this

revision petition and revision petition is to be decided only to the extent of compensation

awarded to the respondent.

5. District Forum awarded compensation and cost of litigation to the complainant; though, no

reasons have been given by District Forum while granting compensation except to the extent that

complainant is a senior citizen, but learned State Commission while affirming order observed as

under:

“Compensation of Rs.25,000/- has not been granted for any monetary

loss. It has been granted for mental and physical harassment suffered by

the respondent due to deficiency in service committed by the

appellant. The respondent is a senior citizen. His grievances started in

the year 1999. He made complaints/representations and attended the

meetings with the officials of the appellant, but grievances were not

redressed and rather he was made to pay illegal bills under threat of

disconnection. The defective water meters were ultimately replaced only

in April, 2004. Thus, respondent suffered at the hands of the appellant for

the long period of more than 4 years. The conduct of the appellant in

dealing with the matter in hand cannot be termed less than callous. Such

conduct on the part of a public authority can cause such mental tension

and agony to a law-avoiding citizen, which cannot be measured in

terms of money though same has to be quantified. In the

facts and circumstances of a given case, compensation is granted to a

consumer not only to compensate him for mental agony etc. suffered by

him due to deficiency in service committed by traders or service providers,

but also to spur them to improve the service in future. The respondent is a

retired Air Chief Marshal and a former Governor of two States. If he could

not move the authorities in the Delhi Jal Board to get his grievances

redressed for a long period, plight of an ordinary citizen can well be

imagined”.

6. None has appeared for the petitioner to pursue this revision petition and revision petition

is liable to be dismissed. 7. We do not find any illegality, irregularity or jurisdiction error in granting compensation to

the respondent, who was retired Air Chief Marshal and former Governor of two States.

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

costs.

..………………Sd/-……………


PRESIDING MEMBER

..…………Sd/-…………………

(DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2561 OF 2012(From the order dated 11.04.2012 in Appeal No.A/10/885 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

Jyoti Rajesh Shah W/o Rajesh Shah R/o 2, Ashirwad Apartment, 140 Railway Lines, Solapur – 413001

And

Rajesh Nanji Shah S/o Nanji Shah R/o 2, Ashirwad Apartment, 140 Railway Lines, Solapur – 413001

… Petitioners/Complainants

VersusIntegrated Enterprises (India) Ltd. A registered Indian Company Having its office B-710, Sagar Park, Amrut Nagar, Ghatkopar (West), Mumbai – 400086

… Respondent/Opp. Party (OP)

BEFORE



For the Petitioners : Mr. Vijay Kr. Shah, Auth. Rep.

For the Respondent : Mr. S. Sundaram, Advocate

PRONOUNCED ON 8 th August, 2013


This revision petition has been filed by the petitioners/complainants against the order

dated 11.04.2012 passed by the Maharashtra State Consumer Disputes Redressal Commission,

Mumbai (in short, ‘the State Commission’) in Appeal No. A/10/885 – Jyoti Rajesh Shah & Anr.

Vs. Integrated Enterprises (India) Lt d. by which, while dismissing appeal, order of District

Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainants/petitioners opened a Demat account with

OP/Respondent. Complainants alleged that after introduction of computerized slips in the year

2001, complainants were not provided new computerized slips for operating a Demat account

and alleging deficiency on the part of respondent, filed complaint before District Forum. OP

resisted complaint and submitted that computerized slips were not handed over, as the signatures

on his requisition letter did not match. Later on, 6 slips were sent by courier, but complainants’

door was found locked and slips could not be delivered, hence, prayed for dismissal of

complaint. After hearing both the parties, District Forum dismissed complaint against which,

appeal filed by the petitioner was dismissed by leaned State Commission vide impugned order

against which, this revision petition has been filed.

3. Heard petitioners’ authorized representative and learned Counsel for the Respondent and

perused record.

4. On 11.7.2013, after hearing the parties to some extent, petitioners were directed to supply

self-attested copy of PAN Card to the respondent within a week and respondent was directed to

allow the petitioners to operate account within a week from receipt of self-attested copy of PAN

Card. On 1.8.2013, authorized representative of the petitioners and learned Counsel for the

respondents submitted that direction dated 11.7.2013 have been complied with by the

parties. Authorized Representative of petitioners further submitted that he has been allowed to

operate his Demat account.

5. As grievances of the petitioners have been redressed by the respondent and petitioners have

been allowed to operate Demat account, nothing remains in the revision petition and revision

petition is to be dismissed as having become infructuous.

6. Consequently, revision petition filed by the petitioners is dismissed being infructuous with

no order as to costs.

..………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA ) MEMBER

k


Revision Petition no. 4669 of 2009(Against the order dated 30.09.2009 in Appeal no. 682 of 2003 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) R Venkata Krishnan Koil Street Singirkili (Post) Cuddalore District – 605007

PetitionerVs

Taanya Tours Travels Represented by G Stephen 16/3 Jaggannath Road Nungambakkam Chennai – 600034

Respondents Todd International Australia Pvt. Ltd. Represented by Ms Rose Todd Suite 399 A, Albany Highway Victoria Park, Perth Western Australia Before:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBERHON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner Mr T V S R Shreyas, Advocate with Mr M Mushtaq, Advocate Pronounced on 13 th August 2013 REKHA GUPTA

The present revision petition has been filed against the order dated 30 th September 2009 passed by the Tamil Nadu State Consumer Disputes RedressalCommission, Chennai (‘the State Commission’) in First Appeal no. 682 of 2003.

The facts of the case as per the petitioner/complainant are that the respondents/ opposite parties are engaged in the business of extending professional services to people in countries including India, Singapore etc., to migrate to other countries by securing for them visas and other employment opportunities. The petitioner states that he wished to migrate to Australia. Pursuant to this desire, in response to a newspaper advertisement, the petitioner applied for a family visa through respondent no. 2 first opposite party (Todd International Australia Pvt., Ltd.) through a letter dated 21.02.1994, the first opposite party rejected the application of the petitioner as he did not have enough points. However, the communication also stated that if the points were reduced, the petitioner would be informed through the agents of the first opposite party.

The petitioner states that he later received a communication dated 15.07.1994 from the first opposite party stating that he met the points for migration to Australia. Pursuant to this letter on 01.08.1994, the consultants of the first opposite party advised the petitioner to contact respondent no. 1/ the second opposite party (Taanya Tours Travels) their local agent in Chennai and pay US $ 3000 in three instalments to get the visa to migrate to Australia.

Subsequently, on 07.09.1994, the petitioner paid the first instalment of Rs.30,000/- by demand draft in favour of the second opposite party. The petitioner received a communication dated 23.09.1994 about the services that would be provided by the first opposite party.

On 24.09.1994, an agreement was entered into between the petitioner on the one hand and the first and second opposite parties on the other hand for migration to Australia. As per clause 11 of the agreement, the first opposite party, agreed to refund 80% of the professional charges in case VISA is not issued.

On 25.10.1994, the petitioner paid the second instalment of Rs.30,000/- by a demand draft in favour of the second opposite party. The respondents acknowledged the receipt of the two instalments vide their receipt bearing no. 0974 and 0919 dated 01.11.1994 and 15.11.1994 respectively.

On 11.01.1995 the petitioner made a third payment of US $ 600 being the third and final instalment by demand draft in favour of the first opposite party. The opposite parties acknowledged the receipt of the same vide their receipt bearing no. 0986 dated 24.01.1995.

On 25.11.1995 visa fees amounting to Rs.9,577/- was paid to the Australian High Commission, New Delhi by sending it along with all the original certificates relating to educational qualifications and experience of the petitioner. Pursuant to the same, the petitioner received a reply from the High Commission five months later, i.e., 21.04.1996 stating that his documents had been referred to the Australian Agencies for processing.

Meanwhile, the petitioner received lucrative offers of employment in Singapore and New Zealand. However, as he was assured by the respondents that his migration to Australia was imminent the petitioner did not actively pursue the offers from Singapore and New Zealand.

The petitioner waited for almost three years during which period the visa to Australia did not materialise. Ultimately the first opposite party sent a communication dated 20.08.1998 stating that it was difficult to get the petitioner a job in Australia. Thereafter, there was no further communication from the respondent to the petitioner.

In their written statement before the District Forum respondent no. 1 who were the opposite party no. 2 submitted that the complaint was not maintainable against this respondent since respondent no. 1 are only an agents of disclosed principal. The respondent no. 2 was engaged in the service of providing assistance to Indians who wish to immigrate to Australia / New Zealand. The respondent no. 2 had entered into an agreement with the petitioner on 24.09.1994 to which this respondent no. 1 was only a formal party with no rights, duties or obligations to perform. It is submitted that as per this agreement the function of this respondent no. 1 was to transmit documents and materials submitted by the petitioner to the respondent no. 2. According to this agreement there were no duties beyond the aforementioned to be performed by respondent no. 1 in so far as the petitioner was concerned. Therefore, it was for the respondent no. 2 to aid and assist the petitioner in obtaining a visa for immigrating to Australia and not respondent no. 1. Therefore the complaint is not maintainable against respondent no. 1 for the acts or omissions of the respondent no. 2.

It is also submitted that there was no privity of contract between the respondent no. 1 and the petitioner and as such the contract does not bind respondent no. 1 and hence not maintainable.

It is also submitted that the petitioner has not paid any consideration nor has respondent no. 1 rendered any services towards the petitioner. In the circumstances, the petitioner cannot allege deficiency of service against respondent no. 1.

It is submitted that the respondent no. 1 being an agent of disclosed principal there was no obligation on the part of the respondent no. 1 to make refund of the amounts in case visa being not granted to the petitioner. It is submitted that the function of respondent no. 1 was that of a courier service, i.e., to forward the material received from the petitioner to the respondent no. 2. As a matter of fact in the various correspondence exchanged between the parties it has always been the case of the petitioner that refund is due and payable only by the respondent no. 2. In view of the above also, the complaint will not lie against this respondent no. 1.

Respondent no. 1 has learnt from respondent no. 2 that respondent no. 2 has done its level best and without any delay to obtain a visa for the petitioner but for reasons beyond the control of the respondent no. 2, the Australia High Commission in New Delhi turned down the application of the petitioner for immigration and visa. It is respectfully submitted that respondent no. 1 cannot be in any way held responsible for the act of the Australia High Commission in New Delhi. Therefore, this complaint will not lie against respondent no. 1.

Respondent no. 1 learnt that the complainant’s application was also forwarded to High Commission by respondent no. 2. It was communicated to respondent no. 1 by respondent no. 2 that they were using its good offices with the High Commission Australia to see if the processing time could be reduced. It is also learnt from respondent no. 2 that the Australia High Commission had rejected the application of the petitioner. On learning about the rejection of his application the petitioner did not want to proceed any further on immigration and hence opted to withdraw. Therefore, the whole transaction involved the respondent no.2 being the one who called for the application, the petitioner and the Australia High Commission. Respondent no. 1 submits that being an agent of disclosed principal of respondent no. 2 it is not liable for any of the acts or omissions committed by respondent no. 2. This was also communicated to the petitioner.

The District Consumer Disputes Redressal Commission, Mylapore Chennai (‘the District Forum’) while disposing of the complaint no. 354 of 2000 on 9thSeptember 2003 directed that the “opposite parties are directed to refund Rs.80,400/- and also to pay a sum of Rs.1,00,000/- for the loss of employment and Rs.2,00,000/- towards compensation for mental agony and inconvenience with cost of Rs.1,000/-. Time for payment one month, failing which the complainant is at liberty to take proceedings for arrest of the opposite parties under section 27 of the Act”.

Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before the State Commission. The State Commission observed that “theevaluation of the above materials prompt us to say that the lower forum is not justified, in granting an order against, the appellant, who was only an agent, facilitating the transactions in between the complainant and the 1st opposite party. As seen from the records, major portion of the amounts were directly paid by the respondent, to the 1st opposite party, except one payment or two, that too paid for want of clearance by the Reserve Bank of India, which was in turn paid to the 1 st opposite party. Therefore, for the amount received by the 1st opposite party, for the assurance given by the 1st opposite party and accepted by the complainant, to secure a job or a visa, we are unable to see how the agent can be held responsible as if he has also committed deficiency in service.

Ex.A6 is the agreement dt.24.9.94, wherein there is a clause for refund which reads “Refunds are not applicable for Medical or Police Clearance problems. The Company hereby agrees to refund 80% of charges, excluding immigration fees paid to the Australia High Commission, should your Visa not be issued. Excluded in this refund is failure due to Medicals, Police Clearances, or failure to pass professional examinations relating to your qualification.” The very fact refund of the amount is contemplated under the agreement would suggest that there is possibility of refusing visa. Therefore, for not securing the job, as if there was loss of opportunity of employment, claim made appears to be untenable, and unwarranted. However, the 1st opposite party has not contested and therefore, we are not going to consider the amount awarded against the 1st opposite party. Nowhere, it is stated that the agent is also responsible for the refund of money or in case unable to get visa for migration, the agent is responsible. It cannot be called as tripartite agreement also, as submitted, though the appellant also signed in the agreement, being an agent. In Ex.A6, it is specifically stated, that the appellant is only an agent; otherwise he has nothing to do. Therefore, on the basis of Ex.A6, the appellant cannot be

held responsible, for the non-performance of the agreement, branding the same as deficiency in service, as incorrectly done by the lower forum. Under Ex.B8, the complainant informed the 1st opposite party, that the complainant is having problem with the bank in getting the draft in favour of 1stopposite party, and that he has sent a Demand Draft for Rs.30000/- drawn in favour of the agent viz. M/s.Tanya Tours Travels and Freight Forwarders, Madras, the 2nd opposite party herein. Thereafter, all the amounts were drawn in favour of the 1st opposite party and the 2nd opposite party/ appellant has nothing to do with the transaction. At no point of time, the 2nd opposite party/ appellant has assured or promised to get any job for the 1st respondent/complainant. As seen from the letter dt.12.8.98, when the 1st opposite party approached the college, they have informed that they are unable to consider the complainant, stating that they are in need for someone with considerable experience. Thus, from the correspondence also, it is seen that there is no deficiency in service on the part of the opposite parties, and despite the fact the 1st opposite party is unable to get the employment opportunity, resulting non-obtaining of visa, for which, at any stretch of imagination, the agent of the 1st opposite party, who acted more or less as post box, not assuring anything, to the complainant, cannot be held responsible. The District Forum, without analyzing the role of the appellant, under the agreement or otherwise, has erroneously, without any basis, committed an error in ordering the payment, more or less jointly and severally, which should be set aside”. The State Commission directed as under:

“In the result, the appeal is allowed, setting aside the order of the District Forum in C.C.No.354/2000 dt.9.9.2003, so far as the appellant is concerned. In this appeal, the 1st respondent/ complainant is directed to pay cost of Rs.5000/- to the appellant”.

Hence, this present revision petition.

The main grounds for the revision petition are:

The State Commission erred in holding that the District Forum committed an error in ordering payments, jointly and severally without analysing the role of the respondent no. 1 under the agreement or otherwise.

The State Commission erred in ignoring that the respondent no. 1 and respondent o. 2 had jointly entered into an agreement with the petitioner on 24.09.1994. The respondent no. 1 was acting along with the respondent no. 2 and had even received payments towards instalments given by the petitioner.

The State Commission failed to appreciate that both respondent no. 1 and respondent no. 2 were guilty of deficiency in service and were jointly liable to refund the money and pay compensation to the petitioner.

The State Commission erred in holding that the agreement dated 24.09.1994 is not a tripartite agreement when the same has admittedly been signed by both the respondents and the petitioner.

Because without prejudice to the above submissions, section 230 of the Indian Contract Act, 1872 clearly states that in case a principal is abroad, the agent is personally liable. It is submitted that the order passed by the State Commission is contrary to the law laid down by the Hon’ble Supreme Court of India in Cochin Frozen Food Exports (P) Ltd., vs Vanchinad Agencies reported in (2004) 13 SCC 434.

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

Learned counsel for the petitioner drew our attention to the agreement which was entered into between the petitioner and the respondents. However, we find that as per the agreement dated 24.09.1994 the entire burden of performance is on the ‘company’ which is Todd International Australia Pvt., Ltd./ respondent no. 2 having its registered office at Suite 399 A Albany Highway, Victoria Park, Perth, in the State of Western Australia 6100. This is supported by a letter dated 23.09.1994 from the Todd International Australia Pvt., Ltd. wherein they have enclosed a document of settlement package which they would be extending to the petitioner, which reads as under:

Accommodation for 1 week – paid Suggested transport Name, address and phone number of IRN Average payment of Social Security and where to go. How to claim and who to see. Name and address of support groups for new migrants Tax file information Medicate information Resumes sent to employment groups What to bring Shipping arrangements Education Rental

It is also seen from the petitioner’s letter dated 26.10.1994 to respondent no. 2 that a demand draft for Rs.30,000/- was being drawn in favour of M/s Tanya Tours Travels and Freight Forwarders, Madras because ‘the bankers are refusing to issue demand draft in favour of you without the clearance of Reserve Bank of India, I took DD in favour of your agents at Madras”. The receipts enclosed also shows that even for the payments made through respondent no. 1, the final receipts were given by respondent no. 2 - M/s Todd International Australia, Pvt. Ltd. Hence, it is apparent that all the payments made were either to respondent no. 2 or to the Australian High Commission at New Delhi. No payments were made to respondent no. 1 - M/s Tanya Tours travels and Freight Forwarders, Madras, for any service the petitioner obtained from them. On the contrary in a letter dated 11.01.1995 addressed to respondent no. 1 forwarding an envelope containing the demand draft for US $ 680 drawn by UCO Bank, Puducherry Main, India drawn on Bank of California International, USA in favour of National Australia Bank, account M/s Todd International Australia Pvt, Ltd., Western Australia, the petitioner has wrote that “I request you to take notice of the same and .. sic.. this piece of the letter in your courier bag to Todd, Australia feel very bad to disturbing you frequently. But due to safety of the documents I need your help”.

Learned counsel for the petitioner had drawn our attention to section 230 of the India Contract Act, 1872 which reads as under:

Agent cannot personally enforce, nor be bound by contracts on behalf of principal – In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of this principal, nor is he personally bound by them.

Presumption of contract to contrary – such a contract shall be presumed to exist in the following cases :-

(i) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(ii) Where the agent does not disclose the name of his principal;(iii) Where the principal, though disclosed, cannot be sued.

This section is not applicable to the case on hand because the contract was not for sale or purchase of goods. The principal in the contract was disclosed as M/s Todd International Pvt. Ltd. Thus, learned counsel for the petitioner has been able to establish any deficiency in service against respondent no. 1.

In the above circumstances, we find that the State Commission has given a well-reasoned order and gave cogent reasons why the District Forum’s order was erroneous and was without any basis and had committed an error in ordering the payment, more or less jointly or severally.

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.5,000/- (Rupees five thousand only).

Petitioner is directed to deposit an amount 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 the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 27th September 2013 for compliance.

Sd/-

..………………………………[ V B Gupta, J.] Sd/-………………………………..[Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2021-2022 OF 2013 (From the order dated 14.09.2012 in Appeal Nos. 43/2011 & 44/2011 of the Uttarakhand Consumer Disputes Redressal Commission, Dehradun)

Smt. Jeevanti Devi W/o Sh. Lal Singh Nayal R/o Adarsh Colony, Kathgodam District – Nainital Uttarakhand


Versus1. Commercial Motors Bareilly Road,Haldwani, Distt. Nainital, Uttarakhand Through its Partner Sh. Manik Chandra

2. Tata Motors Ltd. 26th Floor, Centre A-1, World Trade Center, Cafi Parade, Mumbai – 400005


BEFORE



For the Petitioner : Mr. Sandeep Malik, Advocate

Mr. Sanpreet Singh, Advocate

For the Respondent No.1: Mr. Nikhil Jain, Advocate/Caveator


O R D E R


These revision petitions have been filed by the Petitioner/Complainant against the order

dated 14.09.2012 passed by the Uttarakhand State Consumer Disputes Redressal Commission,

Dehradun (in short, ‘the State Commission’) in Appeal Nos. 43 & 44 of 2011 – Commercial

Motors Vs. Smt. Jeevanti Devi &Anr. and Tata Motors Ltd. Vs. Smt. Jeevanti Devi

& Anr. by which, while allowing appeal, order of District Forum allowing complaint was set

aside.

2. Brief facts of the case are that complainant/petitioner filed complaint before District forum

and learned District Forum vide order dated 22.1.2011 allowed complaint and directed OPs to

pay Rs.5,69,085/- (cost of Tata Winger UK04-PA-0020) along with interest and cost. Appeal

filed by the OP was allowed by learned State Commission vide impugned order and complaint

was dismissed against which, this revision petition has been filed with application

forcondonation of delay of 135 days.

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

4. In application for condonation of delay, petitioner submitted that petitioner is a senior

citizen and an old lady residing in a distant place in District Nainitaland she has a history of

prolonged illness. It was further alleged that petitioner was not aware about the order, but

respondents informed to the petitioner that State Commission has dismissed complaint; so,

petitioner may take back her vehicle from respondent’s premises. Petitioner asked her son to

enquire who confirmed that order has been passed by State Commission. Thereafter, petitioner

consulted his family friends and well-wishers, who advised him to file appeal against the

order. Thereafter, son of the applicant contacted Counsel at New Delhi. Counsel got the

documents translated in English from Hindi and then revision petition has been filed and further

submitted that delay was neither intentional nor deliberate which may be condoned.

5. Learned State Commission passed impugned order on 14.9.2012 and revision petition has

been filed on 17.5.2013, i.e. after 135 days. Petitioner has not disclosed in his application when

respondent informed to the petitioner about dismissal of complaint by State Commission, when

petitioner asked his Counsel to file revision petition and when revision petition was prepared. As

no details have been given by the petitioner in application for condonation of delay about getting

knowledge of the order and consultation with the Advocate for filing revision petition, we do not

find any satisfactory explanation for inordinate delay of 135 days in filing revision petition.

6. As there is inordinate delay of 135 days, this delay cannot be condoned in the light of the

following judgment passed by the Hon’ble Apex Court.

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. 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. 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 (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”.

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



Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate

delay of 135 days. Revision petition is liable to be dismissed on the ground of delay alone.

12. As application for condonation of delay has been rejected, revision petition being barred by

time is liable to be dismissed.

13. Consequently, revision petition filed by the petitioners is dismissed at admission stage

being barred by limitation with no order as to costs.

..……………Sd/-………………


PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

MEMBERk


FIRST APPEAL NO. 702 OF 2007(Against the order dated 23.10.2007 in Complaint Case No.31/2003 of the State Commission, Rajasthan) The Rajasthan Tourism Development Corporation through Senior Manager Hotel Gangaur, Jaipur (Rajasthan) …..Appellant

Versus 1. Aakanshi Satellite Programmers, 83. Gopal Bari, Jaipur (Rajasthan) 2. M/s. Cable Net Service, 83, Gopal Bari, Jaipur (Rajasthan) 3. Shri Anurag Khanna, Properitor Cable Net Service, 83, Gopal Bari, Jaipur (Rajasthan)

.....Respondents

BEFORE:HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Shaliesh Prakash Sharma, AdvocateFor the RespondentNos.1 & 3 : Mr. Alankar Khanna, AdvocateFor the Respondent No.2: Mr. S.K.Sharma, Advocate PRONOUNCED ON: 29th August, 2013

ORDER

PER MR. VINAY KUMAR, MEMBER

Two identical complaints, on the same issue, were filed by the Rajasthan Tourism

Development Corporation (hereinafter referred to as RTDC) before the Rajasthan State

Consumer Disputes Redressal Commission. As the issues and the parties involved were the

same, they were disposed of by a common order of 23.10.2007. The RTDC has now filed a

single appeal in both the matters against dismissal of the complaint by the Rajasthan State

Consumer Disputes Redressal Commission.

2. The facts in brief are that in 1998, OP-1 had submitted a proposal to the Complainant

offering to provide cable T.V. connections to Hotel Gangaur of the RTDC. The proposal was

accepted and the service was provided continuously till 25.7.2002. Thereafter, OP-1 informed

through a letter that it would not be able to continue the cable T.V. service beyond 30.8.2002, for

certain technical reasons. It was also informed that further service could be provided by OP-

2. Apparently, the rate demanded by the OP-2 was higher than the existing rate and therefore not

accepted. The cable TV service was eventually discontinued by OP-1. Considering it to be a

deficiency of service, the RTDC filed the consumer complaints. The Complainant claimed total

compensation of Rs.26.90 lakhs from the OPs.

3. Per contra, the case of OP-1 was that there was no agreement or commitment to continue

the service at the originally agreed rate without any time frame. The terms and conditions offered

at the commencement of the service were agreed and it was not the case of the Complainant that

they were not agreed. Overtime, the business of OP-1 was taken over by OP-2 and therefore, the

service could not have been continued by OP-1. The original agreement between the parties was

for a period of one year from August 1998 and had thereafter been continued from year to year.

4. The State Commission has held that the contract between the Complainant and OP-1 was in

the nature of an annual contract which was continued. OP-1 had informed the Complainant on

25.7.2002 itself that it would be concluded on 30.8.2002. Therefore, there was no deficiency of

service on the part of OP-1. The Commission also held that in so far OP-2 was considered, no

contract existed between the Complainant and OP-2. Therefore, the question of deficiency of

service did not arise at all. Consequently, the complaint was dismissed against both, OP-1 as

well as OP-2.

5. We have carefully perused the record and heard the two

counsels. Mr. Shailesh Prakash Sharma , Advocate was heard on behalf of the Appellant RTDC

and Mr. Alankar Khanna and Mr. S.K.Sharma, Advocates for the Respondents.

6. During the course of the arguments, learned counsel for the Appellant agreed that there was

no privity of contract between the appellant-RTDC and OP-2. Counsel for the respondent

forcefully argued that there is nothing in the records to show that OP-1 was under any

contractual obligation to continue the service indefinitely. As a matter of fact, the document

relied upon by the Complainant clearly shows that the arrangement began as annual contract in

August 1998 and ended in August, 2002. It needs to be noted here that in the pleadings before

the State Commission, the contention in para 3 of the complaint that the arrangement of 1998

was without any time frame was challenged in the written response of OP-1 in the following

terms:-“That annexture -1 is self explanatory and it is totally false that any offer

was ever given by Respondent No.1 vide annexture -1 to provide cable connections to the corporation at the rate of Rs.2,700/- per month without any time frame for all times of come nor any such thing was ever negotiated or accepted by the Respondent No.1.”

7. The appellant, as already noted, has not been able to produce any evidence that it was

meant to be an open ended contract to continue to provide cable T.V service at Rs.2700/- per

month for all times. The State Commission has referred to proposal of OP-1 in their letter of

1.8.1998 to the Manager HotelGanguar RTDC, Jaipur. A perusal of this letter shows that it

provided for enhancement of charges on the basis of imposition of new taxes by the government.

It also provided for annual enhancement in monthly rental. It is therefore, clear that it was in the

nature of an agreement which was open to renewal from year to year. Therefore, the terms of

renewal of such an agreement would, by its very nature, need to be agreed by both sides. It

cannot be automatic continuation at unilateral demand or discretion of either party.

8. We therefore, agree with the State Commission that no case of deficiency of service has

been made out against OP-1 and OP-3. We also agree that there was no privity of contract

between the Complainant/RTDC and OP-2. Consequently, no case is made out against any of

the OPs. In our view, the decision of the State Commission is based on correct appreciation of

the evidence on record. We therefore find no merits in this appeal. It is dismissed for the same

reason with no order as to costs. …..…………….Sd/-…….……(VINEETA RAI)PRESIDING MEMBER …..…………Sd/-….…….……(VINAY KUMAR)MEMBER S./-


REVISION PETITION NO. 3124 OF 2012 (From the order dated 24.07.2012 in Appeal No. 2087/11 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Hindustan Coca Cola Beverages Pvt. Ltd. 3rd Floor, Orchid Centre Golf Course Road Sector 53, Gurgaon Haryana And have one of its factories/ Filling Plants at S.P. 39-40 RIICO Industrial Area Village Kala Dera District Jaipur – 303801


Versus1. Kamlesh Kumar Parikh House No. 131-132 Shriram Nagar Kalwad Road, Jhotwara Jaipur – 303012

2. Lall’s Departmental Store S-7, Yatharth, Kabir Marg, Bani Park Jaipur – 302016 (Rajasthan)

… Respondents/Complainants

BEFORE



For the Petitioner : Mr. Rajiv Tyagi, Advocate

Mr. Ajay Kumar, Advocate

For the Respondents : NEMO/Ex-parte


O R D E R


This revision petition has been filed by the Petitioner/OP against the order dated

24.07.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission, Jaipur (in

short, ‘the State Commission’) in Appeal No. 2087/11 – M/s. Hindustan Coco Cola

Beverage Pvt. Ltd. Vs. Kamlesh KumarParik & Ors. by which, while dismissing appeal, order of

District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/Respondent No. 1 purchased two soft drink

bottles of 600 ml. for a sum of Rs.40/- from OP No.1/Respondent No. 2 manufactured by OP No.

2/petitioner. Complainant/Respondent No.1 consumed one bottle and then started vomiting and

had complained of stomach-ache. He then found ants and fungus in second bottle and took

treatment for the disease sustained due to consumption of soft drink. Complainant contacted OP

No. 1, who told that he sells bottles as received from the manufacturer. Complainant alleging

deficiency on the part of the OPs, filed complaint with District Forum. OP No.1 submitted that

OP No. 1 apprised complainant that bottles sold by him were received from the manufacturing

company, but admitted that second bottle contained ants and fungus and prayed for dismissal of

complaint. OP No. 2 remained ex-parte. Learned District Forum after hearing both the parties,

allowed complaint and directed OPs jointly and severally liable to pay Rs.40/- along with

compensation of Rs.1,00,000/- out of which, Rs.25,000/- to be paid to the complainant and

Rs.75,000/- to be deposited with State Consumer Welfare Fund and awarded Rs.3,000/- as

litigation expenses. 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 the respondents even after service and they were proceeded ex-parte.


5. Learned Counsel for the petitioner submitted that impugned order is not a speaking order

and learned State Commission has not dealt with the arguments submitted by the petitioner;

hence, petition be allowed and matter may be remanded back to the learned State Commission

for disposal by speaking order. On the other hand, learned Counsel for the respondent submitted

that District Forum has elaborately discussed submissions of the parties and order passed by

learned State Commission is in accordance with law; hence, petition be dismissed.

6. Perusal of impugned order reveals that it is not a speaking order and learned State

Commission has observed as under:“The District Forum below has passed the order after appreciating all the

facts of the case and the evidence. Hence, we do not find to appraise the

evidence and re-evaluate the evidence. In view of the facts and

circumstances we do not find any error in the order dated 19.9.2011

passed by the District Forum, Jaipur-II, Jaipur. Since, the District Forum,

as per record, has rightfully appreciated the facts and hence there is no

ground for interference. This apart the appeal seems to be devoid of

merits”.

7. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:“1.In a number of cases coming up in appeal in this Court, we find that

the State Consumer Disputes Redressal Commission, Haryana at

Chandigarh is passing a standard order in the following terms:

‘We have heard the Law Officer of HVPN – appellant and have

also perused the impugned order. We do not find any legal

infirmity in the detailed and well-reasoned order passed by District

Forum, Kaithal. Accordingly, we uphold the impugned order and

dismiss the appeal’.

2. We may point out that while dealing with a first appeal, this is not the

way to dispose of the matter. The appellate forum is bound to refer to the

pleadings of the case, the submissions of the counsel, necessary points for

consideration, discuss the evidence and dispose of the matter by giving

valid reasons. It is very easy to dispose of any appeal in this fashion and

the higher courts would not know whether learned State Commission had

applied its mind to the case. We hope that such orders will not be passed

by the State Consumer Disputes Redressal Commission, Haryana at

Chandigarh in future. A copy of this order may be communicated to the

Commission”.

8. In the light of above judgment, it becomes clear that Appellate Court while deciding an

appeal is required to deal with all the arguments raised by the appellant and as learned State

Commission has not dealt with arguments of the appellant, it would be appropriate to remand the

matter back to the learned State Commission for disposal by speaking order after dealing with all

the contentions and arguments raised by the petitioner.


24.07.2012 passed by the learned State Commission is set aside and matter is remanded back to

the learned State Commission for deciding it by speaking order after giving an opportunity of

being heard to the parties.

10. Parties are directed to appear before the learned State Commission on 04.10.2012. A copy

of this order be sent to the Rajasthan State Commission, Jaipur.

..………………Sd/-……………


PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 307 OF 2012 M/s. Moran Plantation Pvt. Ltd. 108, Ansal Bhavan, K.G. Marg New Delhi – 110001 Through its Director, Mr.S.R.Yadav

… Complainant

Versus M/s. Ambience Private Ltd. Earlier Known as : Ambience Infrastructure Pvt.Ltd. L-4, Green Park Extension New Delhi – 110016

… Opposite Party

CONSUMER COMPLAINT NO. 308 OF 2012 M/s. Parasramka Holdings Pvt. Ltd. 108, Ansal Bhavan, K.G. Marg New Delhi – 110001 Through its Director, Mr.Narendra Kumar Jain … Complainant VersusM/s. Ambience Private Ltd. Earlier Known as : Ambience Infrastructure Pvt.Ltd. L-4, Green Park Extension New Delhi – 110016 … Opposite Party AND

CONSUMER COMPLAINT NO. 309 OF 2012 M/s. Mili Marketing Pvt. Ltd. H-108, Connaught Circus New Delhi – 110001 Through its Director, Mr.Kamal Kumar Singh … Complainant VersusM/s. Ambience Private Ltd. Earlier Known as : Ambience Infrastructure Pvt.Ltd. L-4, Green Park Extension New Delhi – 110016 … Opposite Party BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HON’BLE DR. S. M. KANTIKAR, MEMBER For the Complainants in all cases :Mr. Neeraj Jain, Senior Advocate With Mr. Rajiv

Kapoor & Mr. Avinash Mishra, Advocates

For the Opposite Party in all cases : Mr. Gaurav Mitra, Advocate With Mr. Dhruv Kapur & Ms. Samreen, Advocates PRONOUNCED ON 2 ND SEPTEMBER, 2013

O R D E R

JUSTICE J.M. MALIK

1. This order shall decide the above said three cases. The complainants, namely, M/s. Moran

Plantation Pvt. Ltd., M/s. Parasramka Holding Pvt. Ltd., and M/s. Mili Marketing Pvt. Ltd., are

stated to be sister concerns. M/s. Ambience Private Ltd., OP, is the same in all the three

cases. In all the three cases, similar questions of facts and law are involved. Consequently, this

judgment will decide all the three cases by a common judgment. We will take up the facts from

Consumer Complaint No. 307 of 2012, detailed above.

2. The main question pivots around the controversy “Whether a Private Company, for the

purposes of getting apartment, is a ‘Consumer’, under the given circumstances?”. In all the

cases, the complainants applied for booking one apartment, each, measuring approximately,

7362.76 sq.ft. each. The complainant paid an amount of Rs.50,00,000/- each, to the OP, on

24.03.2007. The said amounts were acknowledged by OP vide its letter dated 10.04.2007. The

OP sent the Brochure and Scheme for payment of installments. One of the

clauses provided for the completion of the flat and the delivery thereof to the Buyer within a

period of 3 years of the execution of Flat Buyer’s Agreement, which was supposed to

have been executed between the complainant and OP soon after the aforesaid transaction had

taken place.

3. On 08.02.2008, the OP informed the complainant that the construction was going on in full

swing and the OP had completed excavation of the Basement and commenced the structure

work, besides informing the complainant that its apartment No.1602, had been shifted in

Block ‘J’ on the same floor and mentioned that the area would be 7672.14 sq.ft instead of

7362.76 sq.ft., in each of the case. The complainant objected to the OP about increase of area

and change of flat. The complainant also asked to execute the agreement, but it was put

off, on one pretext or the other. The complainant was also informed that the

apartment Buyer’s Agreement was executed only after receipt of 60% of the payment from

the prospective Buyers. The complainant was surprised to receive such like letter. The

Company had assured that the flats would be ready within a period of 36 months from the date

of execution of the apartment Buyer’s agreement. In between, the relations between the parties

were far from being cordial. OP had threatened to cancel the flat, a show-cause notice was also

given. After much deliberations and discussions, the Apartment Buyer’s Agreement came to

be signed formally, on 27.10.2009. There was delay in construction of the apartment.

4. On 23.12.2009, the OP raised a demand in the sum of Rs.24,00,000/- The work was still

incomplete. In between, there was disputes of payment and further demands made by the

OP. The complainant has been paying all the installments. The total price of the

apartment was Rs.7,49,04,637.50, each, out of which the complainant has already paid a sum

more than 70% of the total amount, through installments. The complainant has not yet got the

possession of the premises. It is alleged that the OP is trying to extort more and more

money from the complainant and is guilty of deficiency. Consequently, the present complaint

was filed with the following prayer :-

“a) Pass an order setting aside the letter of 21.09.2012, thereby

allegedly raising the illegal demand of interest;

b) Pass an order setting aside the letter dated 23.10.2012 and

directing the OP not to cancel the allotment of the complainant of

flat No.H-102 as threatened vide letter dated 23.10.2012, which if

done would be illegal and unwarranted in the facts and

circumstances of the case;

c) Pass an order declaring the apportionment of the amount

towards interest to be illegal and direct the OP to apportion all the

payments toward sale consideration only;

d) Pass an order restraining the Opposite Party from taking any

steps towards putting the property up for sale or creating any

third-party interest as threatened by the Opposite Party and/or

interfere with the rights of the complainant in the said property in

any manner whatsoever;

e) Pass an order directing Opposite Party to pay interest @ 24%

per annum on the amount paid to the Opposite Party so far and

remaining with the Opposite Party after the date originally

contemplated date of completion by October, 2010;

f) Pass an order directing the OP to compensate the complainant

suitably for having put the complainant to lot of harassment and

agony;

g) Award cost and compensation in favour of

the complainant;

h) May pass any other order in favour of the complainant as the

Hon’ble Commission may deem it fit and proper in the facts and

circumstances of the case”.

5. Since the counsel for the OP has called into question the jurisdiction of this

Commission, therefore, we are bound to decide this point, first of all, as per the law laid down

by the Hon’ble Apex Court in the case “K.Sagar, Managing Director, Kiran Chit Fund,

Musheerabad Vs. A. Bal Reddy & Anr., (2008) 7 SCC 166”.

6. The learned counsel for the complainant vehemently argued that the complainant is a

“consumer”. He has invited our attention towards the casedecided on 09.02.2009, by Hon’ble

Supreme Court, in ‘Karnataka Power Transmission Corporation & Anr. Vs. Ashok Iron Works

Pvt. Ltd., [2009] 1 SCR 1109, in which it was held :-

“In view of the discussion already made by us above, while dealing

with the contentions (ii) and (iii) in Civil Appeal No.1879/2003, it

has to be held that the complaint by H.V.Balchandra Rao is

covered under Section 2(1)(d)(i)(ii) of the Act, 1986”.

7. This must be borne in mind that the cause of action arose in this case, in the year 1992-

93. The amendment of the CP Act, 1986, was made in the year,

w.e.f.15.03.2003, that amendment was not considered in this case.

8. Counsel for the complainant has also cited another judgment of this

Commission reported in Harsolia Motors Vs. National Insurance Co. Ltd., I (2005) CPJ 27

(NC).

9. That judgment pertains to the insurance policy. It was held that taking of the insurance

policy is for protection of the interest of the assured in the “articles” or “goods” and not for

making any profit or

trading for carrying on commercial purposes. Reference was made to New Delhi Municipa

l Council Vs. Sohan Lal Sachdev (Dead) represented by Mrs.Hirinder Sachdev, W/o late Sohan

Lal Sachdev, II (2000) 2 SCC 494, wherein the Hon’ble Apex considered the meaning of the

words “commerce” and “commercial purpose” in the context of a question where use of premise

for the purpose of guest house can be termed as domestic use, for the purpose of electricity

charges by the New Delhi Municipal Council (NDMC). Lastly, it was held in the authority :-

“25. Further, from the aforesaid discussion, it is apparent that even

taking wide meaning of the words ‘for any commercial purpose’ it

would mean that goods purchased or services hired should be used

in any activity directly intended to generate profit. Profit is the

main aim of commercial purpose. But, in a case where goods

purchased or services hired in an activity which is not directly

intended to generate profit, it would not be commercial purpose.

26. In this view of the matter, a person who takes insurance policy

to cover the envisaged risk does not take the policy for commercial

purpose. Policy is only for indemnification and actual loss. It is not

intended to generate profit”.

10. On the other hand, counsel for the OP has cited the following authorities. Laxmi

Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583 and three judgments of this

Commission.

11. Instead of touching the heart of the problem, the learned counsel for the complainant has

tried to skirt it. Counsel for the complainant has himself invited the attention of this Commission

towards Memorandum of Association, the relevant extracts run as follows:-

III. The object for which the company is established are :-

(A) Main objects to be pursued on incorporation :-

(1) To carry on the business of planters, cultivators, manufacturers,

buyers, sellers, importers and exporters of tea, tea seed, rubber, timber,

rhea, sisal and other fibres and to render the same marketable and to buy,

sell, trade and deal in any such produce either in its prepared,

manufactured or raw state, and to manufacture and sell tea shooks, tea

boxes and other articles used in connection with the cultivation manufacture

packing or sale of tea and other produce, and to carry on any business

connected with any of the above purposes or convenient to be carried on

therewith.

(B) Objects incidental or ancillary to the attainment of main objects :

(1) To lend invest or deal with money either with or without interest or

security, including in current or deposit account with any Bank or Banks,

other person or persons and also in investment in shares, securities, bonds

and debentures, upon such terms, conditions and manner as may, from

time to time, be determined and to receive money on deposit or loan upon

such terms and conditions as the Company may approve, provided that the

Company shall not do any banking business as defined under the Banking

Regulations Act, 1949”.

12. In the same judgment, 14 & 15 run as follows :-

“14. To acquire by purchase, lease, exchange, hire or otherwise

develop or operate land, buildings and hereditaments of any tenure or

description and any estate or interest therein and any right over to

connected with land and building situated and develop or to turn the

same to account as may seem expedient and in particular, by preparing

buildings sites and by constructing, reconstructing, altering improving,

decorating, furnishing and maintaining hotels rooms, inns, flats,

houses, restaurants, markets, shops, workshops, mills, factories,

warehouses, cold storages, wharves, godowns, offices safe deposit

vaults, hostels, gardens, swimming pools, play-ground, buildings,

works and conveniences of all kinds and by leasing, hiring or deposing

of the same.

15. To manage land, building and other properties, whether belonging

to the company or not, and to collect rents and income, and to supply

tenants and occupiers and others refreshments, attendance, light,

waiting rooms, reading rooms, meeting room, electric conveniences

and other advantages”.

