NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

(1)                  REVISION PETITION NO.3480  OF  2013                     (Against the order dated 19.7.2013   in CC/77/2012 of the State Commission, Maharashtra, Mumbai )   M/s. Silvex Realty Ltd. Silvelx House, Nana Master Nagar, Taluka –Karjat  ( E),Distt. Raigad                                                         ........ Petitioner (s)                 Versus Srinivasan Parthasarthy 10/46, Brindavan Society Near Shrirang Society Thane (W)- 400 601                                         …….Respondent (s) 

(2)                      REVISION PETITION NO.3481  OF  2013                     (Against the order dated 19.7.2013   in CC/78/2012 of the State Commission, Maharashtra, Mumbai )   M/s. Silvex Realty Ltd. Silvelx House, Nana Master Nagar, Taluka –Karjat  ( E),Distt. Raigad                                                          ........ Petitioner (s)          

Versus Mr. Pravin Padmakar Banavalikar 1804, Valentina Building Lodha Paradise, Near Majiwade Thane (W ) – 400 601                                       …..Respondent(s)  

(3)                      REVISION PETITION NO.3482  OF  2013                     (Against the order dated 19.7.2013   in CC/79/2012 of the State Commission, Maharashtra, Mumbai )   M/s. Silvex Realty Ltd. Silvelx House, Nana Master Nagar, Taluka –Karjat  ( E),Distt. Raigad                                                          ........ Petitioner (s)          

Versus Mr. Pravin Padmakar Banavalikar 1804, Valentina Building Lodha Paradise, Near Majiwade Thane (W ) – 400 601                                       …..Respondent(s)  BEFORE:           HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER           HON'BLE MRS. REKHA GUPTA, MEMBER        For the Petitioner                  :   Mr. S.K. Gupta, Advocate with                                                Mr. S.B. Bhatagunaki & Mr. Rajesh, Advocates Pronounced on :         1 st   November, 2013  ORDER

         

          Petitioner/Opposite Party has filed above noted three revision petitions under

Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’) against ex parte order

dated 3.12.2012 followed by order dated 19.7.2013 passed by the State Commission,

Maharashtra (for short, ‘State Commission’).

2.       As per averments made in the revision petitions, respondents /complainants had

booked  flat in one of the projects of the petitioner company. Respondents filed a winding

up company petition before Bombay High Court for reliefs claimed all concerning to their

employment with the petitioner which also subsequently included the claim of the flats.

Thereafter, respondents filed complaint before the State Commission for possession of flat

and incidental claim. Since, settlement talks were going on and the matter was being heard

in the Bombay High Court, petitioner sought adjournment on two dates.  On 3.12.2012

State Commission proceeded ex parte against petitioner without written version and

directed the respondents to file the affidavits in evidence. On 19.12.2012, before Bombay

High court both parties argued the matter for some time and sought time to take

instructions from their respective clients so that petitions can be disposed of.  Bombay High

Court, accordingly  passed the following order;

“(i)    The parties are agreeable to get the disputes raised in both the

Company Petitions resolved through arbitration.

          (ii)       Mr. Ashish Kamat, Advocate practicing in this Court will be the

Sole Arbitrator to resolve the dispute in respect of both the references.

          (iii)      The respondent will hand over the flats to the petitioner in

Company Petition No.386 of 2011 within 60 days of receipt of NOC from

his bankers or 31st March, 2012 whichever is later and to the flat of

petitioner in Company Petition No.387 of 2011 on or before 31st March,

2013, on terms and conditions as were agreed between the parties. The

letter addressed to the advocate by Mr. Shailesh Mahadik is  taken on

record.

          (iv)      The petitioner shall withdraw the complaint filed by them in the

Consumer Court and the claim of the petitioner in respect of damages

and interest raised therein will be agitated in the arbitration proceedings.

          (v)       The petitioner will be at liberty to move an application under

section 9 or 17 of the Arbitration and Conciliation Act 1996, upon the

statement of the respondent that the respondent are entitled to receive

balance payments from the purchasers of flats in the companies project

at Neral.

                     Petition disposed of in above terms.”

3.       It is further alleged that subsequently petitioner under the impression that the

respondents will withdraw the above said complaints and in pursuance of the same, the

respondents also took adjournment on 9.1.2013. Therefore, petitioner did not file any

application for setting aside order dated 3.12.2012. However, to the shock and surprise

of the petitioner, respondents filed affidavit in evidence on 19.7.2013 and the State

Commission kept the matter for arguments on 1.10.2013. It is further stated that on

19.7.2013, the  counsel appearing for the petitioner apprised the State Commission

about the order of the Bombay High Court but State Commission, without application of

mind had kept the matter for arguments.

4.       Hence, this revision petition.

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

record.

6.       It has been contended by learned counsel for the petitioner that the issue

involved/reliefs claimed in the complaints filed before the State Commission have

already been decided by Bombay High Court on 19.12.2012. As such any order passed

by the State Commission after 19.12.2012 (the order of Bombay High Court) would

mean that double benefits/claims are awarded to the respondents.

7.       In R.P. No. 3480 of 2013, the respondent/complainant had sought the following

reliefs in its complaint;

          “(a)    To hold and declare that the opposite party is guilty of deficiency in

service and unfair trade practices as per the provisions of Consumer

Protection Act, 1986;

          (b)     To direct the opposite party to hand over possession of flat No.201,

2nd Floor, in the building known as “Tuscany Terraces-Ixia”, Village

Dhamote, Taluka Karjat, District Raigad, admeasuring about 831.00 sq.

feet, to the complainant;

          (c)     Direct the opposite party to pay compensation of Rs.16,42,500/-,

calculated @ Rs.1,500/- per day from 01.01.2009 till 31.12.2011 and

at  the same rate till handing over of the possession;

          (d)     To direct the opposite party to complete incomplete work if any, and

obtain Occupation Certificate from the Competent Authority in respect of

the Flat No. 201, 2nd Floor, in the building known as “Tuscany Terraces-

Ixia”, Village Dhamote, Taluka Karjat, District Raigad, about 831.00 sq.

feet;

          (e)     To from and register Co-operative Housing Society, condominium of

apartments as the case may be and execute deed of conveyance in favour

of such society/condominium;

          (f)      To direct the opposite party to pay compensation the sum of

Rs.5,00,000/- (Rupees five lacs only) towards compensation for

inconvenience, mental agony, stress, etc. experienced by te complainant

in the last three years.

          (g)     To direct the opposite party to pay the complainant the sum of

Rs.50,000/- (Rupees fifty thousand only) being the legal and other

incidental expenses incurred by the complainant;”

8.       Petitioner has mischievously and deliberately made wrong averments in  the list

of events which is apparent herein as under;

 “19.12.2012 :– The matter was settled before the Hon'ble

Bombay High Court, all the reliefs were granted to the

Respondent including the interest and damages and the

Respondent was specifically directed to withdraw the complaint

before the State Commission.”

9.       According to above averments,  the matter was settled before the Bombay High

Court and all the reliefs were granted to the respondents including interest and

damages and respondent was specifically directed to withdraw the complaint before the

State Commission.

10.     In this  regard, it would be pertinent to go through para (iii) of the order of Bombay

High Court, which specifically states;  

          “(iii)     The respondent will hand over the flats to the petitioner in

Company Petition No.386 of 2011 within 60 days of receipt of NOC from

his bankers or 31st March, 2012 whichever is later and to the flat of

petitioner in Company Petition No.387 of 2011 on or before 31st March,

2013, on terms and conditions as were agreed between the parties. The

letter addressed to the advocate by Mr. Shailesh Mahadik is  taken on

record.”

11.     There is nothing on record to show that petitioner had handed over the

possession of the flats to the respondents,  in terms of the above directions of Bombay

High Court.  Present petitions are absolutely silent on this material aspect. Moreover, as

per order of Bombay High Court, it is clear that respondent will agitate his claim of

damages and interest only in the arbitration proceedings.

12.     Therefore, we hold that petitioner is guilty of suppression of true and material

facts before this Commission, with regard to handing over of the possession of the flats

to the complainants and thus, has tried to mislead us. On this short ground alone,

present petitions are liable to be dismissed.

13.     Be that as it may, the impugned order passed by the State Commission states;

         “Heard Mr. Jamshed Ansari, Advocate for the complainant. Opponent

and their Counsel are absent. Opponent is already proceeded ex parte

without written version. They also failed to file their evidence on affidavit.

As per order dated 09/01/2013 complainant files evidence on affidavit. He

undertakes to serve copy of the same on the opponent during the course

of the day. He also files pursis closing his side of evidence. Since evidence

part of the complaint is over, both the parties are now directed to file brief

notes of arguments under Regulation 13 (2) of Consumer Protection

Regulation, 2005 before the Registrar (Legal) two days prior to the next

date. Matter stands adjourned to 01/10/2013.”

14.     Above order clearly shows that petitioner itself has chosen not to appear before

the State Commission,  in spite having knowledge to this effect that the complaint filed

by the respondents are still pending before the State Commission.

15.     It is well settled that under section 21(b) of the Act, 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.     In the present case,  there is no illegality or infirmity in the impugned order passed

by the State Commission. Moreover, no jurisdictional  or illegal error has been shown to

us to call for interference in the exercise of power under Section 21(b) of the Act. The

present revision petitions being frivolous and  without any legal basis have been filed

just to mislead this Commission are accordingly dismissed with cost of Rs.25,000/-

(Rupees Twenty Five Thousand only) in each case.          Out of the above costs,

Rs.15,000/- each, be paid to the respective respondent by way of demand draft in their

name and the remaining cost be deposited by way of demand draft in the name of

“Consumer Legal Aid Account” of this Commission,  within four weeks.

 

17.     In case, petitioner fails to  deposit the  aforesaid costs within the prescribed, then

he shall be liable to pay interest @ 9% p.a., till realization.

18.     Costs awarded to the respondents be paid only,  after expiry of the period of

appeal or revision preferred, if any.