13. It must be borne in mind that the amendments made in Section 2(1)(d)(ii) on 15.03.2003

are of infinite importance. Those have changed the law altogether. It will be worthwhile to

reproduce the definition of term “consumer “, as under :-

“(i) buys any goods for a consideration which has been paid or

promised or partly paid and partly promised, or under any system of

deferred payment and includes any user of such goods other than the

person who buys such goods other than the person who buys such

goods for consideration paid or promised or partly paid or partly

promised, or under any system of deferred payment, when such use is

made with the approval of such person, but does not include a person

who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been

paid or promised or partly paid and partly promised, or under any

system of deferred payment and includes any beneficiary of such

services other than the person who hires or avails of the services for

consideration paid or promised, or partly paid and partly promised,

or under any system of deferred payment, when such services are

availed of with the approval of the first mentioned person but does

not include a person who avails of such services for any commercial

purpose”;

“Explanation:--- For the purposes of this clause, “commercial

purpose” does not include use by a person of goods bought and used

by him andservices availed by him exclusively for the purposes of

earning his livelihood by means of self-employment”.

14. As per Explanation, vide amendment dated 15.03.2003, it is thus clear that it was never

averred that these flats would be used exclusively for the purposes of earning their livelihood by

means of self-employment. These words are conspicuously missing in the averments.

15. In a judgment of this Commission, in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure

Pvt. Ltd. – IV (2010) CPJ 299 (NC) has held that:-“Housing – Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as ‘person’, purchase of space could not be for earning its livelihood. Purchase of ‘space’ was for commercial purpose”.

16. In M/s. Purusharath Builders Pvt. Ltd. Vs. M/s. Uppal Housing Ltd & Anr. , decided by

this Commission, comprising Justice J.M. Malik, Presiding Member and Sh.Vinay Kumar,

Hon’ble Member, on 05.07.2012, held as under :“M/s. Purusharath Builders had purchased flats for the use of its officers. Learned counsel for the complainant argued that these flats will

be used for the officers of the company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes”.

17. Aggrieved by that order, SLP was filed by the complainant, before

the Hon’ble Supreme Court. The Hon’ble Supreme Court in Civil Appeal Nos.8990-8991 of

2012, vide order dated 07.01.2013, held :- “We have heard learned counsel for the appellants, and perused the record. We do not see any cogent reason to entertain the appeals. The judgment impugned does not warrant any interference. The Civil Appeals are dismissed”.

18. It is clear that the object of the complainant is to re-sell the same and collect the rent.

These flats were not taken for personal use of ‘consumer’. The Hon’ble Apex Court in Laxmi

Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, held :-

“11. …….. (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’ within the meaning of Section 2(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “large scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993.

19. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., &

Anr., Consumer Complaint No.296 of 2011, decided by this Commission, through the Bench

headed by Justice R.C.Jain, on 03.07.2012, held :-

“We have considered the contention raised by the learned counsel, but we do not quite agree with his plea as the complainant, in our view, does not qualify to be a ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. We say so because as per his own admission the complainant is a resident of Delhi and he intends to purchase some permanent accommodation at Mumbai for his stay during his business visits to save on the expenditure incurred in hotels. For that purpose, he has booked not one but two flats. Clearly, the transaction is relatable to his business activity and, therefore, it will fall in the category of ‘commercial purpose’, which has been taken out of the purview of the Consumer Protection Act, 1986 vide Amendment Act No.62 of 2002, effective from 15th of March, 2003.

20. Again, this Commission, in the case of Jag Mohan Chhabra & Anr. Vs. DLF Universal

Ltd. IV (2007) CPJ 199 (NC), (Original Petition No.91 of 2006, decided on 23.08.2007), held in

a somewhat similar case, that the complaint was not maintainable under the Consumer

Protection Act, 1986. This Commission held :- “2. We have heard Mr.K.P.S.Rao for the

complainants on admission. Evidently, ground, first and second floors in Town Houses and

apartment No.308B in Hamilton Court were purchased by the

complainants for earning profits and transaction is thus relatable to commercial purpose and

complainants not being the “consumers” within the meaning of Section 2(1)(d) of Consumer

Protection Act, 1986, the complaint itself is not maintainable under the Act. Moreover,

for adjudicating the claim made, voluminous evidence will be needed and the complaint,

therefore, cannot be decided in summary procedure under the Act”. It had, therefore, disposed

of the complaint, with liberty to the complainant to approach Civil Court.

21. The said order has since been upheld by the Hon’ble Supreme Court, as Civil Appeal

Nos.6030-6031 of 2008, vide order dated 29.09.2008.

22. This Bench also, took the same view in another case reported in

Singhal Finstock (P) Ltd, Through its Director I.C.Singhal, & Ors., Vs. Jaypee Infratech Ltd.,

Through its Director, in Consumer Complaint No.250 of 2012, decided on 01.10.2012, as

under :-

“The word “commercial” according to the Oxford Dictionary, means viewed as a matter of profit and loss. The word “purpose” means “object which is in view or for which is made” :“aim” “amend”. The word “Commercial purposes” would, therefore, cover an undertaking the object of which is to make a profit out of the undertakings. (Municipal Board, Unnao Vs. The State of U.P 1957

All. L.J. 479 at 498). According to Oxford dictionary, it means “Viewed as a matter of profit or loss”. The word “commercial” is defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word “Commercial” is defined as ‘having profit as a primary aim rather than artistic etc. value’ (Vide Dena Bank, Ahmednagar Vs. Prakash Birbhan Katariya, MANU/MH/0059/1994 : AIR 1994 Bom 343 at 345)”.

23. Thus, collection of rent is earing profits. In the facts of the present case, we maintain the

same view, and while dismissing the complaints, as not maintainable, reserve the rights of the

complainants to approach the appropriate Civil Court to seek their remedy, if so

advised. They may take advantage of the ruling of the Supreme Court in the case of Laxmi

Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583 to seek exclusion of the

time spent in prosecuting these complaints before this Commission..…..…………………………(J. M. MALIK, J)PRESIDING MEMBER

.…..…………………………(DR.S. M. KANTIKAR)MEMBERdd/20-22


Revision Petition no.1004 of 2008(Against the order dated 05.02.2008 in Appeal nos. 363 and 364 of 2007 of the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Jodhpur) Laxmi Narain Bora Son of Late Hari Shanker Ji Bora Resident of Laxmi Bhawan Near Najarji KLi Bawadi Inside Jalori Gate, Jodhpur

Petitioner

Vs Post Master General Head Post Office, Station Road Jodhpur Post Master Sub-Post Office, Juni Mandi Jodhpur

Respondents Smt Kamla Joshi Resident of Govind Singh Goyal’s House Opposie Tail Ka Ghana Kabutaro Ka Chowk Jodhpur Present Address CA no. 077 3327 (Agent) City Sub Post Office Juni Mandi, Jodhpur Before:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON’BLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Narottam Vyas, Advocate For the Respondent Dr Ashwani Bhardwaj, Advocate Pronounced on 3 rd September 2013

ORDER REKHA GUPTA

Revision petition no. 1004 of 2008 has been filed against the judgment and order dated 05.02.2008 passed by the Rajasthan State Consumer DisputesRedressal Commission, Circuit Bench, Jodhpur (the State Commission’). The brief facts of the case as per the petitioner/complainant are that the petitioner resides at the above said address and he is a senior citizen of India. The main office of respondent no.1 / opposite party no. 1 is at Station Road, Jodhpur and is related with Central Government and work for post office and small saving schemes for his profit earning and the work of profit. It’s sub-branch is at JuniMandi Jodhpur (respondent no. 2/ opposite party no. 2), which is an authenticated branch respondent no. 1.

Respondent no. 3 is an authorised agent of respondent nos. 1 and 2 who is paid fixed commission on the amount of R D Account, by respondent no. 1 & 2.

Respondent no. 3 had induced petitioner to open an R D Account by showing benefits of saving schemes and P F. Due to it petitioner opened RD Account no. 1496044 through agent Kamla Joshi, CA 0773327 to collect small amount for future use. She is the daughter of petitioner also. Petitioner got information about interest rate on the opening of account and profit at the time of it’s maturing.

The maturity date of petitioner’s account was 26.05.2004 according to post office rule 10 A and information collected from respondents about benefits at the time of maturity of account, petitioner has continued his account.

Petitioner has deposited Rs.30,000/- advance according to post office rule 8. Petitioner deposited in advance because there is provision of 4% rebate and to get rid of monthly visit at post office. 8 advance deposit: (1) in an account which has not become discontinued account under rule 7, deposits for not less than six monthly instalments may be made in advance in any calendar month at the option of the depositor and rebate on such deposits shall be admissible as follows:

Advance Deposits

(i) Six or more deposit but not exceeding eleven deposits made in any calendar month.

Rebate for and account of Rs.10 denomination. One Rule.

(ii) Twelve or more deposits made in any calendar month

Four rupees for every twelve deposits and one rupee for the balance, if any, of not less than six deposits.

The petitioner has deposited complete amount through respondent no. 3 in the office of respondent no. 1 and 2, petitioner was giving above said amount on faith. Neither receipt of it was given to petitioner nor pass book was given to him. When petitioner did not receive the pass book he went personally and met respondent no. 2 but he neither gave satisfactory reply nor gave any information about his account nor gave pass book to him and misbehaved with him and turned him out from the office and said that he should take pass book from the agent of respondent no. 3. Two letters were given to him personally hand to hand.

After 15-20 days petitioner send his son to know where about of the pass book. Petitioner sent a letter with his son and asked for information about his account and his pass book. But respondent no.2 has not given any information and avoiding it, he said that the entire record has been sent to the head office of respondent no. 1, you may go and collect information from him. Son of petitioner personally went to the office of respondent no. 1 and asked for information about his account and record and asked for post office rule but respondent no. 1 has not given any satisfactory reply about record and book of rules was not given to him.

When petitioner could not get the pass book even after visiting the office of respondents so many times then petitioner became doubtful that respondents are deceiving him. Petitioner pressed hard to respondent no. 3 for pass book and receipts. Respondent no. 3 them gave him the pass book on 12.11.2005 and then petitioner came to know that she had withdrawn this amount on 29.10.2005 and Post Master has closed his account no. 496044.

Rule: 9A Premature Closure : The holder of an account may prematurely close the account after three years from the date of opening of the account provided that interest at the rate applicable from time to time to post office saving account shall be payable on such premature closure of account. However, no premature closure of account is permissible until the period for which the advanced deposits made under rule 8 is over.

The petitioner asked respondent no. 3 about that amount and she said that she was in need of money so she has withdrawn that amount. She received total amount of account in cash. That was taken on 28.10.2005. The total amount in account of petitioner was Rs.3,18,027/-. About that money a seal of post office is placed by respondent no. 2 in pass book but post master has

not signed. It is pertinent to mention here that respondents made payment of such a big amount of petitioner’s joint account to respondent no. 3 to give profit to respondent no. 3 while there is a provision to make payment of such a big amount by account payee cheque only.

In their reply respondent no. 1 & 2/ OP no. 1 & 2 have admitted that it was related to respondent no. 3. It is admitted that one RD account no. 496044 was opened by the petitioner with respondent no. 2 in joint ‘B’ category with respondent no. 3 through respondent no. 3.

It was admitted that the petitioner had deposited the amount of Rs.30,000/- only in the account on 15.09.2005 in accordance with the rules.

The petitioner deposited the amount with respondent no. 2 through respondent no. 3 who is the daughter of the petitioner and is the authorized agent and the joint account holder. The petitioner has never made any personal transaction. The acknowledgement of the amount deposited was given duly entering into the RD. Pass book to respondent no. 3 and the amount of the rebate was also paid in accordance with the rules. It was further averred that from this it would be evident that the case was not related to the post office and the petitioner, but was between the petitioner and respondent no. 3 who is the daughter of the petitioner.

Respondent no. 3 who is the daughter of the petitioner was his authorized agent and joint account holder, who after getting deposited the amount of Rs.30,000/- on 15.09.2005 had kept the pass book with her. On being asked by the petitioner as to where was the pass book, the respondent no. 2 had told the petitioner that the pass book of the above account was with respondent no. 3, and that he may obtain the same from her. In this connection no indecent behaviour was conducted by the respondent.

The submission of the respondent is that this is the case between the petitioner and the daughter of the petitioner, respondent no. 3 who is his agent and joint holder of the account, in this it is admitted that respondent no. 3 the joint account holder of the above account has taken payment from respondent no. 2 of their said R D account on 28.10.2005.

The matter is them between the petitioner and respondent no.3 who is the daughter and the authorized agent and joint account holder. The payment of the above account was made by respondent no. 2 in accordance with the rules.

The RD account no. 496044 was opened by the petitioner with respondent no. 2 in ‘joint B’ category in the name of the petitioner and in the name of respondent no. 3, which has been accepted by the petitioner in his complaint and is also evident from Annexure (12) produced herein. In accordance with Rule 20 (2) of Part 1 of Post Office Saving Bank Book transaction of the account of “Joint B’ category can be made by either of the account holders, therefore, the payment made by respondent no. 2 to respondent no. 3 was made in compliance with the provisions of the above rule.

It is admitted that the payment should have been made through cheque. But sometime, due to the cash being in more quantity and keeping in view the disbursement of the payment, the payment is made in cash. Therefore, with regard to payment made in cash of the above account, there was no collusion between respondent no. 2 and respondent no. 3.

Respondent no. 3/ OP no. 3 has also filed a reply before the District Forum stating that petitioner and respondent no. 3 are father and daughter and respondent no. 3 having animosity with her husband was living with her father. Respondent no. 3 is also having a daughter named Shweta. Respondent no. 3 after being separated with her husband was living with her father and all her domestic goods, ornaments etc., are also with her father. Respondent no. 3 is an LIC Insurance Agent since the year 1990 and is also the agent of the post office since 1994. The respondent no.3 after getting savings from her income was depositing the amount in the post

office and since she was having dispute with her husband was living with her father and she was having good relations with father had got opened the joint account with her father. But the amount which was got deposited in the above account was her own earned income. The petitioner does not have any relevancy with that amount. The petitioner was incensed with respondent no.3, because respondent no. 3 has got performed the “sagai’ ceremony of her daughter on her own wish, due to which the petitioner was not pleased and the ill feeling developed between the petitioner and respondent no. 3 and, therefore, the petitioner had expelled respondent no. 3 from his house and had kept all her domestic goods, ornaments, etc., with him. Since respondent no. 3 had to perform the marriage of her daughter Shweta, she had withdrawn the amount from her account, which was her own earned money and performed the marriage of her daughter. Respondent no. 3 is an LIC Agent for a long period and is also an agent of post office and there has never been any complaint against her. Here it is worthwhile to mention that when the above account was got opened at that time the daughter of the respondent no. 3 was small, and therefore, respondent no. 3 had got opened the joint account with her father bona fide, which is now being taken illegal advantage by her father.

The District Consumer Disputes Redressal Commission, Jodhpur, Rajasthan (‘the District Forum’) vide order dated 30.07.2007 while admitting that “the dispute concerned whether the amount deposited in that account was of complainant or of respondent no. 3 cannot be treated as a consumer dispute. The dispute relates to ownership of the movable properties, which “could have been raised before the Court competent”. However, it came to the conclusion that “so far as respondent no. 3 is concerned, respondent no. 3 is duty bound towards respondent no. 1 and 2. Respondent no. 1 and 2 allowed respondent no. 3 for incorrect withdrawal for that respondent no. 1 and 2 are at liberty to recover the amount as per rules from respondent no. 3. It is clarified here that so far as the question of ownership of the amount deposited in R D account of the complainant is concerned of complainant or of respondent no. 3 is concerned, this point is not related to consumer dispute and as such we are not going to decide it. It was left open to the discretion of the respondent no. 1 and 2 as to whom to make the payment of Rs.3,01,827/- with interest deposited within 15 days in the R D account of the complainant. This amount will be deposited by respondent no.1 and 2 in the account of the complainant. They are also directed to act as per rules. If the complainant desires after depositing the amount by respondent no.1 and 2 he can extend the date of maturity of his R D Account”.

The District Forum ordered as under:

“Therefore, the complaint of the complainant against respondent no. 1 and 2 is allowed and respondent no. 1 and 2 are found guilty for the deficiency in the service towards the complainant and it is ordered that respondent no. 1 and 2 shall deposit the complete amount of incorrect payment made by them to respondent no. 3 on 28.10.2005 from the RD account of the complainant with interest payable and information of such deposition of amount may be given to complainant. In addition to it, respondent no. 1 and 2 are directed to make the payment of sum of Rs.10,000/- as compensation towards the mental torture and sum of Rs.1,500/- towards the expenses of the complaint. Here, it is clarified that respondent no. 1 and 2 are at liberty to take appropriate action as per rules for recovery of the amount of Rs.3,01,827/- incorrectly paid to respondent no. 3. So far as question relating to the ownership of Rs.3,01,827/- deposited in the RD Account of the complainant is either to the complainant or to the respondent no. 3 is concerned is not the subject matter of the consumer dispute and that can be settled by the parties concerned before the court competent”.

Aggrieved by the order of the District Forum, two appeals were filed before the State Commission. Appeal no. 363 of 2007 was filed by respondent no. 1 and 2 and appeal no. 364 of 2007 was filed by respondent no. 3. The State Commission after hearing the arguments advanced

by both the parties and perusing the records stated that “it appears from the letter dated 12.04.2007 of the Government of India, Ministry of Communicate that where the advance amount is deposited, the account cannot be closed prior to expiry of the extended period for which the account was extended. In the present matter, sum of Rs.30,000/- were deposited as a advance amount and therefore, under the provisions of Rule 9 A the account cannot be closed prior to the extended period for which the advance amount was deposited. The important question before this Commission is that whether the payment of amount from the account in this way can be stated as deficiency in service on part of the respondent no. 1 and 2. This matter is required to be considered from all the angles and aspects. This is undisputed fact that this joint account was opened by complainant and respondent no. 3 and in the event of maturity, any of them can withdraw the amount from the account. If the sum of Rs.30,000/- as an advance amount would not have been deposited then in that event any of the account holder could withdraw the amount deposited with interest from the account. If it is so also presumed that respondent no. 1 and 2 had no power to make the payment of premature account and if the sanction for withdrawal of the amount against the rule is accorded then in that circumstances, whether deficiency in service on part of respondent no. 1 and no. 2 can be presumed. Deficiency in service can only be presumed in that even when such deficiency caused any losses to the concerned parties. If this account is presumed to be an individual account and if the account holder happened to receive the amount against the rule from this individual account then in that event whether such account holder is entitled for receiving any amount of compensation from the post office on the ground of deficiency in service and in our opinion the answer is negative. In the present matter, the account holder is beneficiary and not the post office. Under the provisions of Rule 9 A account could not closed premature and if the account is closed in this way, the employees and officers of the post office can be held responsible but so far as question of deficiency in service is related for that complainant and respondent no. 3 can get no gains. If the amount would have been withdrawn by respondent no. 3 showing her circumstances then in that situation there would have been any litigation with regard to the amount in between the complainant and respondent no. 3 but stating the deficiency in service complainant cannot receive any benefit from respondent no. 1 and 2. After the expiry of the period of account, any account holder can withdraw his amount. The account was prohibited to be closed in case of deposition of the advance amount because the account holder was given certain rebate on the amount deposited in advance. Respondent no. 1 and 2 stated that the recovery of the rebate given was made from the remaining amount. In our opinion, though the account cannot be closed before the expiry of the period for which the advance amount is deposited but if such an account is closed then also the person receiving the benefits was the account holder only. If any dispute relating to the ownership of the amount lies in between the complainant and respondent no. 3 then the same can be settled from the competent court. In our opinion, in the present matter no deficiency in service by respondent no. 1 and 2 is caused to the complainant. The amount which could be withdrawn after its maturity by any of the account holder and which was paid before its maturity and in that circumstances there was no deficiency in service on part of respondent no.1 and 2 towards the complainant account holder. For the reasons explained above, the conclusions made by the learned forum are not reasonable and therefore, the order is liable to be set aside”.


The main ground for the revision petition are that the learned State Commission has committed grave and serious error of law and fact to concluding that on account of premature closure of RD account, the beneficiary is the Depositor/ Account holder. This conclusion of the learned State Commission is not based on proper appreciation of the factual matrix of the case. Admittedly, the case of the appellant/ complainant was of a joint account which was prematurely closed by one of its partner without the consent of the other partner, who was in fact depositor. Thus, the conclusions of the learned State Commission that on account of premature withdrawal

of amount depositor/ account holder is beneficiary and not post office, is wholly preposterous. The premature closure of RD account and withdrawal of amount by one of the partner of the joint account has obviously caused financial loss to the appellant/ complainant. This vital aspect has been overlooked by the learned State Commission by accepting the appeals preferred by the respondents. Thus the impugned judgment of the learned State Commission is wholly perverse and therefore, the same is not all sustainable.

We have heard the learned counsels for the petitioner and the respondent and have gone through the records. The main arguments of the counsel for the petitioner were that respondent no. 1 and 2 in collusion with respondent no. 3 have withdrawn Rs.3,01,827/- from the joint account in violation of the rules and the payment was made in cash which was in violation of Income Tax Rules. Be that as it may, any violation of Income Tax Rules cannot be construed as deficiency in service qua petitioner.

It is an undisputed fact that the RD account no. 1496004 in question was the joint account of the petitioner and respondent no. 3. Petitioner as per his own claim that he is a senior citizen and his daughter respondent no. 3 was living with him. The question whether the amount being deposited is of complainant and respondent no. 3, as rightly observed by the District Forum as well as the State Commission, cannot be treated as a consumer dispute.

As per Rule 20 (2) of Part I of the Post Office Saving Bank Book transaction of the account of ‘Joint B’ category can be made by either of the account holders and if so, respondent no. 1 and 2 cannot be held guilty of deficiency, if the payment was made to respondent no. 3 who was herself the joint account holder. Respondent no. 1 and 2 have also stated that as per Rule 10 and 11 of the Post Office Regulation (DG Posts Letter no. 47/15/75 SB dated 10.11.1975) the matured RD account can be run continuously for a period of next five years and at the time of need it can be closed at any time after receiving the payment and payment of this is to be made in accordance with the notification no. 2 of the Post Office Saving Bank Regulation 119 (1) (A) (B) in which the rebate given on the advance deposit is recovered and the account is closed.

Petitioner has nowhere mentioned in the petition as to how respondent no. 1 and 2 by colluding with respondent no. 3 made payment to respondent no. 3 and gained thereof, as the petitioner admitted that the entire amount was collected by respondent no. 3, his daughter.

In view of the above circumstances, we find that the counsel for the petitioner has failed to establish that the State Commission has committed any grave and serious error in law and facts in construing the complaint of the petitioner and coming to the conclusion that if any dispute relating to the ownership of the amount lies between the complainant and respondent no. 3 then the same can be settled from the competent court.

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 hence, dismissed with liberty to the petitioner to approach any appropriate forum with regard to the dispute between the petitioner and respondent no. 3.

Before parting with, we must say that respondent no. 1 and 2, i.e., the Post Master General, Station Road, Jodhpur and Post Master, Sub Post office, Jodhpur had admitted in their reply that the payment should have been made through Cheque. But some time due to the cash being in more quantity and keeping in view the disbursement of the payment, the payment was made in cash. While it is reiterated that this cannot be construed as deficiency in service qua the petitioner, the procedure being followed is in violation of the Income Tax Rules and cannot be ignored by us. Secretary, Department of Posts is directed to enquire into the matter and review all similar cases where such payments have been received or paid in violation of the Income Tax Act and fix the responsibility on all those persons who have deliberately violated the Income Tax

Act to make payment or received amounts in cash and take necessary disciplinary action against the erring officials.

Action taken in this regard be informed to this Commission by way of an affidavit within a period of three months from the date of order.

List for compliance on 13th December 2013.

Sd/-

..………………………………[ V B Gupta, J.] Sd/-………………………………..[Rekha Gupta] Satish



(From the order dated 25.02.2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. no. 132 of 2008)

1. The Post Master G J U Post Office, Hissar

2. The Post Master Head Post Office, Hissar

3. The Chief Post Master General Haryana Circle, Mahatama Gandhi Road Ambala

4. The Manager Speed Post Centre, New Delhi

5. The Chief Post Master General Delhi Circle, New Delhi

Petitioners

Versus

Guru Jambeshwar University, Hissar Through : Its Registrar

Respondent

BEFORE:



For the Petitioner Mr R N Singh, Advocate

For the Respondent Mr Sanjay Singh, Caveator

Pronounced on 6 th September 2013

ORDER REKHA GUPTA

Revision petition no. 3428 of 2011 has been filed against the order dated 25.02.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula(‘the State Commission’) in appeal no. 132 of 2008. The brief facts of the case as given by the respondent/complainant are that:

On 31.05.2004 the Controller of Examination of the complainant/ respondent – University sent the parcel containing 43 answer sheets to Professor Mrs Saroj Aggarwal, Dean Department of Basic and Application Sciences, GGSIPU, New Delhi by Speed Post vide receipt no. 101 dated 31.05.2004, from the office of respondent no. 1/ Petitioner no. 1.

After some days, the respondent enquired about the said parcel from Professor Saroj Aggarwal whether the parcel has been received by her or not. The respondent – University got stunned when Professor Saroj Aggarwal told that no such parcel was received by her. Professor Saroj Aggarwal also gave in writing to this effect vide letter dated 29.07.2004.

The Deputy Superintendent (Secy.) of the respondent- University moved an application to the Post Master G J U Post Office, Hissar on 20.07.2004 and requested him to intimate the whereabouts of the said parcel containing answer sheets.

The matter was enquired from Head Post Office, Hissar and they informed that the said parcel had been sent to petitioner no. 4 for onward delivery to the concerned addressee.

Thereafter the matter was further enquired from petitioner no. 4 by the respondent – University and they informed the University that the said packet vide SPA no. 101 dated 31.05.2004 has been delivered at Akashwani Bhavan, New Delhi. They further inquired from petitioner no. 4 along with the area postman at Akashwani Bhawan and they informed that they did not receive such packet addressed in the name of Professor Mrs Saroj Aaggarwal for delivery.

Thereafter, the University moved an application to the Post Master General, North West Circle, Mahatma Gandhi Road, Ambala Cantt., on 02.09.2004 mentioning all the above facts therein, but the petitioner no. 3 could not prove helpful and could not find out the whereabouts of the said packet.

At last the Post Master, Hissar vide his letter dated 11.03.2006 sent a chque no. M 907238 dated 16.02.2006 of Rs.120/- only.

The respondent - University has claimed compensation to the tune of Rs.5,000/- per answer sheet i.e., Rs.2,15,000/- from the petitioner along with interest @ 18% per annum from the date of speed post i.e., 31.05.2004 till its final realisation.

In their written reply, the petitioner/ opposite party have taken the preliminary objections that the present complaint is not maintainable in view of the provisions of Section 2 (d) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act, 1986) as the remedy is barred under Section 6 of the Post Office Act, 1898, which exempts the respondents for the loss on account of misdelivery of the letter during the course of transmission by post.

The present complaint is hopelessly time barred and as such the same is liable to be dismissed on this score alone.

The contents of paragraph no. 8 of the complaint were admitted to the extent that on receipt of enquiry the records maintained at Speed Post Center, New Delhi were thoroughly checked and stated that the SPA No. 101 was received from SPC Hissar at SPC, New Delhi . On going through the dispatch side it was found to entered Manolfest for New Delhi Head Office for delivery. The SPA no. 101 was delivered at Akashvani Bhavan.

In reply to the contents of paragraph no. 10 of the complaint it was submitted that as per rules of the Post Office a sum of Rs.120/- were returned to the respondent –University.

The District Consumer Disputes Redressal Forum, Hisar, Haryana vide their order dated 13.12.2007 held as under:

“So, in view of the above discussion, we are of the considered view that it is a clear case of gross deficiency in service and negligence on the part of the respondents. Therefore, there is merit in this complaint which is hereby accepted. The respondent nos. 1 and 2 are hereby directed to make the payment of Rs.50,000/- as compensation to the complainant on account of deficiency and negligent services provided to the complainant. There is no order as to costs. Compliance of this order bemade within a period of two months, failing which the respondents would be liable to pay interest @ 9% per annum over this amount from the date of default till its payment”.

Aggrieved by the order of the District Forum, the petitioners filed an appeal before the State Commission. The State Commission observed as under:

“The parcel containing answer books of students who appeared for M Sc Examination 4th Semester of Chemistry Paper, were sent by speed post by the University to the examiner. The said parcel did not reach its destination and despite efforts being made by the OPs- appellants – petitioner as well as University the appellants/ petitioner were not in a position to trace the same. The appellants/petitioner finally regretted the non-delivery by sending a cheque of Rs.120/- to the complainant/ respondent. The appellant/ petitioner did not realise the importants of the things that the parcel contained answer-sheets of students and its non-delivery not only led to delay in the declaration of final examination result and result of number of candidates but in some cases it may have adversely affected their future also. The University has to declare their result on the basis of average marks obtained by the students in other papers. It was certainly an action of intentional negligence and may be at instance someone interest who may have appeared and interested in misplacing the parcel. Learned counsel for the appellants/petitioner have placed on record Hon’ble Supreme Court Judgment in Union of India vs Mohd. Nazim, AIR 1980 SC 431 but this judgment is not applicable in the present case. The District Forum rightly allowed the complaint. Therefore, we do not find any illegality in the finding of the District Forum”.

Thereafter, it dismissed the appeal”.


Along with the present revision petition the petitioner has filed an application for condonation of delay of 79 days in filing the present revision petition. The reasons given in the application for condonation of delay are as follows:

The copy of the order dated 25.02.2011 was prepared by the office of this Hon’ble Commission on 22.04.2011 and the same was received by the petitioners herein on or after 28.04.2011.

After receipt of the impugned order dated 25.02.2011, the same was examined at the various level of the petitioner as required in the official functioning of the Government and thereafter the opinion of the Government Counsel conducted the case before the ld. Commission was also sought and after receipt of the opinion, the matter was sent on 16.05.2011 to the office of Chief Post Master General, Ambala.

The Chief Post Master General, Ambala vide his letter no. CPT/ 8 – 1/ 6/ 2006 dated 31.05.2011 forwarded the copy of the order with opinion of the Government Counsel and the brief facts to Shri Arun Malik, ADG (PG), Dak Bhavan, New Delhi for his decision qua the filing of revision petition in the matter.

The matter was examined at various level in the office of the ADG (PG), Dak Bhawan, New Delhi and the opinion of Ministry of Law and Justice was sought who finally gave its opinion dated 25.08.2011 that the department should file the revision petition before this Hon’ble Commission and in view of the opinion of the Ministry of Law and Justice, the competent authority took decision to file the present revision petition before this Hon’ble Commission and thereafter the Ministry of Law was requested vide letter dated 30.08.2011 for appointment of Government Counsel for drafting and filing of the revision petition.

The Ministry of Law and Justice vide its letter dated 06.09.2011 appointed the present counsel and the factum of the appointment of Government counsel was informed to the petitioners herein by ADG (PG) Dak Bhavan vide its letter no. 26-25/2011 – PG dated 21.09.2011 and after receipt of the information, the officer of the petitioner herein

contacted the Government counsel on 04.10.2011 and provided the necessary documents for drafting of the present revision petition.

We have heard the learned counsels for the parties and have also gone through the records of the case carefully.

There is nothing in the application to explain the gap of day to-day delay between 31.05.2011 to 25.08.2011. In the application the day to-day reasons for the delay has not been explained.

The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide ‘sufficient cause’ for the delay of 79 days. This view is further supported by the following authorities.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:

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

In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

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

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

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

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

Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;

“After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

“It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any

public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

The Court further observed;

“It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs”.

Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act.

It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning.

It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.

Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

The present case is fully covered under the case laws cited above Supra.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 79 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the

petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay

interest @ 9% per annum till realisation.

List on 25th October 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish



(From the order dated 23.02.2012 in First Appeal No. 1318/2009 of Haryana State Consumer Disputes Redressal Commission)

Shamsher Singh s/o Sh. Nafe Singh r/o Village Kair Kheri Tehsil and District Jind, Haryana

... Petitioner

Versus

1. M/s Bagri Beej Bhandar Opp. Town Hall, Fowara Chowk, Tehsil and District Jind, Haryana Through its Proprietor

2. M/s Severn Seas Hybrid Seeds Pvt. Ltd., Flat No. 301, S.V.R. Sai Above, C.B.I. Colony, Behinds Sai Baba Temple Kavidigada Hyderabad – 500080 Through its Proprietor

… Respondent(s)

BEFORE




For the Petitioner(s) Mr. Madhu Ranjan, Advocate

PRONOUNCED ON : 11 th SEPTEMBER 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 23.02.2012 passed by the Haryana State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1318/2009, “M/s.

Bagri Beej Bhandar & Anr. versus Shamsher Singh & Anr.”, vide which, while allowing the

appeal, order dated 16.07.2009 passed by the District Consumer Disputes Redressal

Forum, Jind in complaint no. 180/2008 was set aside and the said complaint was ordered to be

dismissed.

2. Brief facts of the case are that complainant Shamsher Singh is an agriculturist/labourer by

profession, but he was not owner in possession of agricultural land situated

anywhere. According to him, he used to take agricultural land on contract basis for a period of

one year and earn his livelihood from cultivation on the said land. The complainant has stated

that he had taken 9 acres of agricultural land on contract from Munshi Ram’s family. He

purchased three packs of certified paddy seeds of ‘Pepsi Seven Seas’ variety and two packs of

‘P-1121 Diamond Variety’ on 22.05.2007 for a sum of Rs.2,300/- from OP No. 1, M/s.

Bagri Beej Bhandar, who is authorised sales agent of the producer, OP No. 2. The said seed was

sown in the land taken on contract after following the practices as mentioned in the brochure and

pamphlets. Pepsi Seven Seas variety of paddy was planted in 3 acres of land, whereas P-1121

Diamond Variety was planted in 5 acres 18marlas of land. He spent huge amounts on

cultivating the land and use of fertilizers, pesticides, irrigation, labour etc. However, the growth

in paddy crop was not satisfactory. The complainant reported the matter to OP No. 1, but he

allegedly did not pay any heed in the matter. A written complaint was, therefore, made to the

Agricultural Officer at Jind on 08.10.2007. The Agriculture Department conducted spot survey

and inspection of the standing crop on 16.10.2007 and found that there was mixture of other poor

quality seeds in the packing of seeds purchased by the complainant from OP No.1. An

inspection report stated that 25%–30% of substandard varieties in Pepsi Seven Seas and about

60% of poor quality seeds was mixed in P-1121 Diamond variety of seeds. The complainant

alleged a loss of Rs.3,10,000/- to him and he approached OP No.1 to compensate him for the

loss, but despite sending a registered legal notice, OP No. 1 did not take any action. A consumer

complaint was then filed before the District Forum, claiming payment of Rs.3,10,000/- as

compensation and Rs.1 lakh as damages on account of mental pain and agony plus Rs.10,000/-

as cost of litigation. The District Forum vide their order dated 16.07.2009 allowed a sum of

Rs.5,000/- per acre as compensation to the complainant and directed the OPs to pay a sum of

Rs.45,000/- to the complainant jointly and severally. However, the appeal filed against this order

was accepted, the order of the District Forum was set aside and the complaint was ordered to be

dismissed. It is against this order that the present petition has been made.

3. At the time of hearing before us, learned counsel for the petitioner was asked to file copies

of the necessary documents filed before theFora below to prove that the complainant had taken

the said 9 acres of land on contract. The petitioner filed I.A. No. 5292 of 2013, enclosing

therewith a copy of ‘thekanama’ saying that 22 acres of their land was taken by Shamsher Singh

complainant on contract. A copy of theJamabandi for the year 2003-2004 and the inspection

report of the Agricultural Department was also filed with the I.A. However, at the time of

admission hearing, the learned counsel for the petitioner admitted that copy of the contract or

‘thekanama’ had not been filed by them before the District Forum or the State

Commission. Learned counsel also could not give any satisfactory explanation when asked to

explain about the proof of cultivation including entries in the cultivation column

of Jamabandi. Learned counsel relied upon the report made by the Agricultural Department

only.

4. A perusal of the order passed by the State Commission reveals that the State Commission

observed in their order that the complainant had not got the seeds, in question, tested from a

Laboratory as required under section 13(1)(c) of the Consumer Protection Act, 1986. He also

never moved an application before the concerned authority for getting the seeds tested from

some laboratory. The report of the Dy. Director (Agriculture) revealed that there was mixture of

other poor quality of paddy plants, but the same was not substantiated by report of any

laboratory.

5. The State Commission has also observed that as per the report by the Haryana State Seed

Certification Agency, the said seeds had been certified to be of prescribed standard. The State

Commission has also given reference to some Government Instructions, in which it has been laid

down that when there is a complaint by farmers regarding quality of seeds, an inspection

committee has to be constituted, comprising two officials of Agricultural Department, one

representative of concerned seed agency and scientists of Krishi Vigyan Kendra. The said

instructions had not been followed by the Agricultural Department while giving their report.

6. The facts narrated above lead to the conclusion that the factum of the complainant having

suffered a loss due to the poor quality seeds has not been established by any scientific or other

evidence. Based on the report of one officer of the Agricultural Department, it cannot be stated

that the version of the complainant is true.

7. Based on the above discussion, we do not find any illegality, irregularity or jurisdictional

error in the impugned order passed by the State Commission which may require interference at

the revisional stage. The revision petition is, therefore, ordered to be dismissed and order passed

by the State Commission is upheld with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION NO. 4128 to 4133 OF 2012


Gujarat Insecticides Ltd. Plot No. 805/806, G.I.D.C., Ankleshwar 393002 Gujarat Through Its Deputy General Manager (Marketing) Authorised Representative

... Petitioners

Versus

1. Ram Niwas s/o Ami Chand r/o Village Amargarh, Tehsil Narwana District Jind

2. M/s. Luxmi Beej Bhandaar, Mal Godown Road, Narwana District Jind Through its Proprietor

… Respondent(s)

AND

Others in REVISION PETITION NO. 4129 to 4133 OF 2012

...Respondents

BEFORE




For the Petitioner(s) Mr. Pankaj Middha, Advocate

For the Respondent–1 Ms. Savita Dhanda, Advocate

For the Respondent–2 Ex-parte

PRONOUNCED ON : 13 th SEPTEMBER 2013

O R D E R

PER DR. B.C. GUPTA, MEMBER

These revision petitions have been filed under section 21(b) of the Consumer Protection

Act, 1986 against the impugned order dated 1.08.2012, passed by the Haryana State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA Nos. 2680 –

2685/2007, M/s. Gujarat Insecticides Ltd. versus different respondents, vide which, while

dismissing the appeals, the order passed by District Consumer Disputes Redressal Forum, Jind in

consumer complaint no. 236/2001 dated 10.07.2007, allowing the complaint, was upheld. This

single order shall dispose of all the revision petitions and a copy of the same be placed on each

file.

2. Brief facts of the case are that all the complainants are permanent residents

of Village Amargarh, Tehsil Narwana, District Jind and are agriculturists by profession. The

facts as taken from RP No. 4128/2005 are that the complainant purchased 5 Ltr. (Gilphos –

20 E.C .)Chlorpyriphos Pesticide from OP No. 1, Laxmi Beej Bhandar, who are the sale agents

of the petitioners, Gujarat Insecticides Ltd., the manufacturers of the said pesticide. It has been

alleged that the said pesticide was sprayed on the cotton crop by the complainant and as per

their version, the crop was completely damaged after treatment with the said pesticide. The

complainant made a complaint to the Sub Divisional Magistrate, Narwana, upon which the SDO,

Agriculture Narwana inspected the crops of the complainants and reported about the damage due

to the said pesticide. The SDO, Agriculture, Narwana also sent sample of the pesticide for

chemical analysis. The complainants filed complaints before the District Forum and as per the

orders passed by the said Forum, the complaints were accepted and the respondents were asked

to pay a sum of Rs.15,000/- jointly and severally to the complainants for damages, alongwith a

sum of Rs.1,000/- as cost of proceedings. Appeals were filed against the order of the District

Forum before the State Commission. The State Commission vide impugned order dismissed the

said appeals. It is against these orders of the State Commission that the present revision petitions

have been made.

3. At the time of hearing before us, the learned counsel for the petitioner pleaded that the

Central Insecticides Laboratory, Faridabad had tested the samples of the said pesticide and found

that they were conforming to the relevant I.S. specifications. However, the analysis made by

Quality Control Laboratory of Insecticides, Sirsa, Haryana, the samples had been stated to be

‘misbranded’. The learned counsel has drawn our attention to the copies of these reports on

record, saying that as per report dated 12.12.2001 given by the Central Insecticides Laboratory,

Faridabad on a reference made by Judicial Magistrate-Ist class, Narawana, the said Laboratory

had stated that the sample was conforming to I.S. specifications. In another report dated

12.12.2001 made by the same Laboratory on reference from Chief Judicial

Magistrate, Hisar, Harayana, similar findings had been recorded. In report made by the same

Laboratory and sent to Sub Divisional Agricultural Officer, Narwana, Harayana vide letter dated

5.10.2001, it had been stated that the sample was found non-phytotoxic to the cotton crop. On

the other hand, the Sub-Divisional Agricultural Officer, Narwana has written in his report dated

24.08.2001 that there were signs of malformation on three and a half acre crop of farmer, after

spraying Gilphos 20 E.C.. The plants were affected to the extent of 50% to 55%. It has also

been mentioned in this report that the samples of these insecticides had been sent to C.I.L.

Faridabad, Sirsa. There is a report of Quality Control Laboratory of State Agricultural

Department, Haryana which has declared the samples as ‘misbranded’, after carrying out

chemical analysis of the same. Learned counsel invited our attention to section 3(k) of the

Insecticides Act, 1968, in which the definition of ‘misbranded’ had been given. Learned counsel

argued that the sample in question does not qualify to be called ‘misbranded’ in accordance with

the provisions contained in section 3(K). Moreover, if it is a ‘misbranded’ insecticide, it is

bound to be ‘phytotoxic’. Learned counsel has also drawn our attention to some interrogatories

sent to the Agricultural Development Officer, in reply to which he has admitted that

malformation cannot be possible because the sample was found nontoxic to the crop. Learned

counsel further argued that the same product was sold in Hisar District also. There were some

complaints in that District, but the same were filed. He stated that the State Commission had

ignored the evidence brought on record while pronouncing their order. The learned counsel also

invited our attention to the document ‘Package of Practices for the Crops of Punjab (Kharif)

1999’ issued by the Punjab Agricultural University, Ludhiana, saying that cotton was highly

sensitive to 2, 4 – D weedicide. Due to the volatile nature of 2, 4 – D weedicide, its vapours are

carried by wind over long distances and these may cause injury to the cotton crop. It is

necessary, therefore, that the spraying equipment as well as tubs, buckets, etc. should be washed

with 0.5% washing soda solution; otherwise, there were chances of contamination with 2, 4 – D.

4. Learned counsel for the respondents, however, maintained that there were two concurrent

findings of the State Commission and the District Forum in their favour. The complainants had

acted in accordance with procedure by making complaint to the SDM, Narwana, who forwarded

the same to the SDO Agriculture, Narwana and the said officer had taken action in the matter in

accordance with rules. He also stated that the samples sent to the Central Insecticides

Laboratory, Faridabad were forwarded at the instance of the OPs and hence they were not

representative samples. The reports of the said laboratory cannot form the basis of decision in

the present case. The laboratory at Faridabad had held the samples to be ‘misbranded’ and

hence, the orders passed by the State Commission and District Forum reflect a correct

appreciation of the material on record. The learned counsel has drawn our attention to the orders

passed by the National Commission in RP No. 3336/2011 saying that National Commission had

taken a similar view in the said case as taken by the State Commission. Learned counsel also

referred to the orders of the Hon’ble Apex Court in “Madhusudan Reddy versus National Seeds

Corporation” [2012 (2) SCC 506] in support of his arguments.


arguments advanced before us. The basic issue for consideration in the present case is whether

the use of Chlorpyriphos pesticides leads to any damage to the cotton crop or not. There are

reports of two technical institutions, the Central Insecticide Laboratory, which is a part of the

Directorate of Plant Protection, Quarantine and Storage, Department of Agriculture and

Cooperation, Government of India. The other report is made by the Quality Control Laboratory

of the State Agriculture Department, Haryana at Sirsa. It has been categorically stated in the

report made by the Central Insecticide Laboratory, Faridabad that the sample of insecticide, in

question, sent to them conforms to the relevant I.S. specifications. It has also been stated that the

sample was found non-phytotoxic to the cotton crop. In view of the clear-cut findings of the

Central Insecticide Laboratory, it is not understood how the State Laboratory at Sirsa, labelled

the said insecticide as ‘misbranded’. The State Laboratory has also not explained how the

insecticide falls under the definition of ‘misbranded’ as contained in section 3(K) of the

Insecticide Act. We have no reason to agree with the findings of the District Forum that the

samples sent to the Central Laboratory were not representative samples since they were sent at

the instance of the OPs. These samples have been sent under the authority of the Chief Judicial

Magistrate and the Judicial Magistrate Ist class, and hence it cannot be stated that they were not

representative samples. Even if, there are conflicting findings given by the Central Laboratory

and the State Laboratory, it is very much clear that the finding of the Central Laboratory which is

a part of the Ministry of Agriculture, Government of India, must take precedence over the views

expressed by the State Laboratory. Further, even if some damage has occurred to the cotton

crop, there could be some other reasons like contamination with weedicide like 2, 4 – D, or due

to any other reason, but it cannot be concluded that the findings given by the Central Laboratory

are false by any standard.

6. Based on the discussion above, these revisions petitions are allowed and the orders passed

by the State Commission and District Forum are set aside. The complaints, in question, are

ordered to be dismissed with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA) MEMBER

RS/



(From the order dated 10.05.2013 in Revision No. 16/2010 of Uttar Pradesh State Consumer Disputes Redressal Commission)

Dr. Inder Bhushan Dua s/o Shri Duni Chander r/o 189, Preetam Nagar Allahabad City

... Petitioners

Versus

1. Universal Instrument Regional Office 189, Preetam Nagar Allahabad

2. Director / General Manager-Sales Universal Instruments 3694/16, Har Dayal Road 2nd Floor, Karol Bagh New Delhi

3. Shri Urmi Rajesh G 3 Mangalam Apartments 5-3 Old Phalesia, Indore Madhya Pradesh

… Respondent(s)

BEFORE




For the Petitioner(s) Ms. Vatsala Rai, Advocate

PRONOUNCED ON : 16 th SEPTEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 against the impugned order dated 10.05.2013 passed by the U.P. State Consumer Disputes

Redressal Commission (for short ‘the State Commission’) in FA No. 16/2010,

“Dr. Inder Bhushan Duaversus Director/General Manager (Sales), Universal Instrument & Ors.,”

vide which while dismissing the appeal of the present petitioner/complainant, the order dated

06.11.2009 in Complaint No. 215/2007, passed by District Consumer Disputes Redressal Forum,

Allahabad, was upheld.

2. Brief facts of the case are that the petitioner/complainant is a General Physician and as per

his complaint, he purchased one life–saving DefiMonitor Machine, used for U.M.Aa. E.E.M.

heart disease from the respondents for Rs.60,000/- and the same was installed at his nursing

home in Allahabad on 12.07.2001. It has been stated that the machine was purchased by the

complainant from respondent no. 2 from Karol Bagh, New Delhi but the bill was issued by

respondent no. 3 on 29.07.2001 from Indore (M.P.). The complainant has alleged that just a few

days after the date of installation, the machine was not functioning properly and he duly

informed the respondents to this effect. He had the apprehension that an old machine was

supplied to him. An engineer and agent of respondent no. 2 could not repair the machine and his

request for replacement of the machine was not accepted. The complainant filed a consumer

complaint in question on 12.04.2007 which was dismissed by the District Forum mainly on the

ground that the District Forum at Allahabad had no jurisdiction to entertain the complaint, the

complaint was time-barred having been filed after six years of cause of action and there was no

valid warranty for the machine. An appeal filed against this order was dismissed by the State

Commission. It is against this order that the present petition has been made.

3. At the time of admission hearing, the learned counsel for the petitioner stated that ever since

purchase, the machine had been found to be defective and his request for replacement of the

same had not been accepted by the OPs. Referring to the point of limitation, the learned counsel

maintained that there was a continuing cause of action and hence, the complaint should be

treated as within limitation. He had sent intimation to the respondents at various time intervals

requesting for replacement/repairing the machine.

4. A careful examination of the record of the case and the orders passed by the State

Commission and the District Forum indicates that the said machine was got installed at the

nursing home of the complainant at Allahabad on 12.07.2001 and as per the version of the

complainant, the machine started malfunctioning within a few days of purchase. However, the

complaint was filed after a lapse of six years, i.e., in the year 2007. The complaint is, therefore,

clearly time-barred as it was filed beyond a period of 2 years as allowed for filing consumer

complaints from the date of cause of action, as per section 24 (A) of the Consumer Protection

Act, 1986. The complainant has not been able to give any cogent and convincing reason for not

filing the complaint within the period of limitation. Further, the State Commission have rightly

observed that the machine was purchased from New Delhi and the bill thereafter was issued from

Indore (M.P.); hence the cause of action cannot be stated to have arisen in Allahabad. The

complainant has also mentioned in his complaint that the respondents had opened their Regional

Office at Allahabad, but the same was closed after a period of three months only. Further, there

is no evidence regarding any warranty for the machine. It has not been substantiated anywhere

that it was an old machine.

5. Based on the discussion above, it is held that the order passed by the State Commission

does not suffer from any illegality, irregularity or jurisdictional error. The same is, therefore,

ordered to be upheld and the present petition is ordered to be dismissed at admission stage, with

no order as to costs.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/



(From the order dated 06.02.2013 in First Appeal No. A/08/904 of Maharashtra State Consumer Disputes Redressal Commission)

Mukhtiar Singh 41-A, Bandstand Building, Kane Road, Bandra (W) Mumbai – 400091.

... Petitioners

Versus

S.R. Vohra flat No. B-605, MRIGOLD CHS LTD. Ram Mandir Road, Borivali (W) Mumbai – 400091

… Respondent

BEFORE




For the Petitioner(s) In person



1986 against the impugned order dated 06.02.2013 passed by the Maharashtra State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. A/08/904,

“Mukhtiar Singh versus S.R. Vohra”, vide which while dismissing appeal, order dated

23.05.2008 passed by District Consumer Disputes Redressal Forum, allowing the consumer

complaint in question was upheld.

2. Brief facts of the case are that the complainant Mukhtiar Singh and OP S.R. Vohra both

were working in Larsen and Toubro Ltd., Mumbai, when the OP S.R. Vohra collected money

from some persons under the pretext of formation of a cooperative housing society

inBorivali (West). He proposed a housing society in Goregaon (West) in Feb. 1996 and

collected Rs.30,000/- from each member but the project did not materialise, because the selected

site was found to be under litigation. An alternative site was proposed in Goregaon (East) in July

1996, but the same was also found under litigation and the deposited amount was returned to the

members without interest. In 1997, the OP proposed formation of Luvkush Cooperative Housing

Society, B-20, Vijay Nagar C.H.S. Eksar Road, Borivali (West), Mumbai – 400092. The

complainant paid a sum of Rs.3,18,240/- in four instalments in the year 1997 to the OP

S.R. Vohra. However, there was no progress in the matter and the complainant demanded his

money back from the OP. The OP gave him a cheque for Rs.2,93,240/- but requested the

complainant not to deposit the cheque in bank. Another cheque was given for the same amount a

few days later, but the said cheque was dishonoured for want of sufficient balance. It has been

stated in the complaint that the complainant had taken the money from his Provident Fund

Account and also raised loan for making payment to the OP. The complainant made the

following prayer in his complaint:-“Mr. S.R. Vohra is liable to compensate as follows:- a) The amount of Rs.2,63,275/- which is detailed in Page-4 as

interest @18% per year on balance payment. b) The amount of Rs.45,000/- against losses on delay in acquiring

house, buy a car (perks @ 4860 p.m. as car allowance), loss of tax rebate on PF interest etc.)

c) The amount of Rs.40,000/- for mental harassment and strain. d) The amount of Rs.10,000/- spent on litigation expenses and

time lost in litigation. The total amount (as above) of RS.3,58,275/-(Rupees Three Lakhs Fifty Eight Thousand Two Hundred Seventy Five only) thus Mr. S.R. Vohrais liable to pay.”

3. The District Forum vide 23/05/2008 ordered that OP should pay an amount of Rs.3,18,240/-

to the complainant alongwith an interest @9% p.a. from 01.07.97 till 30.06.2000 and after that

period with interest @6% p.a. and also pay Rs.5,000/- for mental depression and Rs.2,000/- as

litigation expenses. An appeal against this order before the State Commission was dismissed on

06.02.2013. It is against this order that the present petition has been made.

4. At the time of hearing before us, the complainant/petitioner appeared in person and handed

over his written submissions along with copies of some documents. He stated that an alternative

house of same size and same location should be given to him on payment of balance and he

should also be compensated for the cost appreciation in the value of the house from 1997. The

opponent should also be asked to refund Rs.9.9 lakh with interest @18% or 24% and should be

given Rs.10 lakh for mental harassment and Rs.2,50,000/- towards cost of litigation. It has been

stated in the written submissions that the OP had defaulted in providing him house

at Kandivali at the cost of Rs.13,18,044/- by Diwali 1998. Moreover, he was supposed to get a

sum of Rs.1,90,000/- from the OP as interest balance since the year 2000. When the attention of

the petitioner was drawn to the contents of the complaint filed by him saying that such demands

were not made in the complaint, he still stated that he is entitled to get an alternate house and

adequate compensation.

5. An examination of the material on record indicates that in the consumer complaint in

question, the petitioner in his complaint had demanded a sum of Rs.3,58,275/- from the OP

S.R. Vohra. The District Forum after taking into account the material on record, ordered the OP

to pay a sum of Rs.3,18,240/- alongwith interest and also awarded Rs.5,000/- for mental

depression and Rs.2,000/- as litigation expenses. The State Commission also held that the

petitioner was not entitled to receive anything more than that allowed by the District Forum. It is

very clear from these facts on record that the petitioner is now saying that he should be given a

house in the same locality and should be given heavy amounts for mental harassment etc. but his

stand is not justified on any ground, because whatever demand was made by him in the

complaint has already been considered and relief allowed by the District Forum and the State

Commission. We do not find any illegality, infirmity or jurisdictional error in the orders passed

by the State Commission and District Forum. The present petition is, therefore, ordered to be

dismissed and the orders passed by the State Commission and District Forum are upheld with no

order as to costs.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/



(From the order dated 25.10.2007 in First Appeal No. 07/553 of Delhi State Consumer Disputes Redressal Commission)

Assistant Housing Commissioner (Loans) National Capital Territory of Delhi A – Block, Vikas Bhawan New Delhi

... Petitioners

Versus

Dharam Pal s/o Late Sh. Jug Lal r/o Village Shai Amar, Delhi

… Respondent(s)

BEFORE




For the Petitioner(s) Mr. Braj Mahapatra, Advocate

For the Respondent(s) Mr. B.K. Sharma, Advocate



1986 against the impugned order dated 25.10.2007 passed by the Delhi State Consumer Disputes

Redressal Commission (for short ‘the State Commission’) in FA No. 07/553, “Assistant Housing

Commissioner (Loans) versus Dharam Pal”, vide which while dismissing the appeal, the order

dated 13.04.2007 passed by District Consumer Disputes Redressal Forum, Kashmere Gate, Delhi

in complaint case No. 312/2005, allowing the said complaint, was upheld.

2. Brief facts of the case are that the complainant Dharam Pal raised a loan of Rs.5,000/- from

the petitioner on 27.06.1978, payable in 20 equal instalments of Rs.250/- per month. The

repayment was to commence after 18 months from the date of receipt of first instalment of

Rs.1500/- which included principal amount of Rs.250/-. The complainant made payment of 3

instalments together and deposited a sum of Rs.750/- on 26.03.1983. However, the OP referred

the case for recovery of dues as arrears of land revenue to the collector to recover a sum of

Rs.5,000/- as principal amount and Rs.4,245.87ps. as interest although a sum of Rs.750/- had

already been paid by the complainant. According to the complainant, a total sum of Rs.9,224/-

was paid by him as full and final payment to the Collector. However, the OP did not return the

original documents to him, although several requests were made to this effect. The complainant

claimed a compensation of Rs.50,000/- along with interest @12% p.a. and the return of the

original documents and cost of litigation. The District Forum came to the conclusion that the OP

had committed deficiency in service by not accounting for a sum of Rs.750/- as already paid by

the complainant. The District Forum directed the OP to pay a sum of Rs.2,000/- as

compensation for mental harassment suffered by the complainant and also directed to pay

Rs.500/- as cost of litigation. An appeal against this order was made before the State

Commission which was dismissed vide impugned order dated 25.10.2007. It is against this order

that the present petition has been made.

3. It has been stated in the grounds of revision petition that the complainant was wilful

defaulter in the repayment of loan taken by him from the petitioner. He had not deposited a copy

of challan with respect to sum of Rs.750/- deposited by him in the year 1983. The complainant

had deposited the said challan in the year 2003, and the amount was appropriately adjusted by

the petitioner. It has further been stated that the request made by the petitioner to the District

Collector for recovery of loan amount was based on calculation upto25.09.1984, wherein the

respondent was liable to pay a sum of Rs.5700/- as principal and Rs.4243/- as interest till that

date. The respondent was also liable to pay interest for the period from 3.09.1984 to

2.09.1984 upto the date of full and final payment.

4. It was stated by the counsel for the respondent that the entire outstanding amount had

already been paid by the respondent to the petitioner and his original documents should be

ordered to be released by the petitioner.


arguments advanced before us. It is clearly admitted from the record that the petitioner failed to

take into account the amount deposited by the complainant for the first three instalments (total

Rs.750/-) before sending the necessary recovery certificate to the District Collector. It has also

been admitted that the principal amount of Rs.5,000/- and the interest of Rs.4244/- has already

been recovered from the complainant. The petitioner has also admitted that they have corrected

their record and given a credit of Rs.750/- to the complainant. The State Commission have

rightly observed that had the amount of Rs.750/- been duly shown in record, the interest amount

would have been reduced and the complainant would have been saved from the agony of

reference sent to the Collector for the recovery of dues as arrears of land revenue.

6. From the above discussion, it is clear that the District Forum and the State Commission

have passed their order after making proper analysis of the facts on record and awarded a sum of

Rs.2500/- to the complainant. The petition is, therefore, dismissed and the order passed by the

State Commission and District Forum are upheld. The petitioner is directed to return the original

documents of the respondent within a period of 30 days from the date of pronouncement of this

year. There shall be no order as to costs.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/



(From the order dated 10.02.2011 in First Appeal No. 154/2009 of Kerala State Consumer Disputes Redressal Commission)

C.T. Sebastian @ Saju Chemplayil House Pallikkadu Estate Nedumkandom P.O. Idukki District

Kerala State.

... Petitioner

Versus

1. The Managing Director T.Stanes & Company Ltd. Race Course Road Coimbatore – 641018

2. The Managing Director, Southern Crop Science Pvt. Limited Vandanmedu P.O. Idukki District Kerala State

3. Sunil Kumar Agricultural Officer Agriculture Office Nedumkandam P.O. Idukki District Kerala State.

… Respondent(s)

BEFORE




For the Petitioner(s) Ms. Jasmine Damkewala, Advocate

For Respondent1&2 Mr. Anandh Kannan, Advocate

For Respondent-3 Mr. Amer Mushtaq S., Advocate

PRONOUNCED ON : 16 th SEPT. 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 against the impugned order dated 10.02.2011 passed by the Kerala State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 154/2009, “The

Managing Director, T. Stanes & Company Ltd. & Ors. versus C.T. Sebastian @ Saju,” vide

which while allowing the appeal, the order passed by District Consumer Disputes Redressal

Forum, Iddukki was set aside.

2. Brief facts of the case are that the petitioner/complainant filed a consumer complaint CC

No. 53/2008 before the District Forum saying that he is an agriculturist, being the owner

of Palliikadu Estate on the Parivartanmedu side in Nedumkandam area, which is about 24 acres

and also the Chembulayil Plantation which is about 30 acres, located at Chemmannar. He is

cultivating cardamom and black pepper on the said estate. On 17.07.2007, he purchased 120

sacks of ‘Animeal’ Bio-fertilizer by paying Rs.52,080/- and 10 sacks on 20.07.2007 by paying

Rs.4,340/- and further 80 sacks on 28.07.2007 by paying Rs.34,720/- from

the nedumkandam branch of OP No. 2/respondent no. 2, Southern Crops &

Science Pvt. Limited, Vandanmedu and applied the same to 12000 cardamom plants

at Chembulayil plantation and also to 3000 black pepper creepers of Pallikkadu Estate and also

for 6000 cardamom plants of varying ages. It has been alleged that after three to four weeks of

the use of said Bio-fertilizer, the roots of the cardamom plants were decayed and the fruits

started falling and the pepper creepers were also dried. The complainant stated that at the time of

purchase, he was made to believe by the representatives of the OPs that the said product was a

complete bio-fertilizer and is quite good for cardamom and pepper plants and he was also

provided a brochure in this regard. After the negative impact, the complainant got the Bio-

fertilizer tested from the Indian Cardamom Research Institute and also lodged a complaint with

the Department of Agriculture. The complainant alleged that he had to suffer irreparable loss

and damages and agony and harassment as his crops and plants were damaged and the

agricultural productivity was affected. The District Forum after taking into account the version

of the parties, partially allowed the complaint on 29.11.2008 and directed OP No. 1 & 2 to

refund the bill amount of Rs.92,040/- to the complainant, along with a sum of Rs.10,000/- for

mental agony etc. and Rs.2,000/- as cost of litigation. An appeal was preferred against this order

before the State Commission by OP No. 1/respondent no. 1 which was allowed by the State

Commission and the complaint was ordered to be dismissed. It is against this order that the

present petition has been made.

3. At the time of hearing before us, it was urged by the learned counsel for the

complainant/petitioner that the complainant had purchased the product in question on the

assurance given by the representatives of the OPs that the same was conducive for proper

production of cardamom and pepper. The plants had, however, suffered a lot of damage,

resulting in huge financial loss to the complainant. The learned counsel stated that as per the

brochure of the respondent no.1, the percentage of nitrogen, phosphors and potash in the said

product was required to be in the ratio of 07:10:05. However, when a sample of the product

‘Animeal’ was got tested from the Cardamom Research Institute in Iddukki District, it was

revealed that the content of nitrogen was mere 5.02%, phosphors 2.40% and and potash

8.08%. It was clear that the representation made by the OPs, as to the contents of the manure

was fraudulently wrong and damage was caused to the plants, due to the low levels of nitrogen,

phosphors and potash and also the presence of destructive chemical substances. Learned counsel

has drawn our attention to the contents of the orders passed by the District Forum in this

regard. The brochure in question was withdrawn by the Company as per some Government

order and it was replaced by another brochure. Learned counsel also invited our attention to

report dated 22.05.2008 made by an Advocate Commissioner before the District Forum, in which

it has been stated that certain fruits with cardamom were found as fallen down in a dried

state. Some of the leaves of cardamom plants were also found as dry. The report of the

Commissioner also stated that it was not possible to ascertain how much cardamom had been lost

from these plants and also the Commissioner could not find any ascertainable damage,

significantly to the pepper wines. Learned counsel for the petitioner also stated that there was a

delay of 80 days in filing the present revision petition because all the documents had to be got

translated into English as they were in vernacular language. The petitioner had to search for a

lawyer in Delhi and certain time was lost in translating the documents, preparing and correcting

the draft of the petition.

4. It was urged by the learned counsel for respondent no. 1 & 2 that as made out from the

report of the Indian Cardamom Research Institute, or from the report of the Advocate

Commissioner dated 22.05.2008, that there was no harmful element present in the said product

and no chemical reaction had occurred which could have caused damage to the plant in

question. The report of the Advocate Commissioner had stated in categorical terms that it was

not possible to ascertain the quantum of damage after visit to the agricultural estate in question.

5. Learned counsel further stated that the product ‘Animeal’ is being extensively used by

many persons and its specifications could vary for different crops. He argued that the use of

‘Animeal’ may not have helped in enhancement of production, but it was very clear that no harm

was caused to the agricultural produce as there was no chemical reaction involved. Learned

counsel further stated that the OPs had not issued or provided any brochure regarding ‘Animeal’

to anybody. They had mentioned in the objections filed by OP No. 1 to the complaint in

question that they never claimed the composition of nitrogen, phosphors and potash as 7:10:5. It

has however, also been mentioned in the reply that the OP had circulated the brochure several

years before but after 7.10.05, the OP had withdrawn the 7:10:05 combination from the market

as per order of the Government. Learned counsel denied that copy of the alleged brochure

attached with the petition was issued by them.


arguments advanced before us.

7. The facts on record make it clear that the complainant did purchase the bio-fertilizer in

question at a cost of Rs.92,040/- from the OPs on the basis of an impression given to them by the

representatives of the OPs that the said product was conducive for the growth of cardamom and

pepper. It appears, however, that after use of the product on cardamom and pepper, there was no

positive result achieved, but at the same time, it becomes evident from the report given by the

Advocate Commissioner that there was no evidence of any significant damage to the

plantation. The District Forum rightly observed in their order that the actual number of plants

decayed is not proved by any evidence. Further, the report given by the Indian Cardamom

Research Institute does mention about the presence of nitrogen, phosphors and potassium in the

product in question, but it is nowhere clear, how the product can be classified as organic

manure. It is generally seen that the elements, nitrogen, phosphors and potassium are parts of

inorganic fertilizers whereas the incidence of carbon is very high in organic products. In the

present case, the total carbon is 2.71% only as stated in the report of Indian Cardamom Research

Institute. Moreover, the OPs have failed to prove by any scientific evidence that this product is

useful to the plants and in what manner. They have rather taken the stand that this product is not

controlled by the Fertiliser Control Order of Government of India. The OPs have also denied

having issued any brochure about the product, although they have admitted in the objections

filed to the complaint by OP No. 1 before the District Forum that the brochure was issued several

years back but later on withdrawn. There is evidently a contradiction between written

submissions filed before the District Forum and in the line of argument taken by the counsel for

OPs before us.

8. From the above discussion, it becomes clear that the petitioner/complainant as a consumer

has spent a sum of Rs.92,040/- for buying the product from the OPs under the impression that it

will promote the growth of plants on his agricultural land. There may not have been significant

damage to the plants, but there is no evidence of any positive out-put after the use of the

product. In the light of these facts, the orders passed by the District Forum allowing the

complainant the payment of a sum of Rs.92,040/- spent by him in purchasing the product along

with a sum of Rs.10,000/- as compensation for mental agony and Rs.2,000/- as cost of litigation

seems to be a rational decision. We have no reason to agree with the impugned order passed by

the State Commission that since there was no evidence of damage to the plantation, the

complainant was not entitled to get anything. The factum of spending a sum of Rs.92,040/- for

the purchase of the said product has not been denied by the OPs anywhere.

9. In the light of the above discussion, this revision petition succeeds and hence the order of

the State Commission is set aside, the revision petition is allowed and the order passed by the

District Forum is upheld. There shall be no order as to costs.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION NO. 363 OF 2013 (Against order dated 20.09.2012 in First Appeal No. 806/2011 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

V. Nagamani W/O Krishna Rao NS Temple Street Bheemunipatnam Vishakhapatnam Dist. …Petitioner

Versus1. The Manager Sriram City Union Finance Ltd. 123, Angappa Naiken Street, Chennai

2. The Regional Manager, Sriram City Union Finance Ltd. 123, Angappa Naiken Street,

Chennai …Respondents

AND REVISION PETITION NO. 364 OF 2013

(Against order dated 20.09.2012 in First Appeal No. 810/2011 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad) Ch. Krishna Rao NS Temple Street Bheemunipatnam Vishakhapatnam Dist.

…Petitioner Versus

The Manager Sriram City Union Finance Ltd. 123, Angappa Naiken Street, Chennai

2. The Regional Manager, Sriram City Union Finance Ltd. 123, Angappa Naiken Street,Chennai …Respondents

BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner in both cases : Mrs. Radha, Advocate For the Respondent in both cases : Mr. Vadrevu Pattabhi Ram, Advocate

Pronounced On 16 th September, 2013

ORDER


1. V. Nagamani & Ch. Krishna Rao are husband and wife. They have filed the case against the same Respondents. The facts are similar and, therefore, this order will decide both these cases in a common judgment. I take the facts from RP/363/2013 filed by V. Nagamani. The Complainant Smt. V. Nagamani who has invested Rs.1,00,000/- with the OPs on 06.12.2008. The agent of OP issued an acknowledgement slip and thereafter a debenture certificate was issued by OP and the date of redemption was 22.01.2010 for a period of 12 months. Accordingly, the Complainant approached the OP on 22.01.2010 to get back her amount on which she was informed by OP that only she deposited Rs.10,000/- only ; but due to

technical error it was wrongly reflected as Rs.1,00,000/- in the debenture certificate and which can be rectified. Hence, money was not paid to the Complainant. Therefore, the Complainant filed a complaint before the District Consumer Disputes Redressal Forum (in short, ‘District Forum’).

2. The District Forum allowed the Complaint by observing material discrepancies of

acknowledgement slip produced by the complainant and it’s copy filed by the OPs. Thus concluded that it was a fraud by OPs in collusion with the staff and their agents.

3. Against the order of the District Forum the OP preferred an Appeal in the State Consumer

Disputes Redressal Commission (in short, ‘State Commission’).

4. The State Commission heard both the parties and allowed the appeal by modifying the relief of redemption value as Rs.10,000/- and upholding the order of the District Forum in regard to the reliefs of interest, compensation and costs and The Respondent is liberty to approach competent court for the claim of disputed redemption value.

5. Aggrieved by the order of the State Commission complainant filed this Revision Petition.

6. We heard the counsel of both the parties who have argued vehemently.. There is a delay of 27

days in filling both the Revision Petitions. The reasons stated in application for condonation of delay filed by the Petitioner satisfied us. Therefore, the delay is condoned.

7. On merit the debenture amount is the subject matter of this petition.

The Complainant contends that she deposited a sum of Rs.1,00,000/- with the OPs whereas the OPs submitted that she has deposited an amount of Rs.10,000/-. The OP contended that only 10 debentures were issued with serial No. from 66759395 till 66759404 and value of total debentures was Rs.10,000/- and the complainant altered it as to Rs.1,00,000/-. Further OPs contention was the original bonds were tampered therefore, the complainant informed them that the debenture certificate was misplaced and she submitted notarized affidavit stating that the original debenture certificate was misplaced.

8. Such false stories can be built at any stage. It is strange that why OP should have accepted huge

amount of Rs.1,00,000/- by cheque instead of cash? Whether OP was blind while accepting cash and issuing the acknowledgment slip by hand written and issuing the printed debenture certificate for Rs.1,00,000/- . Such submissions which do not sustain OPs contention that he received only Rs.10,000/-. Such cash transactions certainly lead to loss of Govt exchequer in the form of Income Tax as well deceiving the complainant also.

9. We have perused the Acknowledgement slip and debenture certificate issued by OPs. The Debenture Certificate which is a computerised print out mentions as “Debenture of Rs.1000/- each”. “The redemption value as Rs.1,00,000/-“ and “Number of debentures 100” would further clarify the facts.

10. Similarly the Acknowledgement Slip No.5343942 dated 6/12/2008 which is hand written by

authorised signatory of OPs clearly show the debenture amount as Rs.1,00,000/- and No. of units as 1,000/-.

11. Considering the entirety of this case which confirms that each of the Complainant paid

Rs.1,00,000/- towards debentures and not Rs.10,000/-. It is not a material error in writing but it’s a bad intention of Ps and a case of deficiency in service . Therefore, we allow these revision petitions set aside the orders of the State Commission and restore the orders of the District Forum. Parties are directed to bear their own cost.

…..…………………………(J. M. MALIK, J.)PRESIDING MEMBER

.…..…………………………(Dr. S. M. KANTIKAR)MEMBER

Mss/10


REVISION PETITION NO. 3037 OF 2013 (From order dated 01.07.2013 in First Appeal No.264 of 2013 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh) K.K. Bheniwal, Ex-Deputy Advocate General, Punjab R/o 1234, Sector- 21-B, Chandigarh

… PetitionerVersus

1. Sterling Holiday Resorts (India) Limited, 3rd , Cross Street, City Tower, Kasturba Nagar,

Adyar, Chennai-600020 2. Managing Director, Sterling Holiday Resorts (I) Ltd. 3rd , Cross Street, City Tower, Kasturba

Nagar, Adyar, Chennai-600020 3. Manager, Sterling Holiday Resorts (I) Ltd. 3rd , Cross Street, City Tower, Kasturba Nagar,

Adyar, Chennai-600020 … Respondents

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Ms. Nishtha Chawla, Advocate

Pronounced On 17 th September , 2013 ORDER


1. That the present Petition is filed under Section 21 (B) of the Consumer Protection Act,

1986 against the Impugned Order of the State Consumer Disputes Redressal Commission,

(herein after State Commission) Punjab, Chandigarh. The Hon’ble State Commission vide

its order dated 01.07.2013 dismissed the First Appeal of the Petitioner filed against the order

of the District Consumer Disputes Redressal Forum, (hereinafter, District Forum), Punjab,

Chandigarh.

2. Facts in brief:

The Complainant got a membership of the Sterling Holiday Resorts (India) Limited/ OPs by

paying full amount of Rs.66,650/- towards the purchase of 21 SFC Units on 10.04.2003.

The membership period of the Complainant was from 2003 to 2035. Complainant in year

2004 and 2005 availed two holidays at the company’s resorts and also paid annual amenity

charges of Rs.3570/-. As such, Complainant visited the OPs at Chandigarh office to get

reserved the resort for the year 2006, but it was locked. It is averred that the company is in

crisis hence closed; but later on 01.12.2009 complainant received OP’s letter with assurances

that in the next 1 or 2 years there will be far reaching improvements in the services provided

by the company. Therefore, complainant could not get the resort facility from 2006-2012 but

he was

kept on false promises and asked for annual amenity charges (AAC) for the year 2012. The

Complainant paid Rs.66,650/- to the OPs towards the resort facility, but they neither

provided the resorts facility nor returned the amount. Hence, complainant filed a

complaint alleging deficiency in service and unfair trade practice on the part of OPs for

refund of the amount with interest since 2006 till realization.

3. The District forum dismissed the complaint; subsequently the complainant preferred an

appeal before State Commission.

4. The State Commission heard the matter and after considering evidence on record, dismissed

the appeal.

5. Hence, the present revision petition before this commission.

6. On admission hearing we have heard the counsel for petitioner. We have perused the evidence

on record, the rules of membership and findings of both the fora are mentioned as below.

7. In our observations it is the OPs never closed their business nor left their members

helpless. OPs have sent intimation to all members about shifting of office from

Manimajra to Chandigarh in the year 2012. The OPs

were providing holidays to all members, except the defaulters during the years 2006 to

2012 who had not paid their Management/AAC Charges. It was further stated that the

Complainant was sent reminders to pay the AAC Charges/ Management Charges for the

period 2005 to 2012, but he failed to remit the outstanding dues of Rs.35,951/- till

31.12.2011. It was further stated that neither any request for refund was ever received from

the Complainant, nor the same was permissible as per Rules 6.8.1 of the membership Rules

which read as below;

“In case of cancellation of his/her/its units by the Member/Associate Member beyond 14 days, but within 21 days of commencement of holiday entitlement as per the SFCHU Certificate an amount equivalent to 20% of the Unit/s price paid to the company and cost of holidays including bonus holiday and compensation and service charge incurred by the company on credit card sale and membership fee paid to RCI and other benefits, if any, avail by the member/associate member, calculated on the basis of prevailing tariff applicable free individual travellers, shall be deducted. In case of cancellation after the period mentioned above, the entire amount paid by the member/associate member will be appropriated by the company and no refund of any kind whatsoever will be made to the members/associate members.”

8. . It was further stated that the OPs, were always ready and willing to provide facilities, as per

the membership Rules, but the Complainant neither made payment towards the AAC

charges nor requested for any booking.

9. As per the terms and conditions of membership complainant was required to deposit annual

amenity charges. The evidence on record reveals that the petitioner/Complainant did not

deposit the annual amenity charges, from the year 2005 onwards. As per complainant’s

evidence, he had received letters dated 01.12.2009 and 31.12.2011 from OP with demand

of Rs.35,951/-. Thereafter, complainant contacted the OPs by serving legal notice on

30/8/2012 in which he did not mention any reference of OPs letter dated 1/12/2009.,

Therefore, it is clear that there were several communications between both the parties; hence

the company was in existence and carrying on its activities. It was a wrong presumption of

the Complainant that the company had closed the business as it suffered losses and went in

the crisis.

10. The letter dated 31.12.2011 sent by OPs with

the subject matter, ‘letter of intimation on AAC payable for the

year 2012’ which reads as follows: Dear Sir/Madam,

We hereby inform you that AAC for the year 2012 is fixed at Rs.5067 (Rupees Five Thousand Six Hundred and Seven only for Timeshare/units/postal receipts. The previous amounts intimated and not paid toward AAC is Rs.30344/- .

11. Hence, we are of considered view that the Complainant failed to comply with the

conditions of the payment and did not continue the membership. There is no

apparent error, illegality or infirmity in the orders of both the Fora below warranting our

interference. Therefore, the Revision Petition is accordingly dismissed. No order

as to costs.

..…………………..………(J.M. MALIK J.)PRESIDING MEMBER

……………….……………(Dr. S.M. KANTIKAR) MEMBER

Mss-11



(From the order dated 07.03.2008 in First Appeal No. 615/2007 of Punjab State Consumer Disputes Redressal Commission)

1. Kulbhushan Churra Senior Commercial Manager, Usha International Limited Lali Nivas, G.T. Road, Jalandhar City – 144001

2. Officer in Charge cum General Manager Usha International Limited, Registered Office : Surya Kiran, 19, Kasturba Gandhi Marg, New Delhi – 110001 Through its Attorney Mr. Rajiv Khanna

... Petitioners

Versus

Simar Kaur w/o Shri Ram Kishan r/o VPO Bhogpur, Tehsil and District Jalandhar Punjab

… Respondent(s)

BEFORE




For the Petitioner(s) Mr. Pawanjit S. Bindra, Advocate

For the Respondent In person alongwith

Mr. Sukhvinder Kumar, A.R. & son of respondent



1986 against the impugned order dated 07.03.2008, passed by the Punjab State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 615/2007, vide

which, while dismissing the appeal, the order dated 14.03.2007 passed by the District Consumer

Disputes Redressal Forum, Jalandhar, allowing the consumer complaint number 135/2005, filed

by the present respondent Simar Kaur was upheld.

2. Brief facts of the case are that as stated by the complainant, she wanted to run the business

of running a sewing school in the name of M/s. Ram Simar Institute of Fashion

Technology, Janta Colony, Bhogpur, in affiliation with the present petitioners and Usha Sewing

School network. The complainant deposited a bank draft No. 011018 1442960001 dated

16.04.2003 of amount Rs.51,032/- in favour of the petitioner/OP, which was encashed by the

petitioners. The complainant has stated that she constructed four rooms on a plot of

1 kanal 10marlas area and arranged for furniture, fixtures, etc. for setting up the said school, but

affiliation was not granted by the petitioner, due to which she suffered huge loss amounting to

Rs.10 lakh. The complainant sought a direction to the petitioner/OP to pay an amount of Rs.5

lakh as compensation for deficiency in service, negligence and unfair trade practice on his part

due to non-affiliation/approval of sewing school/institution. The District Forum vide their order

dated 14.03.2007, allowed the said consumer complaint and directed the petitioners to return the

amount of Rs.51,032/- alongwith interest @ 9% p.a. from the date of deposit till payment. The

District Forum also allowed a compensation of Rs.5,000/- for unfair trade practice and

Rs.2,000/- as litigation expenses. An appeal preferred against this order was decided by the State

Commission vide impugned order dated 07.03.2008. The State Commission upheld the order of

the District Forum, stating that the amount of Rs.51,032/- had admittedly passed on

from Simar Kaur to the petitioner.

3. At the time of hearing before us, the learned counsel for the petitioner contended that as

stated in their written reply in the consumer complaint, the said draft was given by the

complainant to Mr. Prem Sabharwal of M/s. P.S. Enterprises, Guru Nanak Nagar,

Jalandhar. Mr.Prem Sabharwal handed over the same draft to the petitioner against his own

outstanding dues with the petitioners. The petitioners had nothing to do with the complainant

and even otherwise, the complainant was not a consumer, as she had given the money for

commercial activity. They also stated that the complainant never gave any application to them

for setting up any school etc. Learned counsel stated that the said Prem Sabharwal of M/s. P.S.

Enterprises had not been made a party in this case. The State Commission have observed in their

order that it was for the petitioners to verify as to whether the bank draft had been got prepared

by Mr. Prem Sabharwal of M/s. P.S. Enterprises or by Simar Kaur respondent. Learned counsel

argued that once draft was handed over to them by Prem Sabharwal, it was nowhere their duty to

find out, as to by whom the said draft was made. Learned counsel further invited our attention to

the letters written by the complainant to the petitioners and complaint lodged by them to the

Station House Officer (S.H.O.), Police Station Bhogpur, in which the complainant has clearly

stated that the said draft of Rs.51,032/- was handed over by them to Mr. A. Sabharwal, Manager

(Sales), P.S. Enterprises, Guru Nanak Nagar, Jalandhar. The complainant had paid another sum

of Rs.59,543/- in cash to Mr. A. Sabharwal for the purchase of machines. A letter was sent by

the petitioner also to the SHO, Police Station, Bhogpur dated 15.09.2003, in which it has been

stated that M/s. P.S. Enterprises was their dealer for the promotion of sale of Usha Sewing

Machines. In March 2002, a cheque of Rs.2,06,208/- was issued by Prem Sabharwal of P.S.

Enterprises in favour of the petitioner, but it was returned unpaid and accordingly, the petitioners

had filed complaint against them under section 138 of the Negotiable Instruments Act, and

also fileed Civil Case against them for the recovery of their money. However, on

22.04.2003, Mr. Prem Sabharwal and his son Arthen Sabharwal visited their office and deposited

the said demand draft of Rs.51,032/-as part payment. The petitioner was neither aware, nor it

was his concern that the said draft was made by Simar Kaur. Learned counsel stated that the

petitioner had not done any unfair trade practice with the complainant and hence, he was not

liable to pay any compensation to her.

4. In reply, the authorised representative of the complainant stated that they wanted to do

business with the petitioner and hence, they made the demand draft in question in their

favour. However, the petitioner failed to supply them the necessary machines and had not

returned their money, which constitutes deficiency in service and unfair trade practice. They had

filed a complaint with the Police also, stating these facts.


arguments advanced before us. It is established from the facts of the case

that Prem Sabharwal and his son Arthen Sabharwal of M/s. P.S. Enterprises are in business

relationship with the petitioners for the supply of sewing machines etc. It is also an admitted fact

on record that the complainant Simar Kaurhad handed over the draft to Arthen Sabharwal, as

stated by her in report to the local Police. The said draft was handed over

by ArthenSabharwal to the petitioners, against their outstanding dues with the petitioner. It is

made out from these facts that Prem Sabharwal, ArthenSabharwal and P.S. Enterprises are

necessary parties in this case, but the complainants have not impleaded them as parties, despite

admitting clearly that the draft, in question, was handed over to Arthen Sabharwal. It is true that

the money belongs to the complainant, which got passed on to the petitioners through P.S.

Enterprises, but it is nowhere established as to how the petitioners indulged in any unfair trade

practice or shown any deficiency in service, vis-à-vis, the complainant. It is also stated in clear

terms that the said money was handed over for starting a commercial activity and hence, the

complainant does not fall within the definition of ‘consumer’ in the strict sense of term.

6. Based on the discussion above, it is held that the petitioner is not liable to pay any

compensation or any relief to the complainant, as they have not indulged in any unfair trade

practice against the complainant. It is made out from the facts on record that this is purely an

issue for invoking jurisdiction of the civil court, if the complainant wants her money back from

the petitioner or from M/s. P.S. Enterprises. The revision petition is, therefore, allowed and the

orders passed by the State Commission and District Forum are set aside. The consumer

complaint is ordered to be dismissed. There shall be no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/



(From the order dated 11.01.2008 in First Appeal No. 1227/2007 of Karnataka State Consumer Disputes Redressal Commission)

M/s Mandovi Motors Pvt. Ltd Arvind Building Balmatta Building Mangalore-575001 Karnataka Rep. by its Director, Shri A. Sanjay Rao

... Petitioner

Versus

1. Pravenchandra Shetty s/o Y.K. Sanjeeva Shetty 311, Kunil Complex, Bendoorwell, Mangalore – 575001 Karnataka

2. Maruti Udyog Limited, Rep. by Authorised Attorney 11th Floor, Jeevan Prakash 25, Kasturba Gandhi Marg New Delhi – 110001

… Respondent(s)


(From the order dated 11.01.2008 in First Appeal No. 1220/2007 of Karnataka State Consumer Disputes Redressal Commission)

Maruti Suzuki India Limited, 11th Floor, Jeevan Prakash 25, Kasturba Gandhi Marg New Delhi – 110001

... Petitioner

Versus

1. Pravenchandra Shetty s/o Y.K. Sanjeeva Shetty 311, Kunil Complex, Bendoorwell, Mangalore – 575001 Karnataka

2. Mandovi Motors Pvt. Ltd. Arvind Building Balmatta Building Mangalore – 575001

… Respondent(s)

BEFORE




RP No. 1445 of 2008

For the Petitioner(s) Mr. D.P. Chaturvedi, Advocate

For the Respondent-1 Mr. Pravenchandra Shetty, In person

For the Respondent-2 Mr. T.K. Ganju, Sr. Advocate

Mr. Rakesh Agarwal, Advocate

Mr. Ashish Chauhan, Advocate

RP No. 1961 of 2008

For the Petitioner(s) Mr. T.K. Ganju, Sr. Advocate

Mr. Rakesh Agarwal, Advocate

Mr. Ashish Chauhan, Advocate

For the Respondent-1 Mr. Pravenchandra Shetty, In person

For the Respondent-2 Mr. D.P. Chaturvedi, Advocate


These two revision petitions, RP No. 1445/2008 and RP No. 1961/2008, have been filed

under section 21(b) of the Consumer Protection Act, 1986 by the petitioners against the

impugned order dated 11.01.2008, passed by the Karnataka State Consumer Disputes Redressal

Commission (for short ‘the State Commission’) in FA No. 1227/2007,

“Mandovi Motors Pvt. Ltd. versus Pravenchandra Shetty & Anr.” and FA No. 1200/2007,

“MarutiUdyog Ltd. versus Pravenchandra Shetty & Anr.” respectively. Both these appeals were

directed against the order dated 03.05.2007 passed by District Consumer Disputes Redressal

Forum, Mangalore, vide which the petitioners/OPs were directed to replace the defective car sold

to complainant/respondent no.1 and also to pay compensation of Rs.17,000/-.