 19.    List for compliance on 29.11.2013.

…………………..………..J     (V.B. GUPTA)      PRESIDING MEMBER

 …………………..………..

     (REKHA GUPTA)MEMBER

Sg. 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI  REVISION PETITION No. 2057 of 2013

(From the order dated 12.10.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 1835 of 2010)

Estate Officer HUDA, Sector 13 -17 Urban Estate PanipatThe Chief Administrator HUDA Sector 6, Panchkula

Petitioner 

VersusRam Dass Son of Shri Gordhan Dass Resident of Des Raj Colony Panipat

Respondent

 BEFORE:

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

For the Petitioner                         Mr Sudhir Bisla, Advocate

Pronounced   on     1 st   November 2013

ORDER 

REKHA GUPTA

 

                Revision petition no. 2057 of 2013 has been filed under section 21 (b) of the

Consumer Protection Act, 1986, against the impugned order dated 12.10.2012 in first

appeal no. 1835 of 2010 passed by the Haryana State Consumer

Disputes Redressal Commission, Panchkula (‘the State Commission’).

        Facts of the case as gleaned from the order of the District Forum are that the

respondent/ complainant was the owner and in possession of land measuring 5 marla,

i.e., 5/160 share of 16 kanal land comprised in khasra no. 13/19/2 and 20/2, 22/1

situated at Patti Afghan, Panipat. The above said land of the respondent/complainant

which was in the shape of a plot situated in Devi Lal Colony, Panipat was acquired by

State of Haryana for carving out Section 12, HUDA, Panipat. The Government of

Haryana decided to allot six marla plot each in Sector 11-12 HUDA, Part II, Panipat to

the residents of Devi Lal Colony, Panipat whose land was acquired. Later on, in a

meeting held on 03.02.2000 under the Chairmanship of petitioner/ opposite party no. 2,

it was decided that due to non-availability of plot of six marla, plots of

four marla available in the above said sector be allotted to the eligible persons.

Accordingly, plots of 4marla each were allotted to 19 persons but no plot was allotted to

the respondent/ complainant despite the fact that he was eligible for the same and had

deposited EDC amount of Rs.17,850/- vide receipt no. 160508 dated 12.10.2006. The

respondent/ complainant moved several applications and also issued legal notice dated

23.09.2008 to petitioner/ OPs to allot him a plot of 4 marla but to no effect and hence

this complaint. It was the case of the respondent/ complainant that failure of OPs to allot

him a plot of marla amounted to deficiency in service on their part. The respondent/

complainant prayed for a directions to OPs to allot a plot of 4 marla in Sector 11 – 12,

Part II, Panipat to him as per HUDA policy by accepting the cost of the plot and

adjusting the amount already deposited by him with interest. The respondent/

complainant also claimed Rs.1.00 lakh as compensation on account of mental agony

and harassment suffered by him and Rs.5,500/- as cost of litigation.

        On notice of this complaint, the petitioner/ opposite parties appeared and filed their

joint written reply stating that the Director, Urban Estate Department, Haryana,

Chandigarh vide letter no. U E III/ 87/ 1053 dated 09.04.1987 had prepared and

circulated a list of persons eligible for the allotment of the plot of category in question

under oustees scheme. That the name of the respondent/ complainant neither existed in

the said list of 20 persons nor in the award list of the Land Acquisition

Officer, Panchkula, which was circulated vide no. 9776 dated 18.10.2006. The

respondent/ complainant had been shown owner of 5/160 share of 16 kanal land

comprised in Khasra no. 13/1, 19/2, 20/2 and 21/1 as per the copy of sale deed no. 510

dated 07.03.1982. The respondent/ complainant had deposited the amount of

Rs.17,850/- on his own without any demand or advice from the officials of Petitioners/

OPs and HUDA. Petitioner/ OPs have denied all other averments made in the complaint

and also denied any deficiency in service on their part.

        While allowing the complaint, the District Consumer

Disputes Redressal Forum, Panipat (‘the District Forum’) vide its order dated

28.06.2010 observed as under:

“In view of our above discussion, the present complaint succeeds. We hereby

allow the complaint with the direction to OPs to allot a plot of four marla to the

complaint succeeds. We hereby allow the complaint with the direction to OPs to

allot a plot of four marla to the complaint succeeds. We hereby allow the

complaint with the direction to OPs to allot a plot of four marla to the

respondent/complainant in Section 11 – 12, Part II, HUDA, Panipat. Cost of

litigation quantified at Rs.2,200/- is allowed to the respondent/ complainant to be

paid by OPs”.

        Aggrieved by the order of the District Forum, the petitioners/ opposite party nos. 1

and 2 filed an appeal before the State Commission. The State Commission in their

order dated 12.10.2012 while dismissing the appeal observed as under:

“Admittedly, the land of the respondent/complainant was acquired for carving out

plots in urban estate, Panipat. Letter Ex C6 dated 15.09.2006 issued by the

Estate Officer, HUDA,Panipat to the Chief

Administrator, HUDA, Panchkula established that the name of the

respondent/complainant was recommended for allotment of a plot of

four marlas under theoustees policy. It has also come on the record that the

respondent/ complainant had deposited Rs.17,850/- with the petitioner/ OPs. It

has also come on the record that 19 other persons, whose land was acquired by

the Government of Haryana, have already allotted plots. Thus, keeping in view

the facts and circumstances of the case we find that the respondent/ complainant

is entitled for a plot under the oustees policy in view of law settled

in Jarnail Singh and other vs State of Punjab and Ors (P&H) (F B), 2011 (1) R C

R (Civil) 915, 2011 AIR, (Punjab) 58: 2011 (2) ICC 420. No case for interference

in the impugned order is made out.

        Hence, finding no merit in this appeal, it is dismissed”.

        Hence, the present revision petition.

        Along with the revision petition an application for condonation of delay of 15 days

has been filed. However, as per the       office report, there is a delay of 117 days in

filing the present revision petition. The free copy of the impugned order dated

12.10.2012 was made available to the petitioner on 26.10.2012 and the revision petition

was filed on 21.05.2013.

        The reasons given for the condonation of delay are as follows:

         The impugned order was passed on 12.10.2012. The certified copy of the

impugned order was prepared by the registry of the State Commission on

26.10.2012 and the same was delivered on 05.02.2013.

         After getting the certified copy by the petitioner/ department approached to

higher authorities to file the revision petition before the National Commission.

Due to transfer of the dealing persons and the concerned officer the petitioner/

department got the permission in the month of April 2013.

         Thereafter the same were forwarded to the counsel for preparing the revision

petition.

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

records of the case carefully.

        Counsel for the petitioner could not say as to who received the free copy of the

impugned order which was despatched on 26.10.2012 as also when was it received.

The date on which they have applied for the duplicate copy has also not been given.

The certified/ true copy of the order was made available and received on 05.02.2013

and not the free copy of 26.10.2012. The reasons given for the day today delay are

extremely vague and there is no mention as to who received the order on 05.02.2013

and who put the file and who was the competent authority. The name of the dealing

person who supposedly got transferred has also not been given nor his designation.

Permission to file the revision petition is stated to have been received only in the month

of April 2013. No specific dates have also been given to explain the delay from

05.02.2013 to 21.05.2013.

The petitioner has failed to give reasons for the day-to-day delay and to provide

‘sufficient cause’ to condone the delay of 117 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”. 

11.    Further, Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd.

& Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd.

(Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed

inter alia, as under;

“We are further of the view that the petitioners’ venture of

filing petition under Article 227 of the Constitution was clearly

an abuse of the process of the Court and the High Court

ought not to have entertained the petition even for a single

day because an effective alternative remedy was available to

the petitioner under Section 23 of the Act and the orders

passed by the State Commission did not suffer from lack of

jurisdiction”

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.”

 Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay

of 117 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.10,000/- (rupees ten thousand only).

Petitioner is directed to pay Rs.5,000/- to the respondent 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 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 13th December, 2013 for compliance.

Sd/-

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

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI  

 

CONSUMER COMPLAINT NO. 216 OF 2012 

Tainwala  Personal  Care  Product  Pvt.  Ltd. Tainwala House, Road No.18 MIDC, Andheri (East), Mumbai – 400093

…  Complainant 

Versus

 Royal  Sundaram  Alliance  Insurance Co. Ltd. 21, Patullos Road, Chennai – 600002 Also at Western Regional Office, Delphi, ‘C’ Wing 201-204, 2nd Floor, Hiranandani Business Park Powai, Mumbai – 400076

…  Opposite Party

 BEFORE:

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

 For the Complainant   : Ms. Anuradha Dutt, Mr. Kuber Dewan

  & Ms.Azal Khan, Advocates

 For the Opposite Party         : Mr. P. K. Seth, Advocate

 PRONOUNCED ON     1 st   NOVEMBER,     2013  

 

                                                O R D E R

JUSTICE J.M. MALIK

1.      The main question which falls for consideration is, “Whether, this

complaint  is  barred  by time?”.  The  facts of  the complaint case are these.  Tainwala

Personal Care Product Pvt. Ltd., the  complainant, obtained a  Standard Fire

and  Special  Perils Policy  in relation to its factory premises, situated at Plot No.4,

Government Industrial Estate, Village Khadoli, Silvassa, Dadra & Nagar Haveli,   in the

sum of Rs.2,70,00,000/-  on  or about  12.02.2008,  from  Royal Sundaram

Alliance  Insurance Co.Ltd., the opposite party,  in this

case,  for the  period  commencing  from 14.02.2008 to 13.02.2009.  The

complainant  paid a sum of Rs.23,891/-, vide cheque, dated 13.02.2008  to the

Insurance Brokers. The  insurance Brokers,  in  turn  forwarded   the proposal form in

respect of the complainant’s  said factory unit for an insurance cover, to the Insurance

Company, vide  covering letter  dated 14.02.2008.  The  Opposite Party, vide  its letter

dated 14.02.2008, issued a Risk Confirmation to the complainant in

respect  of  the  Standard  Fire and  Allied Special  Perils Insurance  Policy, for the

above said period.  The complainant  was  also  informed  that  the policy

documentation was under preparation and  it would  be  forwarded  to the complainant,

in due course. 