2. For the convenience, parties are referred as they were before the District Forum,

i.e., Pravenchandra Shetty, complainant, M/s Mandovi MotorsPvt. Ltd., OP No. 1

and Maruti Udyog Limited, OP No. 2. Brief facts of the case are that OP No.1 is the authorised

dealer of OP No.2, Maruti UdyogLtd., having right of sale and service of Maruti vehicles

to Dakshin Kannada District. The OP No.2 is the manufacturer of Maruti Cars. The

complainant had purchased a Maruti Wagon R VXI Euro – 2 car from OP No.1 for

Rs.3,73,364.62ps. on 29.03.2003, which was duly registered by the Regional Transport Officer,

Mangalore. The complainant also availed a loan of Rs.3 lakh from ICICI Bank and the said car

was covered by warranty for a period of 24 months from the date of delivery or 40,000/- km

whichever occurs first. It has been alleged in the complaint that since the date of purchase,

abnormal vibration was being felt during driving of the vehicle between the speed of 40 Km/hour

to 80 km/hour. The complainant took the vehicle to OP No. 1 a number of times and they tried

to remove the defects every time and replaced certain parts as well but to no avail.

3. The complainant has cited a number of specific dates and specific instances in the

complaint, concerning the defect in the vehicle. The District Forum, after taking into account the

evidence of the parties, allowed the complaint and directed the opposite parties to replace the car

and also pay Rs.17,000/- as compensation and litigation cost. The State Commission also upheld

this order by dismissing the two appeals filed by petitioners/OPs. It is against this order that the

present petitions have been filed.

4. The learned counsel for OP No. 1 argued that after purchase of the vehicle on 29.03.2003,

the complainant made a complaint about the alleged defect on 18.04.2003. The petitioner

removed the defect promptly after modifying brake callipers with brass brushes. On 23.08.2003,

when the vehicle had run more than 5000 kms, the complainant came for service which was

promptly done. Learned counsel stated that on subsequent dates also, whenever the complainant

turned up with any complaint, that was promptly attended to. He has drawn our attention to a

note recorded on 3.3.2005 by some Technical Officer of the company, where it is stated that trial

of the vehicle was taken and the vibration was found in line with other Wagon R vehicles. There

was no deficiency in service in so far as the petitioner dealer was concerned.

5. In his detailed arguments, learned counsel for the OP No. 2, Maruti Udyog Ltd., stated that

the only complaint related to abnormal vibration of the vehicle, which could not be classified as

manufacturing defect in the vehicle. The learned counsel vehemently argued that the vehicle in

question had already run about 1,24,000 Kms since its purchase, and hence, it was wrong to

presume that there was any manufacturing defect in the vehicle. The orders passed by the courts

below could not be sustained on this ground alone. The defect of vibration was recorded for the

first time on 14.09.2004 and it was attended to by dealer. The defects pointed out on 14.09.2004

had been mentioned in the job-card, (copy of which is on record). M/s. Mandovi Motors has also

taken trial of the vehicle and vibration was found in line with other Wagon R vehicles. In the

conditions governing the warranty for the vehicle, it had been stated in clause 4 (m) as follows:-

“Insignificant defects which do not affect the function of the vehicle including without limitation

sound, vibration and fluid seep”

6. The OPs had also made a reference in this regard to Automobile Research Institute of India

(ARII) Pune and in their reply, the said Institute stated that under the Central Motor Vehicles

Rules, no limit had been notified for vibration levels. Referring to the report of National Institute

of Technology, Karnataka, learned counsel stated that the said Institute was not a recognised

institute to give any opinion in the matter. The learned counsel has drawn our attention to

judgement of the Hon’ble Apex Court in “Maruti Udyog Ltd.

versus Susheel Kumar Gabgotra & Anr.” [(2006) 4 SCC 644], saying that if the petitioner had

already taken steps to remove defects in some parts of the vehicle, it was not justified to order

replacement of the entire vehicle. He has also drawn our attention to order passed by this

Commission in “Maruti Udyog Ltd. versus Hasmukh Lakshmichand &Anr.” [III (2009) CPJ 229

(NC)] saying that in the instant case, the vehicle had run for 11 years and covered approximately

1,20,000 kms; the manufacturing defect in the vehicle had not been proved and it was held that it

was not justified to direct replacement of the vehicle.

7. The complainant, Pravenchandra Shetty, argued the case in person and stated that there was

complaint of abnormal vibration in the vehicle from the very beginning and it was quite clear

that there was manufacturing defect in the same. He had complained about the defect to the OPs

many times and also took the car for repairs. He mentioned that the defect had surfaced on the

third day of the purchase and till now, he had taken the vehicle 23 times for repairs to the

petitioners/OPs. He was also asked to take the vehicle to another workshop at Udipi, which was

341 km away, for repairs. The complainant stated that as per the report and statements given by

the experts from National Institute of Technology, Karnataka, the vehicle suffered from

manufacturing defects. The said Institute is highly reputed Institute and prominent scientists

from the Institute have deposed in his favour. The orders passed by the lower courts were based

on a correct appreciation of facts on record.


arguments advanced before us. A simple glance at the contents of the consumer complaint in

question reveals that the complainant had taken the vehicle to the petitioner/OP No. 1, a number

of times and most of times, some or other part was replaced. The vehicle was purchased on

29.03.2003 and when it was taken to OP No. 1 on 18.04.2003, when the said car had run

847 kms only, the defect was recorded by OP No. 1 as front suspension noise. The car was

delivered back after modifying brake callipers with brass bushes. The petitioner/OP No. 1 have

admitted in their revision petition that on 18.04.2003, there was complaint of grinding noise, the

steering noise, callipers sound etc. which were attended to by the petitioner/OP No.1. The

petitioner has also admitted that on 16.3.2004, when the vehicle had run more than 15,000 kms,

it was brought to the petitioner with complaint of :-

(a) gear shifting very hard;

(b) clutch operation not smooth and become hard after car warms up;

(c) jerk while releasing clutch;

(d) AC compressor noise during engaging and vibrating when engaged;

(e) rear shock abnormal leaking;

(f) front strut hard;

(g) door rattling and

(h) drive shaft grinding noise.

Petitioner has admitted that all these defects were attended to, to the full satisfaction of the

complainant. Again on 9.07.2004, when the car had run 19,801 km, it was brought with a

complaint of jerking, engine jerking, etc. and the same was again attended to.

9. On 14.09.2004, when the car had run up to

22,430 kms, the vehicle was again brought to M/s. Mandovi Motors and the following defects

have been recorded on the job card (Copy of which is on record):-

“Engine jerking at low speeds and also at high speeds (40-50 KMPH & also at 70-80

KM/hr speed)

Delay starting

Engine knocking at high speeds

Check suspension (frt & rear)

Check brakes

Vehicle vibration at 70 km/hr

Tappet noise – valve clearance to be readjusted.”

10. It has also been stated in the complaint that the car was taken to M/s.

A. Bharana Motors, Udupi and the service engineer confirmed that there was vehicle vibration at

70Km/hr, suspected due to mounting.

11. On 2.08.2005, the complainant took the car to the experts of the National Institute of

Technology, Karnataka, Mangalore (for short ‘N.I.T.) for inspection. The experts confirmed the

abnormal vibration at speed of 45 km/hr and 70km/hr and have reconfirmed the abnormal

vibration by conducting sound level measurements.

12. The sequence of events narrated above leads to the irresistible conclusion that the vehicle

suffered from many defects for which it had to be taken for repairs again and again. A perusal of

the written statement filed by M/s. Mandovi Motors Pvt. Ltd. before the District Forum also

reveals that the petitioner has admitted having replaced several parts in order to satisfy the

grievance of the complainant. A perusal of the orders passed by the District Forum and the State

Commission reveals that they have passed these orders after carrying out detailed analysis of the

facts on record. Before the District Forum, the complainant examined two witnesses from the

National Institute of Technology, Karnataka, i.e., Dr. Appu Kuttan, Professor Department of

Mechanical Engineering and Dr. K.V. Gangadharan, Assistant Professor, Mechanical

Engineering. Both these witnesses confirmed their written report which states clearly that there

were defects in the vehicle.

13. In so far as clause 4 (m) in the warranty for the vehicle is concerned, it deals with

“insignificant” defects like sound, vibration and fluid seep etc. which do not affect the

functioning of the vehicle. The facts on record project in very clear terms that the defect of

vibration in this vehicle cannot be called “insignificant” by any standard. Since the vehicle was

taken to the workshop a number of times and every time some part or the other was changed,

leads to the conclusion that there is ‘significant’ defect in the vehicle.

14. It is abundantly clear from the facts on record that the vehicle, in question, did suffer from

defects and the petitioners have been trying to rectify these defects by replacing certain parts

from time to time. The definition of ‘defect’ has been given in the ‘Consumer Protection Act,

1986’ itself as per section 2(1)(f) as follows:-“"defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;”

15. The reports submitted by a reputed technical institute, like the National Institute of

Technology, Karnataka and also the remarks recorded by the technical personnel of the petitioner

from time to time, make it very clear that the vehicle was a defective vehicle. The petitioner

itself has admitted in their revision petition that they replaced the parts from time to time. It is,

therefore, immaterial whether the “subject” of vibration is covered in the warranty under the

strict sense of ‘word’ or not. It also does not matter if any parameters have not been quantified

to measure the vibration levels or laid down in the statutory rules. The definition of the word

‘defect’ as contained in the Consumer Protection Act, 1986, makes it very clear that there was

fault, imperfection and shortcoming in the quality and standard of the vehicle. To summarise, it

can be safely concluded that the vehicle is a defective one, as made out from the following

factors:-

(a) The vehicle had to be taken for repairs a number of times. Most of the times, there was

replacement of some part or the other. The first time, it was taken shortly after purchase

of the vehicle, when it had run only 847 km and within one month of purchase of the

vehicle. The defects have been recorded on the job-cards on most of the visits.

(b) The scientists from a reputed Institute like the N.I.T., Mangalore, have appeared in the

witness box before the District Forum and confirmed the defects in the vehicle.

(c) The petitioners have themselves admitted in their revision petition that there were many

complaints of defects from time to time and they were attended to by the petitioners.

16. From the above narration of facts and circumstances, it becomes crystal clear that the

complainant has undergone a lot of mental harassment and agony, amounting to torture, because

of the defects in the vehicle. There cannot be a case of bigger mental harassment than to carry

the vehicle for repairs to the workshop so many times and still, the problem remaining

unsolved. The complainant has also been agitating the matters in consumer courts for the last 8

years and he still has to get the requisite relief. He, therefore, deserves to be given handsome

compensation as he has been a victim of circumstances and he has fought a valiant struggle to

get his grievance redressed. The word ‘compensation’ although not defined in the Consumer

Protection Act, 1986, has been explained in the order passed by the Hon’ble Supreme Court in

“Lucknow Development Authority versus M.K. Gupta” as reported in [(1994) 1 SCC 243 at 262-

263]. It has been stated by the Hon’ble Supreme Court as follows:-“The word ‘compensation’ is of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense’. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The

Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.”

17. The Hon’ble Apex court have thus, made it very clear that the Commission or Forum in the

Act is entitled to award not only value of goods or services, but also to compensate a ‘consumer’

for injustice suffered by him.

18. In the present case, the District Forum rightly ordered on 03.05.2007 that the OPs should

replace the vehicle with a new car alongwith a fresh warranty and also give Rs.17,000/- as

compensation and costs. The District Forum have thus, allowed to the complainant the value of

the goods in question and also compensation for injustice suffered by him, in accordance with

the principle laid down by the Hon’ble Apex Court. The State Commission in their order dated

11.1.2008 dismissed the appeals filed by both OPs. The Revision Petitions against these orders

have been pending for almost five years as brought out at the time of arguments. Since the

vehicle has already travelled more than 1,00,000 Kms, looking at the overall facts and

circumstances of the case, it shall meet the ends of justice if a total compensation of

Rs.3,00,000/- is awarded as compensation to the complainant. Both the revision petitions are

therefore, partly allowed. The orders passed by the District Forum and State Commission are set

aside and it is ordered that both the OPs shall jointly and severally pay a sum of Rs.3,00,000/- by

way of compensation to the complainant within 30 days from the date of pronouncement of this

order. There shall be no order as to costs.

List on 28.11.2013 for compliance.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/



(From the order dated 06.07.2012 in First Appeal No. 218/2011 of West Bengal State Consumer Disputes Redressal Commission)

Mahindra & Mahindra Ltd. Through Mr. Abhishek Chand, Authorised Representative Mahindra Towers Worli Road, Mumbai – 400018

... Petitioner

Versus

1. Sri Chandan Mondal s/o Sri Mohan Mondal r/o Vill – Gopalnagar, P.O. – Dabra, P.S. Pandua, Dist. – Hooghly, West Bengal

2. Rudra Automobiles Pvt. Ltd. Having its office at Khagragarh More, B.T. Road, Golap Bag, P.O. & Dist. – Burdwan, West Bengal

3. Rudra Automobiles Pvt. Ltd. Having its head office at Asansol, P.O. – Asansol, Dist – Burdwan, West Bengal

4. Rudra Automobiles Pvt. Ltd. Pandua, Kalitala, G.T. Road, P.O. & P.S. – Pandua – Distt. Hooghly West Bengal

5. Hooghly Co-operative Agri & Rural Development Bank Ltd. Pandua, Dist – Hooghly West Bengal

… Respondent(s)


(From the order dated 06.07.2012 in First Appeal No. 218/2011 of West Bengal State Consumer Disputes Redressal Commission)

1. Rudra Automobiles Pvt. Ltd. Having its office at Khagragarh More, B.T. Road, Golap Bag, P.O. & Dist. – Burdwan, West Bengal

2. Rudra Automobiles Pvt. Ltd. Having its head office at Asansol, P.O. – Asansol, Dist – Burdwan, West Bengal

3. Rudra Automobiles Pvt. Ltd. Pandua, Kalitala, G.T. Road, P.O. & P.S. – Pandua – Distt. Hooghly West Bengal

... Petitioner(s)

Versus

1. Sri Chandan Mondal s/o Sri Mohan Mondal r/o Vill – Gopalnagar, P.O. – Dabra, P.S. Pandua, Dist. – Hooghly, West Bengal

2. Mahindra & Mahindra Ltd. Through Mr. Abhishek Chand, Authorised Representative Mahindra Towers Worli Road, Mumbai – 400018

3. Hooghly Co-operative Agri & Rural Development Bank Ltd. Pandua, Dist – Hooghly West Bengal

… Respondent(s)

BEFORE




RP No. 4146 / 2012

For the Petitioner(s) Ms. Aparna Mattoo, Advocate

For the Respondent-1 Mr. Sanjoy Kumar Ghosh, Advocate

For Respondent 2 – 4 Mr. Avrojyoti Chatterjee, Advocate

Mr. Mithun Chandola, Advocate

For Respondent-5 Exparte

RP No. 3580 / 2012

For the Petitioner(s) Mr. Avrojyoti Chatterjee, Advocate

Mr. Mithun Chandola, Advocate

For the Respondent 1 Mr. Sanjoy Kumar Ghosh, Advocate

For Respondent 2 Ms. Aparna Mattoo, Advocate

For Respondent 3 Exparte

PRONOUNCED ON : 19 TH SEPTEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER

These revision petitions have been filed under section 21(b) of the Consumer Protection

Act, 1986 against the impugned order dated 06.07.2012, passed by the West Bengal State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

218/2011, “Sri Chandan Mondal versus Rudra Automobiles Pvt. Ltd. & Ors.” by which, while

allowing appeal, the order dated 07.03.2011 passed by the District Consumer Disputes Redressal

Forum, Hooghly, dismissing the consumer complaint no. 139 of 2008 filed by respondent no.

1/complainant was set aside. This single order shall dispose of both these revision petitions and

a copy of the same be placed on each file.

2. Brief facts of the case are that the complainant/respondent no. 1, Sri Chandan Mondal and

another, purchased one Mahindra Tractor known as “Bhumi Putra” Model No. 47501 REV-3371

in the month of December 2006 from the petitioner, Rudra Automobiles Pvt. Ltd. GolapBag,

P.O. & District Burdwan after raising a loan from the Hooghly Co-operative Agri and Rural

Development Bank Ltd., Pandua, District Hooghly. The other petitioner, Mahindra and

Mahindra Ltd., are the manufacturers of the said tractor. It has been alleged in the complaint

filed by Sri Chandon Mondal that just after 15 days of the purchase of the vehicle, he started

facing problems with the same. It was found that the water pump system of the vehicle had

broke down without any reason, fan was also not operating and then the battery allotted at the

time of purchase, was found to be not functioning. The tractor had to be shut down for many

days and the complainant incurred heavy losses. The complainant lodged a complaint with the

office of OP, Rudra Automobiles Pvt. Ltd. Asansol, District Burdwan. The water system was

repaired by the OP, but the battery was not replaced. Again, after a few months, the pump

nozzle element was badly damaged and the vehicle was taken to the OP who detained the same

for 7 days in their factory, but the repair work done was not to the full satisfaction of the

complainant. Thereafter, the engine started giving problems and there was frequent percolation

of water inside the vehicle, resulting in non-functioning of the vehicle. All these problems faced

by the complainant were within the warranty period of the vehicle. The complainant had to hire

another tractor for his agricultural operations and moreover, he had to pay the instalments of loan

amount raised from the bank. The complainant requested that the OPs should be asked to

replace the tractor or to refund the purchase amount to the complainant and also compensate him

for mental agony and harassment. The District Forum vide their order dated 07.03.2011

dismissed the complaint, saying that there was no credible and adequate evidence for

manufacturing defect in the vehicle. An appeal was filed against the said order of the District

Forum before the State Commission. The State Commission passed the following order:-“That the respondents shall take immediate steps to take the vehicle to their workshop at their cost and shall thoroughly examine the vehicle for rectification of any defect or fault, manufacturing defect or whatever so that the vehicle becomes operational to the perfect satisfaction of the Appellant within 45 days from the date of this order. The appeal succeeds and is allowed on contest. Further, a sum of Rs.1,00,000/- shall be payable within 45 days from the date of this order for the mental agony and actual loss suffered so far by the idleness of the vehicle, failing which an interest @ 8% per annum shall be charged on the said amount till the date of realisation.”

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

3. Heard the learned counsel for the parties and examined the material on record.

4. It has been stated by the learned counsel for Rudra Automobiles Pvt. Ltd. that they had not

shown any deficiency in service or negligence in the matter, because they had attended to the

defects pointed out by the complainant from time to time and removed those defects to the

satisfaction of the complainant. He also stated that they have produced sufficient evidence

before the District Forum, saying that they had repaired the vehicle many times to the

satisfaction of the complainant. The District Forum has also observed that the

petitioners Rudra Automobiles were not found to be negligent in providing their services from

the face of record.

5. Learned counsel for Mahindra & Mahindra Ltd. stated that they there was no evidence of

any manufacturing defect in the said vehicle. Whatever defects had been pointed out from time

to time, always related to problems in the running of the vehicle only. The job cards made by

M/s. Rudra Automobiles Pvt. Ltd. from time to time also indicated that the defects as pointed out

by the complainant were removed from time to time, to the satisfaction of the complainant and

there was no evidence of any manufacturing defect. In case, the complainant felt that there was

any manufacturing defect in the vehicle, the matter should have been referred for seeking an

expert opinion to establish this version.

6. Learned counsel invited our attention to the order passed by this Commission in

“Sushila Automobiles Pvt. Ltd. versus Dr. BirendraNarain Prasad” [RP No. 1652/2006 decided

on 07.05.2010] in which it was held that the complainant has to prove by cogent, credible and

adequate evidence supported by the opinion of an expert that the vehicle suffered from inherent

manufacturing defect.

7. In “M/s. Sydney & Lydon Realtors & Associates versus M/s. Goa Motors Pvt. Ltd.

[Revision Petition No. 3220 of 2012 decided on 25.09.2012]”, the National Commission have

taken a similar view. The orders passed by the Hon’ble Apex Court in many other cases have

been relied upon by them, while deciding this case.

8. Learned counsel for the respondent no. 1/complainant vehemently argued that the vehicle,

in question, started showing defects only 15 days after its purchase and had to be taken to

M/s. Rudra Automobiles Pvt. Ltd. for repairs. The very fact that the vehicle developed problems

many a time and had to be taken for repairs, shows it clearly that it is a defective vehicle. As a

consequence, the complainant who was a buyer had suffered very badly. He had to hire another

tractor for his agricultural operations. Moreover, the order by which the State Commission had

ordered to examine the vehicle thoroughly for rectification of any defect or fault or

manufacturing defect or whatsoever, was perfectly valid, because it was the duty of the petitioner

to repair the vehicle within the period of warranty. The learned counsel further stated that at the

moment, the tractor was lying idle, as it could not be used till the defects were

removed. Referring to the revision petition filed by M/s. Mahindra & Mahindra, learned counsel

for the respondent/complainant stated that the said petitioner never appeared before the District

Forum and they did not file any document or written version in their support. Before the State

Commission also, they had not filed any reply.

9. Learned counsel invited our attention to a number of cases decided by this Commission in

support of his arguments.

10. In “Abhaya Kumar Panda versus M/s. Bajaj Auto Limited” [First Appeal No. 83 and 90 of

1991 decided on 10.12.1991], the National Commission held that when the vehicle suffered from

major manufacturing defect, it should have been replaced by the manufacturer.

11. In “Mahindra & Mahindra Ltd. versus Vasantrao Dagaji Patil and Anr.” [First Appeal No.

36 of 1996 decided on 24.05.2002], it has been held that there was deficiency in service, because

the new vehicle was having defects.

12. In “Shankar Automobile versus Deepak Kumar Singh” [I (2009) CPJ 80 (NC)], it has been

held that when the vehicle was found defective, immediately after purchase, the dealer cannot

escape liability towards manufacturing defect.

13. In “R. Raja Rao versus Mysore Auto Agencies” [II (2006) CPJ 64 (NC)], it has been held

that when trouble started within few days of purchase of vehicle and persisted even after several

repairs, the OPs/Dealer and Manufacturer were jointly and severally liable to refund cost of the

defective vehicle with interest @12% p.a.

14. Learned counsel argued that the order passed by the State Commission is based on correct

appreciation of the facts and circumstances on record and should be upheld.


arguments advanced before us. It is clearly borne out from the facts on record that the tractor in

question did suffer from many defects, ever since the date of purchase and it had to be carried to

the dealer for repairs many times. Copies of job-cards placed on record are ample evidence of

proof that the vehicle did have defects and the complainant was put to lot of hardship on account

of that. It cannot be stated by any stretch of imagination that the vehicle was taken for repairs

without any problem of any kind. The definition of ‘defect’ as given in the Consumer Protection

Act, 1986 is hereby reproduced below:-“"defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;”

16. The manufacturer of the vehicle M/s. Mahindra and Mahindra tried to explain that there was

no defect in the vehicle and there is no opinion of any expert to establish any manufacturing

defect. Looking at the definition of ‘defect’ in the Consumer Protection Act, 1986 and the facts

and circumstances of the case, it is very clearly proved that the vehicle, in question, was a

defective vehicle. It shall be futile to go into minute/extreme technicalities in order to establish

whether the defects pointed out qualified to be classified as manufacturing defect or not. It is a

hard fact that the consumer who is a farmer, was put to a lot of mental agony, harassment by the

purchase of the said defective vehicle and even now, it has been stated that the vehicle is lying

idle and a lot of time has already been consumed in litigation between the parties.

17. It has been stated very clearly in a number of orders pronounced by the National

Commission, as pointed out by the respondent that the liability lies on the OP to remove the

defects in the vehicle to the satisfaction of the consumer/complainant. It may also be stated here

that it has been acknowledged by the Hon’ble Apex Court in several Judgements that the

Consumer Protection Act, 1986 is a benevolent legislation and its sole aim is to secure social

purpose to promote the facilities in a comprehensive manner for settlement of issues involved in

the consumer complaints and to assess the damage. Hon’ble Apex Court have clearly stated in

the case “Lucknow Development Authority versus M.K. Gupta as reported in [1994 (1) SCC

243]” as under:-“The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer, which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous

consideration leaving the common man helpless, bewildered and shocked.”

18. As stated earlier by the impugned order, the State Commission have directed the

respondents/OPs to take immediate steps to take the vehicle to their workshop at their cost and to

thoroughly examine the vehicle for rectification of any defect or fault, manufacturing defect or

whatsoever, so that the vehicle becomes operational to the perfect satisfaction of the

appellant/complainant. We do not find anything wrong with this order, as it is the bound duty of

the OPs to take care of the interest of the consumer by removing the defects in the vehicle. The

State Commission has also allowed a sum of Rs.1,00,000/- as compensation for mental agony

and loss suffered by the consumer by the idleness of the vehicle. We do not find any fault with

this part of the order as well.

19. Based on the discussion above, when it is made out that the tractor in question is a

‘defective’ vehicle, whether it is a manufacturing defect in the strict technical sense or not, it

becomes the paramount duty of the opposite parties to attend to this aspect and ensure that the

defects are removed and the vehicle is delivered in a perfectly fit condition to the

consumer alongwith a certificate of fitness under the signatures of a top technical officer of the

manufacturer not below the rank of General Manager. Both the opposite parties are, therefore,

directed to take necessary steps to make the vehicle defect free and then deliver to the

complainant/respondent alongwith a certificate duly signed by a technical authority as stated

above within a period of two months. The matter be listed on 17.12.2013 for compliance and for

further hearing.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/




Malwa Automobiles Pvt. Ltd. NH-1, 119/4, K.M. Stone, G.T. Road, Karnal

... Petitioner

Versus

1. Sunanda Sangwan d/o Sh. Chander Mani r/o House No. 447, Sector – 13, Urban Estate, Kurukshetra

2. Tata Motors Ltd. Regional Office at: Jeevan Tara Building 5, Sansad Marg, New Delhi.

… Respondent(s)



Tata Motors Ltd. Regional Office at: Jeevan Tara Building 5, Sansad Marg, New Delhi.

... Petitioner

Versus

1. Sunanda Sangwan d/o Sh. Chander Mani r/o House No. 447, Sector – 13, Urban Estate, Kurukshetra

2. Malwa Automobiles Pvt. Ltd. NH-1, 119/4, K.M. Stone, G.T. Road, Karnal through its Managing Director/Manager (authorized dealer of Tata Motors Ltd.,) Mumbai

… Respondent(s)

BEFORE




In RP No. 7/2013

For the Petitioner : Mr. Sunil Kumar Agarwal, Advocate

For the Respondent No. 1 : Mr. Shish Pal Laler, Advocate

For the Respondent No. 2 : Mr. Aditya Narain, Advocate

Mr. Davesh Bhatia, Advocate

Mr. Shashank Bhushan, Advocate

In RP No. 297/2013

For the Petitioner : Mr. Aditya Narain, Advocate


Mr. Shashank Bhushan, Advocate

For the Respondent No. 1 : Mr. Shish Pal Laler, Advocate

For the Respondent No. 2 : Mr. Sunil Kumar Agarwal, Advocate


These two revision petitions have been filed under section 21(b) of the Consumer Protection

Act, 1986 against the impugned order dated 01.10.2012 passed by the Haryana State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1704 & 1731 of

2011, vide which while dismissing both the appeals filed by the petitioners, the order dated

28.10.2011 passed by District Consumer Disputes Redressal Forum, Karnal in consumer

complaint no. 822/2010, allowing the said complaint was upheld. The consumer complaint in

question was filed by Sunanda Sangwan, who is respondent no. 1 in both the petitions. The

petitioner Malwa Automobiles Pvt. Ltd. is the authorised dealer of Tata Motors Ltd. and is OP

No. 1 in the complaint. In RP No. 297/2013, the petitioner is Tata Motors Ltd., which is

manufacturer of the vehicle in question and has been made OP No. 2 in the complaint. This

single order shall dispose of both the revision petitions and a copy of the same be kept on each

file.

2. Brief facts of the case are that the complainant, who is a Professor in the OP Jindal

University, Sonepat, purchased a Tata Indigo CS LXI car from OP No.

1 Malwa Automobiles Pvt. Ltd. on 14.09.2010 for a consideration of Rs.4,77,900/. As alleged,

the car started creating abnormal sound from the engine, within two days of purchase. A

telephonic complaint was registered with the sales person Sanjeev Kumar of OP No. 1. The

complainant, thereafter, took the car to Tayal Motors, authorised dealer of OP No. 2 at Faridabad

on 04.10.2010, where service was done and the Engineers assured that the car will run

smoothly. However, the defect of abnormal noise in the engine continued and the engine also

emitted bad smell, like smoke coming out of burnt rubber. The factum of abnormal noise has

been mentioned in the job cards also. The complainant obtained second opinion

from Markandeshwar Service Garage at Pipli, Kurukshetra, where she was told that the vehicle

suffered from manufacturing defect, which could not be removed by repairs. Further, when the

complainant was going to attend to her job, the car got jammed on the road in the way. It was

taken to OP No. 1 on 14.10.2010 and it remained in their workshop for three days. The car was

again brought to OP No. 1 on 19.10.2010, when it was sent back after test drive only. Again the

car was taken to OP No. 1 on 20 th October and the job cards do mention about the problems in

the running of the car. The defects in the car could not be removed by the Engineers of OP No.

1, despite many requests. OP No. 1 refused to replace the car or refund the price of the

same. The complainant requested that the car be replaced with a new car or in the alternative, an

amount of Rs.4,77,900/- be paid to her along with interest @12% p.a. from the date of the

purchase of the car till realisation, and in addition, demanded a sum of Rs. 2 lakh for mental

harassment etc. and Rs.22,000/- as litigation expenses. The District Forum vide their order dated

28.10.2011 came to the conclusion that there was manufacturing defect in the vehicle in

question. They ordered that the cost of the vehicle, amounting to Rs.4,77,900/- should be

refunded to the complainant along with interest @9% p.a. from the date of filing of the

complaint, i.e., 29.10.2010 till realisation. Two appeals were preferred against this order, one by

the dealer, Malwa Automobiles Ltd. and the other by the manufacturer, i.e., Tata Motors

Ltd. The State Commission vide impugned order dated 1.10.2012 dismissed both the appeals,

upholding that the deficiency in service on the part of the OPs stood proved. It is against this

order that the present revision petitions have been made by the OPs.

3. At the time of hearing before us, learned counsel for the

petitioner Malwa Automobiles Pvt. Ltd. submitted that the complainant never complained of any

manufacturing defect in the car till the date of her filing complaint before the District

Forum. The documents on record produced by the complainant showed that on 04.10.2010,

within 20 days of purchase of car, the vehicle had travelled 2570 kms. The car had travelled

3258 km within 30 days and 4395 km within one month and 7 days of purchase. The complaint

made after running of the car of 2570 kms related to adjustment of timing belt tensioner and fuel

filters. After running 4395 kms, there were complaints relating to noise and were made with the

intention of leaving the car in the workshop of the petitioner. It was unfair on the part of the

complainant to write on the job card on 20.10.2010, that it was her 7 th visit in one month. She

refused to take the vehicle back, although a request was made by the petitioner to do

so. Regarding the second opinion taken from Markandeshwar Service Garage

at Pipli, Kurukshetra, the learned counsel stated that this opinion was taken after six

months. Referring to the report of Er. J.K. Sharma, Automobile Engineer, Surveyor & Loss

Assessor, learned counsel stated that it was not clear why it took him one month to prepare the

report after inspection.

4. The learned counsel for the petitioner Tata Motors Ltd. stated that there was no

manufacturing defect in the vehicle, as the vehicle had covered long distances during the first

few days of its purchase. The learned counsel has drawn our attention to condition no. 2 of the

terms and conditions of the warranty issued by Tata Motors that their obligation under the

warranty was limited to repairing or replacing, free of charge, such parts of the car, which in

their opinion were defective. Learned counsel placed reliance on the orders passed by

the Hon’bleSupreme Court in “Maruti Udyog Ltd. versus Susheel Kumar Gabgotra & Anr.”

[(2006) 4 SCC 644], saying that the duty of the petitioner was to replace or repair the defective

parts only. Learned counsel also referred to the order passed by the National Commission on

07.08.2012 in “Tata Motors Limited versus Navin Nishchal” [RP No. 2207 of 2007 decided on

07.08.2012], in which same view had been taken by the National Commission. Learned counsel

further placed reliance on the following cases in support of his arguments:-

(i) “Manager, Premanchal Motors Pvt. Ltd. and Punjab Tractors Ltd.

versus Ramdas s/o Shri Khayaliram and Ors.” [II (2009) CPJ 98 (NC)]

(ii) “Tata Motors Ltd. versus Ashok Kesharilal Saraf”,

[FA No. 524 of 2005 decided on 12.01.2009]

(iii) “Tata Engineering & Locomotive Co. Ltd. & Ors. versus Bachchi Ram Dangwal & Anr.”

[II (2009) CPJ 90 (NC)]

(iv) “Tata Motors Ltd. versus Shri Kushal Singh & Ors.” [RP No. 1153 of 2005 decided on

21.08.2009]

(v) “Sushila Automobiles Pvt. Ltd. versus Dr. Birendra Narain Prasad & Ors.” [MANU / CF /

0076 / 2010]

(vi) “Classic Automobiles versus Lila Nand Mishra & Anr.” [I (2010) CPJ 235 (NC)]

5. Learned counsel vehemently argued that there was no evidence of any manufacturing defect

in the vehicle and they had no liability towards replacement of car or making refund to the

complainant. Referring to the report of Er. J.K. Sharma, Automobile Engineer, Surveyor & Loss

Assessor, learned counsel stated that the vehicle had not been given even a test drive by the said

engineer. A perusal of the order of the District Forum also shows that there was no

manufacturing defect in the vehicle.

6. Learned counsel for the respondent based his arguments on the report of Er. J.K. Sharma,

Automobile Engineer, Surveyor & Loss Assessor, in which it had been stated that there were

manufacturing defects in the vehicle and the said vehicle was not fit for an innocent buyer. It

was not safe to drive this vehicle on busy roads and it could endanger the lives of the passengers

and the passers-by. Learned counsel stated that the opposite party had allowed Er. J.K. Sharma,

Automobile Engineer to inspect the vehicle and hence they could not challenge his report at this

moment. The vehicle faced problem during the first month of purchase, showing thereby that

there was an inherent defect in the vehicle at the time of purchase.

7. Learned counsel referred to the judgement passed by the Supreme Court in

“C.N. Anantharam versus Fiat India Ltd.” [2011 (84) ALR 253], in which it has been stated that

if manufacturing defect was found in the vehicle by an expert, the petitioner is entitled to get the

refund of the whole amount alongwith interest.


arguments advanced before us. A perusal of the orders passed by the State Commission and

District Forum reveals that they have placed reliance on the job cards dated 14.10.10 and

20.10.2010 made by the personnel of the OP, when the vehicle was brought to them with

complaints of certain defects. It has been alleged by the complainant that the vehicle started

creating abnormal noise from the engine within two days of the purchase. The job cards

recorded on 14.10.2010 and 20.10.2010 contain the following entries:-“Job card dated 14.10.2010 Timing belt tensionerRenew (including timing)+idle bearing noiseFule filters cartridgeRenew+ engine missingExterior treatment – 3 M. Job card dated 20.10.2010 Compression check + Roof light CHKGear linkage lubricate

Tighten + gear liverNoise.Replace door strikerAdjust + diggi noiseCheck AC system and determineFault + blower fan noiseDisassemble/assemble front seat slidingMechanism with parts+Rear seat noiseWashing & vacuumingEngine Oil and filterChange.

9. Further, there is a report submitted by Er. J.K. Sharma, Automobile Engineer, Surveyor &

Loss Assessor dated 15.5.2011, in which the detailed observations and opinion has been given as

follows:-“This report was prepared after inspecting the vehicle in the workshop of M/s. Malwa Automobiles in the presence of both the parties and discussion with them and also making a test drive of the vehicle. 1. The test were made at various speeds on a plain road to check the Smoke Emission, Engine Noise and Engine Vibration. 2. The vehicle was taken on G. T. Road for road test and the supervisor Mr. Amit Pawar drove the vehicle. The vehicle was started and the idle running was checked. The idle running was not proper and there was excessive smoke and abnormal noise.

3. Tappet noise was detected at 3000 rpm while the vehicle was static. Tappet is either tight or loose and this may be the cause.4. There was engine vibration that may be due to the fault in setting of electronic system particularly for ECU and electronically controlled Nozzle or there may be defect in sensor or in wiring.

5. High temperature was noted at speed of 80-85 km and the vehicle stopped. This may be due to engine problem and this is a manufacturing defect and it can lead to road accident endangering life of the passengers.

6. Axel noise during U turn from left side noise indicating the shaft is faulty.

7. A bluish smoke was noted and this may be due to less power of engine causing bluish smoke as noted by the buyer. Consumption of engine oil needs further diagnosis.

8. Gear box gives constant humming noise at various speeds. (Reported in the complaint)

9. The generation of power did not perform properly; hence the pickup was not proper. This may be due several manufacturing problems relating to the malfunction in fuel pump, nozzle, and controlling sensor or all of them. These are matters of further diagnosis.

10. The shifting of gears were not smooth (Requires further diagnoses)

11. Even it is a new vehicle but there was leakage of steering box and engine oil.12. The body vibration in Tata Cars is very common but particularly in this case it may be due to abnormal engine vibration.

Conclusions1. In consideration to the above mentioned observations which are of fundamental in nature, I am of the firm opinion that the performance of the tested vehicle was highly unsatisfactory and the said vehicle clearly malfunctions due to multiple reasons, and have defaults that may not be repairable, especially in the long run. 2. The manufacturing defects in the vehicle are present and the vehicle is not fit for an innocent buyer.

3. Even if seemingly repaired in the short term, these may cause serious harm to the car engine and body and the user overtime. 4. The manufacturing related defects present in the vehicle have the potential to seriously affect the life of the vehicle, and harm and endanger the lives of the passengers and of the passers-by. The vehicle is not be safe to be driven on busy roads and at best would require very frequent visitations to the automobile workshops. The report is being issued being an automobile engineer and having a long experience in automotive field. ”

10. At this stage, it shall be worthwhile to quote the definition of ‘defect’ as contained in the

section 2(1)(f) of the Consumer Protection Act, 1986, which reads as follows:-“"defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;”

11. The main argument taken on behalf of the petitioners is that there was no manufacturing

defect in the vehicle and whatever defects were pointed out by the complainant, they were

attended to and repaired from time to time and hence, they were not liable to replace the vehicle

or to refund the price of the vehicle to the complainant. However, a perusal of the job-cards

recorded by the technical personnel of the dealer, the report of the Er. J.K. Sharma, Automobile

Engineer, Surveyor & Loss Assessor and the definition of ‘defect’ as contained in the Consumer

Protection Act, 1986 do indicate that it was a defective vehicle, although in the strict technical

parlance, there could be two opinions whether the same could be called a manufacturing defect

or not. The District Forum reached the conclusion that the complainant is entitled to refund of

the whole cost of the vehicle, i.e., Rs.4,77,900/- along with interest @9% p.a. from the date of

filing the complaint till realisation. This order was confirmed by the State Commission in

appeal. The vehicle has since been lying with the dealer because, according to the complainant,

the dealer failed to remove the defects in the vehicle. Under these circumstances, it is absolutely

clear that in order to provide justice to the consumer, the manufacturer and the dealer should

either replace the vehicle or refund the cost of the vehicle to the complainant along with interest

from the date of filing of the complaint, OR provide the vehicle in absolute ‘defect-free’

condition to the complainant, duly certified by an appropriate technical authority. In fact, in the

circumstances of this case, it was the duty of the dealer and the manufacturer to play a pro-active

role and remove the defects in the vehicle, leaving no element of ambiguity about its fitness from

technical point of view. The basic spirit behind the enactment of a benevolent legislation like the

Consumer Protection Act, 1986, involves better protection of the interests of consumers and the

basic job given to the authorities set-up under the Act is to provide speedy justice to the

consumer and remove his helplessness vis-à-vis powerful business class, within the ambit of

law. We are, therefore, inclined to give an opportunity to the dealer and the manufacturer,

jointly and severally, to make attempt to remove the defects in the vehicle, make it ‘defect-free’

and have it certified from the technical personnel of the manufacturer himself, not below the rank

of a General Manager. This task may be taken in hand and accomplished within a period of two

months from today; including the issuance of the necessary certificate. We, therefore, order

accordingly in modification of the orders passed by the State Commission and the District

Forum.

12. Fix the case for submitting compliance report on 16.12.2013.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/



(From the order dated 12.10.2006 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Appeal no. 741 of 2006)

1. M/s H & R Johnson (India) Ltd. Rajehas, 3rd Floor, Coroner of Main Avenue V P Road, Santacruz (West) Mumbai 400054

2. The Director H & R Johnson (India) Ltd. Rajehas, 3rd Floor, Coroner of Main Avenue V P Road, Santacruz (West) Mumbai 400054

3. The Manager H & R Johnson (India) Ltd., Industrial Area no. 2 Dewas, Madhya Pradesh

4. The Sales Executive H & R Johnson (India) Ltd., 105, Hariprupa Complex Near City Gold Cinema Ashram Road. Ahmedabad 380009

Petitioners

Versus

1. Lourdes Society Snehanjali Girls Hostel Opp. Megh Mayur Apartments Athwa Lines, Surat

2. M Soledad Rubie, Treasurer/ Secretary Opp. Megh Mayur Apartments Athwa Lines, Surat

3. K Sathapatyakamal Tiles 5/363 Buranpuri Bhagol, Surat

Respondents

BEFORE:



For the Petitioner: Mr Sudhir K Makkar, Advocate with Mr Nitish Kumar, Advocate and Mr D Kumar, Advocate

For the Respondent Mr N M Varghese, Advocate

Pronounced on 23 rd September 2013

ORDER REKHA GUPTA

Revision petition no. 4047 of 2006 has been filed under section 21 (b) of the Consumer

Protection Act, 1986 against the judgment and order dated 12.10.2006 passed by the Gujarat

State Consumer Disputes Redressal Commission, Ahmedabad (‘the State Commission’) in First

Appeal no. 741 of 2006.

The brief facts of the case as per the complaint of the respondent no. 1 and 2/ complainant

no. 1 and 2 are as follows:

Respondent no. 1 is a Girls Hostel namely Lourdes Society and the said Society registered

under Society Registration Act, vide society Registration no.Guj/ 525/ Surat and also registered

under Trust Act vide its Trust Registration no. F/ 430/ Surat.

The respondent had purchased the dirty shade in 30 x 30 ivory floor glazed tiles from

petitioner no. 5 who is a local agent of petitioner no. 1 -companythrough its Sales Department of

petitioner no. 4. The said goods of tiles were delivered by petitioner no. 3 to the respondent. The

particulars of goods of tiles which purchased by respondent are as under:

S No. Date Invoice no. Bill/ D O no. Amount in Rs.

1. 02.02.2000 006932 6811 1,12,480/-

2. 18.02.2000 007283 7164 1,04,000/-

3. 02.03.2000 07643 7522 93,933/-

4. 24.03.2000 8107 808 1,17,166/-

5. 06.03.2001 8810 8187 42,000/-

TOTAL 4,69,579/-

At the time of purchasing the above mentioned goods of tiles, the petitioner company had

also given a guarantee of quality of goods of tiles and as per the guarantee given by the petitioner

no. 1 company. After purchasing the said tiles from the petitioner company, the respondent had

started affixing the said tiles on flooring by using material and spend the labour charges. After

fixing the said goods of tiles within a year, the said tiles fixed on 1 st and 2nd floor of the

respondent Hostel premises started developing white spots and the glazed surface of the tiles was

damaged. Thereafter, the respondent has written letters on September 01, 23.05.2002 and on

28.06.2002 to Sales Executive of petitioner no. 4 bearing bill no. 6811, 7522 and 8008 of goods

of tiles dated 02.02.2000, 02.03.2000 and 24.03.2000 with regard to the defective, inferior

quality of tiles which had developed white spots and damage to the glazed surface. The petitioner

no. 5/OP No. 5 who is the local agent of opponent company and the Sales of the said goods of

titles “ K Sthapatya – Kamal Tiles” also visited their site and verified the tiles and they also

agreed with respondent regarding defective quality of glazed tiles supplied by petitioner

company as the defect started appearing on glazed surface of first floor and second floor of

respondent premises. The petitioner company did not give proper attention and have not taken

any action to solve the complaint regarding dirty shade in 30x30 ivory floor tiles. The petitioner

company has not even given any reply to the said letters and also not given any response and

taken subsequent action regarding those letters. The respondent had contacted the licenciate and

registered architect Mr J MVimawala who is a local architect interior designer for estimation of

removing of old flooring tiles and application of new flooring material. The said architect and

interior designer also issued certificate regarding estimation of the substandard and inferior

quality of first/ second flooring tiles and application of New Flooring Material total damaged

including material plus labour (Rs.1,20,745.92+ 31,952.60+ 61,950.60+ 1,94,418.36 =

3,99,077.37 plus octroi and transport charges Rs.28,635/-. Total amount of Rs.4,27,712.37 as

damages).

Thereafter the respondent has given a legal notice on dated 12.08.2002 to petitioner, by

registered post AD for recovery of said amount Rs.4,27,712.37with interest at the rate of 24%

per annum. The said notice was received by petitioner no. 4 on 14.08.2002, petitioner no. 2 on

behalf of petitioner no. 1 company on 16.08.2002 and petitioner no. 3 on dated 17.08.2002, but

after receiving the said notice by petitioners they have not given any reply to the said notice and

also did not comply with the said notice, therefore, the respondent preferred to file the

petition/complaint for recovery of an amount of Rs.4,29,712.67 paise from the petitioners.

The respondents’ hence asked for the following reliefs:

* The Hon’ble Court may be pleased to allow the present complaint and be ordered to

petitioner that the goods of tiles which purchased by the respondent from the petitioner which are

defective, the good quality tiles be given instead of damaged good tiles to respondent otherwise

the Hon’ble Court be passed to order for damages worth Rs.4,27,712.37 along with interest at the

rate of 24% per annum to respondent.

* This Hon’ble Court may be pleased to pass an order to opponents for damages and mental

harassment to the respondent for Rs.5,000/-.

* This Hon’ble Court may be pleased to pass an order for expenses of this complaint for

Rs.10,000/- to respondent from the petitioner.

* This Hon’ble Court be ordered to pay to the respondent suitable and just amount of

compensation evaluating the facts and circumstances of this case.

In response, the petitioners who were opposite parties no. 1 to 4 have taken preliminary

objections and stated that at the outset, that the aforesaid complaint is not maintainable under the

provisions of the Consumer Protection Act, 1986. The respondents have not brought on record

the correct facts of the case, that the present dispute between the respondent and the petitioners is

basically a commercial dispute not falling within the specific parameters of the said act.

The respondent laid the tiles after purchasing the same from the petitioners. The

respondents appointed their own labour to lay the tiles.

The respondent had written a letter on 01.09.2001. In response to the respondent’s letter the

petitioner had sent their representative Mr D Naik who visited the respondents place and brought

back one floor tile and tested it in the petitioner’s laboratory. A letter dated 09.10.2001 along

with the lab report was sent to the respondent which clearly stated that after all the relevant tests

had been carried out it was found that the tiles were as per the EN/IS specification and there was

no defect in the tiles.

After verifying the sample tile in the laboratory it was very clear that there was no defect in

the product. It is, therefore, obvious that there was a defect in laying the tiles or some other

reasons other than defect in the tiles which may have led to the complaint.

While agreeing with the details given regarding the tiles purchased, they pointed out that

there was no shade called as dirty shade which the respondent has referred to at various places in

his complaint. The tiles in question are Glazed Floor Tiles of Ivory Colour.

Petitioners denied that they had never given such guarantee as described in paragraph 4 of

the complaint. In fact on every carton of the petitioner’s tiles it was very clearly stated that “the

company shall bear no liability after the tiles are fixed”. As per the instructions on the tile cartons

it was made very clear that before fixing of the tiles they must be laid out in the desired pattern

and if the customer was not satisfied with the tiles for any reason relating to size or shade

variation then the same could be replaced by the Company before fixing but once the tiles were

fixed the company would bear no liability. In the present case the complaint arose after more

than a year, this was a long duration during which the tiles may not have been properly

maintained apart from the possibility that there was a defect in laying the tiles due to which the

complaint may have arisen.

The petitioners again denied that the respondents are not consumers and as such thus

this Hon’ble Forum has no jurisdiction to decide this dispute.

In regard to the same as to whether the respondents were ‘consumers’ under the Consumer

Protection Act, 1986, the District Consumer DisputesRedressal Forum, Surat (‘the District

Forum’) vide order dated 31.12.2005 stated that with regard to issue as to whether the

complainant could be defined as Consumer under Consumer Protection Act, 1986 that “the

undisputed facts about transaction between let us first resolve the dispute as to whether the

respondent is a consumer or not. As per the provisions of C P Act, particularly definition of

consumer, where a person hires or avails any service for commercial purpose for any

commercial purpose is not a consumer. It is not in dispute that respondents are running girls

hostel in the name of respondent no. 1, commercial purpose is also explained under the

provisions of the Act. So far as activities of respondents are concerned, they are running girls

hostel and receive fees from the students. The respondents are not carrying out commercial

activities. Purchase of goods namely tiles are for the purpose of their hostel and it cannot be said

that tiles is subject matter of their business. Whenever any person purchases goods for carrying

out business for commercial or for livelihood then only question regarding purchase of goods or

availing any service from trader or professional arises. The respondents are not carrying (not

readable) of purchase from the petitioners. Otherwise also hostel premises can be constructed

and there is no direct relation between commercial activity. Therefore, the defence of petitioners

that respondents are carrying on business activities and thereby, respondents are not consumer

is not acceptable. Hence, we hold that respondents are consumer of petitioners and defence of

petitioner is rejected”.

The State Commission vide order dated 12.10.2006 while dealing with the submissions

advanced by the learned counsel for the appellant/ petitioner as to whether the original

complainants were consumers within the meaning of Consumer Protection Act, 1986 in as much

as the respondents had purchased tiles for the ladies hostel which was for commercial purpose

held that:

“In this regard, reliance has been placed on a decision in the case of M/s Kusum Hotels

Private Limited vs M/s Neycer India Limited reported in 1993 (3) CPR P 405 by the

honourable National Commission, the complainant was a hotel and the tiles were

purchased by the hotel for commercial purpose since the activity of the hotel would be to

run the business to earn profit. In our opinion, this judgment would not be applicable to

the facts of the present case for the simple reason that the complainant trust purchased

the tiles and got them fitted in the ladies hostel wherein the accommodation was provided

to the girl students receiving education in the educational institution. Charges, if any, for

accommodation in the hostel would not be for any profit making but would be for

maintaining the hostel. Thus, the complainant cannot be regarded as a commercial

establishment and therefore, the principle enunciated in the aforesaid judgment of the

National Commission cannot have applicability to the facts of the present case and we

therefore, negative the contention of Mr Kapadia on this score”.

Hence, both the Fora below have held that the respondent nos.1 and 2 were consumers of

petitioners and the defence of the petitioner was rejected.

With regard to merits of the case the District Forum depended largely on the letters written

by the respondent nos. 1 and 2 to the petitioners and the letter issued by the technical executive,

the report of J M Vimawala, Architect as also the report of local commissioner dated 21.09.2006

and allowed the complaint. They observed as follows:

“The petitioners have produced letter issued by Technical Executive stating that their

representative Mr Naik had visited the premises of the respondent and had taken on

sample of tile as specimen for testing from the floor and test was carried out in lab. The

petitioners have also produced test certificate. The petitioners have also produced letter

dated 23/01/2003 wherein complaint regarding defect in tiles have been carried out. Test

report produced on behalf of the petitioners is required to be considered in detail. There

are same specifications and test results are taken into account. Some of the items are not

in consonance with EN/IS specification. Not only this, but the respondents have relied on

certificate of architect Mr Vimawala wherein he has stated that he has assessed and

surveyed tiles. He has also opined that there is manufacturing defects in tiles and he has

also taken into account prescribed specification on which the petitioners have relied. It is

specifically mentioned that actual estimate of damage come to Rs.3,99,077.37 as cost of

flooring tiles supplied by petitioners. Respondents have also relied on the report of Court

Commissioner appointed by this forum. He has submitted his report on the basis of this

forum’s order. If we peruse the said report dated 21.09.2004, it is specifically stated

therein that he had personally visited the site and inspected the damages. He has

mentioned that installed ceramic tiles in rooms and partly in toilet blocks seem damaged

due to their poor absorbance and chemical resistance. The black patches seen on the tiles

are also due to weak absorbance. He has further stated that passage tiles are still in good

condition and no damage is found. However, quality of tiles in rooms is poor. Further, he

has stated that petitions performed test only on one and half tiles, whereas IS Codes

prescribe the same test to be performed with five numbers of tiles. The Court

Commissioner has also submitted photographs of tiles with his report. On the basis of

these facts, it is clearly goes to show that the petitioners have supplied tiles which had

manufacturing defects and guarantee given by petitioners to respondents. Therefore, the

respondents are able to prove that tiles are defective and thereby the petitioners have

failed to provide proper service to the respondents and there is deficiency in service on

the part of the respondents by not replacing the defective goods or by refunding the price

thereof. Report the Court Commissioner shows that tiles had manufacturing defect.

Therefore, it could be definitely believe that petitioners are carrying on unfair trade

practice and therefore, the petitioners are liable and responsible for supplying defective

goods to the respondents.

Respondents have claimed damages worth Rs.4,27,012.37. This claims appear to have

been assessed on the basis of report of the architect Mr Vimawala. But the petitioners are

able to show that they have used tiles in their premises since the day they fixed the same

in their premises or after 06.03.2001. Considering the period of use of tiles, it would not

be just and fair to refund the whole amount as by removing the tiles fixed in floors, the

petitioners would not get back them in good condition. If forum orders that petitioners

should pay amount claimed by respondents considering that tiles fixed in premises should

be returned to the petitioners would not serve the purpose. Therefore, the petitioners are

not liable to pay whole amount damages to the respondent.

The respondent is not able to show how much tiles are defective. Considering these facts,

respondents would be sufficiently compensated if total amount of Rs.2 lakh is given

towards defective tiles along with mental agony harassment etc., and including cost of

present proceedings. The total sum granted as above is fixed keeping in mind the fact that

respondents are still using defective tiles in their premises. The respondents did not

say any where that because of defects in tiles, they have removed and replaced new tiles

by purchasing the same from another trader. This fact would definitely go in favour of

petitioners for the purpose of quantifying total amount of damages, compensation and

cost of present proceedings. Accordingly, in the absence of any sufficient and proper

defence on behalf of petitioners, the present complaint is required to be allowed partly.

We have taken into consideration all the documents contentions taken on behalf of

petitioners and nothing is found in favour of petitioners. The respondents have also

claimed interest @ 24% per annum but it is very excessive as present rate of interest is

required to be taken into account. We therefore, grant interest @ 9% per annum the

above amount and pass the following order:

The present complaint filed by the respondent is hereby partly allowed. All the petitioners

are jointly and severally held liable to pay to the respondents Rs.2 lakh as damages,

compensation towards defective tiles supplied by petitioners along with compensation

towards mental harassment and cost of present proceedings with interest @ 9% per

annum from the date of complaint i.e., from 30.10.2002 till its recovery to the

respondents”.

Aggrieved by the order of the District Forum, the petitioners filed an appeal before the State

Commission. The State Commission while rejecting the appeal observed that:

“Considering the prima facie merit in the appeal it is not much in dispute that the

respondent trust purchased vitrified tiles and got the same fitted on the floor of the hostel

including rooms as well as passages in the hostel. It is suggested from the evidence on

record that most of the tiles fitted in the hostel premises developed black spots and

therefore, the complaint. The officer of the petitioner company sent its personnel to visit

the site and he took samples for laboratory testing. Copy of the laboratory test report is

to be found at page 27. Remarks at the bottom of the report says that the tiles are as per

IS specifications and it has been hoped that some strong chemical is used on the surface

which reacted. Thus, the report does not suggest any definite finding that some strong

chemical was used but it is only hoped that some strong chemical may have been used. If

any chemical was used, then, in that case, when the chemical came in contact with the

tiles, all the tiles would be affected, but here some of the tile are affected and some are

not. When a chemical is used, it is uniformly used in the entire room / premises. Letter

page 76 suggests that as far as the dirty shade in the tiles is concerned, it should not

happed normally as the tiles of the petitioner company are acid and alkali resistant. It is

common experience that acid/ alkali is used for cleaning tiles. It is also suggested that the

black spots which developed on the tiles at the time of personal visit of the officer

disappeared after sometime but again in 10-15 minutes the black spots were visible and

therefore, the officer of the petitioner company was unable to convince the respondent.

It is submitted by Mr Kapadia that it is not proved as to how many tiles were defective

which showed black spots. Even if a single tile shows black spot, then the entire tiles

fitted in the room/ passage would be required to be replaced. Simply because 10-15 or

particular number of tiles are found to have developed black spots would not mean that

only those numbers of tiles are required to be replaced because there should be

uniformity in the tiles fitted in the premises or on a particular floor or building. One of

the submissions advanced by Mr Kapadia is that it is not proved that the tiles are

defective as per definition of Section 2 (f) of the Consumer Protection Act. To this,

reference may be made to the letter of the petitioner company, copy whereof is produced

on page 78. Reading of the same suggest that most of the tiles fitted were found to have

developed black spots which were noticed during the personal visit of the officer of the

petitioner company. This in our opinion provides answer to the submission of

Mr Kapadia on this score.

It is submitted by Mr Kapadia that in the order awarding Rs.2,00,000/- by way of

compensation, the element of mental agony is also included. It is true that the amount of

Rs.2,00,000/- is awarded as damages/ compensation towards defective tiles supplied by

the petitioner along with compensation towards mental harassment and cost of the

present proceedings. Under none of the heads, the amount has been specifically or

distinctly mentioned. It is the quantified amount which has been awarded which includes

cost also. Under the circumstances, it cannot be said what amount is quantified for

mental agony. That, however, by itself would not suggest that other components would

not assume any importance. The beneficiaries of the tiles were the students occupying the

rooms and they also must have undergone mental annoyance because of the black spots

which they would see day in and day out. Considering all these, the amount has been

quantified at Rs.2,00,000/- and we do not find any substance in this submission of

Mr Kapadia.

Thus, it appears that there is defect in most of the tiles purchased by the respondent trust

and fitted. In this prima facie view of the matter, we do not find any merit in the appeal

and there is no question involved requiring consideration in the appeal. In our opinion,

the appeal is devoid of prima facie merit and therefore, liable to be rejected at the

admission stage”.

Hence the present revision petition.

The main grounds for the revision petition are:

The Hon’ble Forum has erred in placing reliance upon the report of the Court

Commissioner dated 21.09.2004. The said report is purported to be signed by Mr

Mahesh Nagecha, Project Coordinator, SADC, Faculty of Architecture, SCET, Surat. No

qualification of the said person is stated in the report. The report is not of testing the tile

for any defect but is only a report of visual inspection. In fact the said report states that

the tiles of the passage are in good condition. This in fact gives credence of what is stated

in the test report of the company that some strong chemicals might have been used on the

glazed surface of the tiles which might have reacted causing white patches on the tile.

The Commissioner’s report also does not dispute the correctness of the test certificate

issued by the petitioner company, however, only states that the test is conducted on one

and half tiles whereas IS code prescribed test to be performed on five number of tiles.

The said observation test is required to be performed on the five number of tiles as per IS

code is also false. The Commissioner’s report does not prove that the tiles were defective.

The Hon’ble Forum erred in not placing reliance upon the test certificate produced by

the petitioner company in respect of the test conducted by it at its laboratory on the tile

sample. The petitioner company has modern tiles testing facilities at its laboratory. The

correctness of the test certificate has not been impugned by the respondents. The Forum

ought to have held that the tiles were not containing any manufacturing defect.

The Hon’ble Forum failed to appreciate that the estimate given by the Architect

Mr Jimmish M Vimawala states that the tiles were damaged. It does not state that the tiles

were defective.

The Hon’ble Forum has erred in holding that the petitioners have supplied tiles

contrary to the guarantee given by them. The petitioner had given no guarantee or

warranty in respect of the tiles supplied by them. The record of the complainant does not

bear out that the petitioners had given such guarantee to the respondents. Such

observation of the Forum is extraneous to the record of the complaint.

The State Commission failed to appreciate the ratio of decision in the case of

M/s Kusum Hotel Pvt Ltd., vs M/s Nicer India Ltd., reported in 1993 33 CPR 405 and

failed to appreciate that the respondent is not a consumer within the meaning of the

provisions of the Consumer Protection Act, 1986 in as much as the respondent had

purchased the tiles and fitted it in the ladies hostel for commercial purpose. Hence, the

ratio of the judgment in M/s Kusum HotelPvt. Ltd., would squarely be applicable in the

facts and circumstances of the present case. The State Commission erred in upholding the

judgment of the District Forum while holding that the tiles were defective on the basis of

the test report submitted by the complainant without recording any expert evidence in

respect of the said finding. Without any evidence being placed on record by the

complainant except the test record by the complainant except the test report, the learned

State Commission erred in upholding the judgment of the District Forum. Even

otherwise, the judgment of the State Commission was contrary to the principles of natural

justice. Moreover, in the facts and circumstances of the present case it was appropriate

for the State Commission to set aside the judgment of the District Forum.

The State Commission lost sight of the fact that the District Forum has no jurisdiction

to award a huge sum as compensation without any corroborative evidence to substantiate

the estimated loss suffered by the respondent, particularly in view of the principles of law

as laid by the Hon’ble Supreme Court of India in a case reported as 1995 (1) CPJ (1) SC

by this Commission in (ii) 1995 (CPJ) 183 National Commission that compensation can

only be awarded for actual loss suffered due to the negligence of the opposite party and

both the loss suffered as well as the negligence has to be proved by corroborative

evidence by the complainant.

The State Commission committed a grave error while upholding the judgment of the

District Forum awarding an amount of Rs.2 lakhs as damages/ compensation for

defective tiles along with compensation towards mental harassment and cost of the

proceedings which was awarded in the absence of any material on record to substantiate

the contention in this regard made by the complainant.

The State Commission failed to appreciate that it was not proved that the tiles were

defective as per the definition of Section 2F of the Consumer Protection Act and hence,

the State Commission erred while upholding the judgment of the District Forum whereby

an amount of Rs.2 lakh was awarded as damages/ compensation for defective tiles

supplied by the petitioner.

The State Commission failed to appreciate that the amount of Rs. 2 lakh awarded

towards damages/ compensation towards defective tiles supplied by the petitioners and

mental harassment and cost of the present proceedings awarded by the District Forum

was excessive in view of the fact that the total amount spent by the respondent towards

purchase of the tiles was only Rs.4,69,579/-.

The State Commission failed to interpret Section 2F of the Consumer Protection Act

and Section 14 (1) (d) of the Consumer Protection Act while upholding the compensation

of Rs.2.00 lakh awarded by the District Forum without assessing the actual loss suffered

by the respondent and ascertaining whether the same was due to any negligence on the

part of the opposite party or whether the compensation could be awarded for the losses

suffered due to the negligence of the opposite party whereas it was imperative to

ascertain both the negligence and defective supply by the opposite party before awarding

any amount by way of compensation.

The Hon’ble Forum has also categorically observed that the petitioners are still using

the defective tiles in their premises. The aforesaid facts clearly point out that the

complaint is filed with an oblique motive of exacting money as much as possible from

the petitioners. The respondents have been using the tiles for about a period of five years

and they have not found the need to changes the tiles. In the said facts, the compensation

of Rs. 2.00 lakh is unjustified and excessive.

The Hon’ble Forum failed to appreciate that the petitioners were not called upon to

replace the defective tiles before filing the complaint. As is borne out from the notice

dated 12.08.2002 issued on behalf of the respondents, the respondents were not interested

in getting the defective tiles replaced but were only interested in extracting the maximum

amount of money from the petitioners. The Forum also erred in awarding the

compensation of Rs.2.00 lakh rather than getting the defective tiles replaced.

The Hon’ble Forum erred in awarding compensation to the respondents on account of

mental agony and harassment. The tiles have been purchased by the respondent society

which is a juristic personality and incapable of undergoing mental agony and harassment.

We have heard the counsels for the petitioners and the respondents and carefully gone

through the record.

Counsel for the respondent filed registration certificate dated 24.07.1996 issued by the

Assistant Charity Commissioner, Surat to the respondent no. 1 Society as also Memorandum of

Association of M/s Lourdes Society. Counsel for the parties confirmed that these documents had

not been filed before the District Forum hence, they are not being taken on record.

It is an undisputed fact that the respondent nos. 1 and 2 - Society has purchased tiles from

the petitioner for girls hostel namely Lourdes Society. It is seen from the paragraph three of the

complaint that most of the tiles were purchased in February and March 2000. Nowhere in the

complaint have the number of cartoons or number of tiles purchased been mentioned. It is also

an undisputed fact that after receiving the tiles the respondent had started laying the said tiles on

the floor in the year 2000-2001. The first complaint, however, was sent to the petitioner in

September 2001 and thereafter vide letters dated 23.05.2002 and 28.06.2002. The complaint was

regarding the tiles developing white spots and glazed surface getting damaged. To support their

complaint, the respondent contacted the registered Architect Mr. J M Vimawala, who is the local

architect and interior designer for an estimate for removing the old flooring tiles and application

of new flooring material. As per the estimate of Shri Vimawala, Architect, the total cost would

come to Rs.3,99,077/-. Shri Vimawala, has annexed the “Actual quantity of flooring damaged as

per site”. He has nowhere mentioned that the tiles were defective – only damaged. Hence, this

report cannot be relied upon to prove that the tiles received were received defective. The report

of Shri Vimawala does not also establish that what were the total number of tiles procured and

laid on the floor and the number of tiles found defective.

As mentioned earlier the District Forum had appointed a Court Commissioner. The

petitioners have submitted, as one of the grounds of appeal, that nowhere has the qualification of

the person been given by the Court Commissioner in his report. It is also clear from the Court

Commissioner’s report is that it based on observation and visual inspection and not on any

standard method laid down by the Bureau of Indian Standards (BIS). Counsel for the respondents

today confirmed that all tiles used for flooring in the hostel were from the same source. Hence, in

view of the same the counsel failed to explain observation of the Court

Commissioner, Shri Mahesh Nagecha, that “some tiles were damaged due to poor absorbance

and chemical resistance. Black patches seen on the tiles are also due to its weak absorbance.

Premises also have ceramic tiles with different pattern in the passages outside the rooms and

both are maintained simultaneously with the same cleaning agent, yet the passage tiles are still

in good condition and they have remained stainless and have shown no damage even after

extensive use. This fact strengthens the assumptions that the quality of tiles in the rooms is

poor”. If all the tiles were bought from the same source there is no explanation as to why only

some tiles were found damaged in the toilets and rooms while those in the passages were still

found in good condition. Further, nowhere has the Court Commissioner spoken about any defect

in the tiles, he has only noted that some tiles were found damaged. He mentions the presence of

black patches whereas the complaint mentions white spots.

The Court Commissioner has dismissed the test results of the damaged tiles stating that

the company has performed the tests only on one and a half tiles, whereas IS codes prescribe the

same test to be performed with five numbers of tiles even though the Court

Commissioner himself has given his conclusions based only on observation and visual

inspection.

As per the test results submitted by the petitioner the tiles passed the test as per the

standard methodology - BIS. In their letter to respondent no. 1 they have clearly stated that “our

representative Mr D Naik visited your place and had brought one floor tile for our laboratory

testing. As far as the dirty shade in the tile is concerned, it should not happen normally as our

tiles are acid and alkali resistant. Yet we tested the tile for by cleaning it with acid and alkali and

found that these have no effect on the glaze surface. We test the tiles for acid and alkali

resistance regularly in our lab and find no effect on the glaze surface. We have done other test

also as per IS specification and the test certificate”.

They have also enclosed the test certificate which reads as under:

“Tile is passed in all respect as per IS specification. Hope that some strong

chemicals has been used on the Glaze Surface which reacted”.

Counsel for the respondent could not explain why the tiles were found defective on

opening of the boxes they were not sent for replacement. The Counsel could not also explain as

to why the damage and spots came to notice only after the tiles were laid on the floor and after

more than 17/18 months of purchase.

As is seen from the complaint that the tiles were purchased over a period of one year

from February 2000 to March 2001, in five consignments. The tiles were also being laid parallel

during the year. If the tiles were found defective or damaged then why did the petitioners/

complainants continue to procure the tiles from the same source without pointing out the defects

and also without asking for replacement.

With the regard to the plea of the petitioner that the respondent cannot be construed as

consumer as per Consumer Protection Act, 1986, the counsel for the respondents failed to prove

that the girls hostels was not being used for commercial purpose and confirm that they were not

taking charges from the inmates. It is not known on what facts/ basis the District Forum came to

the conclusion that the complainants were not carrying ‘commercial activities’. It is also not

known on what basis the State Commission came to the conclusion that “the complainant trust

purchased the tiles and got them fitted in the floor of the hostel, wherein accommodation was

provided to the girl students receiving education in the educational institutions. Charges, if any

for accommodation in the hostel would not be for any profit making but would be for maintain

the hostel”. The respondent/complainant has nowhere in their complaint mentioned as to

what are the fees being charged/ taken from the inmates of the hostel.

As such we hold that respondents/ complainants have not been able to establish beyond

doubt that they are consumers as per the definition in the Consumer Protection Act, 1986. Hence,

we are of the view that the complaint is not maintainable.

Even for a moment if it is accepted that the complaint is maintainable, as

discussed, respondents 1 and 2 have failed to prove that the tiles procured by them in the year

2000 and 2001 were defective and not damaged thereafter. The petitioner, in their reply before

the District Forum, had clearly indicated that on every carton of tiles it has been very clearly

stated that ‘the company will bear no liability after the tiles are fixed’. Further, as per the

instructions on the tile cartons it was very clearly stated that before fixing of the tiles they must

be laid out in the desired pattern and if the customer is not satisfied with the tiles for any reasons

relating to the size or shades variation then the same can be replaced by the Company before

fixing but once the tiles are fixed the company bears no liability. In the present case it is an

undisputed fact that the respondent/complainant complained after more than 17/18 months of the

first purchase in February 2000 and they could not prove beyond doubt that the damage was not

due to poor maintenance or rough usage. It has also nowhere been mentioned that out of the total

number of tiles purchased how many were received defective/ damaged. Further, instead of

replacing the damaged tiles the respondents for reasons not on record seeking the cost of

replacement of the entire flooring.

In view of the above, the revision petition is allowed and the orders of the Fora below are

set aside and the complaint is dismissed with cost of Rs.20,000/-

Respondent is directed to deposit the cost by way of demand draft in the name of

‘Consumer Legal Aid Account of this Commission’ within four weeks from today. In case the

respondent fails to deposit the said cost within the prescribed period, then it shall be liable to pay

interest @ 9% per annum till realisation.

List on 15th November, 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish


(Circuit Bench, Rajasthan, Jaipur) Revision no. 3209 of 2008(From the order dated 07.05.2008 in FA no. 115 of 2008 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur) M/s Sahara India Commercial Corporation Ltd Sahara Indian Bhavan, Kapoorthala ComplexLucknow, Uttar Pradeesh Through its Sector Manager The Manager, Sahara India Opposite Kisan Talkies Deoli, District Tonk Rajasthan

Petitioners Vs Smt Rasal Devi Meghwanshi Wife of Late Ram Pal Meghwanshi Resident of Datob, Teshil Todarraisingh District Tonk, Rajasthan Dhanraj Son of Shri Rodu Resident of Village Datob Teshil Todarsingh District Tonk, Rajasthan(being a minor through his mother And guarding Smt Rasal Devi Meghwanshi (Grandmother)

Respondents BEFORE: HON'BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON'BLE MRS REKHA GUPTA MEMBER For the Petitioner Ms. Amrita Narayan, Advocate For the Respondents Mr. Vimal Kumar Jain, Advocate Pronounced on 23 rd August 2013 O R D E R REKHA GUPTA

The revision petition no. 3209 of 2008 has been filed against the final judgment and order

dated 07.05.2008 of the Rajasthan State Consumer DisputesRedressal Commission, Jaipur ('the State Commission') in First Appeal no. 115 of 2008. The brief facts of the case as given by the respondents/ complainants are as follows: Shri Ram Pal Meghwanshi husband of respondent no. 1 had purchased a bond of Rs.1,000/- on 29.09.1998 under the scheme S - 10 issued by the petitioner whose maturity date was of 10 years. The receipt of bond serial no. 38450038220. At the time of purchase of the bond Shri R P Meghwanshi has nominated the respondents as nominees. Respondent no. 1 is a widow who is making rounds to the petitioner company to receive the amount but no attention was paid to her. From time to time the employees of the office of petitioner no. 2 had been giving her assurance. According to the instructions of the company the respondents opened a joint account in the Arawali Kshetriya Gramin Bank branch Uniyara Khurd Teshil Toda Rai Singh whose account number is 2825. The petitioners/ opposite parties have only deposited an amount of Rs.1,000/- in the said account, whereas the company should have made the payment of whole amount. In spite of many rounds and requests of respondent no. 1 the petitioner company has not made the payment to the respondent whereof the respondents are facing several types of hardships. According to S - 10, petitioner had to pay a sum of Rs.1,000/- per month up to 120 months according to the rules of the company after the death of bond holder or one-time cash payment.

The petitioner company has however paid only one installment to the respondents. When the respondent visited the office of the petitioner no. 2 she was told that the amount would come in her account altogether.

Petitioner no. 2/ opposite party no. 2 on behalf of the petitioners in their reply has stated that the condition to pay the amount is correct but respondent was never given an assurance to receive the amount in future because under the said scheme the prescribed age limit has been prescribed below 60 years. The respondents cannot get the benefit of the said scheme because the deceased was above 60 years old. The information has been given to the respondents in this regard. As per condition no. 5 A of the bond which was purchased by the husband of the respondent no. 1 the successors of the deceased can get the benefit only if the age of the deceased is within 16 to 60 years at the time of death. On receipt of the said application, the investigator according to the rules of the company, having investigated presented an enquiry report on the basis of the same the age of the deceased is different in the ration card and in the voter list. In voter list 2005 the age of the deceased is 66 years. On the basis of photo identity card 1995 the age of the deceased is 64 years. On the other hand for getting the benefit of the said scheme, after the death of Ram Pal, on 01.11.2005 the applicants got furnished a certificate from the Sarpanch of village Panchayat head on which the application has been presented. This cannot be a ground, because after the death of the deceased the certificate has been caused to be prepared from Panchayat to get the benefit of this scheme. It has not been mentioned as to which document was available in the panchayat for them to verify and certify his age. On the basis of the same the complainants cannot get any help and as such the complainants are not entitled to receive the benefit of this scheme. As per the Sahara 10 Scheme, on the death of bond holder for the rehabilitation of the family of bond holder the aid/ grant is given to the nominees/ successors nominated by the bond holder. It is necessary to comply the following conditions of the scheme in regard to get the said aid/ grant:

(a) The death of bond holder should occur after 12 months (365 days) from the date of purchase of the bond and before the completion of this period.

(b) At the time of the death the age of the bond holder should be between 16 to 60 years.

(c) The bond holder must not be suffering from any fatal/ incurable disease continuously within three years before the purchase of the bond. To receive the aid/ grant after the death certified and reliable documents shall be presented by the nominated nominees in this regard. The birth certificate and certificate relating to the death of the bond holder shall be presented for the satisfaction of the company.

(d) The death of the bond holder not be caused by suicide or by the capital punishment awarded by the court.

(e) The death of the bond holder not be cause due to communal riots or war.

The nature of the facility given after the death shall be interest free loan according to the rules and conditions of the said scheme whose payment is to be made by the nominee in 20 years and the nominee can get the said aid/ grant by giving his personal bond and according to the conditions of section VI.

The District Consumer Disputes Redressal Forum, Tonk, Rajasthan ('the District Forum') vide order dated 28.11.2007 after hearing the counsel and going through the records have observed as under:

"In these circumstances it was most important fact whether the death of the deceased occurred before 60 years or not and on this issue the documents which opposite party filed on the basis of the same and the certificate presented by the complainant it cannot be decided whether the death of the deceased occurred before the completion of 60 years. Hence, it is not justifiable to cause to give any relief to the complainant. If the complainant desires, he can initiate proceedings in the civil Court. Hence, the District Forum directed that the complaint filed on behalf of the complainant is rejected against the opposite party. Considering the circumstances, the parties shall bear the cost of the complaint".

Aggrieved by the order of the District Forum, the respondents filed an appeal before the

State Commission. The State Commission has observed as under:"In this connection, we perused the investigation report submitted by the opposite party/ respondents and found that while giving report on the above mentioned fact in the investigation report, the investigator has admitted:The respected account holder was illiterate and would do agriculture. According to the birth certificate issued by the office of Gram Panchayat, Datob, his date of birth is 10.07.1947 and the same was found correct on confirming from Gram Panchayat and on the basis of the same his age is 57 years 5 months and 13 days.Similarly in the same investigation report, it has been stated:According to family ration card of 2001 his age is 53 years according to which on the dated 23.12.2004 of death, the age of account holder is about 56 years.In the same investigation report, it has been admitted that:On interrogation to neighbourhood and villagers it has been told by them that at the time of death his age was about 60 years.In our opinion in such circumstances even on the basis of this investigation report, the date of birth mentioned by the complainants is confirmed.Definitely the investigator on behalf of respondents has given details of over age as given in voter ID card in regard to the age of bond holder. But considering this fact that bond holder was illiterate, then this controversy loses its importance particularly when investigator would tell the age of insured below 60 years by other investigations.In this regard when on behalf of Shri Ram Pal Meghwanshi a sum of Rs.1,000/- was made deposited with Sahara India Pariwar for the purchase of bond at that time no dispute regarding the age of the bond holder was not raised by the respondents and in such circumstances, in my opinion it is not reasonable to raise dispute regarding age after his death. The District Forum has not considered the above mentioned facts due to which the order passed by them cannot be regarded in accordance with law. In my opinion the appeal of the appellants is liable to be allowed.Hence, the appeal of the appellants is allowed. The order in question dated 28.11.2007 is set aside and the complaint of the complainants is allowed thus, that the opposite party/ respondents shall pay Rs.1,000/- monthly to the appellants/ complainants from the death date 23.04.2004 till next 10 years on the basis of the face value of the bond purchased by the deceased. In addition to that the opposite party shall pay a sum of Rs.1,000/- to the complainants as complaint expenses within two months from the date of this judgment".

Hence, the present revision petition.The main grounds for the revision petition are that : it is settled proposition of law that the consumer courts do not have the

jurisdiction to adjudicate complicated questions of fact. In the present case there is bonafide dispute regarding the age of the deceased at the time of his death. There being a bonafide dispute regarding the age of the deceased at the time of his death, the appropriate remedy for the respondents was to approach the Civil Court to redress their grievances. The Consumer Forum,Tonk rightly addressed their grievances by given them the right to approach the civil courts. However, the State Commission erred in reversing the judgment of the Consumer Forum, Tonk vide the judgment which is impugned herein.

The the learned courts below have interpreted the scheme to mean that the nominees of the deceased would be entitled to the amount as a grant which need not be repaid. This however, was neither the intent of the scheme nor the mandate of the agreement between the parties. In fact, in another matter, where the State Commission, Orissa passed a similar order directing the death help to be paid in the forum of a grant, this National Commission was pleased to stay the operation of the impugned orders of the State Commission vide orders dated 27.09.2007 in revision petition no. 3181 of 2007.

in view of the above said orders passed by this Hon'ble Commission, since the present matter also involves the same question of law, it would be expedient and in the interest of justice to pass similar orders in the present petition as well.

The treatment of death help as a grant or an insurance policy is neither sustainable on facts of the case nor was it the intent of the scheme floated by the petitioner. In fact, the said scheme was only to provide an interest free loan to the respondents against furnishing personal guarantee and the presumption of the Hon'ble State Commission that the same was a grant in aid to the nominees of the deceased bond holder is thus liable to be set aside.

We have heard the learned counsel for the petitioner and the respondent and have gone through the records of the case.

It is an undisputed fact that the petitioner Shir Ram Pal Meghwanshi in his application form no. 208 dated 29.09.1998 had declared his age as 51 years. He had also not given his date of birth certificate to support the same. The petitioner had not raised any objection at that point of time and allowed him to purchase the bond. In fact they never raised the issue regarding date of birth till after the death of the Shri Ram Pal Meghwanshi, and the respondents who are nominated by him, claimed the due amount of death help as per clause 10 of the bond. We agree with the State Commission that it is not reasonable and fair to raise the dispute regarding the age after the death of the bond holder.

In view of the above circumstances, we find that there is no jurisdictional error or illegality in the order of the State Commission warranting our interference. However, a partial modification is made to the extent that as agreed to by the counsel for the respondents/complainants the amount of loan that is paid by the petitioner will be repaid within a period of 20 years as per the terms and conditions of the bond.Sd/-[ V B Gupta ] Sd/-[ Rekha Gupta ]satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1285 OF 2013(Against the order dated 06.03.2012 in Appeal No.818 of 2011 of the State Commission, Rajasthan) M/s. Marksoft Technologies Pvt. Ltd. Through: Director, Registered Office: C-119, 2nd Floor, Behind New Vidhaan Sabha, Lal Kothi, Jaipur (Rajasthan) 2. Baljindra Sharma @ B. Sharma, Son of Shri S.S. Sharma, Director, M/s. Marksoft Technologies Pvt. Ltd. Resident of E-733, Gandhi Nagar, Jaipur (Rajasthan) 3. Ajay Sharma, son of Shri S.S. Sharma, Director, M/s. Marksoft Technologies Pvt. Ltd. Resident of A-10, Sohan Nagar, Manayavas, New Sanganer Road, Mansarowar, Jaipur Rajasthan

...... Petitioner Versus Dilip Singh Shekhawat Son of Shri Abhay Shekhawat Resident of 70, Poultry Estate, Agra Road, Jaipur (Rajasthan)

.....Respondent BEFORE:HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER For the Petitioner : Mr. Devendra Mohan Mathur, Advocate PRONOUNCED ON: 24-9-2013

ORDER

PER MR. VINAY KUMAR, PRESIDING MEMBER

This Revision Petition is filed by M/s. Marksoft Technologies Pvt. Ltd. (hereinafter

referred to as MIT) and others against concurrent findings and orders of Consumer Protection

Forum, Jaipur and of the Rajasthan State Consumer Disputes Redressal Commission. The matter

arose in a complaint filed by the present Respondent, Dilip Singh Shekhawat before the District

Forum.

2. The facts, as seen from the record, are that the Complainant, who was working in Saudi

Arabia and on a visit to India, was attracted by an advertisement issued by the revision

petitioners. It was captioned ‘We promise you an overseas job else Rs.2.25 Lacs’. The

advertisement introduced the revision petitioners/MIT as MIT, an international training &

development company with IT presence in 7 countries worldwide. It was also advertised that on

completion of two courses out of three run by them, there shall be a guarantee for appointment or

Rs.2.25 lack shall be paid. The Complainant entered into an agreement with RP/OP and paid in

all Rs.62500/- as fee. He completed one of the two programmes on 4.4.2001 and the second on

5.7.2001. He also completed a third programme on 14.9.2001. His complaint was that even

after completing all the three courses, the Complainant was neither given the appointment nor

paid Rs.2.25 lack, as agreed. He alleged it as unfair trade practice on the part of the RP/OPs.

3. An agreement bond was signed by the Complainant on 26.3.2001 with OP No.3 / Ajay

Sharma. The order of the District Forum specifically referred to condition nos.6 and 9 in this

agreement, which read as follows:-“6. That MIT shall provide a job for the eligible trainee as mentioned and

will inform the trainee about the said job opportunity for his/her employment. It is assured that the job opportunity shall be either abroad or in a Multi-National company in India or abroad.”