 

2.      Unfortunately,  a  major fire occurred, on 17.02.2008, which gutted the

complainant’s  insured  factory  premises.  Information  was  given to

the  insurance  company.  The premises  were visited by the Surveyor and he submitted

his report.  The claim  of  the complainant was repudiated vide  letter  dated

18.02.2008,   the  relevant  portion of  which,  runs   as

follows:

“Sub: Proposal for fire and allied perils SI – Rs.270

        lakhs

Dear Sir,

We  are in receipt of your fax dated 14th February, 2008, requesting for insurance cover for your factory at Plot No.4, Govt.Industrial Estate, Khadoli Village Silvasa, Dadra & Nagar Haveli.  The premium cheque for Rs.23,891/-  (as against our quot e of Rs.30,716/) was received by us, only on 15th February, 2008.

You may kindly  note that the consideration received for  covering this risk  is less than the offer given by us. Hence  we are not in a position to cover the risk as requested by you.

Hence, you may kindly note that we are not on cover for the above mentioned risk.

Thanking you,

Yours faithfully,

           Sd/-

           Authorised  Signatory

For Royal Sundaram Allied Insurance Co.Ltd.         Dt. 18.02.2008”.                                                 

At this  stage, we are not concerned with the merits of this case.  Themain question is whether the case is barred by time or not. 

3.      Instead of approaching the consumer  fora,  the complainant

approached  the  Arbitrator.  The complainant  believed that it was entitled to invoke

arbitration. The relevant  clause No.13 of  the General Conditions, stipulates :-

“If any dispute or difference shall arise as to the quantum to be paid under this Policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of a sole arbitrator to be appointed in writing by the parties to or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration, the same shall be referred to a panel of three arbitrators, comprising of two arbitrators one to be appointed by each of the parties to the dispute/difference and the third arbitrator to be appointed by such two arbitrators and arbitration shall be conducted under and in accordance  with the provisions of the Arbitration and Conciliation Act, 1996.  It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinbefore provided, if the Company has disputed or not accepted liability under or in respect of this Policy.  It is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit upon this Policy that the award by such arbitrator/ arbitrators of the amount of the loss or damage shall be first obtained.”

 

4.      The insurance  company  declined  to  appoint  an Arbitrator, inter alia,

contending  that there was no concluded contract of insurance between the

parties.  The complainant approached the Hon’ble High Court of Bombay, which, vide

its order dated 07.05.2012, disposed of the application.  The Hon’ble  High  Court of

Bombay, held that “it is evident that there is no arbitration  agreement  between  the

parties for the reasons which have been indicated above”.

 

5.      The complainant  submits  that the aforesaid order of the Hon’ble High

Court  of  Bombay is ultra vires on the following grounds.  The relevant para is S1,

which is reproduced as under :-

(i) The Risk  Cover  Note dated 14 February 2008 per se constitutes a valid and binding insurance agreement between the Complainant and the Insurer, particularly when the said Risk Cover Note categorically stated that the policy document is under preparation and will be submitted in due course”.

 

6.      However, it  is interesting  to note that,  although, the order of  the

Hon’ble High Court  was called into question in these Proceedings, yet, no appeal  or

SLP was preferred before the Hon’ble Supreme Court of

India.  Counsel  for  the  complainant has invited our attention towards an authority of

the Supreme Court, reported in  Consolidated Engineering Enterprises Vs. Principal

Secretary, Irrigation Department & Ors., (2008)  7 SCC 169, wherein in para Nos. 22

and 31, it has been held,  as under :-

“22.  The  policy of  the section is to afford protection to a litigant against the bar of limitation when  he institutes  a proceeding which by reason of some technical  defect  cannot be decided on merits and is dismissed. While considering the provisions of  Section 14 of the Limitation Act, proper approach will have  to be adopted  and the provisions will have to be interpreted so as to advance the cause of  justice rather than abort  the proceedings.  It will be well  to bear in mind that an element of  mistake  is inherent  in  the invocation  of  Section 14.  In fact, the section is  intended to provide relief against the bar of limitation  in cases  of  mistaken remedy or selection of a wrong forum.  On reading  Section 14 of  Act,  it becomes clear  that the  legislature enacted the said section to exempt a certain period covered by a bonafide litigious activity. Upon the words used in the section, it is not possible  to sustain the interpretation that the principle underlying the said section, namely, that the bar of  limitation should  not affect  a person  honestly  doing  his best to get his case tried on merits but  failing because the court is unable to give him such a trial, would not be applicable to an  application filed under Section 34 of the Act of 1996.  The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no  jurisdiction to  entertain  it but also where he brings the suit or the application in the wrong court in consequence of  bona fide mistake or (sic of ) law or defect of procedure.  Having regard to the intention of the legislature, this Court is of the firm opinion that the equity underlying Section 14 should  be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.

 

31.  To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of  this  judgment have to co-exist.  There is no manner of doubt that the section pre-requisites for attracting Section

14.  Due diligence cannot be measured by any absolute standards.  Due diligence is a measure of prudence or activity  expected from and ordinarily exercised by a reasonable and prudent  person under the particular circumstances.  The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay  of  the court cannot affect  the due diligence of the party.  Section 14 requires  that the prior proceeding should have been prosecuted  in  good faith and with due diligence.  The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing  shall  be deemed to be in good faith which is not done with due care and attention.  It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction.  However, there can be no hard-and-fast rule as  to what amounts to good faith. It is a matter to be decided on the facts of each case.  It will, in almost every case, be more or less, a question of degree.  The mere filing of an application in wrong court would not prima facie show want of good faith.  There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party.  In the light of these principles,  the question will have to be considered whether  the  appellant  had  prosecuted the matter in other  courts  with due diligence and in good faith”.

7.      On the other hand,  counsel for the Opposite Party vehemently argued  that  the

case filed by the complainant before  the Hon’ble  High Court is lame of strength.  He

submitted that,  instead of  contesting the judgment

before  this  Commission,  which  has  no power  to  upset  the  judgment  of the

Hon’ble  High Court in this context, the  complainant should have challenged  the

same  before the Hon’ble Supreme Court of India.  Although  this point carries  value in

a measure, yet,  it  will not assist us in deciding  the question of limitation. It

is  explained  that  after dismissal of the petition on 07.05.2012,  by the Hon’ble High

Court, Bombay, the petition was filed immediately  in this Commission, on

13.08.2012.  Counsel for  the Opposite party  further  argued  that  there  was

no  concluded  contract.  Section  14  of the Limitation Act requires  that  the

request  made  by  the  complainant  should  be

bonafide.  He  contended  that  after  having lost the  battle  in  one  forum,  the

complainant  is  attempting  to  try  his luck, somewhere else.

 

8.      We find force in the arguments submitted by the counsel  for  the   Opposite

Party.  Moreover, the Hon’ble Supreme Court in Laxmi Engginering Works Vs. P.S.G.

Industrial Institute, (1995) 3 SCC 583, held :-

 

“23. The  appeal accordingly  fails and is dismissed, but without costs.  If the appellant chooses to  file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act, to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation, prescribed for such a suit”.

 

9.      It is clear that  the  complainant  had  initiated the proceedings in good faith.  The

Arbitrator has no jurisdiction  to try  this case  and  there  lies  no  rub in filing this case

before this Commission, by virtue of Section 3 of the Consumer Protection Act,

1986.  Consequently, the  said delay is hereby condoned. However, it is made

clear  that  nothing  in this order shall  tantamount  to the merits of this case.  All the

points are being kept open.

 

10.    The case is  now  fixed for  complainant’s evidence by way of affidavit,

on  08.09.2014.

.…..…………………………(J. M. MALIK, J)

                                PRESIDING MEMBER    .…..…………………………

(DR. S. M. KANTIKAR)

                    MEMBER

dd/25

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI  

REVISION PETITION NO. 3137 OF 2012

(From the order dated 28.05.2012 in Appeal No. 293/2012 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula)

Smt. Punita Jain, 532,  Street No-8 Madan Puri,  Gurgaon Through Sh.Tara Chand Jain, Grand-father

…. Petitioner

Versus

1. Paras Hospitals C-1 Sushant Lok , Phase-I, Sector-43, Gurgaon (Haryana) Through its Managing Director, Dharmendra Nagar

2. Vipul Medcrop TPA Pvt Ltd 515 , Udyog Vihar,  Phase-5, Gurgaon - 122016 (Haryana) Through its Manager (Operation)

… Respondents

 BEFORE:

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

      HON’BLE DR. S.M. KANTIKAR, MEMBER

 For the Petitioner  :   Sh.Tara Chand Jain, Authorised  Representative

                                                                                        (Grand-father of petitioner)

 PRONOUNCED ON _1 st     NOVEMBER, 2013

ORDERJUSTICE J.M. MALIK

1.      Mrs. Punita Jain, the complainant,  filed  the present  complaint before the District

Forum, through Shri Tara Chand Jain, her grandfather, aged  about  84 years,  on

12.03.2009. She  had pain in her breast and she was admitted in the Paras Hospital,

OP No.1, at Gurgaon, on 25.08.2008.  Her ECG was conducted.  The Hospital informed

her  that approximate expenses  for  three days’ for treatment of the patient, would be

Rs.35,500/-.  She  deposited  a sum of  Rs.20,000/-.  She was kept in ICU, Dormitory

and  subsequently  in Non-ICU Dormitory, till  her discharge, on 28.08.2008.

 

2.      The grievance of the complainant is that she was never given the details of her

treatment.  However, it was a cardiology treatment and a highly escalated  bill  in the

sum of Rs.1,61,475/-,  which the complainant had to pay under  coercion to the

Hospital, on 28.08.2008.  The complainant filed the above said complaint before the

District Forum alleging that the hospital adopted unfair trade practice. She asked for

compensation  in the sum of  Rs.2,00,000/- and costs of litigation in the sum of

Rs.5,000/-.  It is also alleged that  Vipul MedCorp Private Limited, OP2,  failed  to

provide  the   necessary  information despite various  letters  written to

it  by  the  complainant  and  deprived  the complainant from taking advantage of

cashless facility, who was insured vide letter dated 28.08.2008.