“9. That in case no job or service is offered to the eligible trainee, with in the duration of 18 months from the date of admission, then the MIT shall pay a minimum Rs.6000/- per month for six months after successfully completion of certifications as mentioned in clause No.2 and then a sum of Rs.150,000 only (Rupees One Lac Fifty thousand Only) in lump sum to the said trainee after the end of 18 months. After paying this amount the bond shall stand nullified.”

4. Considering these two conditions, the District Forum observed that—“Vide appointment letter dated 18.9.2001 the complainant was given

appointment in their own Company on payment of Rs.3060/- and other allowances on the post of Technical Executive and the complainant accepting the appointment worked there from 11.1.2001 till 31.12.2001; but whether this appointment was in accordance to the conditions of the agreement dated 26.3.2001. Under condition No.9 of the agreement comes into play only when the successful trainee is not given appointment within 18 months from the date of admission in the course. According to the contention of the respondents the complainant was given appointment to the post of Technical Executive therefore, the condition No.9 has no importance. In the case under consideration condition No.6 of the agreement is important wherein the respondent Company gave assurance to give appointment to the trainee in the Country or abroad or in any multinational company. In consideration of the Forum the complainant was given appointment in the own company of the respondents is not in accordance with the condition No.6 of the agreement because the respondent Company works for running different computer training courses and there is no mention in the agreement to this effect that the respondent Company is included in multinational companies as per condition No.6 of the agreement. Under condition No.3 the respondent Company has mentioned but there is mention of it to be as per the agreement. In the circumstances of the case in opinion of the Forum it has not been proved to give appointment to the complainant by the respondent as per the agreement dated 26.3.2001 and thus, there has been deficiency in services of the respondent Company.”

5. In the impugned order, the State Commission has arrived at a similar conclusion and

observed—“In our view, the advertisement which was published by the company there

was promise in it of the kind that they shall be provided opportunities in multi national companies or jobs overseas. In case someone does not get the job for 18 months, in that situation also the company shall pay Rs.6000/- per months for 6 months to the complainant and thereafter he was to be paid one time amount Rs.1.50 Lacs. If we do not agree in our view with the contentions that the complainant was not given services on Rs.6,000/- per month in the appellant company, the conditions of the agreement are not fulfilled and the contention made in the advertised news is proved to be true. The appellants have not been able to satisfy us that they provided any opportunity to the complainant for job in any multi national company or job overseas or they ever offered any such job to him. Providing service on Rs.6000/- per month in their own company is not important because in the event of not having any opportunity of the services this

amount was mandatorily to be paid to him as has been mentioned in the agreement. Thus, we are agree that false assurances are given to unemployed candidates through advertisements and keeping them in dark procuring fees from them in the name of giving admission to the courses but later on all such promises are not completed. It was clear mentioned in the advertisement that the applicant shall be provided opportunities for job in any multi national companies or overseas or in India. But the appellants have not been able to prove nothing in this regard as to when they provided such opportunities and where to the complainant.”

6. In the Revision Petition filed before this Commission, the MIT has challenged the above

concurrent view of the District Forum and the State Commission. The records filed by the

petitioner have been carefully considered and the petitioner’s

counsel, Mr Devendra Mohan Mathur has been heard. The main contention is that the

complainant had not acquired the requisite qualification and thereby failed to acquire the

eligibility. He had to have a graduation degree for it. It is also contended that by accepting the

job offer made by the RP/OP the respondent/complainant had abandoned the job placement

agreement.

7. It needs to be observed here that both the above contentions are in the arena of findings of

fact, which cannot be challenged in a Revision Petition. The power of this Commission under

Section 21 (b) of the Consumer Protection Act is limited to intervention to the extent, the State

Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a

jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material

irregularity. However, it is also pointed out that neither the revision petition nor the arguments

of their counsels have referred to any evidence tendered on these two points before

the fora below. No reference is made to any evidence before the fora below to show that the

respondent/Complainant had accepted the offer of RP/OP in lieu of placement promised to him.

It is also not the case of the revision petitioners that the evidence adduced in this behalf was

misconstrued or ignored by the fora below. On the contrary, the State Commission has

categorically observed that the question whether the Complainant was a graduate or not, was not

an issue to be decided at that stage of the matter because, at the time of admission, if the

Complainant did not have the requisite eligibility/qualification, he should not have been allowed

admission to the course. Therefore, the two contentions of the revision petitioner do not merit

any further consideration.

8. In the result, revision petition no.1285 of 2013 is held to be devoid of any merit. It is

consequently dismissed for the same reasons. No order as to costs. …..…………….…….……(VINAY KUMAR) PRESIDING MEMBERS./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2562 OF 2012(From the order dated 02.03.2012 in Appeal No. 917/2009 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

1. Tata Motors Ltd. 11/3, Mathura Road, Badarpur, New Delhi – 110044 Through its General Manager/Person Overall Incharge

2. Tata Motors Ltd. No.1, Gazipur Patparganj, New Delhi – 110096 Through its General Manager/Person Overall Incharge


Versus1. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) 4-Priya Enclave, Delhi and Presently at 37-A, Green Avenue Amritsar

2. Cargo Motors Pvt. Ltd. 65 City Centre, G.T. Road, Amritsar (Punjab) Through its General Manager/Person Overall incharge

…Respondents/Complainants

BEFORE



For the Petitioner : Mr. Aditya Narain, Mr. Davesh Bhatia &

Mr. Shashank Bhushan, Advocates

For the Res. No.1: Mr. Soumya Chakraborty, Mr. Hargun Singh

Bhatia, Advocates.

For the Res. No. 2: Mr. Anish Varma & Ms. Mamta Pal, Advocates

PRONOUNCED ON 25 th September, 2013


This revision petition has been filed by the petitioners/OPs against the order dated

2.3.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in

short, ‘the State Commission’) in Appeal No. 917/2009 – Tata Motors Ltd. & Anr. Vs. Hazoor

Maharaj Baba Des Raj & Anr. by which, while allowing appeal partly, order of District Forum

allowing complaint partly was modified. 2. Brief facts of the case are that complainant/Respondent No. 1 purchased Tata LP 410 Ex

Model Euro III from OP Nos. 1 & 2-Petitioners on 26.12.2006 for a sum of Rs.5,41,855/-. After

purchase of the vehicle while returning back, engine of the vehicle became very hot and vehicle

stopped in the way. Vehicle was handed over to the nearest dealer of OPs and dealing person at

the workshop told that there was a fault in the fuel pump and fuel pump has to be changed. Later

on, from time to time, vehicle started giving trouble and was again and again taken to the

workshop of OPs. Lastly, it was taken to the workshop of OP-4/Respondent no. 2 who changed

fuel filter, air cleaner and delivered back the vehicle to the complainant, but again it stopped in

the way. Ultimately, it was sent to Shahdara Engineering, New Delhi for checking and looking

the defects under warranty where it was checked and it was revealed that there was no fault in

the nozzles and FIP, but there were some manufacturing defects which led to low pick up and

engine heat up. Alleging deficiency on the part of OPs, complainant filed complaint before

District Forum and claimed refund of price of the vehicle along with fabrication charges of

Rs.2,50,000/- and compensation. OPs resisted complaint and submitted that complainant got the

body of the vehicle fabricated and was being used as Bus for transportation. As vehicle had been

purchased for commercial purposes and not for earning livelihood, complainant does not fall

within the purview of consumer. It was further alleged that no documentary proof regarding

manufacturing defects has been filed. It was further submitted that problem of throwing of

coolant arose due to engine radiator fan which was fitted by body builder in opposite direction

and also due to coolant pipe leakage from additional tapping of engine coolant line taken for air

blower in A.C. system and prayed for dismissal of complaint. OP No. 4/Respondent No. 2

submitted that there was no manufacturing defect, but trouble, if any, was due to bad driving

habit, mishandling and poor maintenance and prayed for dismissal of complaint. Learned District

Forum after hearing both the parties allowed complaint and directed OPs to replace complete

engine of the vehicle and further directed to pay Rs.20,000/- as compensation and Rs.1,000/- as

litigation expenses. Appeal was filed by the petitioners before State Commission and learned

State Commission vide impugned order modified order of District Forum and directed petitioners

to pay consolidated compensation of Rs.2,50,000/- to complainants, as vehicle was sold during

pendency of appeal against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused record. 4. Learned Counsel for the petitioners submitted that as vehicle had already been sold during

pendency of the complaint before District Forum, as such, complainant does not remain

consumer for the purpose of Consumer Protection Act and further submitted that complainant

has suppressed fact of sale of vehicle during pendency of complaint before District forum and

has not come with clean hands, revision petition be allowed and impugned order be set

aside. On the other hand, learned Counsel for the Respondent No. 1 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. Learned Counsel for the Respondent No. 2 supported

cause of the petitioners and prayed for dismissal of complaint.

5. Learned District Forum and learned State Commission both have held that there was

inherent manufacturing defect in the engine of the vehicle which could not be rectified and

replacement of engine was absolutely necessary. Learned State Commission further observed

that during course of arguments it was brought to the notice of the Commission that complainant

has during pendency of appeal sold vehicle to the third party and in such circumstances, instead

of replacing the engine, order for consolidated compensation of Rs.2,50,000/- was passed.

6. Learned Counsel for the petitioner submitted that as vehicle had already been sold during

pendency of the complaint before District Forum, complainant does not remain consumer for the

purpose of Consumer Protection Act and impugned order is liable to be set aside. He has placed

reliance on I (2008) CPJ 249 (NC) –Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini in

which it was held :“12. Another issue which has been agitated before us is that the plot in

question has since been sold for a consideration of Rs. 10 lakh out of

which way back in 2001, the complainant has received Rs. 6 lakh and the

balance Rs. 4 lakh later on having transferred his right during the

pendency of the complaint. In these circumstances whether the

complainant would still remain a consumer or not? We have our serious

reservation on this point. Having disposed of the property during the

pendency of the complaint, in our view, the complainant would cease to

be a consumer.

7. He has also placed reliance on judgment dated 23.4.2013 passed by this Commission in

Appeal No. 466 of 2008 – Mr. Rajiv Gulati Vs. Authorised Signatory M/s. Tata Engineering &

Locomotive Co. Ltd. & Ors. in which it was observed as under:

“We find substance in the submissions made by the Ld. Counsel for the

Appellant. Admittedly, during the pendency of the complaint, the vehicle

was sold by the Respondent on 26th August, 2002 for Rs.5,05,000/- without

taking permission of the State Commission. Since the vehicle was sold, it

was never produced as an evidence before the State Commission. Had the

vehicle been produced before the State Commission it could have been

sent to an expert to submit a report to examine whether there was any

manufacturing defect in the vehicle. The vehicle was not examined by any

expert. In the absence of any expert report and the laboratory test, the

State Commission erred in recording the finding that there was any defect

in the vehicle. Onus was on the complainant to prove that there was any

manufacturing defect in the vehicle which he failed to discharge.”

8. As complainant had already sold the vehicle during pendency of complaint without

permission from District Forum, he ceases to be a consumer under the Consumer

Protection Act.

9. In the present case, admittedly, vehicle was sold by complainant on 30.9.2008 to Amit

Ahuja meaning thereby, this vehicle was sold during pendency of complaint before District

Forum, as District Forum decided complaint on 15.5.2009. Complainant ought to have disclosed

fact of sale of the vehicle to the District Forum or should have sold the vehicle after seeking

permission from District Forum. Admittedly, complainant has sold the vehicle without seeking

permission from District Forum. Not only this, as per impugned order of the State Commission,

complainant disclosed before State Commission that during pendency of appeal vehicle has been

sold to a third party which is also a wrong statement because vehicle had already been sold

before decision of complaint by District Forum. Not only this, Respondent No.1/complainant

filed counter affidavit on 9.9.2013 before this Commission and in paragraph 4 of the affidavit, he

has stated as under:

“4. xxxxx It is still further denied that the vehicle in question was sold by

the Respondent No. 1 either clandestinely or discreetly or without the

leave of the Hon’ble State Commission as alleged or at all”.xxxxx.

10. As per statement in the counter affidavit, complainant sold the vehicle with leave of the

State Commission which is apparently wrong statement. Complainant has not placed on record

any permission by State Commission for selling the vehicle and it could not have been, as

vehicle had already been sold during pendency of complaint. Thus, it becomes clear that

complainant has suppressed fact of selling vehicle to third party during pendency of complaint

without permission from the District Forum and has given wrong statement before the State

Commission as well as before this Commission and in such circumstances, complaint is liable to

be dismissed, as complainant is not pursing the complaint with clean hands. Learned Counsel for

the petitioner has placed reliance on (2011) 7 SCC 69 – Amar Singh Vs. Union of India (UOI)

and Ors. and paragraph 53 runs as under:

“53. Courts have, over the centuries, frowned upon litigants who, with

intent to deceive and mislead the courts, initiated proceedings without full

disclosure of facts. Courts held that such litigants have come with

“unclear hands” and are not entitled to be heard on the merits of their

case”.

11. He has placed reliance on (2010) 2 SCC 114 – Dalip Singh Vs. State of Uttar Pradesh and

Ors. and paragraphs 1, 2 & 6 run as under:“1. For many centuries, Indian society cherished two basic values of

life i.e., `Satya (truth) and `Ahimsa (non-violence).Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

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

6. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that where a preliminary decree was obtained by withholding an important

document from the court, the party concerned deserves to be thrown out at any stage of the litigation.”

12. He has also placed reliance on (1994) 1 SCC 1 – S.P. Chengalvaraya Naidu (Dead)

Vs. Jagannath (Dead) & Ors. and paragraph 5 runs as under:

5. xxxx One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

13. Perusal of aforesaid judgment clearly reveals that one who does not come to the

Court with clean hands and withholds vital documents in order to getadvantage on the

other side, he would be guilty of playing fraud on the Court and has no right to approach

the Court and he should be summarily thrown out at any stage of the litigation. As

complainant has suppressed fact of sale of vehicle during pendency of complaint and has

misled District forum, State Commission as well as this Commission regarding sale of

vehicle, his complaint is liable to be dismissed on this count alone.

14. As far as defect in the vehicle is concerned, learned District forum and State Commission

have observed that there was inherent manufacturing defect in the engine of the vehicle and has

placed reliance on Approved Valuer report dated 30.4.2008. Strictly speaking, this is not a report

made by an expert, but this report has been given by Surveyor/Loss Assessor. In this report the

surveyor has not mentioned that he has driven the vehicle and after driving he is giving

report. He has given report only on the basis of inspection and on the basis of mere inspection,

no manufacturing defect can be found in the engine of the vehicle. Vehicle is also not available

before us for getting expert report regarding manufacturing defect in engine. On the contrary,

delivery receipt given by the complainant to the purchaser Amit Ahuja reveals that purchaser

checked the vehicle thoroughly and he was fully satisfied meaning thereby, engine was not

having any inherent manufacturing defect, otherwise, he would not have purchased the vehicle

for Rs.4,00,000/- which was purchased by complainant for Rs.5,41,855/-.

15. In the light of above observations, we find that as complainant did not remain consumer after sale of vehicle and he has sold the vehicle without permission of the District Forum and has suppressed this fact and has not approached the courts with clean hands, complaint is liable to be dismissed and revision petition is to be allowed.

16. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 2.3.2012 passed by learned State Commission in Appeal No. 917 of 2009 - Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr. is set aside and complaint stands dismissed. There shall be no order as to costs.

..………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

(DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 4446 OF 2012 (From the order dated 13.07.2012 in Appeal No. 859/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

1. Devender Kumar S/o Sh. Khicchu

2. Radha Charan S/o Sh. Puran Lal

3. Mahendar S/o Sh. Heti

4. Devraj S/o Sh. Puran Lal

5. Parkash S/o Sh. Khema

6. Chander S/o Sh. Khajan Singh

7. Nand Kishore S/o Sh. Shiv Charan

8. Shyam S/o Sh. Uttam Singh

9. Rajender S/o Sh. Bhagmal All R/o of Village Mohna, Tehsil Ballabgarh, District Faridabad

…Petitioners/Complainants Versus

1. M/s. Amsons Lab Pvt. Ltd. Works situated at Garhi Chhaju, Samalkha Through its Director

2. Ashwani Kumar Shop No. 15, Indira Market, Old Sabzi Mandi, Delhi

3. M/s. Crop Care Biotech Through Ashwani Kumar Shop No. 15, Indira Market, Old Sabzi Mandi, Delhi

4. M/s. Yashika Agro Chem. Pvt. Ltd. 208, Ambey Tower, Azadpur Commercial Complex, Delhi – 110033 Through its Director


BEFORE



For the Petitioners : Mr. Sunny Choudhary, Advocate

For the Respondent : Mr. Arun Chandra, Advocate

PRONOUNCED ON 9 th September, 2013

O R D E R


This revision petition has been filed by the petitioners/Complainants against the order

dated 13.07.2012 passed by the Haryana State Consumer

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

859/2011 – M/s. Amsons Lab Pvt. Ltd. & Ors. Vs. DevenderKumar & Ors. by which, while

allowing appeal, order of District Forum allowing complaint was set aside and complaint was

dismissed.

2. Brief facts of the case are that complainants/petitioners purchased 50 units of wheat

weedicide sulfosulfuron 75% WG for a sum of Rs.9,000/- @ Rs.180/- per unit vide bill no. 515

dated 12.12.2006 from OP/Respondent nos. 2 & 3. This product was manufactured by OP No.

1/Respondent No. 1 and OP No. 4- Respondent No. 4 was marketing agent. Complainants

sprayed pesticides on their wheat crop, but entire crop was damaged. Complainants approached

Agriculture Development Officer, who visited fields of the complainants on 7.2.2007 and found

that there was 100% damage to the wheat crop of the complainants. Alleging deficiency on the

part of OPs, complainants filed complaint before District Forum. OPs-Respondents resisted

complaint and submitted that complainants have not filed any expert opinion along with

complaint. It was further submitted that samples taken by the Agricultural Authorities were

found to be O.K. and test report issued by Government laboratory found pesticides upto the

mark; hence, prayed for dismissal of complaint. Learned District Forum after hearing both the

parties allowed complaint and directed OP/respondents to pay Rs.4,79,380/- to the complainants

along with 9% p.a. interest and further directed to pay Rs.9,000/- as litigation expenses. Appeal

filed by the OP was allowed by learned State Commission vide impugned order against which,


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

4. Learned Counsel for the petitioners submitted that inspite of use of pesticides by all the

complainants purchased from OP, learned State Commission has committed error in holding that

complainants are not consumers. It was further submitted that learned State Commission has

committed error in not placing reliance on report given by Agriculture Development Officer;

hence, revision petition be allowed and impugned order be set aside. On the other hand,

learned Counsel for the respondents submitted that order passed by learned State Commission is

in accordance with law; hence, revision petition be dismissed.

5. Perusal of record clearly reveals that 50 units of pesticides were purchased by Complainant

No. 2 – Radha Charan vide bill no. 515 dated 12.12.2006. This bill does not contain name of

other complainants as purchasers. FIR was also lodged only by Radha Charan. Had the pesticide

been purchased by all the complainants, all of them must have lodged FIR. In such

circumstances, learned State Commission has not committed any error in holding that remaining

8 complainants do not fall within purview of consumer. Learned Counsel for the petitioners has

placed reliance on (1997) 1 SCC 131 – Cheema Engineering Services Vs. Rajan Singh , (2010)

10 SCC 194 – Chandigarh Housing Board Vs. Avtar Singh and Ors . and (2012) 2 SCC 506

– National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr . in which it was held that

not only the purchaser of goods, but also beneficiaries who use the goods with approval of the

person who purchased goods fall within purview of consumer. We agree with the proposition of

law laid down by Hon’ble Apex Court, but in the case in hand, complainants have submitted in

paragraph 1 of the complaint that they have purchased pesticides for a sum of Rs.9,000/- whereas

bill dated 12.12.2006 is in the name of only Complainant no. 2. Further, perusal of complaint

reveals that nowhere complainants have alleged that Complainant No. 1 and Complainant nos. 3

to 9 used aforesaid pesticides with approval of complainant no.2. In such circumstances, it

cannot be inferred that Complainant No. 1 and Complainant Nos. 3 to 9 sprayed purchased

pesticides on their crop with the approval of Complainant No. 2 who purchased pesticides from

OP No. 2 and 3, and in such circumstances, Complainant No. 1 and Complainant 3 to 9 do not

fall within purview of consumer and learned State Commission has not committed any error in

holding that except Complainant No. 2, rest of the complainants do not fall within purview of

consumer.

6. Learned Counsel for the petitioner submitted that inspection report given by 3 officers

clearly reveals that there was 100% damage to the wheat crop of the complainants due to

application of purchased pesticides; even then, learned State Commission has committed error in

placing reliance on report of Central Insecticides Laboratory NH-IV, Faridabad (Haryana).

Perusal of record clearly reveals that FIR was lodged by the Complainant No.

2, Radha Charan against the OPs and Hon’ble High Court of Punjab & Haryana quashed FIR

vide order dated 28.2.2011 and observed that reports from the Regional Pesticides Laboratory

and Central Insecticides Laboratory revealed that samples were as per ISI specifications. If

samples were found as per ISI specifications, the learned State Commission has not committed

any error in placing reliance on Central Insecticides Laboratory NH-IV, Faridabad (Haryana) and

dismissing complaint.

7. Complainants have not placed on record any laboratory report to substantiate that crops

were damaged 100% due to application of pesticide. Report of Agriculture Development Officer

only reveals that there was 100% damage to the wheat crop. These officers have not carried out

any test to ascertain whether 100% damage to the wheat crop was due to application of

purchased pesticides or not. They have mentioned damage as told by the complainants meaning

thereby without carrying out any test regarding application of pesticides on the wheat crop. They

have given report regarding damage to the crop due to application of purchased pesticides.

8. In the light of above discussion, we do not find any illegality, irregularity or jurisdictional

error in the impugned order and revision petition is liable to be dismissed.

9. Consequently, revision petition filed by the petitioners is dismissed with no order as to

costs.………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k


REVISION PETITION NO.4038 OF 2012(From the order dated 07.08.2012 in First Appeal No.131/2009 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Rajasthan State Industrial Development & Investment Corporation Ltd. (RIICO) Udyog Bhawan, Tilak Nagar Jaipur, Rajasthan Through its Managing Director

2. RIICO, EPIP Sitapura Industrial Area, Tonk Road, Jaipur, Rajasthan Through its Regional Manager

..…. Petitioners

Versus

M/S. NKM Jewels Pvt. Ltd. Through its partner Navneet Kumar Maalpani J-237 A Kriplani Marg Adarsh Nagar Jaipur, Rajasthan

..... Respondent

REVISION PETITION NO.4050 OF 2012(From the order dated 07.08.2012 in First Appeal No.132/2009 of the

Rajasthan State Consumer Disputes Redressal Commission, Jaipur)



..…. Petitioners

Versus

M/S. Gem Excel Through its partner Dinesh Maalpani J-237 A Kriplani Marg Adarsh NagarJaipur, Rajasthan

..... Respondent

REVISION PETITION NO.4051 OF 2012

(From the order dated 07.08.2012 in First Appeal No.133/2009 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)



..…. Petitioners

Versus

M/S. Punam Jewels & Beeds Through its partner Navneet Kumar Maalpani J-237 A Kriplani Marg Adarsh Nagar Jaipur, Rajasthan

..... Respondent

BEFORE:

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

For the Petitioners : Mr. Nikhil Jain, Advocate

For the Respondent : Mr.Sanjeev Kumar Varma, Advocate

PRONOUNCED ON: 27 th September, 2013 ORDER


By this common order, we propose to dispose of the above-mentioned three revision

petitions which emanate from three separate consumer complaints bearing Nos. 234 of 2008, 235

of 2008 and 236 of 2008 filed respectively by M/s NKM Jewellers Pvt. Ltd., M/s Punam Jewels

& Beeds and M/s Gem Excel, before the District Forum, Jaipur. All these revision petitions are

directed against a common impugned order passed on 7.8.2012 by the State Consumer Disputes

Redressal Commission, Circuit Bench No.2, Rajasthan while disposing of First Appeals bearing

Nos. 131 of 2009, 132 of 2009 and 133 of 2009 filed by the respective complainants against the

orders passed by the District Forum on 16.12.2008 in those three consumer complaints. These

revision petitions involve similar questions of law and facts and hence this common order. For

narrating the facts in this order, the lead case is Revision Petition No. 4038 of 2012.

2. Briefly stated, the facts which are relevant for disposal of these petitions are that on

31.3.2004, M/s N.K.M Jewellers Pvt. Ltd., respondent/complainant, applied for a plot in the

Special Economic Zone (SEZ) to the petitioner Corporation for setting up a gems and jewellery

unit and they were allotted plot No. H-1126 for which they deposited 25% of the development

fees. As per the allotment letter dated 31.3.2004, balance 75% money was to be deposited within

a period of 60 days and in case of delay in depositing the amount, interest @ 15% was to be

levied. The respondent did not deposit the balance amount within 60 days and wrote a letter to

the petitioner for waiver of interest on balance development charges according to clause 12 (2)

which reads as follows:-

“The Chairman and Managing Director may allow payment of balance 75% development charges of industrial plot in one year in three equal quarterly instalments, without interest in case the allotment is made before the industrial area is declared as developed.”

3. The petitioners wrote a letter on 8.5.2006 to the respondent stating that the respondent

had deposited the balance 75% of the development charges without interest on 13.5.2005 and as

per his request, the matter was put up before the Waiver Committee of the petitioner Corporation

which observed that “allotment was made on regular allotment basis and the allottee was well

aware to deposit the balance 75% amount of development charges within 60 days” and the

Committee had decided to reject the request of the waiver on the balance 75% amount but the

Committee had decided to waive the interest for the period during which the matter remained

pending for decision of the Waiver Committee. Accordingly, the petitioner Corporation

demanded Rs.81,370/- from the respondent as interest for the delayed payment. Alleging this as

deficiency in service and unfair trade practice on the part of the petitioner Corporation, the

respondent filed a consumer complaint before the District Forum which was resisted by the

petitioners/opposite parties.

4. In their reply, the petitioners took a preliminary objection in regard to maintainability of

the complaint on the ground that the complainant is an industrial unit which has got allotted a

plot from the petitioners/opposite parties for its industrial/commercial activities and as such there

is no relationship of consumer between the respondent/complainant and the petitioners/opposite

parties and the complaint cannot be included in the category of a consumer dispute and hence

was liable to be rejected prima facie. On merits, it was submitted by the OPs that in their

advertisement it had been clarified that 25% of development fee and 1% security deposit will

have to be paid along with application and the balance will have to be deposited within 60 days

of the issuance of the allotment letter. It had also been mentioned in the application that due to

the availability of the amenities in the SEZ, no relaxation shall be granted in respect of rates of

development fee. The OPs submitted that since the respondent/complainant did not deposit the

balance 75% amount within 60 days as required in terms of the allotment letter, opposite parties

referred the matter with regard to waiver of interest to the Waiver Committee which rejected the

request and granted waiver of interest only for such period during which the matter was pending

before the Waiver Committee. It was, therefore, pleaded by the OPs that by recovering 15%

interest for the period of delay on the balance amount of 75% of development fee which was

required to be deposited within 60 days, they did not cause any deficiency in service or unfair

trade practice and the complaint was liable to be dismissed being devoid of any merit.

5. After hearing the parties and considering the evidence, the District Forum dismissed the

complaint vide its order dated 16.12.2008. Aggrieved by order of the District Forum, the

respondent /complainant challenged the same before the State Commission by filing an appeal

which was allowed by the State Commission vide its impugned order whereby the State

Commission directed the petitioners to make payment of Rs.81,370/- to the respondent along

with interest @ 9% from the date of deposit till the date of payment in addition to Rs.2,000/- by

way cost of litigation. This order is now under challenge before us.

6. We have heard Shri Nikhil Jain, Advocate for the petitioners and Shri Sanjeev Kumar

Varma, Advocate for the respondent. At the outset, learned counsel for the petitioners contended

that as per his own admission in the complaint, the respondent had applied for allotment of the

plot in question for setting up industry by establishing a gems and jewellery unit in the SEZ. In

view of this admitted position, the respondent had availed of the services of the petitioner

Corporation in the matter of allotment of the plot for commercial purpose and as such the

complainant/respondent cannot be covered by the definition of a consumer within the meaning of

the term under section 2 (1) (d) (ii) of the C.P. Act. In view of this, the complaint of the

respondent is not maintainable before the consumer fora. He pointed out that in their reply, the

petitioners had taken a preliminary objection to this effect but both the Fora below gravely erred

in rejecting this objection and proceeding to deal with the complaint. On merits, learned counsel

submitted that the State Commission failed to appreciate that Rule 12 (2) does not give a right to

the allottee for waiver of interest rather it is a discretionary power to the Chairman for waiver of

the interest if the area is not developed. He further submitted that the State Commission also

failed to appreciate that the respondent had failed to deposit the balance amount within the time

allowed to him as per the allotment letter. In view of this, he had no reason to complain about the

levy of interest. The respondent had also given an undertaking that he will abide by the decision

of the Waiver Committee and the Committee had already given him whatever relief could be

granted in the matter by non-charging of the interest. Therefore, he submitted that the impugned

order cannot be sustained in the eye of law and is liable to set aside both on the question of

maintainability of the complaint as well as on merits.

7. Per contra, learned counsel for the respondent has supported the impugned order and

submitted that the State Commission has rightly reversed the order of the District Forum which

had been passed on wrong appreciation of the factual position. On the question of maintainability

of the complaint, he argued that the complaint was in respect of payment of development charges

and interest thereon and deficiency committed by the petitioners in that regard and not in respect

of allotment for commercial/industrial purpose. In any case, learned counsel submitted that the

plea of maintainability had not been taken by the petitioners before the Fora below. He also

denied that it was a commercial transaction. He, therefore, submitted that the impugned order be

upheld and the revision petition dismissed with cost.

8. We have carefully considered the rival contentions and perused the record. The main

question which has arisen before us is whether the respondent/complainant is covered by the

definition of a consumer as envisaged under section 2 (1) (d) (ii) of the Consumer Protection

Act, 1986. If the answer to this is yes, then we have to decide as to whether the State

Commission was right in reversing the order of the District Forum and accepting the complaint

of the respondent in terms of its impugned order. In order to decide the first question, let us

consider the provisions of section 2(1) (d) (ii) which is reproduced thus:-

“ (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 purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”

9. It can be seen from the above provisions that a person who hires or avails of any such

services for any commercial purpose cannot be included in the definition of a consumer as

envisaged under the C.P. Act. An exception, however, is provided in the explanation which

specifies that “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.” It is not under dispute that as per his own admission in para 1 of the

complaint, the respondent had applied for the plot and was allotted the same by the petitioner for

establishing gems and jewellery unit in the SEZ on that plot. This being the admitted position,

we have no manner of doubt that the respondent had availed of the services of the petitioner

Corporation for commercial purpose. So far as the applicability of the exception provided for in

the explanation is concerned, we may note that the petitioner Shri Navneet Kumar Maalpani had

submitted three applications on behalf of three different commercial units represented by him. In

such a situation, even though it has been stated by the respondent in para 3 of his complaint that

the application for the plot was made for establishing a gems and jewellery unit in the SEZ “with

an object of earning his livelihood at small-scale,” this contention is unbelievable and is not

supported by the facts and circumstances of this case. This submission seems to have been made

in the complaint just to take advantage of the exception contained in the explanation reproduced

above. A person who applies for allotment of plots for setting up three separate industrial units

cannot, by any stretch of imagination, be said to be doing so exclusively for the purposes of

earning his livelihood by means of self-employment. In view of this, we are convinced that the

respondent cannot be covered by the definition of a consumer and in this view of the matter his

complaint before the District Forum was not maintainable since it was hit by the provisions of

section 2 (1) (d) (ii) of the Act. It should, therefore, have been dismissed by the District Forum

on this ground alone. The State Commission also gravely erred in rejecting this plea of the

petitioner Corporation without appreciating the preliminary objection in the right perspective in

the light of given facts and circumstances of this case. Since our finding on the question of the

respondent being a consumer is in the negative, we do not consider it necessary to consider the

merits and dismiss the complaint as being not maintainable within the provisions of the C.P. Act.

With this, the impugned order also cannot be sustained in the eye of law and is hereby set aside.

10. In view of the above, all the three revision petitions stand allowed and the complaints are

dismissed as not maintainable under the Consumer Protection Act 1986, with the parties bearing

their own costs.

……………Sd/-……..………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

……………Sd/-….……………

(SURESH CHANDRA)

MEMBER

SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2437 OF 2012 (From the order dated 02.03.2012 in Appeal No. A/07/928 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai) Rameshbhai S. Sarvaiyya Flat No.20, 5th Floor, Giriraj Apartment, 201, Walkeshwar Road,Malabar Hills, Mumbai – 400006 (Maharashtra)


VersusShri Ramakant Ramchandra Jadhav Managing Director, M/s. Network Construction Pvt. Ltd.26, Onlooker Building, 3rd Floor, Sir P.M. Road, Fort, Mumbai – 400001

…Respondent/Opp. Parties (OP) BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Vikas Nautiyal, AdvocateFor the Respondent : Ms. Savita Singh, Advocate

PRONOUNCED ON 4 th October, 2013 O R D E R


This revision petition has been filed by the petitioner against the order dated 02.03.2012

passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short,

‘the State Commission’) in Appeal No. A/07/928

– Shri Rameshbhai Shantilal Vs. ShriRamakant Ramchandra Jadhav by which, application for

filing additional documents was dismissed.

2. Brief facts of the case are that complainant/petitioner filed complaint before District Forum

for refund of Rs.75,000/- and after hearing both the parties, complaint was dismissed by District

Forum. Petitioner filed appeal before State Commission and during pendency of appeal

petitioner moved application for filing additional documents which was dismissed by learned

State Commission vide 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 documents annexed with the application

were most relevant documents for disposal of the complaint and learned State Commission has

committed error in dismissing application; hence, revision petition be allowed and application

filed by the petitioner before State Commission be allowed and documents be taken on record.

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 record reveals that complainant/petitioner filed complaint before District forum

and in paragraph 5 of the complaint,complainant mentioned that after arriving at settlement,

OP/respondent issued cheques to the complainant and many a times, the cheques issued by the

OP were bounced back.

6. Petitioner has not filed documents before District Forum but after dismissal of complaint,

during pendency of appeal, he moved application for filing additional documents along with

documents. Perusal of application reveals that petitioner has not given any reason for not placing

these documents on record before District Forum. Learned State Commission rightly observed

that such type of application cannot be entertained and rightly dismissed application. State

Commission further observed that if petitioner was to introduce additional documents, proper

procedure was to be followed which was not followed in the case and in such circumstances,

application was dismissed.

7. We do not find any infirmity, irregularity, illegality or jurisdictional error in the impugned

order and revision petition is liable to be dismissed. But, at the same time, it would be

appropriate to give liberty to petitioner to move a fresh application in proper format with reasons

for not placing documents before District Forum which may be decided by learned State

Commission on merits after hearing both the parties, as this application has not been dismissed

on merits by impugned order.

8. Consequently, revision petition filed by the petitioner is dismissed with no order as to cost,

but petitioner is given liberty to file another application in proper format, as directed above. ………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk


REVISION PETITION NO. 3396 OF 2013 (From order dated 12.08.2013 in First Appeal No. 433 of 2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Shri Kali Ram Son of Late Sh. Hukmi Singh Residing at 572/20, Om Nagar, Gurgaon, Haryana-122001

… Petitioner Versus State Public Information Officer-Cum- Deputy Excise & Taxation Commissioner, Gurgaon (East), Haryana 122001

… Respondent

BEFORE:

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

For the Petitioner : In Person

Pronounced on 9th October, 2013

O R D E R

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1. The Complainant, Kali Ram, was a Clerk at Check Post Sikanderpur, Gurgaon under the office of

Deputy Excise & Taxation Commissioner, Gurgaon. During his service in the year 1989-90, his

Deputy Commissioner recorded some adverse remarks in his Annual Confidential Report(ACR). The

complainant made representation against it but it was unheard. Therefore, he sought information from

the Public Information Officer (PIO) of the respondent by an application filed under RTI Act, 2005 but

the PIO did not furnish the required information within 30 days and supplied incomplete information

after lapse of 28 days thereafter. Therefore, alleging deficiency in service on the part of PIO of

opposite party, the complainant filed a complaint before the District Consumer

Disputes Redressal Forum, Gurgaon (in short, ‘District Forum’) seeking compensation of

Rs.2,00,000/- and sought directions for complete information. The opposite party appeared before the

District Forum and stressed upon their point of non-maintainability of such complaint. The District

Forum allowed the complaint and held liable the opposite party for deficiency in service and ordered

compensation of Rs.5,000/- and Rs.3,000/- as litigation charges to be paid within 30 days.

2. Aggrieved by this order of District Forum, the opposite party filed an appeal before the State

Consumer Disputes Redressal Commission, Haryana (in short ‘State Commission’).

3. It was vehemently argued by the opposite party before the State Commission that as there is

provision for filing appeal under the RTI Act, the complainant filed an appeal before the State PIO of

the opposite party. The said appeal was dismissed by appellate authority.

4. The State Commission relying upon the law laid down by Hon’ble Supreme Court in the case

of Khanapuram Gandaiah vs. Administrative Officer and Ors AIR 2010 SC 615 wherein it was held

that the remedy for a party aggrieved against the order of the Public Information Officer lies in a

challenge by way of appeal, revision or any other legally permissible mode, allowed the appeal.

5. Against the order of State Commission, the complainant filed this revision petition.

6. We have heard the petitioner, who is present in person at the admission stage. He argued that

there was deficiency in service and the complaint was maintainable.

3. The key controversy swirls round the question “Whether there lies a rub for the consumer fora to

entertain the case pertaining to the Right to Information Act, 2005 (in short ‘RTI Act’)? The District

Consumer Disputes Redressal Forum partly allowed the complaint on the ground that these cases

come within the realm of Consumer Protection Act, 1986. The District Consumer

Disputes Redressal Forum relied upon the following authorities.i) Kalawathi & Others Vs. United Vaish Co-operative thrift & Credit Society Limited,

reported in I (2002) CPJ 71 (NC)ii) Fair Air Engineers Pvt. Ltd., & Anr. V N.K. Modi reported in III (1996) CPJ 1 (SC)

iii) DR. S.P. Thirumala Rao vs. Municipal Commissioner, revision petition No. 1975 of 2005 decided on 28th May, 2009

4. We do not locate substance in the arguments advanced by the petitioner. First of all,

Sections 22 & 23 of the RTI Act, 2005 are crystal clear, and the same are hereby reproduced:-

“22. Act to have overriding effect :- The provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act. From this, it is beyond doubt that this Act, however, has on overriding effect in that the authorities under this Act may make independent decisions about the question whether such disclosure or non-disclosure has any overriding public interest. Therefore, it may become necessary for the authorities to independently decide whether disclosure of information which itself being an act done in public interest, overweighs the public interest sought to be protected under those enactments.

23 . Bar of Jurisdiction of Courts :- No court shall entertain any suit, application or other proceeding in respect of any order made this Act, and

no such order shall be called in question otherwise than by way of an appeal under this Act”.

Again, Section 19 of the RTI Act, 2005, provides procedure for appeal.

5. This view stands emboldened by a recent judgment by a Bench consisting of Hon’ble Mr.

Justice J. M. Malik and Hon’ble Dr. B. C. Gupta in the case of Smt. Tasleem Bint Hussain vs.

The State Public Information Officer, revision petition No. 737 of 2013 decided on 1 st March,

2013 and the judgment rendered by a Bench headed by Hon’ble Mr. Justice Ashok Bhan,

President in the case ofT.Pundalika Vs. Revenue Department (Service Division) Government of

Karnataka, RP No. 4061 of 2010, decided on 31.03.2011. In this case it was held:-

“Respondent, being aggrieved, filed an appeal before the State Commission, which has been allowed by observing thus:-

“At the outset, it is not in dispute that complainant had filed an application u/s 6 & 7 of the Right to Information Act to the OP No.4. But complainant cannot be considered as a ‘consumer’ as defined under the C.P.Act since there is a remedy available for the complainant to approach the appellate authority u/s 19 of the RTI Act, 2005”.

“We agree with the view taken by the fora below. Petitioner cannot be claimed to be a consumer under the Consumer Protection Act. There is a remedy available for him to approach the Appellate Authority under Section 19 of the RTI Act, 2005. Dismissed.”.

6. Again, this Commission also took the same view in RP

3276/2012, Pothireddipalli Sugunavati Vs. Territory Manager, Bharat Petroleum Corporation

Ltd., decided on 14.01.2013.

7. Hence, this revision petition is devoid of merits, therefore the same is dismissed.

.…………SD/-………………(S. M. KANTIKAR)

PRESIDING MEMBER

Naresh/12

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2399 OF 2008 (From the order dated 1.06.2007 in Appeal No. 405/2004 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Malkiat Singh S/o Sh. Chand Singh Mason, R/o Village Garnala, Distt. Ambala.


VersusParamjit Walia D/o Niranjan Singh Walia R/o H. No. 331, Model Town, Ambala City, District Ambala

…Respondent/Complainant BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBERFor the Petitioner : In personFor the Respondent : NEMO

PRONOUNCED ON 10 th October, 2013 O R D E R


This revision petition has been filed by the petitioner/OP against the order dated 1.6.2007

passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short,

‘the State Commission’) in Appeal No. 405 of 2004 – Paramjit Walia Vs. Malkiat Singh by

which, while allowing appeal, order of District forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent engaged OP/petitioner for extension

of roof of two rooms. OP carried out work at complainant’s house from 6.4.1999 to 14.4.1999.

OP put lintel on the roof of the said house. Complainant incurred expenditure of Rs.5,000/- for

the material and Rs.4950/- for labour. On 26.4.1999, the lintel of the roof was opened. It was

found that lintel was uneven and not at the level of old construction. Alleging deficiency on the

part of OP, complainant filed complaint before District Forum. OP resisted complaint; denied

allegations made in the complaint and submitted that he had done the work according to his skill

and intelligence. It was further submitted that complaint has been filed to deprive OP for

payment of the labour work done by him. It was further submitted that complainant fixed the

rate of labour wages @ Rs.170/- per day and not Rs. 150/- per day. It was further submitted that

OP never opened lintel, it was opened by the complainant himself without consent of OP and OP

is not responsible for the loss in such circumstances and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties dismissed complaint along with

cost of Rs.5,000/-. Appeal filed by the complainant was allowed by learned State Commission

vide impugned order and directed OP to pay Rs.9950/- and further awarded Rs.5,000/- for

mental agony against which this revision petition has been filed.

3. None appeared for the respondent, though, on earlier dates, Counsel for the respondent

appeared.

4. Heard petitioner in person and perused record.

5. Perusal of record reveals that District Forum dismissed complaint for want of expert

evidence as well as substantive evidence to substantiate the case. Learned State Commission

while allowing appeal held that there was no necessity to lead expert evidence because the

defects in the lintel are patent and visible and can be ascertained on examination with naked

eyes.