3.      The  Opposite  Parties  contested  this  case.  A perusal  of  record

clearly  goes  to  show   that  filing of  this  complaint is the abuse of process of  law.

The  record   reveals that  the  bills  were  settled and paid by Mr.Gulshan Jain,  the

father of  the complainant.  The order of the District  Forum dated  13.09.2010, copy of

which is placed on record, clearly goes  to show  that  Sh.Gulshan Jain,  father of Mrs.

Punita Jain  had  earlier  filed  a complaint  (No.203/2009, 12.03.2009)  on the same

facts  and  circumstances.  The District Forum, vide order dated

13.09.2010,  accepted  the complaint,  partly.  Para 4 of the said  order runs as

follows :-

“According to package of the opposite party No.2, the daughter of the complainant had to remain in the hospital for 3 days including  one  day in ICU and two days in room.  However, according to the bill, the daughter of the complainant was admitted in the hospital on 25.08.2008 and was  discharged  on 28.08.2008.  Thus, she remained there for four days.    Thus the complainant  was entitled to four days (1 day in ICU and 3 days in a room).  The complainant  was also entitled to Rs.5,000/- under clause A of 1.0 of the insurance policy.  He was also entitled to Rs.25,000/- regarding fee of surgeon and anesthetist, etc.  He was also entitled to Rs.50,000/- under clause C. In all, the complainant  was entitled to Rs.80,000/-.  In our opinion, there was deficiency in service on part of the opposite party No.1.  We, therefore, allow this complaint and direct the opposite party No.1 to pay Rs.80,000/- to the complainant along with interest at the rate of 9% per annum from the date of filing of the present complaint, till its actual realization.  Opposite party No.1 is further directed to pay Rs.5,000/- for the harassment caused by the opposite party No.1 to the complainant and also to pay Rs.5,000/- towards cost of litigation.  The present order is ordered to be complied with, within one month from the date of receipt of this copy of order.  File be consigned to the records after making due compliance”.

 

4.      Now, the present/second complaint (No.630/2010, dated 03.08.2010)  has

been  filed,  which is barred by principles of res judicata.  The first  complaint  was  filed

by her  father and  the second  complaint was filed by  Sh.Tara Chand Jain, her grand-

father.  It is also surprising  to note that  in the complaint,  filed by Sh.Gulshan Jain, the

National Insurance Co. was arrayed as OP1, but in the second complaint, filed by

Punita Jain, through  Sh.Tara Chand Jain,  the name of National Insurance Co. Ltd.  is

conspicuously missing.  Consequently,  the  revision  petition  is not maintainable. 

 

5.      In Jaswant Singh & Anr., Vs. Custodian of Evacuee Property, New Delhi,

(1985) 3 SCC 648, it was held :-

 

“In order to decide the question whether a subsequent proceeding is barred by res judicata, it is necessary to examine the question with reference to the, (i) Forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision.

In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but  also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings.  The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings”.

 

In view of this  authority, the present case is barred by res judicata.

 

6.      It  has also  come to our notice that the petitioner Mrs. Punita Jain, has

used  defamatory  language  against   the  District  Consumer Disputes Redressal

Forum/State Consumer Disputes Redressal Commission.  The relevant extract from the

judgment of  the State Commission  is reproduced, hereunder:-

 

                  “Earlier also First Appeal No.719 of 2011 titled as ‘Gulshan Jain Vs. The National Insurance Company Ltd., and another decided on 05.07.2011 Tara Chand Jain while representing the

other litigant had used defamatory language against the District Consumer Forum/State Consumer Commission and was advised not to indulge in such activities using foul language.  Shri Tara Chand Jain filed revision petition bearing No.3010 of 2011 against the said order dated 05.07.2011 which was dismissed by Hon’ble National Commission vide order dated 01.12.2011.  Yet, in the present appeal, instead of having improvement in his attitude, Tara Chand Jain has addressed the State Commission as ‘hostile Haryana  State Commission”.  In para No.39 of the grounds of appeal at page 45, the appellant has mentioned as under :-

                   (39) That this appeal is being submitted before the hostile Haryana State Commission”.

  

 7.      We  have  also  perused the copy of the appeal  filed  before the State

Commission, which  is  full of defamatory language.  Keeping  in  view  the  facts  and

circumstances of the case,  we  dismiss  the  revision  petition  subject   to punitive

costs of Rs.15,000/-  for  wasting  the precious time of the consumer fora   and using

foul  language  against  the fora.  Mrs. Punita Jain is directed to deposit the

said  amount  with the  Consumer Welfare Fund, by drawing a demand draft in

favour  of  ‘PAO-Ministry of Consumer Affairs’,  within 90 days,  after  the receipt  of  this

order.  In default, the Registrar  of this Commission  shall recover  the

said  amount  under  Section  25 of  the C.P. Act, 1986, in Consumer  Complaint

No.630/2010, District  Forum, Gurgaon.

          Copy of  the order be sent to the District Forum, Gurgaon, as well as to the parties. 

..…………………..………J

     (J.M. MALIK)

      PRESIDING MEMBER   

   ……………….……………

                                                        (DR.S.M. KANTIKAR)

                                                                            MEMBER

Dd/3

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 

CONSUMER COMPLAINT NO.   239 OF 2012 WITH IA/6618/2013 (FOR DISMISSAL OF COMPLAINT)

  

 

Mohit Gupta G-85, Masjid Moth, Greater Kailash-II New Delhi-110048

……Complainant

  Versus

 The Director, Greenbay Infrastructure Pvt. Ltd. 7th floor, Insignia Building, Plot ID, Sector-126, Noida Expressway, Noida UP-201303

…….Opposite Party

  BEFORE:

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

 

 For the Complainant         :   Mr. Rajesh Mahna,

                                                Mr. Ramanand Roy &                                                Mr. J.C. Gupta, Advocates  

For the Opp. Party            :   Mr. Subrat Deb &

                                                Mr. Bhagat Bansal, Advocates

 

 PRONOUNCED   ON :     11 th   November, 2013    

ORDERJUSTICE J. M. MALIK, PRESIDING MEMBER 

1.      Greenbay Infrastructure- the Opposite Party developed a modern township under

the name of style of Greenbay Golf Village has 9 Golf Course modern club etc.  On

04.11.2011,Mohit Gupta, complainanant applied for allotment of 750 yards plot @ Rs.

16,400/- per sq. yd. and paid Rs. 12,30,000/- as booking amount being 10% of the basic

sale price.  The Opposite Party did not issue any receipt.  The application form also did

not mention the plot number. 

2.      Suddenly, the complainant received a demand notice dated 19.11.2011.  The said

demand notice runs as follows:-

 “Booking for a plot in, ‘ Greenbay   Golf Village’ at Sector-22D, Yamuna Expressway, Uttar Pradesh 

This is reference to your cheque no. 205431 for Rs.2,00,000/- dated 05/04/2011 of HDFC Bank Ltd. & cheque no. 956814 for Rs.10,30,000/- dated 05/04/2011 of Bank of India for booking of a Plot in Greenbay Golf Village Sector-22D, Yamuna Expressway, Uttar Pradesh.  Kindly note following payment are outstanding in respect of the booking:

Particulars Amount

Amount due against booking amount 13,50,000/-

Amount due within 45 days of booking 13,50,000/-

Amount due within 90 days of booking 13,50,000/-

Total amount payable 40,50,000/-

Less amount received 12,30,000/-

Balance payable 28,20,000/-

 

However, till date we have not received any payments against the overdue amounts.  You are now suggested to remit the amount due immediately within 7 days from the date of issue of this letter failing which we shall have no option but to terminate the application and in that case based on company policy of cancellation, which will be applicable in your case, the company reserves the right to deduct 10% of basis sale value of the unit as ‘Earnest Money’.”

 

3.      The complainant was surprised to note that new enhanced rate of Rs. 18,000/- per

sq. yd. Instead of Rs. 16,400/-  per sq. yd. was demanded.  Moreover, the complainant

was required to pay a sum of Rs. 28,20,000/-, within 7 days.  No allotment letter was

sent till then.  No number of plot was given thereon.  No formal receipt for the paid

amount of Rs. 12,30,000/- was given till the filing of this case.  The complainant met the

opposite Party and they assured him that the above deficiency would be removed.

 

4.      However, on 19.12.2011, the complainant was surprised to receive the

cancellation letter, which runs as follows:-

“Please refer our Final Notice dated 19/11/2011 requesting you to clear due

installments of Rs. 28,20,000/-.  However, we have not received any

payment towards the due installments till date.  This Cancellation Notice is

being issued to you after several attempts made to contact you in efforts

to recover the money due to us.

In the circumstances of non payment of due installments, it will be difficult

to continue your booking in our Projection and therefore, we regret to

inform you that Company has decided to terminate the allotment of

aforesaid unit in ‘Greenbay Golf Village.  Based on Company Policy of

Cancellation clearly mentioned in the Application Form, which will be

applicable in your case, the Company reserves the right to deduct 10% of

basic sale value of the unit as ‘Earnest Money’

You are  requested to not to do any transaction in relation to the aforesaid

unit and return the original documents of the aforesaid property issued to

you to process the cancellation proceedings.”

 

5.      On 24.12.2011, the complainant protested that he had not received any allotment

letter, area and number of the plot.  He also protested about the rate of per square

yard.  He also requested that the above said deficiencies in the Greenbay Golf Village

be removed.  On 30.12.2011, the complainant contended that due to personal reasons,

he was unable to hold the above said plot.  He also prayed that booking of the above

plot be cancelled and the booking amount of Rs. 12,30,000/- be refunded at the

earliest.  He wrote so many letters for the refund of the money but the same was not

refunded.

 

6.      The Opposite Party sent an intimation cum demand letter dated 25.05.2012

wherein the price of the plot was calculated @               Rs. 16,4000/- per sq. yd.  On

12.05.2012, the complainant however, received the allotment letter, which runs as

follows:-“Subject:  Allotment Letter- GREENBAY GOLF VILLAGE at Sector 22  D, Yaumna Expressway- Uttar Pradesh. Dear Sir/Madam, With reference to your Application dated 05/04/2011 we are pleased to allot PLOT NO.17 in our ‘GREENBAY GOLF VILLAGE’ Group Housing project at Sector 22 D, Yamuna Expressway, in your favour as per the following details; Super Area           :        750 sq/yrd.Basic Sale Price :        Rs. 16,400/- Per sq/yrd.Unit No.                 :        PLOT NO. 17,BLOCK-ABlock/Tower        :        BLOCK-A As per the ‘Schedule of Payment’contained in the Application Form, a payment of Rs. 12,30,000/- (Rupees Twelve Lakhs Thirty Thousand Only) has been received. Kindly note that the First installment of Rs. 12,30,000/- (Rupees Twelve Lakhs Thirty Thousand Only) would due on 20/05/2011 i.e. within 45 DAYS OF THE BOOKING. We thank you for the opportunity to serve you the look forward to having you enjoy your unit at “GREENBAY GOLF VILLAGE”. We shall keep you posted with the latest updates. For M/s GREENBAY INFRASTRUCTURE PVT. LTD.”

 

7.      Vide letter dated 13.06.2013, the opposite party wrote to the complainant that they

were forfeiting the earnest amount.  The relevant para runs as follows:

“This is in continuation of our earlier Demand Letters in which we have

been requesting you to make the payment of outstanding dues in respect

of the above captioned property.

          However, it is noted that despite the above mentioned letter/s and

reminder/s you have failed/neglected to make the payment of the

outstanding dues in terms of the payment plan appended with the

Application Form and as

on date  a  sum  of  Rs. 47,10,141.00  (Rupees Forty-Seven Lakhs Ten

Thousand One Hundred Forty-One only) is still outstanding and payable by

you.

          It may be noted that in terms of the Application Form it has been

agreed by you that “the Applicant(s) agree to comply with the terms and

conditions of the Application and Confirmation Agreement failing which the

Company shall have the right to cancel/terminate the

allotment/Conformation Agreement and forfeit the entire amount of Earnest

Money, interest on delayed payment, brokerage if paid etc.  Thereafter the

Applicant(s) shall be left with no lien right, title, interest or any claim of

whatsoever nature in the said plot… The Company shall thereafter be free

to resale and / or deal with the said plot in any manner whatsoever”.

          Accordingly, in view of the wilful and persistent default by you we are

constrained to cancel the booking / Allotment of the above captioned

property and forfeit the earnest money.  The amount (s), if any, paid over

and above the Earnest Money, interest delayed payment etc., would be

refunded by the Company only after realizing such amounts from resale

but without any interest or compensation of whatsoever nature.  Please

note henceforth you have not been left with any right, title or interest in the

captioned property and the Company is free to deal with the same in any

manner”.

8.      Under these circumstances, the complainant filed the present complaint with the

following prayers:-

“a)        Direct the respondent to withdraw the cancellation cum termination

letter 13-06-2012 and restore the Allotment of Plot No. 17 Block A measuring

750 yards inGreenbay Golf Village Sector 22D at Yamuna Expressway Uttar

Pradesh in favour of the Complainant.

b)         Direct the respondent to waive interest charged in various demand

Letter/Notices.  While the complainant had been pursuing to remove

deficiencies.

c)          Direct the respondent to issue a fresh, revised and correct Allotment

Letter revised Payment Plan and revised Intimation Cum Demand Letter with

fresh and revised dates of payment.

d)         Award such compensation for mental agony and harassment of Rs.

5,00,000/- and Rs. 1,00,000/- toward litigation expenses or any other sum

the Hon’bleCommission deems reasonable.

e)          Pass any other further order as the Hon’ble Commission may deem fit

in the interest of justice and equity.”

 

9.      It must be pertinent to mention here that the defense of the Opposite Party was

forfeited vide order passed by this Commission while placing reliance on Dr. J.J.

Merchant Vs. Srinath   Chaturvedi   III (2002) CPJ 8 (SC)   .  The review petition was also

dismissed while placing reliance again on Dr. J.J. Merchant Vs.   Srinath   Chaturvedi   III

(2002) CPJ 8 (SC),  Unitech   Ltd. Vs. Sanjay   Goyal   &   Ors . In Civil Appeal No. 6042

of 2013 (SC)   and Kamal   Prit   Palta   &   Anr   Vs.   Vikas   Rana   &   Ors.,   Civil Appeal Nos.

4806-4807 of 2013, decided on 12.07.2013 by the Hon’ble Supreme Court.

 

10.    During the pendency of this case, another SLP was filed in the Supreme Court,

which dismissed the Special Leave to Appeal (Civil) No(s). 24705/2013 in the case of

“The Oriental Insurance Co. Ltd. Versus M/s Rajankumar & Bros (IMPEX)” dated

13.08.2013, against the order of this Commission passed in CC No. 200/2012, dated

01.07.2013. 

 

11.    However, we have heard the counsel of both the parties as the counsel for the

Opposite Party was allowed to argue on legal issues.  The learned counsel for the

Opposite Party conceded that rate of per square yard is Rs. 16,400/- though, they have

been allotting the plot @ Rs. 18,000/- per sq. yd. to other customers.  It is rudimentary

principle of jurisprudence that the documentary proof will always get preponderance

over the oral evidence because it is a well-known axiom of Law that men may tell lies

but the documents cannot. We have seen the application form, which clearly,

specifically and unequivocally mentions that the booking of plot is at the rate of  Rs.

16,400/-.  Subsequently, the Opposite Party in the last notice dated 12.05.2012 also

admitted that the rate of plot was Rs. 16,400/- per square yard.  The admission of this

fact comes out from the horse’s mouth itself. 

12.    Secondly, the attention of this Commission was also invited towards the head of

the original application where it is clearly mentioned that the booking of plot @ Rs.

16,400/- per sq. yd., size of the plot booked -750 yards, No. of unit- Plot No. 17, Block –

A, at Greenbay Golf Village.  However, a clear look at the said endorsement clearly

goes to reveal that it was written subsequently.  The hand-writing in the application form

in both the pages are different than the other writings.  Even if, plot No. was given at the

time of filling up the form, it does not cut much ice on this issue.   The submission made

by the counsel for the Opposite Party was that the complainant vide its letter dated

30.12.2011 had itself signified his willingness to withdraw from this transaction.

 

13.    We are unable to locate substance in these arguments.  It appears that the

Complainant was fed up with the unnecessary demands made by the OP on various

occasions. Ultimately, he thought that it would be of no use if he hangs on with this plot. 

 

14.    The last submission made by the counsel for the OP was that the opposite party is

entitled to interest because the money was not paid to it as per the schedule mentioned

in their letter dated 19.11.2011. 

 

15.    It is not out of place to mention here that in this notice the rate of property was

shown as Rs. 18,000/- per sq. yd.  The complainant was under no obligation to pay the

higher amount.  The whole gamut of the above said facts and circumstances clearly go

to show that the OP was not honest in its dealings.  It is difficult to fathom why did he

make demand @Rs. 18,000/- per sq.yd.  The OP has tried to play fast and loose with its

customers.  His action is below the belt.  The OP should have been honest and fair

while dealing with its customers.  The action or the OP is arbitrary, dictatorial, capacious

and unreasonable.  Had it been honest, complications should not have arisen. 

 

16.    The complainant has been asking the OP that which plot has been given to

him.  This was mentioned in each and every letter. If the number was given earlier, he

should have been told repeatedly that this was his plot number, which was situated in

such and such area.  Silence on the part of the OP is pernicious.  Due to bizarre

conduct of the OP, we are of the considered view that it is not entitled to any interest.  It

has been harassing the complainant for the last so many years. It is also surprising to

note that the Opposite Party has not entered into the agreement.  Terms and conditions

were not settled.  It is difficult to understand why did the OP take the money from the

Complainant and enjoyed the same for so many years without any agreement.  The OP

has succeeded to feather its own nest.

 

17.  In the result we accept the complainant and cancel the cancellation-cum-

termination letter dated 13.06.2012 and restore the allotment of plot No. 17, measuring

750 sq./yards, Sector 22 D, at Yamuna Expressway, Uttar Pradesh in favour of the

complainant without charging any interest. The Opposite Party is further directed to

issue fresh, revised and correct allotment letter, revised payment plan and revised

intimation cum demand letter with revised and fresh dates and payment, within a period

of 90 days from the date of receipt of this order in accordance with Law, terms and

conditions of the agreement. OP is directed to issue these deeds within 90 days from

the date of receipt of this order otherwise, it shall be liable to pay penalty of  Rs. 500/-

per day till the needful is done.  In case the Complainant does not comply with the

above said demand, within reasonable and already specified time, it will be at liberty to

proceed against the Complainant as per Law.

 

18.    Keeping in view the facts and circumstances, the complainant is also entitled to

have Rs. 1,00,000/- towards litigation expenses and mental agony.  The said amount be

paid within 90 days as aforesaid otherwise, it will carry interest @ 9% till its realization.