6. Perusal of record reveals that learned State Commission has placed reliance on paragraph 4

of the complaint and written statement and on that basis appeal was allowed. Learned State

Commission observed that OP nowhere denied stand of complainant in paragraph 4 of the reply,

but paragraph 4 of written statement runs as under: “That para no. 4 of the complaint is absolutely wrong and denied. The lintel was never opened by the respondent or hislabourers, he has got it opened with his own will and without the consent of the respondent. So, the respondent is not liable for any loss as alleged.”

7. Thus, it becomes clear that OP denied allegations of paragraph 4 and further submitted that

lintel was never opened by the OP or his labourer, but it was opened by the complainant without

consent of the OP. This denial cannot be presumed to be admission on the part of OP that mason

work was defective.

8. Complainant has not led any evidence except his own affidavit and in the absence of any

supporting evidence it cannot be presumed that work done by the OP was defective and roof was

uneven when OP denied allegation in affidavit.

9. Thus, it becomes clear that learned District Forum did not commit any illegality in

dismissing complaint and learned State Commission has committed illegality in allowing appeal

and impugned order is liable to set aside.


1.6.2007 passed by learned State Commission in Appeal No. 405 of

2004 – Paramjit Walia Vs. Malkiat Singh is set aside and complaint stands dismissed 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. 96 OF 2013 (From the order dated 07.05.2012 in Appeal No. 1768/2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur) Nirula’s Potpourri A Unit of South Asian Hospitality Service Pvt. Ltd. 30, Power House Building, 4th Floor, Hauz Khas Village, New Delhi – 110016

…Petitioner/Opp. Party (OP) Versus

Mr. Manoj Kumar Gupta 282, Guru Jambeshwar Nagar, Lane Number - 9, Gandhi Path, Vaishali Nagar, Jaipur, Rajasthan

…Respondent/Complainant BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Shalabh Singhal, Advocate

PRONOUNCED ON 23 rd October, 2013 O R D E R


This revision petition has been filed by the petitioner against the order dated 7.5.2012

passed by Rajasthan State Consumer Disputes RedressalCommission, Jaipur (in short, ‘the State

Commission’) in Appeal No. 1768 of 2011 – Nirula’s Potpourri Vs. Manoj Kumar Gupta by

which, while dismissing appeal, order of District forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent was member of OP/petitioner and

OP issued coupon to the complainant for discount at the time of dinner at OP-restaurant. On

6.11.2009, complainant along with his family members went to OP No. 2 for dinner and OP

issued bill for Rs.2071.45 in which Rs.119.354 was charged for service and Rs.219/- and Rs.28/-

for tax without mentioning type of tax and thus charged illegal tax. Alleging deficiency on the

part of OP complainant filed complaint before District Forum. OP was proceeded ex-parte and

learned District Forum after hearing complainant allowed complaint and directed OP to refund

Rs.366.45 along with 9% p.a. interest and further directed OP to pay Rs.25,000/- as

compensation to the complainant and Rs.25,000/- to be deposited with State Consumer Welfare

Fund and also allowed cost of Rs.2500/-. Appeal filed by the petitioner was dismissed by

learned State Commission vide impugned order against which this revision petition has been

filed along with application for condonation of delay.


4. Petitioner has filed revision petition along with application for condonation of delay of 157

days, but as per office report, there is delay of 150 days. Petitioner submitted that papers were

handed over to Counsel for filing revision petition in July, 2012, but Counsel did not file revision

petition and in the last week of December, 2012, he expressed inability to file revision petition

and in such circumstances, the matter was handed over to the present Counsel on 3.1.2013 and

revision petition was filed on 9.1.2013 and prayed for condonation of delay. No doubt, there is

inordinate delay of 150 days in filing revision petition, but as impugned order is non-speaking

order as well as appeal was filed for setting aside ex-parte order whereas learned State

Commission dismissed appeal without any reasoning and District Forum while allowing refund

of excess tax, imposed cost of Rs.50,000/- on the petitioner, we deem it appropriate to condone

the delay in filing revision petition subject to cost of Rs.5,000/- to be deposited by the petitioner

with the “Consumer Legal Aid Account” of this Commission.

5. Perusal of impugned order reveals that it is not a speaking order and learned State

Commission has observed as under:

“The subordinate district forum has passed the order after detailed analysis of all the facts and evidences of the case and therefore we do not find any justification for re-appreciation of all the facts and evidences of the case. In the light of the facts and circumstances of the case, we do not find any infirmity in the order dated 6.4.2011 passed by the Led. District Forum, Jaipur II, Jaipur in Complaint Case No. 314/2010. Since the District Forum has rightly appreciated the facts brought on record therefore there is no ground for interference. Besides that on the merits also there seems to be no substance in the appeal”.

6. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:“1.In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

‘We have heard the Law Officer of HVPN – appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal’.

2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for

consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

7. In the light of above judgment, it becomes clear that Appellate Court while deciding an

appeal is required to deal with all the arguments raised by the appellant and as learned State

Commission has not dealt with arguments of the appellant, it would be appropriate to remand the

matter back to the learned State Commission for disposal by speaking order after dealing with all

the contentions and arguments raised by the petitioner.

8. Perusal of order sheet of District Forum reveals that petitioner was proceeded ex-parte on

the basis of presumption as notice sent by Regd. Post not received back and more than one

month had already passed. Petitioner filed appeal with a request to set aside ex-parte order on

the ground that notice was not received by the petitioner and learned State Commission vide

impugned order has not given any reason regarding ex-parte order and dismissed appeal on

merits without speaking order. In such circumstances, revision petition is to be allowed and

matter deserves remand.


7.5.2012 passed by learned State Commission in Appeal No. 1768 of 2011 – Nirula’s Potpourri

Vs. Manoj Kumar Gupta is set aside and matter is remanded back to learned State Commission

to decide the appeal by a reasoned speaking order after giving an opportunity of being heard to

the parties.

10. Petitioner is directed to appear before the learned State Commission on 28.11.2013. ………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CIRCUIT BENCH AT JAIPUR, RAJASTHAN REVISION PETITION NO. 4974 OF 2008

(From order dated 22.10.2008 in Appeals No.679 & 641 of 2006 of the State Consumer Disputes Redressal Commission, Rajasthan)

Arjun Singh, S/o Prahlad Singh, By caste Rajpur, R/o Roongti, Tehsil Bonli, District Sawaimadhopur, (Rajasthan)

.... Petitioner

Versus

1.Paras Traders Through its proprietor Mangi Lal Jain S/o Kajod Mal Jain, aged 52 years, R/o Miitrapura, Tehsil Bonli, District Swaimadhopur (Rajsthan)

2.Castrol India Limited, White House, 91 Balkeshwar Road, Mumbai(Maharshtra)-400006.

..... Respondents

BEFORE:



For the Petitioner : Ms. Kumud L.Das, Advocate alongwih petitioner in person.

For the Respondents : Mr. Vizzy Aggarwal, Advocate

Pronounced on: 24 th October, 2013

ORDER


Being aggrieved by order dated 22.10.2008, passed by State Consumer Disputes

Redressal Commission, Circuit Bench, Jaipur (for short, ‘State Commission’)

Petitioner/Complainant has filed this revision petition.

2. Petitioner filed a complaint before District Consumer Disputes Redressal Forum,

Swaimadhopur (for short, ’District Forum’) on the allegations that in the year 1997 he had

purchased one Mahindra Tractor from its authorized dealer for agricultural purposes and for

earning livelihood. In the month of November, 1997 to get the engine oil changed, petitioner

purchased one can of 5 Ltrs. and one can of one Ltr. CRB Tiscus Engine Oil and one oil filter,

the product of Respondent No. 2/O.P. No. 2 from Respondent No.1/O.P. No.1 on 29.11.1997,

being authorized dealer of respondent no. 2, for which a bill was issued by respondent no.1.

However, in the bill respondent no. 1 has mentioned only 5 Ltrs. engine oil but did not

mention regarding oil filter and can of 1 Ltr.

3. On the very next date, petitioner poured the said engine oil in the engine of his tractor but

just after about one hour, engine of the tractor got heated and it got seized. Petitioner called

the mechanic who after checking told him that due to use of duplicate engine oil, engine has

seized and it has been caused due to inferior quality of oil.Petitioner immediately contacted

respondent no. 1 but no action was taken by him. It is alleged that respondent no 1 is not

authorized dealer of respondent no.2.Due to supply of inferior quality of the engine oil,

petitioner had to incur a sum of Rs.50,000/- on its tractor and till date, the tractor has been

parked at the shop of respondent no. 1 and petitioner has not been able to use the same.

Accordingly, petitioner has prayed that respondents be directed to pay Rs.1 lac as

compensation.

4. Respondent no.1 in its reply has stated that petitioner purchased only 5 liters can of engine

oil for which bill was issued and the same was manufactured by respondent no.2. Rest of the

allegations has been denied by respondent no.1.

5. Respondent no.2 in its written statement took the plea that without laboratory test/analysis of

the container of the engine oil and wrapper fixed on it, it is not in a position to state that whether

the container of the oil is of respondent no.2 or not. Respondent No. 2 can only take the

responsibility of sealed engine oil. It is also stated that petitioner did not get the tractor checked

from the authorized dealer or company’s mechanic. Therefore, complaint merits dismissal.

6. District Consumer Disputes Redressal Forum, Sawaimadhopur, (for short, ‘District

Forum’)vide order dated 10.12.1998, dismissed the complaint.

7. Aggrieved by the order of District Forum, petitioner filed Appeal No.82 of 1999 before

Rajasthan State Consumer Disputes Redressal Commission, Jaipur.

8. The State Commission, vide order dated 25.2.2001, allowed the appeal and set aside the order

of District Forum and remanded the matter back to the District forum for disposal of the

complaint afresh.

9. Thereafter, District Forum, vide order dated 25.9.2002 referred the matter to the State

Commission for necessary guidance/directions in the light of fact that container of the disputed

oil was not available with it.

10. The State Commission sent the file back to the District Forum, with following comments;

“Seen. D. F. is directed to decide the complaint as per rules. The Commission is not to review or revive final Order in the manner stated by the D. F.”.

11. Thereafter, District Forum by majority judgment dated 20.3.2004 held that; respondent no.1

had indulged in unfair trade practice as it was not authorized to sell engine oil and directed

respondent no.1 to the petitioner a compensation of Rs.1,94,000/-.

12. Respondent No.1 preferred Appeal No.806 of 2004 against order dated 20.3.2004 of the

District Forum.

13. State Commission, vide order dated 19.4.2004, allowed the same and remanded back the

matter to District Forum.

14. Thereafter, District Forum, vide order dated 21.3.2006, allowed the complaint and directed

respondent no. 1 to pay a sum of Rs.1 lac to the petitioner towards expenses incurred for repair

of the tractor and to pay further sum of Rs.7,000/- as compensation.

15. Order dated 21.3.2006 of the District Forum was challenged by the respondent no.1 by way

of filing Appeal No.641 of 2006 before the State Commission. Petitioner had also filed Cross

Appeal No.679 of 2006.

16. State Commission, vide impugned order 22.10.2008 allowed the appeal of respondent no. 1

and dismissed the appeal of the petitioner.

17. Hence, the present revision petition.

18. Petitioner in support of its case has placed on record written submissions. We have heard the

learned counsel for the parties and have gone through the written submissions also.

19. Case of the petitioner is that respondent no.1 has supplied 1 Ltr. engine oil which was

spurious in nature and as such engine of his tractor got seized and damage was caused to the

same.

20. It is the case of Petitioner that bill for 5 Ltrs. can of engine oil was given but no bill for one

Ltr. can was given. It does not appeal to the common sense that when petitioner had purchased

three items from respondent no. 1 and for one major item, cash-memo has been issued, then why

for other two small items, respondent no.1 would not issue the cash-memo. In the absence of bill

for 1 Ltr. can of engine oil, story put forward by the petitioner does not inspire any confidence.

21. Now coming to the report of mechanic on which much reliance has been placed by the

petitioner’s counsel which states;

“Today on 2.12.1997 I have checked the Tractor Mahendra B275 belonging to Arjun Singh Ji Rajput S/o Shri Prahlad Singh R/o Village Rungti Police Station Bonli. After checking I have found that due to duplicate oil and duplicate oil filter the Tractor engine is seized and there is a noise in the crank.

Sd/-

Rasid

Mahendra Tractor WorkShop, Bonli,

District SawaiMadhopur”.

22. As per above report, the mechanic has nowhere stated as to on what basis he reached at the

conclusion that Tractor engine had been seized due to duplicate oil. There is nothing on record

to show that above mechanic got the engine oil analyzed from any laboratory. Merely, on the

above writing of the mechanic, no findings can be given that the 1 Ltr. engine oil can was

aduplicate oil.

23. The entire case of the petitioner is based on conjuncture and surmises. There is nothing on

record to show that 1 Ltr. can of engine oil sold by respondent no.1 was duplicate oil and due

to which engine of petitioner’s tractor got seized.

24. Under these circumstances, we hold that petitioner has miserably failed to establish any

deficiency against respondent no.1. Hence, present revision petition having no merits is hereby

dismissed. Consequently, the complaint filed by the petitioner before the District Forum also

stand dismissed.

25. Parties shall bear their own cost.

…..…………………………J

(V.B. GUPTA)

PRESIDING MEMBER

…..…………………………

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2754 – 2755 OF 2013 (From the order dated 27.08.2012 in F.A. Nos. 1611/2011 & 1612/2011 of Rajasthan State Consumer Disputes Redressal Commission)WITH I.A. No. 4713/2013 I.A. No. 6182/2013 I.A. No. 6183/2013(Condonation of Delay, Stay & Early Hearing)

M/s Morani Hyundai Morani Cars Pvt. Ltd. Opp. Sitabari, Tonk Road, Jaipur through Manoj Morani authorised signatory ... Petitioner versus Yatinder Parkash Sharma s/o Rajender Prasad Sharma, r/o 27, Bhagwan Path, Rail Nagar, Kings Road, Jaipur

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Tarjit Singh, Advocate

PRONOUNCED ON : 24 th OCTOBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 against the impugned order dated 27.08.2012 passed by the Rajasthan State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 1611/2011,

“M/s. Morani Hyundai Morani Cars Pvt. Ltd. versus Yatinder Parkash Sharma” and FA No.

1612/2011, “Yatinder ParkashSharma versus M/s. Morani Hyundai Morani Cars Pvt. Ltd.” and

orders dated 10.07.2013 passed in M.A. no. 32/2013 in both these appeals. These two appeals

were preferred against the order dated 26.07.2011 passed by the District Consumer Disputes

Redressal Forum, Jaipur allowing the consumer complaint in question. Through impugned

order, the appeal filed by the OP/Petitioner was dismissed and the appeal filed by the

complainant was allowed and the amount of compensation awarded to the complainant was

enhanced.

2. Brief facts of the case are that the respondent/complainant Yatinder Parkash Sharma

purchased a Hyundai Santro Car from the petitioner/OP on 09.03.2009 for a consideration of

Rs.3,60,306/-. It has been alleged in the complainant that the actual purchase date was

09.03.2009, but the petitioner/OP issued the bill on 12.03.2009 and the insurance risk cover was

also issued on 09.03.2009. The whole payment and tax was received by the OP on 09.03.2009,

but the registration certificate was prepared on 13.03.2009 and given to the complainant after one

and a half months. The complainant alleged that the total cost of the car including the

registration amount comes to Rs.3,74,746/- but the OP received an amount of Rs.3,87,000/-

meaning thereby that an excess amount of Rs.12,254/- was charged from the complainant. The

complainant is also liable to receive an excess amount of Rs.18,015/- from the OP on account of

insurance risk cover. The complainant demanded the refund of excess amount of Rs.12,254/-

and insurance risk cover amount of Rs.18,015/- along with Rs.3,00,000/- for physical, mental,

financial damages from the OP. The District Forum allowed the complaint vide their order dated

20.06.2011 and ordered the OP to pay excess amount of Rs.12,254/- along with interest @9%

p.a. from the date of filing of the complaint till realisation, Rs.5,000/- for harassment and

Rs.2,000/- towards litigation expenses. Two appeals were preferred against the order of the

District Forum before the State Commission; the appeal filed by the OP was dismissed vide

order dated 28.07.2012, whereas the appeal of the complainant was accepted and the OP was

directed to pay a sum of Rs.12,254/- for excess amount charged, Rs.18,015/- for insurance risk

cover, Rs.50,000/- for harassment and Rs.10,000/- as cost of litigation with interest @9% p.a.

from the date of complaint, i.e., 25.06.2009.

3. It is made out from record that the present petitioner/OP filed application dated 30.11.2012

before the State Commission for amendment of the order dated 27.08.2012 but the said

application was dismissed on 14.12.2012 by the State Commission as none was present before

the State Commission on that date. An application was filed by the petitioner/OP again before

the State Commission on 06.03.2013 requesting for recalling the order dated 14.12.2012. The

said application was dismissed on 22.04.2013 since the petitioner was not present before the

State Commission on that date. Still another application was filed on 06.05.2013 before the State

Commission for recall of the orders dated 14.12.2012 and 22.04.2013, but the same was

dismissed vide impugned order dated 10.07.2013. It has been observed by the State Commission

in their order dated 10.07.2013 that if the petitioner had any objection regarding the order dated

28.07.2012, he should have gone before the National Commission by way of revision

petition. The State Commission also imposed a cost of Rs.10,000/- on the petitioner.

4. At the time of hearing before us, the learned counsel for the petitioner was asked to explain

the delay of 238 days in filing the present petition before the National Commission. The learned

counsel has drawn our attention to the application for condonation of delay filed along with the

revision petition, wherein it has been stated that the delay occurred due to the filing of

miscellaneous applications before the State Commission for obtaining clarifications about the

impugned order and the said delay was neither intentional nor deliberate.


arguments advanced by the learned counsel for the petitioner. It is very clear that the impugned

order was passed on 27.08.2012, but the petitioner filed the present petition after a delay of 238

days. No valid explanation or convincing reasons have been advanced by the petitioner to

explain this delay. Even the State Commission have observed that the petitioner filed

miscellaneous applications before them three times and he wasted the precious time of the

Commission because he did not present himself before the State Commission at the time of

hearing. The State Commission even imposed a cost of Rs.10,000/- upon the petitioner while

dismissing the 3rd miscellaneous application filed by him. It is very clear that the order dated

10.07.2013 and the earlier order passed on 02.04.2013 and 14.12.2012 are in accordance with

law, because the State Commission was not authorised to carry out any review on their own

earlier order dated 27.08.12. This view has been taken by the Hon’ble Supreme Court in

“Rajeev Hitender Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr.” [2011 9 SCC 541]

according to which powers to review or recall its order do not lie with the State Commission or

the District Forum.

6. It has been held by the Hon’ble Supreme Court in a number of recent judgements that unless

there is a cogent and convincing explanation for the condonation of delay in filing the petition,

the same should not be condoned. In R.B. Ramlingam Vs. R.B.Bhavaneshwari 2009 (2) SCALE

108, Hon’ble Supreme Court has 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. 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.”


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”.

9. In the present case, there is clearly a delay of 238 days in filing the present petition and no

cogent reason have been given for the condonation of delay. The factum of filing review

applications a number of times before the State Commission is no ground for condonation of

delay of 238 days in the present case. The revision petition is, therefore, ordered to be dismissed

on ground of delay. Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3853 OF 2011 With I.A. No. 01 of 2011 for Stay

(From order passed in Appeal No.598 of 2008 of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur)

M/s K. C. Associate, Through its partner Shri Sanjay Pandey, O/o 14, Vikas Ashram lay out, Karve Nagar, Nagpur-25.

.... Petitioner

Versus

Shri Pradeep S/o Zabaji Boriwar Aged about 43 years, Occ: service, R/o Qtr. No. D/2, Near Ravi Nagar Post Office, Ravinagar, Nagpur.

...... Respondent

BEFORE:



For the Petitioner : Mr. Sunil D. Shukla, Advocate

Pronounced on: 25 th October, 2013

ORDER


Petitioner/O.P. aggrieved by order dated passed by State Consumer Disputes Redressal

Commission, Maharashtra, Circuit Bench at Nagpur(for short, ‘State Commission’) has filed the

present revision petition.

2. Brief facts are that Respondent/Complainant wanted to have his own house, entered into an

agreement with the petitioner for purchase of Duplex Bungalow with construction for a

consideration of Rs.6,43,000/- for 725 Sq. Fts. Out of total plot admeasuring 1765 sq. Fts.

Situated at Khasra No. 16(New), 245 and 246 (old), Mouza Lawa Teh. Nagpur. It is alleged that

in the agreement plot number was not decided. The petitioner promised to mention the plot

number at the time of sale deed of the said plot and plot NO.75 was informed to the respondent

at the time of agreement. Respondent paid Rs.1,43,000/- and Rs.10,500/- through cheques to the

petitioner. It is further alleged that petitioner had promised to execute the sale deed within two

months from the date of agreement. However, it neither gave the possession nor executed the

sale deed of plot.

3. It is further alleged that respondent had invested total sum Rs.2,53,000/-and as such he

prayed for execution of the sale deed in respect of above Duplex Bungalow and in alternate, in

case of non-execution of sale deed, petitioner be directed to refund the amount of Rs. 2,53,000/-

with interest and compensation to the respondent.

4. Notice of complaint was issued to the petitioner by Consumer Disputes Redressal Forum,

Nagpur (for short, ’District Forum’).It appears from the acknowledgement that notice was

received by the petitioner on 28.7.2007 but even after receipt of the notice, petitioner failed to

appear before the District Forum. Accordingly, petitioner was proceeded exparte, vide order

dated 04.09.2007.

5. District Forum, vide order dated 21.09.2007, partly allowed the complaint and passed the

following directions;

“ 1. The complainant’s complaint is partly allowed.

2. The Opposite Party is directed to execute the sale deed to the complainant in respect of 725 sq. fts. constructed Duplex Bungalow on plot admeasuring 1765 sq. fts. situated at Mouza Lawa, Tah. & Distt. Nagpur, Khasra No.16 (New) 245 and 246 (old) in P.H. No.4 layout after receiving the balance amount as per agreement. The complainant has to bear the expenses of sale deed.

OR

If the Opposite Party is unable to execute the sale deed then he refund Rs. 2,53,000/- with interest @ 18% per annum from 14.12.2006 till its realization to the complainant and to pay compensation of Rs.1,00,000/- to the complainant.

3. Opposite Party is directed to pay Rs. 3,000/-towards cost of instant proceedings to the complainant”.

6. Petitioner filed an appeal before the State Commission, which dismissed the same, vide its

impugned order.

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

8. It has been contended by learned counsel for the petitioner that petitioner did not receive any

notice from the District Forum and as such petitioner was wrongly proceeded exparte.

9. It is further contended that mother of counsel of the petitioner had undergone bye-pass

surgery at Nagpur and as such counsel for the petitioner was busy in her treatment. Moreover,

petitioner had also undergone couple of operations of his eyes and breathlessness and due to this,

petitioner could not attend the matter on 01.08.2011 before the State Commission and as such

there are sufficient grounds for setting aside the impugned order.

10. We had summoned the original record of the State Commission. As per record of the State

Commission, it is manifestly clear that petitioner had received the notice from the District Forum

on July 28,2007.(Photo copy of acknowledgement is at page 48 of the State Commission’s

record). The District Forum, vide its order dated 31.08.2007 has held “OP absent when called.

The notice to the OP is served and acknowledgement is on record. The matter to proceed exparte

against the OP”.

11. Thus, petitioner after receiving the notice from the District Forum had chosen not to appear

before that Forum and there is no explanation of the petitioner for its non-appearance. Therefore,

the order passed by the District Forum is perfectly legal.

12. The State Commission while rejecting the appeal of the petitioner held;

“This appeal takes exception to the ex parte judgement and order dated 21.09.2007 passed by District Consumer Disputes Forum, Nagpur in C. C.No. 314/07.

This appeal is pending before admission since the month of July, 2008. Ad interim stay was granted and notice before admission was issued to the Respondent Shri Pradip Boriwar, who, in response to the notice appeared through Adv. More and Adv. Borkar on 11.09.2008 and then the matter was adjourned for hearing on condonation of delay as well as stay application. The record reveals that on 9th April, 09, Mr. Shukla, Adv. for the appellant sought adjournment by making application in writing. The same application was resisted by the learned advocate appearing for the Respondent, but no order appears to have been passed by the commission. However, since after 9.4.2009, appellant as well as his advocate Shri Shukla remained absent though the matter was adjourned from time to time since 9.4.2009. Today also the appellant as well as his advocate Shri Shukla are absent. Respondent Shri Pradip Boriwar as well as his advocate Mr. Borkar are present. Adv. Borkar submitted that there is no merit in the appeal. The impugned order is ex-parte and there is already a delay of more than 10 months in preferring this appeal. On perusal of the record, we find much force in the submission of Mr. Borkar, learned advocate for the Respondent. Hence we pass the following order.

ORDER

Appeal is rejected”

13. Admittedly, appeal before the State Commission was filed on 25.07.2008. Thus, on the face

of it, appeal filed before the State Commission was hopelessly barred by limitation. Be that as it

may, State Commission has rightly dismissed the appeal of the petitioner, as neither petitioner

nor his counsel were present before it on the date of hearing. Further, it is apparent from the

impugned order that, after 9.4.2009, petitioner as well his advocate remained absent though the

matter was adjourned from time to time since 9.4.2009.

14. Moreover, petitioner had not placed any document on record to show that petitioner

counsel’s mother was suffering from ailment during that period nor petitioner had filed any

medical record to this effect that during that period he was confined to bed and was unable to

attend the proceedings before the State Commission.

15. Under section 21(b) of the Consumer Protection Act,1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

16. Above record speaks volume about the conduct of the petitioner. Petitioner has chosen not to

appear before the District Forum and as such was rightly proceeded exparte. Thereafter, there

was delay in filing of the appeal before the State Commission and even then before the State

Commission, petitioner as well as its counsel did not appear before it without any justifiable as

well as sufficient cause. The intention of petitioner is just not to comply with the award passed

by the District Forum and to deprive the respondent the fruits of the decree.

17. The present revision petition having no legal merit has been filed just to waste the time of

this Commission and to abuse the process of law, is hereby dismissed with punitive cost of

Rs.20,000/-(Rupees Twenty Thousand only).

18. Petitioner is directed to deposit the aforesaid cost by way of demand draft, in the name of

respondent with this Commission, within four weeks from today. In case, petitioner fails to deposit

the cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till

realization. However, the cost be paid to respondent only after expiry of period of appeal/revision

preferred, if any.

19. Pending applications also stand disposed of.

20. List on 29th November, 2013 for compliance.

…………………..………..J

(V.B. GUPTA)

PRESIDING MEMBER

…………………..………..

(REKHA GUPTA)

MEMBER

SSB

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1239 OF 2008(From the order dated 17.12.2007 in First Appeal No. 2236/2006 of Rajasthan State Consumer Disputes Redressal Commission) 1. Municipal Board, Todaraisingh, Distt. Tonk (Rajasthan) through Chairman 2. Municipal Board, Todaraisingh, Distt. Tonk (Rajasthan) through Executive Officer

... PetitionersVersus

Gopal Lal Sharma s/o Shree Prasad, r/o Brahm Akhada, Todaraisingh, District Tonk Rajasthan

… Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Shantanu Bhardwaj, Advocate

Mr. Dinesh Garg, Advocate

For the Respondent Mr. Ankit R. Kothari, Advocate

PRONOUNCED ON : 31 st OCTOBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 by the petitioner against the impugned order dated 17.12.2007 passed by the Rajasthan

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

2236/2006, “Municipal Board, Todarraisingh through Chairman, Municipal Board, Todaraisingh

& Anr. versus Gopal Lal Sharma”, vide which appeal against the order dated 15.11.2006, passed

by District Consumer Disputes Redressal Forum, Tonk (Rajasthan) was dismissed and the said

order of the District Forum, allowing the consumer complaint in question, was upheld.

2. Brief facts of the case are that the petitioner Municipal Board, Todaraisingh, District Tonk,

Rajasthan is a statutory body created under the Rajasthan Municipalities Act, 1959. The

petitioner issued a public advertisement on 18.06.1968 for auction sale of 19 residential plots,

situated between Bhuda Ka Balaji to Dev Ji Temple in Todaraisingh city, and laid down certain

terms and conditions. One of the conditions was that 1/4th of the auction price of the highest bid

was required to be deposited at the site of auction and the balance 3/4 th of the auction price was

to be deposited within one month from the date of the demand raised by the Municipal

Board. The respondent/complainant participated in the auction for plot no. 9, measuring 60ft. X

40ft. on 28.06.1968 and his auction bid @ `1.75/- per sq. yard was accepted as the highest

bid. The respondent / complainant deposited 1/4th amount of the consideration, i.e., `100/- of the

plot on 1.07.1968. It is the case of the petitioners that the respondent did not deposit the said

1/4th amount on the date of auction but deposited it three days later. Further, the

respondent/complainant failed to deposit the balance 3/4th of the bid amount, i.e., `366.67ps.

despite notices sent to him by the petitioners on various dates. The allotment of plot was,

therefore, cancelled accordingly as per condition no. 5 of the auction. Further, the Collector,

Tonk vide his letter no. 4477 dated 17.11.71, allotted the said land to Government School and

stadium in one of the schemes. The auction bidders were given options to have another land in

the vicinity at Subhash Colony. The complainant, however, filed the consumer complaint in

question, but the same was dismissed on 26.05.2005 on grounds of limitation. However, an

appeal filed against this order before the State Commission was allowed by them on 08.09.2006

and the case was remanded to the District Forum with directions to decide the complaint on

merits. The complaint was then allowed by the District Forum on 15.11.2006, directing the

petitioners to allot another plot of equal size on deposit of rest of 3/4th consideration. The

petitioner challenged the said order in appeal before the State Commission and the said

Commission dismissed the appeal vide impugned order dated 17.12.2007. It is against this order

that the present petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner stated that the

auction bid in which the complainant got the plot in question was made on 28.06.1968, but

1/4th of the amount was deposited by the complainant on 01.07.68, i.e., 3 days later than the date

prescribed. The balance 3/4th of the amount was to be deposited within one month, but the

complainant failed to deposit that amount, despite notices sent to him. A notice was sent to him

on 19.09.68, stating that the balance amount of `366.67/- should be deposited within a time of

one week, failing which the 1/4th amount already deposited shall stand forfeited and the auction

made in his favour shall stand cancelled. Another notice was sent to him on 22.1.69, stating the

same position, but despite these notices, the complainant did not deposit the amount in

question. On 17.11.71, the plot in question and some other plots were allotted in favour of the

Government school for play-ground. Further, on 2.2.88, one Radhey Shyam and the complainant

made an application before the petitioner saying that they were not willing to accept the plot in

Subhash Colony, but if the plots are allotted to them near the road, they will have no

objection. The petitioner sent another notice dated 25.09.91 in which it was again stated that the

remaining consideration of the plot of `366.67/- and `1020.25/- as interest should be deposited

with them so that the plot could be handed over to him, but still the complainant did not deposit

the amount. The learned counsel then narrated about the consumer complaint filed in 2005 and

the orders passed by the District Forum and State Commission as mentioned above. Learned

counsel maintained that there had been no deficiency in service on their part, as they had been

writing to the complainant from time to time and making efforts for alternate plots on deposit of

the balance amount. The complainant was, however, interested in getting plot at the most prime

location, but at the rates prevalent in 1968, and such request could not be granted. The learned

counsel further argued that the consumer complaint in question was barred by limitation and

although this point had earlier been examined by the State Commission and they held the

complaint to be within limitation, but still the issue of limitation could be considered as there

was no estoppel against question of law. This view had been taken in judgement given by the

Hon’ble Supreme Court as reported in 1965 AIR 1325, “Chittori Subbanna versus Kudapa

Subbana and Ors.”.

4. Learned counsel for the complainant / respondent submitted that although the plot in

question had been allotted to him by the petitioner, but the said plot along with some other land

was subsequently allotted to a Government School and hence there was injustice with the

complainant and deficiency in service on the part of the OPs. The complainant was always ready

to deposit the balance amount and even now, he was ready to deposit the said amount, provided

plot at suitable location is given to him.

5. We have examined the entire material on record and given a thoughtful consideration to

the arguments advanced before us. The facts as admitted by the parties are that the complainant

was allotted plot No. 9 measuring 60 ft. X 40 ft. in auction sale held on 28.06.68. The initial

1/4th amount of the total value of the bid was also deposited by the complainant, although late by

three days. However, the complainant has not been able to explain as to why he failed to deposit

the balance 3/4th of the amount in question. The notices were also sent to him by the

petitioner/OP on 19.09.68 and 22.01.69, but still the complainant failed to deposit the balance

amount and the reasons for the same have not been explained anywhere. Later on, the said plot

and some other area was allotted to a Government school but still the petitioner/OP offered to

allot him plot in some other colony and a notice to this fact was also sent on 25.9.91, but still the

complainant failed to deposit the balance 3/4th of the amount. In the year 1991, i.e., 23 years

after the initial allocation, the petitioner asked the complainant to pay the same amount as was

due in the year 1968, but the complainant failed to avail of the said offer.

6. In the light of these facts, it becomes clear that there has been no deficiency in service on

the part of the petitioners in any manner and they were well within their rights to cancel the

allotment, once the balance amount was not deposited, despite notices sent to the complainant.

7. In the light of this discussion, it is very clear that the orders passed by the State

Commission as well as by the District Forum do not reflect a correct appreciation of the facts on

record and the said orders are perverse, as there is no justification in allotment of plot to the

complainant at old rates in view of the facts that he failed to deposit the necessary amount

despite notices sent to him. The present revision petition is, therefore, allowed and the impugned

order is set aside. The consumer complaint in question, is ordered to be dismissed with no order

as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER Sd/-(DR. B.C. GUPTA)MEMBERRS/


REVISION PETITION NO. 3508 OF 2012 (From the order dated 15.05.2012 in First Appeal No. 537 of 2012 the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

1. Country Club (India) Limited, Through its Managing Director, Having its office at Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad – 63, Andhra Pradesh

2. Country Club (India) Limited, Through its General Manager, (Sales and Marketing), Having its Office at B-7, Bhavani Singh Road, 22 Godam Circle, Behind Neelkant Mall, C-Scheme, Jaipur

Petitioner/Opposite Party

Versus

Tarun Raut, Flat No. 203, Dadu Marg, Barkat Nagar, Tonk Phatakm Jaipur – Rajasthan

Respondent/Complainant

BEFORE:

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B C. GUPTA, MEMBER

For the Petitioners : Mr. Mohit Mudgal, Advocate


Mr. Jasmeet Singh, Advocate

For the Respondent : Mr. Amritesh Mishra, Proxy Counsel

PRONOUNCED ON 31 st OCTOBER, 2013

O R D E R


This revision petition has been filed by the petitioner against impugned order dated

15.05.2012 passed by the learned State Consumer Disputes Redressal Commission, Rajasthan (in

short, ‘the State Commission’) in Appeal No. 537 of 2012 – Country Club (India) Ltd. & Anr.

Vs. Tarun Rawat, by which while dismissing the appeal, order of the District Forum allowing the

complaint was upheld.

2. The brief facts of the case are that the complainant/respondent under the Mr. Millionaire

Club Parivar Membership Scheme paid

Rs. 35,000/- and sought confirmation for tour to Goa. Opposite party-petitioner did not confirm

booking inspite of repeated requests. As tour was not confirmed, complainant family could not

visit Goa and his reputation suffered. Alleging deficiency on the part of the opposite party-

complainant filed complaint before the District Forum. Opposite party did not file written

statement before District Forum. Learned District Forum after hearing both the parties allowed

the complaint and directed opposite party to pay Rs. 1,00,000/- as compensation. Appeal filed

by the petitioner was dismissed by learned State Commission vide impugned order against which


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

4. Learned counsel for the petitioner submitted that the order passed by the learned State

Commission is not a speaking order and does not contain any reason for dismissal of application

for condonation of delay as well appeal hence, revision petition be allowed and impugned order

be set aside and matter may be remanded back. On the other hand, learned counsel for

respondent submitted that order passed by the learned State Commission is in accordance with

law hence, revision petition be dismissed.

5. Order passed by the learned State Commission runs as under:

“The appellant has filed this appeal with delay of 117 days. The grounds and

explanations given in the application do not appear to be justified and proper. Hence, in

the interest of justice, it does not appear to be appropriate to condone the delay.

The subordinate Distt. Forum has passed order after examining all the facts of

complaint and evidence in detail. Therefore, we do not find any justifications to re-

examine all the facts of complaint and evidence.

In view of facts and circumstances, we do not find any lapses/error in the order

dated 30.11.2011 passed by the ld. Distt. Forum, camp at Jaipur, Jaipur in complaint no.

1154/2011 (2nd, 215/2007). As the Distt. Forum has applied correct judicious mind on

the facts brought out on record, there is no ground of any interference therein,

whatsoever. In addition, the appeal appears to be without any substance on merit also”.

6. Perusal of order clearly reveals that no reason has been assigned in the order for rejection

of application for condonation of delay as well appeal. Hon’ble Apex Court in (2001) 10 SCC

659 HVPNL Vs. Mahavir observed as under:

“We may point out that while dealing with a first appeal, this is not the way to

dispose of the matter. The appellate forum is bound to refer to the pleadings of the case,

the submissions of the counsel, necessary points for consideration, discuss the evidence

and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal

in this fashion and the higher courts would not know whether learned State Commission

had applied its mind to the case. We hope that such orders will not be passed by the

State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A

copy of this order may be communicated to the Commission”.

7. Hon’ble Apex Court in (2005) 10 SCC 243 H.K.N. Swami Vs. Irshad Basith observed in

para-3 as under:

“The first appeal has to be decided on facts as well as on law. In the first appeal

parties have the right to be heard both on questions of law as also on facts and the first

appellate court is required to address itself to all issues and decide the case by giving

reasons. Unfortunately, the High Court, in the present case not recorded any finding

either on facts or on law. Sitting as the first appellate court it was the duty of the High

Court to deal with all the issues and the evidence led by the parties before recording the

finding regarding title. The order of the High Court is cryptic and the same is without

assigning any reason”.

8. In the light of the aforesaid judgments of Hon’ble Apex Court, it becomes clear that it was

obligatory on the part of the State Commission to pass speaking order with reasons while

disposing appeal. In the present case, impugned order does not contain any reason for dismissal

of application for condonation of delay as well appeal and in such circumstances, impugned

order is liable to be set aside and the matter is to be remanded back to the State Commission.

9. Consequently, revision petition filed by the petitioner is allowed and the impugned order

dated 15.05.2012 passed by the learned State Commission in appeal No. 537 of 2012 – Country

Club (India) Limited & Anr. Vs. Tarun Rawat, is set aside and matter is remanded back to the

learned State Commission to dispose of appeal by a speaking order after giving an opportunity of

being heard to the parties.

10. Parties are directed to appear before the State Commission on 09.12.2013.

..……………Sd/-……..………J

(K. S. CHAUDHARI)

PRESIDING MEMBER

……………Sd/-….……………

(DR. B. C. GUPTA)

MEMBER

SB/4

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 3455 of 2011

(From the order dated 02.05.2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur in Appeal no. 421 of 2005)

Strategic Freight Logistic Pvt. Ltd. (Now as Freight Systems India (P) Ltd., 404-405, 408 Pragati House 47-48 Nehru Place New Delhi – 110019 S F L Strategic Fre. Logistic Pvt. Ltd., (Now as Freight Systems India (P) Ltd.) Branch Office 203 Sridham, R 20 Yudhisther Marg, C- Scheme Jaipur – 302001 Through Manish Kumar, Authorised Signatory

Petitioner (s) Versus

M/s Mohan Jodaro Crafts Through Authorised Signatory Shri K S Rathore A 1, Anand ColonyPurana Ram Garh Road More Jaipur Aid India Shipping Services Through Manager 303 – 304, Sidhi Vinayak D – 54, Ashok Marg C Scheme, Jaipur

Respondent (s) BEFORE: HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioners Mr Arvind Kumar Singh, Advocate

Pronounced on 13 th November 2013

ORDER REKHA GUPTA

Revision petition no. 3455 of 2011 has been filed under section 21 (b) of the Consumer

Protection Act, 1986 against the judgment and order dated 02.05.2011 passed by the Rajasthan

State Consumer Disputes Redressal Commission, Jaipur (‘the State Commission’) in appeal no.

421 of 2005. The brief facts of the case are that:

Respondent no.1/ complainant firm vide invoice no. 24 dated 10.12.2003 had given clothes

for export to respondent no. 2/ opposite party no. 1 - Aid India Shipping Services which were in

19 packets and costs of the goods were Euro 6,663.00. The goods given by the respondent no. 1

to respondent no. 2 were to be sent to the desired destination through petitioner no. 1/ opposite

party no. 2 – Strategic Freight Logistic Pvt., Ltd. Respondent no. 2 had given the goods to

petitioner no. 1 to get the same delivered at the destination and had taken the bill of lading from

them and handed over the same to the respondent/ complainant. As the goods did not reach the

desired destination, the respondent no. 1 firm enquired about the same from Strategic Freight

Logistic Pvt., Ltd., on which petitioner nos. 1 and 2/ OP nos. 2 & 3 demanded documents of

shipment from the respondent no.1 and even after giving the documents, claim of goods was not

given which was alleged to be deficiency in service by the petitioners and it was desired by the

respondent no. 1 that an amount of Rs.8,54,639/- along with interest @ 18% per annum from

10.02.2003 to till recovery be directed to be recovered jointly and severally from the

petitioner/opposite parties.

The District Consumer Disputes Redressal Forum – I, Jaipur (‘the District Forum’) vide order dated 07.02.2005 while accepting the complaint against the opposite party nos. 2 & 3 and“directed to pay to the complainant firm Rs.3,53,139/- within two months from the date of this order. If the same is not paid, the complainant firm is entitled from opposite party nos. 2 and 3 interest @ 9% per annum on Rs.3,53,139/- from the date of order till its payment. The opposite party nos. 2 & 3 are directed to pay within 2 month from the date of order compensation of Rs.10,000/- on account of mental agony and Rs.1,000/- towards cost of litigation, totally to Rs.11,000/-. The complaint of the complainant firm is rejected against the opposite party no. 1”.

Aggrieved by the order of the District Forum, petitioners filed an appeal before the State

Commission. The State Commission dismissed the appeal vide order dated 02.05.2011.Hence,

the present revision petition.

Along with the revision petition an application for condonation of delay of 465 days has

been filed. As per the office report, there is a delay of 65 days. The reasons given in the

application for condonation of delay are that:

That the impugned judgment was passed on 02.05.2011. Thereafter the certified copy

of the same was obtained by the counsel engaged in Jaipur for the

State Commission, Jaipur the certified copy of the said order was received by revisionists

herein on 28.06.2011 as the authorised representative/ A R of the present revision petition

was on leave till 27.06.2011.