  

.…..…………………………

(J. M. MALIK, J)

                       PRESIDING MEMBER  

                 .…..…………………………(S. M. KANTIKAR)

                MEMBER

Jr/24

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO.     464       OF 2002  

Surinder Singh S/o S. Gurba Singh R/o 20, Vidya Nagar Govind Puri Road Yamuna Nagar, Haryana

.…  COMPLAINANT                                               Versus

1. Escorts Heart Institute & Research Centre Okhla Road New Delhi-110025 2. Dr. A.K. Omar Managing Director Sr. Consultant Cardiology Escorts Heart Institute &Research Centre Okhla Road New Delhi-110025 3. Dr. Naresh Trehan Chief Cardiac Surgeon Escorts Heart Institute & Research Centre Okhla Road New Delhi-110025

.... OPPOSITE PARTIES           

BEFORE:

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

For the Complainant            :  NEMO

For the Opposite Party         : Mr.Sajad Sultan, Adv. for OP no.1 & 2

                                                   Mr.Vivek Jain, Adv. for OP no.3

PRONOUNCED ON :     11 th     NOVEMBER,     2013

 

 ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            Surinder Singh has filed the present complaint under section 21 r/w Section 12

of the Consumer Protection Act, 1986, ( in short, the ‘Act’) seeking compensation to the

tune of Rs.32,00,000/- with interest alongwith cost alleging medical negligence on the

part of the OP / Hospital and Doctors.  Initially a complaint was preferred

against     M/s    Escorts    Heart  Institute    &  Research  Centre,   New Delhi  and Dr.

A.K. Omar    but  subsequently  by  way of  amendment  the  complainant  impleaded

Dr. Naresh Trehan also as OP No.3.

2.         Briefly stated allegations in the complaint are that on 14.11.2001 the

complainant took his wife Varinder Kaur to the OP No.1 Hospital for treatment.   She

was examined at the hospital and a package deal of Rs.3,35,000/- was offered which

included the treatment as also the heart surgery besides costs of tests required and

preparation of video film. The complainant deposited the same amount with OP No.1

and his wife was admitted. She was put to various examination and ultimately it was

declared that wife of the complainant required by-pass surgery but before that her blood

glucose level was to be brought under control.  It is alleged that on 24.11.2001 Varinder

Kaur was taken to the operation theatre and was operated upon inspite of the fact that

she had suffered a cardiac arrest.  It is the case of the complainant that after sometime,

he was told that operation was successful and the patient had been removed to the

ICU. However, no relative including the complainant as also sons and daughters of the

patient were allowed to see her. Complainant, however, was asked to bring medicines

on various occasions till 26.11.2011 which were supplied.  It is alleged that from

14.11.2001 till 26.11.2001 all the family members of the complainant remained at the

Institute’s waiting hall taking turns.  After the so-called surgery, the complainant and

other relations were told that patient was progressing very well.  Surprisingly on

26.11.2001 at 12.30 p.m., the hospital authorities informed the complainant that his wife

Varinder Kaur had expired.  It is alleged that complainant and relations came to know

that Varinder Kaur had expired on 24.11.2001 before she could be operated. Despite

that her dead body was given incisions to give an impression that the surgery was

actually conducted.  There were no blood stains on the body which indicated that the

body was cut after the death.  The complainant then demanded video clip of the alleged

by-pass surgery but he was told that no video film was prepared.  It is also alleged that

out of total sum charged by OP No.1, a sum of Rs.50,000/- was refunded on the plea

that video film was not prepared.

3.         Claiming the above referred conduct of the OPs to be unfair trade practice as

also negligence and deficiency in service, the complainant filed the complaint seeking

compensation of Rs.32,00,000/- with interest besides cost.

4.         OP No.1 in its written statement denied the allegations made in the

complaint.  According to OP No.1, the complainant’s wife was brought in ambulance

from Yamuna Nagar in critical condition and she was given treatment of highest

standards.  It was alleged that patient Varinder Kaur was brought to the respondent /

hospital for the first time on 05.04.2001 for consultation with the history of mitral

regurgitation with family history of coronary artery disease.  She was advised to

undergo angiography and the result of angiography reveal the following :

            Anterior wall hypokinetic, posterior wall akinetic, apical wall hypokinetic, LVEF 35% , sever mitral regurgitation, right coronary artery – 100% proximal stenosis, left anterior descending artery – 70% proximal stenosis, left circumflex 40% proximal stenosis and 90% distal stenosis, IIIrd obtuse marginal 70% proximal stenosis. 

5.         On the basis of angiography report she was diagnosed as a case of Triple

vessel disease, severe MR and Moderate Left Ventricular dysfunction.  She was

advised on the same day to undergo CABG + MVR. She was thus advised

surgery.  The patient did not report for surgery as advised till she was admitted on

09.11.2001 in Gupta Hospital, Yamuna Nagar with history of chest pain with radiation to

left arm of 3 days duration.  At Gupta Hospital she was diagnosed as a case of anterior

wall myocardial infarction and was treated conservatively.  She had two episodes of

post myocardial infarction angina lasting 10-15 minutes.  The last episode occurred on

13.11.2001 at 9.00 p.m..  She developed hypotension and was on dopamine.  The

patient was then referred to the OP / Hospital and admitted in the hospital in critical

condition on 14.11.2001.  Necessary tests were conducted and the patient was taken

for surgery i.e. CABG and Mitral Valve Repair (MVR).   However, before starting the

surgery, the patient developed Ventricular Fibrillation. The patient was immediately

resuscitated by cardiac massage and DC shock and it was decided to put  her on IABP

support and cardiopulmonary bypass support.  Thereafter, Arota was cross clamped

and cardioplegia was given.  This is a conventional bypass surgical procedure.  During

the surgical procedure, LAD and OMI were bypassed with reversed saphenous vein

grafts and mitral valve repair was done. The patient was weaned off cardiopulmonary

bypass on heavy inotropes and IABP support.  The patient was shifted to the recovery

on the same day with IABP and inotropic support and cordarone and Xylocard

infusion.   Post operatively patient continued to be haemodynamically unstable despite

such high support and had recurrent episodes of ventricular tachycardia (VT), most of

which were self-reverting.   However, open cardiac massage with electrical

cardioversion was required at one time. On 1st postoperative day, urine output

decreased so she was put on Lasix infusion.  The hemogynamic status remained low,

so Ephinephrine infusion was increased.  The patient had two episodes of self –

reverting VT on 25.11.2001 at 10.30 p.m.  On 26.11.2001, the patient had multiple

episodes of ventricular tachycardia, which did not revert despite open cardiac massage

and DC shock.  Despite all cardio respiratory rescuscitative efforts, patient could not be

revived and was declared dead at 12.30 p.am on 26.11.2001.

6.         Regarding the package deal, OP No.1 alleged that package deal for surgery

was Rs.2,50,000/- and not Rs.3,35,000/- as alleged in the complaint.  It was denied that

package deal included any video film and was alleged that in fact no video clip of

bypass surgery is taken by the hospital.  It was also denied that relatives were not

allowed to see the patient and alleged that nurses notes clearly documented that the

relatives came and saw the patient and also met Dr. Naresh Trehan, Chief Cardiac

Surgeon on 24.11.2001 at 7.15 p.m. and that it is standing  operating procedure in the

institute that the relatives were called to see the patient when the patient is shifted to

recovery from OT and later on twice a day. OP No.1 further denied that a sum of Rs.

4,50,000/- was charged from the complainant which also included video film.  It was

alleged that total bill for payment was Rs.3,83,037/- out of which a subsidy of

Rs.1,03,037/- was given to the complainant on humanitarian grounds.  It was also

alleged that patient was operated by Dr. Naresh Trehan and  there was no medical

negligence on the part of the hospital or the other OPs.

7.         Other OPs have also denied the allegations in the complaint and they have

specifically denied that there was any medical negligence on the part of the doctors or

that they had operated the dead body of the deceased after she had died at the

operation table as a result of cardiac arrest.

8.         Complainant Surinder Singh has filed his affidavit in support of his claim in the

complaint and reiterated the allegations made in the complaint.  In rebuttal OP No.1

filed the affidavit of Dr. V. R.Gupta, Medical Superintendent and proved on record copy

of Angiography report dated 05.04.2001, copy of cardiac evaluation form dated

14.11.2001, copy of Echo Report dated 14.11.2001, copy of Angiography report dated

17.11.2001, copy of the high risk informed consent form, copy of the extract detailing

ventricular fibrillation,  copy of the breakup of package, copy of the nurses chart and

notes dated 24.11.2001, copy of the detailed bill, copies of the nurses chart dated

25.11.2001 and copies of critical flow chart of 24.11.2001 to 26.11.2001.

9.         OP No.3 Dr. Naresh Trehan also filed his affidavit in support of his written

statement indicating that the deceased patient was given the treatment of highest

standards and there was no medical negligence.

10.       We have heard the rival parties and perused the material on record.  Shri Sunil

K Kalra, Advocate, learned counsel for the complainant has contended that OPs are

guilty of medical negligence as also unfair trade practice inasmuch as they operated

upon the dead patient with a view to extract the surgery charges.  It is contended that

this is proved from the fact that though the medical package included the charges for

videography of the surgery, no such clip was given to the complainant despite of

demand.  He further contended that from the statement of the complainant, it is evident

that relatives of the patient were not allowed to meet or see her till her death was

announced on 26.11.2001 and this fact leads to the conclusion that the patient had died

at the operation table on 24.11.2001 before the surgery could be done. 

11.       Learned counsel for the opposite parties on the contrary have referred to the

relevant investigation reports and the treatment record including the copy of the nurses

chart and notes and submitted that Ms. Varinder Kaur was given proper treatment and

there was no negligence on the part of the treating doctors or the hospital.  The plea of

the complainant that Ms. Varinder Kaur had actually died before the commencement of

surgery is only a make belief story to extract money from the opposite parties.          

12.       On careful perusal of the evidence, we do not find any merit in the plea of the

complainant that his wife Varinder Kaur had expired in the operation theatre before the

commencement of surgery and because of that reason, no videography of the surgical

procedure was done. 

13.       Opposite parties have proved on record the nurses charts / notes maintained by

Duty nurses who attended to the patient Virendr Kaur after the surgery till 26.11.2001

12.30 p.m. when she was declared dead.  Perusal of the nurses chart  would show that

as per the progress notes of the patient on 24.11.2001 at 7.15 p.m,

the     nurse   has    recorded  “relative  of the patient has seen her and talked with Dr.