That upon receiving the order on 28.06.2011 the applicant/ revisionists contacted the

Jaipur Branch Office to retrieve all the documents/ information related to the shipment

under question. However, as the alleged missing consignment pertains to the year 2003 it

took about a couple of month to retrieve the eight years old record and the same was

delivered to the Delhi Office of the revisionist only in the third week of August 2011.

Thereafter, the present counsel was engaged to file the present revision and since all

the pleading and the orders were in Hindi it took about couple of weeks towards the

translation of the documents/ pleadings. Subsequently, the present revision petition was

prepared in the end week of September 2011.

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

of the case carefully.

The date on which the impugned order was passed on 02.05.2011 and the same was

received by the Counsel has not been mentioned in the application nor has the name of the

counsel. However, as per the certified copy of the impugned order, the same was received by the

counsel on 16.05.2011. The counsel for the petitioner could not give any evidence to support his

case that the impugned order was received by the revisionists only on 28.06.2011. The reasons

given for the delay are vague and general and fail to explain the day to day delay of 65 days.

The petitioner has failed to give reasons for the day-to-day delay and to provide

‘sufficient cause’ to condone the delay of 65 days. This view is further supported by the

following authorities:

Recently, Apex Court in the case of Anshul Aggarwal Vs. New Okhla Industrial

Development Authority, IV(2011) CPJ 63(SC) has 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”.

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 condonationhas 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.”

Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 65

days in filing the present revision petition. Consequently, the present revision petition being time barred by limitation and is dismissed with a cost of Rs.5,000/- (rupees five thousand only).

Petitioner are directed to deposit the 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 the petitioners fail to deposit the said amount within the prescribed period, then they shall be liable to pay interest @ 9% per annum till realisation.

List on 20th December, 2013 for compliance.

Sd/-..………………………………[ V B Gupta, J. ] Sd/-………………………………..[ Rekha Gupta ] Satish


REVISION PETITION NO. 2643 OF 2013 (From the order dated 02.04.2013 in Appeal No. 368/2010 of the State Consumer Disputes Redressal Commission, Delhi)

J.K. Nagpal D-35&36, Kanti Nagar Main Road, Delhi


Versus1. Sachdeva Electronics (P) Ltd. GL-22, Jail Road, Hari Nagar, New Delhi – 110064

2. Aadvance Solutions 455, FIE Patparganj Delhi – 110092.

3. L.G. Electronics Pvt. Ltd. A-27, Mohan Co-operative Indl. Estate, Mathura Road, New Delhi – 110044


BEFORE




PRONOUNCED ON 19 th November, 2013

O R D E R


This revision petition has been filed by the petitioner against the order

dated 02.04.2013 passed by State Consumer Disputes Redressal Commission, Delhi (in short,

‘the State Commission’) in Appeal No. 368 of 2010 – J.K. Nagpal Vs. Sachdeva Electronics (P)

Ltd. & Ors. by which, appeal filed by the complainant for enhancement of compensation was

dismissed.

2. Brief facts of the case are that complainant/petitioner purchased L.G. Washing Machine on

23.1.2003 from OP No. 1/Respondent No. 1 manufactured by OP No. 3/Respondent No. 3.

Complainant also obtained AMC for the machine for a period of three years from 24.7.2006 to

23.7.2009 and paid Rs. 4321/-. In August 2008, machine went out of order and complainant

approached OP No. 2/Respondent No. 2 Authorized Service Station of OP No. 3. OP No. 2

assured that repair will be made within 4 days, but in spite of several visits, washing machine has

not been repaired. Alleging deficiency on the part of OP, complainant filed complaint for repair

of washing machine and to extend AMC facility and to pay Rs.50,000/- as compensation and

litigation cost of Rs.15,000/-. OP No. 1 did not contest complaint. OP Nos. 2 & 3 filed written

statement and submitted that they are ready to repair washing machine free of cost and further

submitted that AMC had been in collusion for a period of 3 years whereas AMC is given only for

one year. Learned District forum after hearing both the parties, allowed complaint and directed

OP No. 3 to refund AMC charges of Rs.4321/- and further directed to pay compensation of

Rs.3,000/- and litigation of Rs.2,000/- to the complainant. 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 in person at admission stage and perused record.

4. Petitioner submitted that as washing machine has not been repaired, he was entitled to get

back price of washing machine and learned District Forum has committed error in not allowing

refund and learned State Commission further committed error in dismissing appeal; hence,

revision petition be admitted.

5. Perusal of complaint clearly reveals that in complaint, petitioner prayed for direction to OP

to repair washing machine and extend AMC facility and further prayed for compensation for

harassment and litigation cost. In complaint, he has not prayed for refund of price of washing

machine. In such circumstances, petitioner is not entitled to get refund of price of the washing

machine.

6. Learned State Commission has observed in its order that petitioner has already refunded

AMC amount of Rs.4321/- along with compensation and cost imposed by District Forum. In

such circumstances, petitioner is not entitled to get any more from the respondents and petitioner

has unnecessarily filed this revision petition. This case is not fit for admission.


no order as to costs.

………………Sd/-……………

( K.S. CHAUDHARI, J) PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA ) MEMBER

k



(From the order dated 05.04.2013 in First Appeal No. FA/12/315 of Chhattisgarh State Consumer Disputes Redressal Commission)

M/s. Pragati Associates, Proprietor Shri Kumar Verma Near Union Bank, Pandari, Anand Bhawan Raipur (C.G.)

... Petitioner

Versus

Ranjan Shrivastava, r/o Jawahar Chowk, Durg, District Durg (C.G.)

… Respondent(s)

BEFORE




For the Petitioner Mr. K. Anandani, Advocate

For the Respondent In person

PRONOUNCED ON : 19 th NOVEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 against the impugned order dated 05.04.2013, passed by the Chhattisgarh State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. FA/12/315,

“M/s Pragati Associates versus Ranjan Shrivastava,” vide which the order dated 30.05.2012

passed by the District Consumer Disputes Redressal Forum, Raipur, allowing the consumer

complaint in question was upheld and the said appeal was dismissed.

2. Brief facts of the case are that the complainant/respondent Ranjan Shrivastava had

obtained loan from the Central Bank of India, under the “Prime Minister’s Employment

Generation Programme (PMEGP) Scheme” for Purchasing Automatic Plastic Moulding Machine

and Automatic Dona Machine. He made payment of `3,50,000/- to the petitioner,

M/s Pragati Associates, vide DD No. 04/00468 dated 1.3.2011. However, the petitioner returned

an amount of `66,000/- in cash as discount to the complainant. It has been alleged that defective

machines were supplied by the petitioner and the guarantee documents were not provided to the

complainant. One of the machines developed defects 4 to 5 times and its production capacity

was also low because of which the complainant could not pay back the instalments of loan to the

Bank. The complainant spent a sum of `40,000/- for the repair of the machines, but the defects

could not be removed. The petitioner had, therefore, committed deficiency in service towards

the complainant. On the other hand, the case of the petitioner is that there was no

guarantee/warranty involved in the supply of the said machines and hence he was not responsible

for payment of any compensation if there were faults in the machines. The consumer complaint

was filed by the respondent before the District Forum and the said District Forum vide their

order dated 30.05.2012 allowed the said complaint and directed the petitioner to replace both the

machines and also to pay a sum of `40,000/- as expenses for repairs including 6% annual simple

interest, `10,000/- for mental harassment and `1,000/- as cost of litigation. An appeal against this

order was dismissed by the State Commission by their order dated 05.04.2013. It is against this

order that the present revision petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner has drawn our

attention to a copy of the document with the heading “agreement”, but in fact it is a statement of

the complainant, in which he has stated that he has paid `3.5 lakh vide DD No. 772186

to Shri Kumar Verma, Proprietor Pragati Associates and he had taken a sum of `66,000/- back

from Shri Kumar Verma. For the rest of the amount of `2.84 lakh, he had taken Dona Automatic

Machine and Automatic Moulding Machine, including raw-material for both the machines and

after that, there shall be no dealings between him and Shri Kumar Verma. In case any issue is

raised in future, it shall be the responsibility of the complainant. The learned counsel has also

drawn our attention to copy of the quotation dated 09.02.2011 in which the price of Automatic

Moulding Machine has been mentioned as `2.80 lakh and that of Dona Machine as

`70,000/- The learned counsel further stated that the complainant had given them the receipt-

cum-satisfaction letter, after obtaining the two machines and stated very clearly that he was

satisfied with the working of the machines. The learned counsel stated that since there was no

guarantee for the machines, the petitioner was not liable for any compensation, if any fault is

found in the machines later on. Moreover, as stated in the document relating to the repair of the

machine received from Shri Plastics, Durg in which it has been stated that the machine had been

repaired for `22,650/-, there was nothing mentioned that these were old machines. Learned

counsel also stated that the complainant was not covered under the PMEGP Scheme and had

wrongly taken advantage of the said scheme.

4. On the other hand, the complainant/respondent who argued his case in person, stated that

the petitioner/OP had given him quotation for the new machines, but they had supplied him the

old machines. They had told him verbally that the guarantee for the said machines shall be one

year, but they refused to give him any guarantee documents. The complainant had also sent

registered notice to them on 09.08.2011 regarding the defects in the machine.


arguments advanced before us. The material on record indicates very clearly that the

complainant had purchased old machines from the OP and he was also given a sum of `66,000/-

in cash by the OP, after he had submitted DD of `3.5lakh to them for the purchase of the

machines. The petitioner/OP has categorically stated that they had not provided any guarantee

for the functioning of the said machines to the complainant. On the other hand, the complainant

himself has given certificates duly signed by him, saying that he was fully satisfied about the

working of the machine after receiving the same. In fact, he has given a signed statement on

stamp paper saying that if any issue arises about these machines in future, he shall be fully

responsible for it and OPs shall have nothing to do with the same. All these

documents/assertions have not been denied by the complainant anywhere. In the light of these

facts, there is no justification for allowing any relief to the complainant and the complaint

deserves to be dismissed.

6. In the light of the above discussion, the orders passed by the State Commission and the

District Forum are set aside. This revision petition is allowed and the consumer complaint is

ordered to be dismissed with no order as to costs.Sd/-

(K.S. CHAUDHARI J.) PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA) MEMBER

RS/



(From the order dated 26.07.2012 in First Appeal No. A/11/918 a/w Misc. Appl. No. M/11/545 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

P.K. Kundu, Proprietor of M/s. Sharp Packing Machines & Equipments 7, Jyoti Industrial Estate No. 2, Behind Radhakrishna Hotel, Upavan, Industrial Area, Pokharan Road – 1 Thane (W) – 400606

... Petitioner

Versus

The Konkan Co-operative Cashew Marketing and Processing Society Ltd. Ishwarganga Complex Telavekar Galli, Nehru Chowk, Gadhinglaj, Taluka : Gadhinglaj, District : Kolhapur (Maharashtra)

… Respondent

BEFORE




For the Petitioner(s) Mr. Hemant Sharma, Advocate

For the Respondent Mr. Abhishek, Advocate Mr. Arun Kumar Roy, Advocate

PRONOUNCED ON : 20 th NOVEMBER 2013

O R D E R



1986 by the petitioner against the impugned order dated 26.07.2012, passed by the Maharashtra

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

A/11/918 a/w MA No. MA/11/545, “P.K. Kundu versus The Konkan Cooperative Cashew

Marketing and Processing Society Ltd.” vide which appeal filed by the present petitioner/OP

against the order dated 21.08.2010 passed by the District Forum Kolhapur in complaint case no.

CC/08/477, allowing the complaint, was dismissed as being time-barred.

2. Brief facts of the case are that the complainant/respondent The Konkan Cooperative

Cashew Marketing and Processing Society Ltd. (hereinafter referred to as ‘society’) is a

registered society under the Maharashtra Cooperative Societies Act, 1960 and its broad objective

is to prepare cashew nuts etc. after making process on the cashew produced by the members of

the society. The said society purchased pouch-packing machine from the petitioner/OP as per

agreement deed dated 17.03.2005 executed between parties for an amount of `10,37,250/-

including the sales tax. A sum of `4.5lakh was given by the Society to the OP on the date of the

agreement deed. A further sum of `1 lakh was given on 2.08.2005. The machine was delivered

at the factory site of the complainant on 27.06.2006, but as alleged in the complaint, the machine

was not in functioning condition. The complainant, alleging deficiency in service on the part of

the OP, filed the consumer complaint in question, which was allowed by the District Forum and

it was ordered that a sum of `5.5 lakh should be paid to the complainant alongwith interest @9%

p.a. from 2.08.2005 till realisation and a sum of `1,000/- should be paid as litigation cost. This

order of the District Forum was passed on 21.08.2010 and an appeal against this order was

preferred before the State Commission with the alleged delay of 366 days in November

2011. The State Commission vide impugned order dated 26.07.2012 refused to condone the

delay in filing the appeal and rejected the same as being time barred. It is against this order that

the present revision petition has been made.

3. The main contention taken by the petitioner at the time of argument states that the

petitioner was earlier working at Samparn Industrial Estate, EMCO Company, Plot No. 496,

Road No. 28, Wagle Industrial Estate, Thane (West) – 400 604. As stated by them, they had

shifted their place of work in and around April 2008 to 7, Jyoti Industrial Estate No. 2, behind

Radha Krishna Hotel Upvan Industrial Area, Pokharan Road No. 1, Thane (W) 400

606. According to the petitioner, the respondent society was very much aware of the shifting of

work place of the petitioner, but still they mentioned old address in the consumer complaint filed

before the District Forum. The petitioner filed reply to the complaint before the District Forum

on 19.04.2009. An Advocate was also representing them before the District Forum. However,

the order dated 21.08.2010 was passed by the District Forum in the absence of the petitioner and

his Advocate. The Advocate of the petitioner did not intimate the petitioner about the

order. They have also not received the free copy of the order stated to have been dispatched on

19.10.2010 by the District Forum. They came to know about the said order on 30.07.2011, when

they received a letter from the Advocate of the respondent in the shape of notice asking them to

pay the amount as per orders of District Forum. They then contacted their Advocate and

obtained certified copy of the order on 09.11.2011 and hence, the appeal was filed alongwith

application for condonation of delay etc. The delay in filing the appeal had therefore, occurred

because the petitioner came to know about the order of the District Forum very late and the

factum of change of address escaped the notice of the District Forum.

4. In reply, learned counsel for the respondent society stated that the change in premises is

stated to have been made in 2008 but in the appeal filed before the State Commission the

petitioner has given the old address only. The application for condonation of delay filed

alongwith the appeal also mentions the old address. The State Commission had, therefore,

rightly declined to condone the delay in filing the appeal.

5. After the conclusion of the arguments, the learned counsel for the petitioner sent a

document dated 29.10.2013 (arguments were heard on 23.10.2013) enclosing therewith a copy of

the application dated 26.11.2008 filed by the complainant before the District Forum in which

new address of the petitioner has been mentioned. It has been stated in this document that the

District Forum ordered to issue a fresh notice on 26.11.2008 to the petitioner at the new

address. However, an examination of the material before us indicates that such a plea has never

been taken by the petitioner in their Memo of Appeal or Application for condonation of delay

filed before the State Commission.

6. We have examined the entire material on record and given a thoughtful consideration to

the arguments advanced before us. In the grounds of the revision petition, it has been stated by

the petitioner/OP that they had shifted their premises in and around April 2008. They have taken

the main plea that the free copy of the order of the District Forum was never received by them, as

it may have been sent to their old address. A perusal of the appeal filed before the State

Commission in November 2011, however, clearly says that the petitioner has mentioned his

previous address as, Plot No. 496, Road No. 28, Wagle Industrial Estate, Thane (W) in the memo

of appeal as well as in the application for condonation of delay. It is quite obvious, therefore,

that they are not justified in saying that because of non-dispatch of order at the new address, they

could not know about the order passed by the District Forum. Further, it is very clear that the

consumer complaint has been contested by the petitioner before the District Forum and they had

also filed their written submissions before that forum through an Advocate. It was, therefore,

their duty to keep track of the progress of the case and then to challenge the same, if required,

within prescribed time before the State Commission.

7. The petitioner have now stated that an application dated 26.11.2008 was filed by the

complainant before the District Forum mentioning the new address of the petitioner and the

District Forum ordered to issue notice at that address. However, such a plea has not been

substantiated from the record because the order passed by the District Forum mentions the old

address of the petitioner. Further, in the Memo of Appeal and in the Application for condonation

of delay, this plea has never been taken by the petitioner, meaning thereby that they cannot get

benefit of this plea at the present stage.

8. In the light of these facts, it is clear that the State Commission have rightly observed in

their order that there was no dispute about the address mentioned or supplied to the District

Forum on which copy was sent. The State Commission have rightly observed that there was no

sufficient ground to condone the delay.

9. In a number of recent judgements, the Hon’ble Apex Court have also held that unless there

is a cogent and convincing explanation for the delay in filing an appeal, the same should not be

condoned.

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




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”.

12. Based on the view taken in the aforesaid judgements and looking at the facts of the present

case, it is made out that there was no sufficient ground for condonation of delay in filing the

appeal before the State Commission and they have rightly refused to condone the said delay.

13. In the light of the above discussion, it is held that the order passed by the State

Commission does not suffer from any infirmity, illegality, or jurisdictional error and the same is

affirmed. Present revision petition is ordered to be dismissed with no order as to costs.Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION NO. 1116 OF 2008 (From the order dated 14.12.2011 in Appeal No. 1619/2005 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

1. The Branch Manager The Peerless General Finance and Investment Company Ltd. H.No. 5-8-53, L.N. Gupta Marg, 1st Floor, Hyderabad – 500001 and having its Regd. office at: 3, Esplanade East, P.S. Hare Street, Kolkatta 700069, West Bengal.2. The Branch Manager The Peerless General Finance and Investment Co. Ltd. Dwarka Towers, Seven Roads, Kadapa, Andhra Pradesh

…Petitioner/Opp. Parties (OP)

VersusMr. Vennapusa Chenna Reddy S/o Peda Malla Reddy. At R/o Thudumaladinne Village Khajipet Mandal, District Kadapa, Andhra Pradesh


BEFORE



For the Petitioner : Mr. Tapan Kumar Datta, Advocate

For the Respondent : NEMO

PRONOUNCED ON 28 th November, 2013

O R D E R


This revision petition has been filed by the petitioners against the order dated 14.12.2011

passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in

short, ‘the State Commission’) in Appeal No. 1619 of 2005 – The Branch Manager,

The Pearless General Ins. and Investment Co. Ltd. Vs. Vennapusa Chenna Reddy by which,

while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent was a policy holder of OP No.

2/Petitioner No. 2 for Rs.50,000/- and was paying annual instalment of Rs.1,575/-. Policy was

taken in 1983 and its maturity date was 28.3.2003. Complainant paid Rs.20,360/- towards

annual premium and thereafter complainant lost the bond issued by OP. OP also promised to pay

Rs.30,000/- towards bonus. Inspite of request by the complainant, OP did not issue duplicate

bond. Alleging deficiency on the part of OP, complainant filed complaint before District

Forum. OP contested complaint and submitted that complainant did not produce receipt of

Rs.7,703/- towards last instalment paid on 5.8.1984. Deposit slip did not contain and seal or

signature of OP. Complainant did not apply for duplicate certificate nor complained about loss of

certificate. OP can make payment of claim only on production of original certificate and prayed

for dismissal of complaint. Learned District Forum after hearing both the parties allowed

complaint and directed OP to pay Rs.80,000/- with 6% p.a. interest and further awarded

Rs.1,000/- as cost. Appeal filed by the OPs was dismissed by the State Commission, against

which this revision petition has been filed.

3. Respondent did not appear, but sent written submissions by post.


5. Learned Counsel for the petitioner submitted that as per complaint itself, complainant paid

Rs.20,360/- inclusive of Rs.7,703/- even then learned District Forum committed error in allowing

refund of Rs.80,000/- and learned State Commission further committed error in dismissing

appeal; hence, revision petition be allowed and impugned order be set aside and complaint be

dismissed.

6. Perusal of record clearly reveals that complainant/respondent obtained policy for

Rs.50,000/- and as per averments in the complaint, he paid total Rs.20,360/-inclusive of

Rs.7,703/- which is disputed deposit slip. OP/petitioner disputed genuineness of receipt of

Rs.7,703/- as it did not contain any seal and signature of the OP. Learned District Forum held

payment receipt of Rs.7,703/- as genuine as OP did not file ledger extract. Further, learned

District Forum without any basis held that complainant had paid all the instalments, though,

neither pleaded in the complaint nor proved by any evidence.

7. Burden was on the complainant to prove payment of all the instalments. As deposit slip of

Rs.7,703/- does not contain seal and signature of OP, learned District Forum has committed error

in holding payment through this deposit slip. Complainant has also not filed any other receipt

depositing payment of total amount of Rs.50,000/-. In such circumstances, learned District

Forum has committed error in holding that complainant has made full payment and allowing

refund of Rs.80,000/-. Learned State Commission has further committed error in dismissing

appeal on the ground of shifting burden of proof on the petitioner.

8. Learned Counsel for the petitioner further submitted that as per certificate status,

complainant has deposited only Rs.12,600/- and complainant is entitled to receive only

Rs.20,000/- inclusive of proportionate bonus which is lying with the petitioner unclaimed. We

deem it proper to allow refund of Rs.20,000/- with interest.


14.12.2007 passed by learned State Commission in Appeal No. 1619/2005 – The Branch

Manager, The Peerless General Insurance and Investment Co. Ltd.

Vs. Mr. Vennapusa Chenna Reddy and order of District Forum dated 22.8.2005

- Mr. Vennapusa Chenna Reddy Vs. The Branch Manager, The Peerless General Insurance and

Investment Co. Ltd. is modified and petitioner is directed to refund Rs.20,000/- along with

12% p.a. interest from the date of filing complaint till realization. There shall be no order as to

cost. ………………Sd/-……………


PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 19.10.2012 in First Appeal No. 885/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Kiran Mishra W/o Sh. Vinod Mishra R/o 829-A, Kirti Nagar, Near Ram Mandir, Yamuna Nagar,Punjab.


Versus

Dentsply India Pvt. Ltd. Plot No. 358 F.I.E.S. Parparganj Industrial Area, Delhi – 110092.

…Respondent/Opp. Party (OP)

BEFORE



For the Petitioner : Ms. Shweta Kapoor & Ms. Ashima Bagga, Advocates

For the Respondent : Mr. Dheeraj Kumar, Advocate

PRONOUNCED ON 5 th December, 2013

O R D E R


This revision petition has been filed by the petitioner against the order dated 19.10.2012 passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 885 of 2012 – Dentsply India Pvt. Ltd. Vs. Kiran Mishra by which, while allowing appeal, order of District Forum allowing complaint was set aside and complaint was dismissed.

2. Brief facts of the case are that complainant/petitioner purchased one Ceramco 7.0 furnace 230 vat machine from OP/respondent for a sum of Rs.1,90,000/- on 2.9.2006. OP gave warranty of two years, but after installation, the machine was giving some problem for which, complainant contacted OP. The OP failed to remove the defects and failed to fulfil their part of agreement. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that there was no manufacturing defect in the said machine and further submitted that if any defect developed in the machine, it was due to negligence on the part of complainant and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to replace the furnace or refund the cost of machine along with 9% p.a. interest and further awarded Rs.5,000/- as cost of proceedings. Appeal filed by the respondent/OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

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

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in holding that complainant does not fall within the purview of consumer and in dismissing complaint; 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 leaned State Commission is in accordance with law; hence, revision petition be dismissed.

5. Perusal of impugned order reveals that learned State Commission set aside order of District Forum only on the ground that complaint does not fall within the purview of consumer, as machine was to be used for commercial purposes. Paragraph 1 of the complaint reads as under:

“That the complainant is the proprietor of prince Dental Lab, Yamuna Nagar, where she makes Dental Crown Bridges herself and with the help of other technicians and earns her livelihood”.

Reply to this paragraph in the written statement reads as under:

“That the contents of para No. 1 are personal details of the Complainant and are matter of record, hence need no reply.”

6. Perusal of these pleadings clearly reveals that complainant purchased this machine for earning her livelihood and OP has not disputed this fact in written statement. There was no occasion for learned State Commission to hold that machine was purchased for commercial purposes. Learned State Commission wrongly held that there was nothing on record to prove that the complainant was using the said machine for earning her livelihood because paragraph one of the complaint clearly reveals that complainant was running Dental Lab for earning her livelihood which has not been denied by OP.

7. In the light of the above discussion, impugned order is liable to be set aside and matter is remanded back to the learned State Commission to decide the appeal on merits.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 19.10.2012 passed by learned State Commission in Appeal No. 885/2012 – Dentsply India Pvt. Ltd. Vs. Kiran Mishra is set aside and appeal is remanded back to learned State Commission to decide it on merits after giving an opportunity of being heard to both the parties treating complainant as consumer. There shall be no order as to costs.

9. Parties are directed to appear before the State Commission, Haryana on 16.1.2014.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k



(From the order dated 16.05.2011 in First Appeal No. 52/2009 of Tamil Nadu State Consumer Disputes Redressal Commission)

1. A. Panchapakesan s/o Late A. Arunachalam

2. P. Rukmani, w/o A. Panchapakesan

3. P. Satish Kumar s/o A. Panchapakesan

All r/o Old No. 18 A, New No. 20, 1st Floor, Central Government Employee GCE, Housing Colony Kuppam Beach Road, Thiruvanmiyur Chennai – 600014.

… Petitioner(s)

Versus

Pioneer Aero Travels (Madras) Pvt. Ltd. Rep. by P. Murugesh G – 10, Eldorado, 112, Nungabakkam High Road, Chennai – 600034.

... Respondent

BEFORE




For the Petitioner(s) Mr. S. Sethu Mahendran, Proxy For the Respondent(s) Mrs. Promila, Advocate

PRONOUNCED ON : 5 th DECEMBER 2013

O R D E R


This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 10.09.2012, passed by the Tamilnadu State Consumer Disputes Redressal Commission, Chennai (for short ‘the State Commission’) in FA No. 52/2009, “Pioneer Aero Travels (Madras) Private Limited versus A. Panchapakesan & Ors.” vide which appeal against the order dated 15.12.2009, passed by the District Consumer Disputes Redressal Forum, Chennai (North) in CC No. 300/2004 was accepted, the said order was set aside and the consumer complaint in question was dismissed.

2. Brief facts of the case are that the petitioners/complainants filed the consumer complaint in question before the District Forum against the respondent/OP, the travel agency, alleging that the OP had indulged in deficiency in service towards them, resulting in lot of mental harassment and agony to them, during their tour from Delhi to Hong Kong and back. The petitioners/complainants approached the OP Travel agency for booking their air-tickets and hotel accommodation for travel to Hong Kong. Their flight tickets were booked by Airlankan Airways to travel on 20.01.2004 and their hotel stay was arranged at Park Hotel, Hong Kong for 3 nights, i.e., 21.01.2004 to 24.01.2004. The complainants made a payment of `88,000/- to the travel agency for air-tickets, hotel accommodation and other charges. It has been alleged that the OP failed to deliver the air-tickets to the complainants in time and these tickets were delivered on the date of the travel itself, i.e., 20.01.2004 at 1:00 PM, although the flight was scheduled to leave at 4:00PM that very day. The complainant hurriedly went to the airport to catch the flight, but they were not allowed to board the flight, saying that the passports for complainants no. 2 & 3 did not bear the stamp, “Emigration Clearance Not Required” (ECNR). The complainants tried to obtain temporary ECNR clearance and spent a sum of `260/- for the same and `600/- as conveyance charges, but still they were not able to get the scheduled flight on that day. The OP then rescheduled their programme and booked their tickets in Cathay Pacific Airlines for 27.01.2004, and also arranged hotel accommodation at Bishop Lei International Hotel at Hong Kong for three nights with effect from 28.01.2004. It has been alleged that the travel agency asked for a further sum of `1464/- from them in addition to `88,000/- already paid. There was alleged altercation between the parties, resulting in lodging a complaint with the Police on 27.01.2004 by the complainants. The complainants made payment of `1464/- by cheque, but the same could not be en-cashed as instructions for ‘stop payment’ were given by the complainants to the Bank. Further, it is stated that in Hong Kong they had to pay additional 1521 Hong Kong Dollars (HKD) for hotel accommodation. The complainants demanded that a sum of `8899/- paid in excess towards hotel accommodation, a sum of `860/- for obtaining ECNR, `200 for postal expenses and `2,00,000/- as compensation for mental harassment should be paid to them. The District Forum vide their order dated 15.12.2009 allowed the complaint and directed the OPs to pay a sum of `8899/- paid excess for hotel accommodation, `860/- for ECNR, `1000/- as cost of litigation and `50,000/- as compensation for mental harassment. An appeal was filed against this order before the State Commission and vide impugned order, the said appeal was allowed, the order of the District Forum was set aside and the consumer complaint was dismissed. It is against this order that the present petition has been made.

3. At the time of hearing before us, the learned counsel for the complainant reiterated the facts given in the complaint and stated that it was the duty of the respondent-OP to properly advise the complainants about the Emigration process. Since they had taken a package tour, the OP was supposed to take care of all the travel needs, including the requirement of ECNR stamp. They also stated that once they had made payment for air-fare, hotel accommodation to the OP, there should not have been any need to pay extra amount to the hotel in Hong Kong. The OPs had paid a paltry amount of `3336/- to them as compensation for this whole episode.

4. Regarding the delay of 70 days in filing the petition, the learned counsel stated that as stated in the application for condonation of delay, delay had occurred because they had to hire a lawyer at Delhi.

5. In reply, the learned counsel for the respondent/OP stated that it was not the job of the travel agency to obtain ECNR clearance for the travellers. The only duty to be performed by the OP was to make arrangements for air-travel and hotel accommodation. The travel agency had asked the complainants to show them the travel documents including passport, but they did not do so, saying that they had valid visa. The learned counsel stated that the entire set of events occurred because of the failure of the complainants to make sure that ECNR stamp was affixed on their passport. The OPs were not at fault in any manner and had not shown any deficiency in service.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts of the case make it very clear that ECNR stamp had not been fixed on the passport of two of the complainants, when they undertook to travel from Delhi to Hong Kong on 20.01.2004. The fact that the air-tickets were delivered to them at 1:00 PM on 20.01.2004, only a few hours before the scheduled departure of flight, does not have any relevance with the ECNR stamp. It is clear that obtaining a passport and getting the ECNR stamp etc. was the job of the complainants only, and the travel plans got disrupted due to their own fault. The facts of the case also make it very clear that when the travel plan got disturbed, the respondent / OP made offer to make the booking again and they arranged for the air-tickets and accommodation in a new hotel, for which they did not charge anything extra from the complainants. It is also made out that after the travel, the OPs made a payment of `3336/- to the complainants. On the other hand, the complainants made a payment of `1464/- to the OPs by cheque but simultaneously, they gave instructions to the Bank to stop the payment. It is also clear that at the time of altercation between the parties, the complainant sought the intervention of the local Police and in fact the Police Officer did come to the travel agency at the call of the complainants.

7. It is clear from the facts stated above that the respondents have not indulged in any deficiency in service, rather they have helped the complainants in making alternative bookings for air-tickets and hotel accommodation at no extra charge. It is not understood how extra payment of `8899/- had to be made to the Hotel, but it is very clear that hotel accommodation had to be arranged afresh after the first booking got cancelled. The OPs have not asked the complainants to pay any cancellation charges also.

8. In the light of the above discussion, it is made out that the order passed by the State Commission, dismissing the complaint and holding that there was no deficiency in service on the part of the respondents/OPs seems to be based on sound reasoning and there is no infirmity, illegality or jurisdictional error in the same. The impugned order is, therefore, upheld and the present revision petition is dismissed with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/



(Against the order dated 23.4.2008 in Complaint Case No.15/2003 of the State Commission, Haryana)

1. Export Credit Guarantee Corporation of India Ltd., through its Managing Director, Express Towers, 10th Floor, Nariman Point, Mumbai- 400021

2. Smt. Vasantha Sirnivas, Manager, ECGC Branch Office Malik Plaza Road, Panipat, Haryana

...... Appellant

Vs.

1. M.S. Creations, Through its Sole Proprietor, Mrs. Meenakshi Saxena, 68, HSIDC, Industrial

Estate, Samalkha- 132101, District Panipat Haryana

2. Punjab National Bank, G.T. Road, Panipat, Through its Branch Manager

.....Respondent

BEFORE:

HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER


For the Appellant : Mr. Bharat Sangal, Advocate, Mr. R.R.Kumar, Advocate &

Ms. Saumya Agarwal, Advocate

For the Respondent No.1 : Mr. Himanshu Gupta, Advocate

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

PRONOUNCED ON: 13/12/2013.

ORDER

PER MR. VINAY KUMAR, MEMBER

The appellant Export Credit Guarantee Corporation of India Ltd. (ECGC) has filed this appeal

against the order of Haryana State Consumer Disputers Redressal Commission in Complaint

Case No.15 of 2003. The Complainant, M/s. M.S. Creations had filed the complaint through its

owner proprietor, Mrs. Meenakshi Saxsena of Panipat, Haryana. The matter arose out of

transaction of export of handloom goods by the Complainant to Society Ivoirienne De

Commerce ET DE Representation (hereinafter called SICOREP), under a contract of 18.10.2001.

Under this contact, the payment was to be made 60 days from DA i.e. within 60 days from

acceptance of the documents. The entire financial transaction on behalf of the Complainant firm

was handled by OP-3/Punjab National Bank Panipat.

2. The case of Complainant was that the risk in this export was covered under a policy

obtained from OPs-1 and 2/ ECGC. Accordingly, the failure of the buyer to pay the insured

within four months from due date, was protected under the policy. On 7.11.2001, ECGC had

accorded specific approval for export of goods under the contract with SICOREP up to a sum of

Rs.64.86 lakhs (US$135125). The first consignment worth Rs.925538/- was sent on 16.11.2001,

followed by a second shipment on 07.1.2002 worth Rs.1361874/-. Necessary declarations of

these two shipments were also sent to ECGC on 19.12.2001 and 18.1.2002 respectively.

3. The Haryanan State Consumer Disputes Redressal Commission allowed the complainant

to the extent of 90% of the two shipments, less the amount already released by ECGC to the

complainant. ECGC has now challenged the award in the present appeal, impleading

OP-3/Punjab National Bank as the second respondent. We have carefully considered the records

submitted by the two sides and heard their respective counsels.

4. As per the Complaint before the State Commission, a letter dated 18.01.2002 was

received from SICOREP requesting for change of their bank from one in France to another in

Abidjan, Ivory Coast. The complainant forwarded it, with a request to ECGC, seeking their

permission for change of the Bank. This permission was given by ECGC, Panipat, in a letter

signed by Vasantha Srinivas, Branch Manager. The complainant petition stated that the entire

documents were accordingly sent to its bank / O P-3, to enable it to send the same to the buyer’s

bank.

5. The buyer, SICOREP was to make payment to its bank i.e. BHCI at ABIDJAN and get

documents for getting the goods released from the port authorities. The Buyer’s bank was to

send the letter of acceptance to respondent no.3 bank to complete the transaction. But, as stated

in the Complaint, “Unfortunately for the reasons best known to SICOREP and the Foreign Bank,

the goods were got released by SICOREP without making any payment. This was probably a

result of some sort of fraud having been played by SICOREP causing massive loss to the

complainant firm for which as per the terms and policy of Insurance Policy of Opposite Party

No.1 & 2, a claim was lodged vide two separate claim forms for both the shipments worth

Rs.9,25,538/- and Rs.13,61,874/- respectively.”

6. It is claimed by the Complainant that once the entire documents had been sent to

OP-3/Bank the role of the Complainant was over. OP-3 sent the documents to the buyer’s bank.

It was for the buyer’s bank at Ivory Coast to get the acceptance from the buyer and send that

document to the Opposite Party No.3 for completing the transactions which however did not

happen, though the goods were got released by the buyer from the port after getting the

documents from the foreign bank and as far as the complainant firm is concerned the transaction

stood completed after it deposited the documents with its bank and if any failure has occurred on

the part of foreign bank or on account of the omission and commission on the part of the buyer,

the said risk as far as the complainant is concerned stands covered by the policy and specific

approval issued by ECGC. The foreign bank is not an agent of the complainant firm nor did the

complainant have any control over it. Therefore, action against the buyer/buyer’s bank should

have been taken by the ECGC after paying the claim of the complainant firm, as per Clause 23 &

24 of the policy.

7. In response, OP/ECGC agreed that they had in their letter dated 7.11.2001 approved the

credit limit within which the complainant could make shipments to the buyer, SICOREP.

However, it contended that a third party namely one Reda Ali of Presta Comci, not the buyer,

had taken the original documents from the foreign Bank. However, OPs 1 and 2 did not dispute

that the opposite party No.3 had written to the foreign Bank that they had acted negligently in

handing over the documents to a stranger and that it should have returned the papers to the Bank

or sought their instructions. OPs 1 and 2 accept that the loss had occurred due to the negligence

of the foreign Bank to whom the complainant’s Bank had sent the documents but contend that it

was not covered under the SCR policy issued by them. It was further stated that Risk Covered

by the policy was refusal or non-payment by the foreign buyer but not on any other ground.

8. The main ground urged on behalf of the appellants is that the State Commission was

wrong in holding that shipping documents were handed over by the BHCI, Ivory Coast to

SICOREP. They were handed over to one Reda Ali and not to SICOREP. Learned counsel for

the appellants sought to rely on the letter of 22.11.2002 (Annexure P-21), written by BHCI to

OP-3/Punjab National Bank. In our view, the contents of this letter do not support the argument

of the appellants. In the first para, BHCI categorically admits delivering the original documents

of the two shipments to Mr Reda Ali. In the very next para, it states that Punjab National Bank

had been informed about its refusal to accept the documents. If BHCI did not wish to accept

these documents, the only option available would have been to return them to the sender i.e.

Punjab National Bank. Further, the letter does not show how BHCI acquired the authority to

deliver them to Reda Ali. If Reda Ali was a stranger, as claimed, the BHCI would have no

authority to deliver the documents to him. On the other hand, if Reda Ali was the same person as

MR Ali Reda, the documents would have been received on behalf of SICOREP, the consignee.

9. Further, evidence before the State Commission clearly brings out that—

a. OPs had full information of the proposed change in the buyer’s bank. The

letter of 18.1.2002, forwarded by the complainant on 21.1.2002, was itself signed by

MR Ali Reda as Director of SICOREP. It clearly sought change of Bank to Abidjan

on ‘D/A 60 Day’ basis. He was also the person who had signed the purchase order of

21.11.2001 as Director, SICOREP for supply of goods by the complainant. If the

action of its Director, MR Ali Reda was not authorised by the buyer i.e. SICOREP,

there is nothing to show what action was taken against him.

b. The change of buyer’s Bank from Paris to Abidjan was made by the

complainant with specific and prior approval of the OPs. The letter of Branch

Manager, ECGC, Panipat gave the necessary permission for the change of Bank &

terms of payment vide letter dated 7.2.2002 which said—

“As the goods are incurring demurrage at Abidjan Port, the Corporation has agreed to

your request for change in the Bank from Credit Lyonais, VK to BHCI at Ivory Coast, subject to

RBI’s approval and the demurrage charges being borne by the buyer. The rest of the conditions

as per our earlier approval stands the same.” Therefore, any subsequent report that SICOREP

was not its customer will not alter the specific approval already accorded.

c. Before the State Commission, OP-3/Bank did not deny the claim of the

complainant. It sought dismissal of the complaint only on the ground that Rs 6 lakhs

released by the ECGC was already utilised by the complainant.

10. We are therefore of the view that the State Commission was right in holding that the

complainant cannot be held responsible for the events which led to the documents being released

by the buyer’s bank, without payment.

11. During the course of hearing of this appeal, appellants/ECGC referred to the three

findings reached by the State Commission. It is argued that they show that there is some inter-

mixing of facts which are not germane to the controversy. Therefore, for complete appreciation

of the matter, Counsels for the appellants were permitted to file brief submission and counsel for

the respondent given time to file its response thereto. The three findings are—

a. The claim of the complainant has arisen on account of failure of the collecting bank;

b. The OPs have paid Rs 6 Lakhs after admitting the loss caused to the complainant on provisional

basis. The claim of the OPs that it was given only as post-shipment provisional payment, cannot

be accepted, merely because the amount was recalled later.

c. In its letter at Annexure C-21, ECGC had waived its right under Clause -22 and offered to settle

the claim for the reduced amount of Rs 4,05,907. The offer, though not accepted by the

complainant, totally nullifies the claim of the OPs 1 and 2.

12. We have considered their submissions and heard the two sides with respect to them. In

the submission filed for the Ops it is stated that the 2nd and 3rd findings of the State Commission

do not relate to the present dispute and that the counsel for the respondent has also accepted it to

be so. On the finding mentioned at ‘b’ above, it is stated that payment to OP-3/Punjab National

Bank was under a separate policy called Whole Turnover Post Shipment Export Credit

Guarantee (WPTCG) which is different from Shipment (Comprehensive Risks) Policy, taken by

the exporter/complainant. The exporter is a stranger to the WPTCG. But, the records show that

this argument is at best a half-truth. It does not explain whether there was any relation between

the advance to the Bank and the claim of the exporter/complainant. We find that in the reply to

the Appeal, the Bank/OP-3 has clearly answered this point by stating that, “It is further

submitted that the answering bank had complied with all the formalities to be done on its part

and the amount of Rs.6 lacs deposited by ECGC and utilised by respondent No.1” Thus, the

payment to OP-3/Bank was directly related to the claim of the complainant. Rs.6 lakhs was

released after the claim under the SCR policy had already been made. We therefore, agree with

the finding reached by the State Commission.

13. Coming to the finding at ‘c’ above, in relation to the settlement offer of Rs 4,05,947.00, it

is submitted on behalf of the appellants/OPs that it pertained to a another export by the

respondent/complainant to a different buyer. The offer was communicated in the letter of

17.9.2004 (not 2000 as mentioned in the impugned order).The policy number mentioned therein

is SCR0250000344 while the policy under which the present claim is made was numbered

SCR0000093. Even the complaint of the respondent before the State Commission does not

mention this offer of settlement and its rejection by the complainant. Therefore, this finding

cannot be sustained. However, this will have no bearing on the sustainability of the other two

findings.

14. In the result we agree with the State Commission that the complainant cannot be held

liable for the conduct of the buyer’s bank which resulted in the documents being released in

violation of the terms of payment. The appeal is therefore, dismissed for want of merit and the

order passed by the State Consumer Disputes Redressal Commission, in Complaint Case No.15

of 2003 is confirmed. No orders as to costs.

…..…………Sd/-….…….……

(VINEETA RAI)

PRESIDING MEMBER

…..………Sd/-…….…….……

(VINAY KUMAR)

MEMBER

S./-

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