Naresh Trehan”.  In the same chart, night shift nurse has recorded the progress note

confirming having taken over the charge of aforesaid female patient who had underwent

CABG x 2 + MV repair on the same day. Further perusal of the nurses chart entry

dated  25.11.2001 at 6 p.m. reveals that on the said evening the relative of the patient

had visited her and her condition was explained to the relative by the doctor. The

aforesaid progress notes recorded by the respective duty nurses have been recorded

from time to time on 24.11.2001 and 25.11.2001.  From this, it is evident that the

progress notes on the nurses chart have been recorded by the nurses in due course of

business.  Therefore, there is no reason to disbelieve the entries recorded in the

aforesaid nurses chart.  Not only this, opposite  parties  have also placed on record

photocopy of the treatment record of the patient Varinder  Kaur which also indicate that

Varinder Kaur had a successful surgery and she was given follow up treatment but

unfortunately she died on 26.11.2001 at 12.30 p.m.  From this it is clear that Ms.

Varinder Kaur underwent surgery and was very much alive till 26.11.2001 afternoon. As

regards the plea of the complainant that no videography was done with a view to

conceal that the patient had actually died on 24.11.2001 before the surgery, it would be

relevant to have a look on the copy of the bill pertaining to the treatment of Varinder

Kaur dated 27.11.2001, which is annexure R-7.  This bill records break-up of package

deal wherein no mention of video filming of the surgery.  Therefore, we are not inclined

to believe the aforesaid claim of the complainant.  We may note that during the course

of arguments, a query was put to learned counsel for the complainant as to when the

complainant realised that his wife had died before the surgery.  In answer to that query,

learned counsel for the complainant submitted that complainant came to know about

this fact on the receipt of the dead body when he noticed that there were no blood

stains on the incision done for the by-pass surgery which raised a suspicion that the

incisions were made on the dead body.  If that explanation of the complainant is true,

then we may fail to understand as to why the complainant did not insist for post-mortem

of the dead body of the deceased as it would have clinched the issue by establishing

duration / time of the death of deceased. In view of the above noted circumstances, we

do not find any merit in the plea of the complainant that his wife had died before the

commencement of surgery.  Our aforesaid opinion gets strengthened from the fact that

the complaint has been filed by the complainant after a lapse of almost a year from the

date of death of his wife.  Had the version of the complainant been true and had he

been suspicious about the death of his wife before the commencement of surgery,

under normal course of circumstances, he would not have waited for a year to file a

complaint against the opposite parties. 

 

14.       Learned counsel for the complainant has also made a half hearted submission

that the opposite parties are guilty of medical negligence in the treatment of Varinder

Kaur which resulted in her death.  The complainant, however, has not led any cogent

evidence in support of this contention. On the contrary OP No.3 Dr. Naresh Trehan has

filed his affidavit detailing the treatment given to the patient and the procedure adopted

in the surgery.  The opposite parties have also placed on record the copies of pre-

surgery investigation reports Ex. RW 3/1 to RW3/5, copy of “high risk informed consent

form” Ex. RW3/6, copy of the operation notes Ex. RW3/8, copies of the nurses charts of

24th and 25th November, 2001 Ex. RW3/7 as also the copy of critical care flow charts for

the period 24.11.2001 to 26.11.2001.  On perusal of the above record we are of the

view that Ms. Varinder Kaur was given proper treatment and just because she did not

survive it cannot be said that opposite parties were guilty of medical negligence

particularly when there is no evidence to show. Thus, we do not find any evidence to

justify the conclusion that opposite parties were guilty of medical negligence or the

quality of treatment given to the patient Varinder Kaur was sub-standard.

 

15.       In view of the discussion above, we are of the opinion that the complainant has

failed to establish that either of the opposite party was guilty of medical negligence or of

unfair trade practice.  Complaint, is therefore, dismissed with no order as to costs.

                                                        ………………………………

     (AJIT BHARIHOKE, J.)      (PRESIDING MEMBER)

  

                                                                  ……………………………..                                                        (SURESH CHANDRA)                                                                            MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER   COMPLAINT     NO.       212       OF             2009

 Indraprastha Medical Corporation Ltd. Sarita Vihar, Delhi – Mathura Road New Delhi -110076

.…  COMPLAINANT                                                 Versus

1. M/s Alpine International C – 524, Sushant Lok, Part – I Gurgaon –122002 (Haryana)2.  M/s Emerald Overseas 32, First Floor, The Peach Tree C – Block, Sushant Lok, Sector – 43 Gurgaon – 122002 (Haryana)3.  Sindat Spol s.r.o. Ukranjinska 1488/10 100 11 Praha 10 Czech Republic 4.  M/s Kaimal Chatterjee & Associates H – 1568, Chitranjan Park, New Delhi – 110019

                                               .... OPPOSITE PARTIES 

BEFORE:

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

For the Complainant         :  Mr.Lalit Bhasin, Adv. along with                                          Mr.Ravi Gopal, Adv. For the OPs.                    :  Mr.Harsh Kaushik, Adv. for OP no.1 & 2                                          NEMO for OP no.3                                          Mr.Riju Raj Jamwal, Adv. for OP no.4 

 PRONOUNCED   ON :       11 th     NOVEMBER, 2013

  ORDER

JUSTICE AJIT BHARISHOKE, PRESIDING MEMBER

 

          M/s Indraprastha Medical Corporation Ltd, the complainant herein is engaged in

the business of running world class hospitals with medical facilities of highest

standards.  It has filed the present complaint under section 21 (1) (i) of the Consumer

Protection Act, 1986 ( in short, ‘the Act’) seeking compensation of Rs.2,33,60,349/- with

18% interest thereon besides cost for legal expenses and litigation.  Basic allegation in

the complaint is that OP Nos. 1, 2  & 4 are guilty of deficiency in service in respect of

the contract of redesigning, addition, alteration and renovation of the atrium of the

Apollo Hospital, Sarita Vihar, New Delhi.  It is also alleged that OP No. 1 to 3 have

supplied the defective goods i.e. Technistone of various colours supplied for relaying of

the floor of the atrium as advised by OP No.4.  The details regarding the break-up of

compensation claimed on account of supply of defective goods and deficiency in service

are enumerated in para 28 of the complaint which is reproduced thus:

“i.     Cost of 3,92,890/- paid by the complainant to the Civil Contractor namely M/s Asiatic Engineers C.S. & for removal of the stone from the atrium of the hospital for installation of Technistone.

ii.     Cost of Rs.19,50,822/-  paid by the Complainant to the Opposite Party No.4 for the services provided by it.

iii.    Cost of Rs.55,20,337/- paid by the Complainant to Opposite Party No.1 & 2 for purchase of theTechnistone.

iii.    Cost of Rs.3,91,000/- paid to Opposite Party Nos. 1 & 2 for installation of Technistone.

iv.    Cost of Rs.1,32,750/- paid by the Complainant to M/s Mangla Exports for removal of the Technistone.

v.     Cost of Rs.30,00,000/- paid by the Complainant to M/s Mangla Exports for supply of Ice Blue Granite Stone.

vi.    Cost of Rs.15,92,250/- paid by the Complainant to M/s Mangla Exports for installation of Ice Blue Granite Stone.

vii.   Cost of Rs.3,30,900/- paid to M/s Gherzi Eastern Limited for checking the stone to be supplied by M/s Mangla Exports and supervise its laying by the same party.

viii.   Loss and damage suffered by the complainant to the tune of Rs.49,300/- for delay in completion of the installation of Technistone.

ix.    Loss and damage suffered by the complainant to the tune of Rs.50,00,000/- for the harassment and humiliation suffered by the Complainant due to deficiency in goods and services.

x.     Loss and damage suffered by the Complainant to the tune of Rs.50,00,000/- for loss of reputation due to deficiency in goods and services”.

 

2.       OP Nos. 1 & 2 on being served with the notice of the complaint have filed the

written statement wherein besides denying the allegations on merits, they have taken a

preliminary objection that the complaint is liable to be dismissed for the reason that

complainant is not a consumer within the meaning of section 2 (1) (d) of the

Act.  as such it cannot maintain the consumer complaint under the Act. 

3.       Shri Harsh Kaushik, Advocate, learned counsel for OP Nos. 1 & 2 has contended

that perusal of the complaint would show that complainant Company admittedly is

engaged in business of running quality hospitals with medical facilities of highest

standards and that the Technistone manufactured by OP No.3 was purchased from OP

No.1 & 2 for renovation of the atrium of the hospital on the recommendation of OP

No.4.  Therefore, even if it is presumed for the sake of arguments

that Technistone supplied was of sub-standard quality or that there was some

deficiency in renovation of the atrium and relaying of floor, it was in connection with

commercial purpose that is, running hospital business. Therefore, in view of section 2

(1) (d) of the Act, the complainant does not fall within the definition of ‘consumer’ and as

such, it is not competent to maintain a consumer complaint.  Learned counsel has thus

urged us to dismiss the complaint as not maintainable. Similar arguments have been

advanced on behalf of respondent no. 4.

4.       Shri Lalit Bhasin, Senior Advocate appearing for the complainant has refuted the

above contention.  He has contended that while considering the question whether the

goods in question were purchased for any commercial purpose or the services of OP

No.1, 2 & 4 were hired for any commercial purpose, one has to see the pre dominant

purpose for which the goods were purchased and the services were hired and

availed.  Learned counsel has contended that in the instant case, the goods in question

were purchased and the services were also availed for renovation and relaying of the

floor of atrium of the hospital which has no connection whatsoever with the commercial

activity of the complainant i.e. providing basic medical treatment / services to the

patients.  The renovation of atrium is only a construction activity which cannot be

correlated with the business of the complainant company and as such the complainant

does not fall within the exception carved out in the definition of ‘consumer’.  Thus it is

argued that the complaint is maintainable.

5.       We have considered the rival contentions and perused the  material on record.

6.       It order to appreciate the contentions of the parties, it would be appropriate to

have a look on relevant provisions of the Act.

          The term complainant as defined under section 2 (b) of the Act is reproduced

thus:

        “Complainant” means

(i)     a consumer; or

(ii)    any voluntary consumer association registered under the Companies Act, 1956 ( 1 of 1956) or under any other law for the time being in force; or

(iii)   the Central Government or any State Government; or

(iv)   One or more consumers, where there are numerous consumers having the same interest;]

(v)    in case of death of a consumer, his legal heir or representative;] who or which makes a complaint’’.

 

          On reading of the above for an individual to maintain consumer complaint under

the Act, he has to be a consumer.  The term ‘consumer’ has been defined under section

2 (1) (d) of the Act. The relevant portion of the definition which deals with hiring or

availing of service is reproduced thus:

         

“Consumer means a person who-

 (ii)         hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any

system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

 Explanation-    For the purpose of this clause, “commercial purpose”

does not include use by a person of goods brought and used by him

and services availed by him exclusively for the purpose of earning his

livelihood by means of self-employment”.

 

          On reading of this provision, it is evident that after the amendment of the

definition of consumer by the Act 62 of 2002, the persons availing services for any

commercial purpose are excluded from the definition of “consumer”.

7.       On reading of the complaint, it is evident that cause of action of filing of the

complaint is alleged to be defect in the quality of the Technistone supplied by the

opposite parties and the deficiency in service in respect of renovating / laying

of Technistone in the atrium of the hospital run by the complainant company.  Thus the

crucial question for deciding the issue of maintainability is whether the

renovation / laying of floor of the atrium of the hospital has any connection whatsoever

with the business of the complainant?

8.       Admittedly, the complainant company is in the business of running hospitals and

providing world class medical facilities of highest standards to the patients for

consideration.  The atrium is also the part of hospital building.  The patients and their

relatives also pass through the atrium.  It is well known that charges of commercially run

hospitals are in direct proportion to the facilities provided including the ambience of the

building. Therefore, in our considered opinion, the atrium of the hospital has a direct

correlation with running of the business.  In para 21 of the complaint, it is alleged that

because of the deficiency in service by OP No.1, 2 & 4, the complainant  had to face

huge embarrassment as because of loosely laying of Technistone, many patients had

slipped over it.  This allegation by itself is sufficient to show that laying of Technistone in

the atrium has direct connection with the hospital business.  Not only this, perusal

of para 28 of the complaint, which gives the break-up of the loss / damages suffered by

the complainant, would show that this break-up apart from mentioning cost of various

items, also includes charges of Rs. 50,00,000/- for loss of reputation because of

deficiency in goods and services.  This also indicate that the goods in question and the

services which are subject matter of the present complaint have direct relation with the

hospital business of the complainant.  Further OP Nos. 1 & 2 have placed on record

copies of annual report of the complainant for the financial year ending 31st March 2009

as also relevant extracts of the annual reports of the Apollo Hospital for the financial

years ending 31.03.2008 to 31.03.2012 wherein the expenses incurred for the addition,

alteration of the atrium and relaying ofTechnistone in the atrium is shown as ‘capital

expenses’ incurred for the hospital business.  Pursuant to the directions of the Bench,

the complainant has filed affidavit of Shri P. Shiv Kumar, Vice President, Finance and

Operations of the complainant wherein Shri P.Shvi Kumar has stated that procurement

and laying of Technistone is a capital expense of Company and it is shown as financial

statement of the relevant year under the heading ‘Building’.  It is also stated in the

affidavit that the depreciation of the aforesaid expense under the heading ‘Building’ has

been claimed and it is reflected in the financial statements as per the rates prescribed

under Schedule XIV of the Companies Act, 1956.  From this averment also, it is evident

that Technistone was purchased by the complainant Company and the services for

renovation of atrium and relaying of Technistone were hired for ‘commercial purpose’

i.e. running the hospital business. Thus, the complainant in our view is not covered

under the definition of ‘consumer’.  As such, he cannot maintain the instant consumer

complaint.       In our aforesaid view, we are supported by the judgment of Supreme

Court in the matter of Laxmi Engineering Works Vs. P.S.G.Industrial Institute (1995)

3 SCC 583.

9.       Result of the above discussion is that M/s Indraprastha Medical Corporation

Limited is not covered under the definition of ‘consumer’ as envisaged under section 2

(1) (d) of the Act. Accordingly, the complaint is dismissed as not maintainable

with no order as to costs.

 …………………..………..

     (AJIT BHARIHOKE, J.)      PRESIDING MEMBER

                                                            

  ……………….……………(SURESH CHANDRA)

                                                                        MEMBER         

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1616 OF  2011 with (Application for condonation of Delay) (Against the order dated  14.9.2010 in First Appeal No.983/2004  of the State Commission, Kerala)   National Insurance Company Ltd. 3rd Floor, East Fort Complex Palakkad Also at DRO-I, Jeevan Bharti, Connaught Circus New Delhi

…….Petitioner  Versus1.   Shri P. Rangaswamy Proprietor Kolayakkad, Pudusery P.O., Palakkad2.   The Branch Manager State Bank of Travencore, Pudussery, Palakkad

…Respondents BEFORE:       HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER       HON'BLE MRS. REKHA GUPTA, MEMBER        For the Petitioner           :    Mr. P.K Seth, Advocate For the Respondent no.1      :    Mr. K. Ramesh, Advocate For the Respondent no.2      :    Nemo Pronounced on: 11 th   November, 2013  ORDER

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

     Being  aggrieved by  order  dated 14.9.2010  passed by Kerala  State Consumer

Disputes Redressal Commission, Vazhuthacadu, Thiruvananthapuram (for short, ‘State

Commission’) in First Appeal No.983 of 2004, Petitioner/O.P. No.1 has filed the present

revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’).

2.   Alongwith it, an application seeking of delay of 120 days has been filed though as

per office report there is delay of 133 days.

3.   We have heard the learned counsel for the parties on the application for

condonation of delay and have also gone through the record.4.   Grounds on which condonation of delay has been sought are reproduced are as under;

“3.  That the certified copy of the judgment was received in the concerned branch office of the petitioner on 13.10.2010 and thereafter the said branch office sought legal opinion of the attending advocate on the judgment and after receiving the same, all the relevant papers were forwarded to the competent authority at Regional Office, Ernakulam for the advice. 4. That the Regional Office of the petitioner Insurance Company forwarded the papers to their one of the panel advocates for seeking his opinion on the impugned order. The legal opinion of the said advocate was received at the Regional Office on 27.12.2010

advising for filing the Appeal against the order of the State Commission. 5. That however in view of the contradictory legal opinion about filing of the Revision Petition against the order of the Hon'ble State Commission and particularly in view that the issue of liability under the policy was involved, the papers were forwarded to Head Office, Technical (Legal), Consumer Forum Department, for seeking their advice and approval based on the opinion of  their panel advocate advising to file Revision Petition against the order of the State Commission.

                   6.  That the competent authority at Head Office gave approval for filing the

Revision Petition against the order of the Hon'ble State Commission and accordingly all the set of papers were forwarded to the concerned office for forwarding the same to Delhi Regional Office which is authorized to file the Revision Petition before the Hon'ble National Commission.

                   7. That the Delhi Regional Office thereafter forwarded the entire set of

papers to one of its panel advocates vide letter dated 07.04.2011 and thereafter the advocate prepared the Revision Petition and forwarded the same for the approval and signatures of the competent authority on the Petition vide its letter dated 28.04.2011 and immediately thereafter the Revision Petition after the signatures were returned to the advocate to the advocate for filing  the same and the advocate accordingly filed the Revision Petition in the Registry of Hon'ble Commission.8. That the delay of 120 days in filing the Revision Petition occurred because of the aforesaid administrative procedure and was neither intentional nor willful.  It is in the interest of justice that the delay of 120 days in filing the Revision Petition may please  be condoned.”

 

5.   Thus, as per above grounds, the certified copy of the judgment was received in the

office of the petitioner on 13.10.2010 and legal opinion of the panel advocate was

received on 27.12.2010 advising for filing the appeal against the order of the State

Commission. Further, the plea of the petitioner is that in view of the contradictory legal

opinion about filing of the revision petition, the papers were forwarded to Head Office for

seeking their advice. The Head Office gave the approval and accordingly all set of

papers were forwarded to the concerned office at Delhi Regional Office, which

forwarded the papers to its panel advocate on 7.4.2011. Thereafter, the revision petition

was filed on 12.5.2011.

6.   No name of any official has been mentioned as to who has dealt with the case file

from 27.12.2010 till 7.4.2011. Moreover, it is not stated as to who had given the

contradictory opinions and what are the dates of those two opinions. The grounds on

which condonation of delay has been sought are the usual grounds  taken up by the

Public Sector Undertakings, without giving any reasonable and justifiable explanation

for long delay of about four months.

7.   It is well settled that “sufficient cause” for condoning the delay in each case is a

question of fact.  

       8.  In  Ram Lal  and  others  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.    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”.

 

10. Hon’ble Supreme Court after exhaustively   considering the case law on the

aspect  of condonation of delay observed in Oriental Aroma Chemical Industries

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

459 as under;

     “We  have  considered the respective submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the  legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”      

 

11. Now, Apex Court in Anshul Aggarwal  Vs. New Okhla  Industrial

Development Authority, IV (2011) CPJ 63 (SC) has observed ;

    “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.

 

12. The observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case. Thus, as per the application for condonation of delay no sufficient grounds are made out to condone the long  delay of 120 days. It would be pertinent to mention here that consumer complaint was filed by respondent no.1, as far back as in the year 2001. Now, even after 12 years, respondent  no.1, having decision of  two consumer fora below in its favour, is being deprived of the fruits of the award.

13.  Under these circumstances, it is a fit case where petitioner should be burdened with the  cost for causing undue harassment as well as delay to the complainant. Consequently, the present revision petition being barred by limitation stand dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only) to be paid to respondent no.1/complainant.

14.  Petitioner is directed to deposit the cost by way of demand draft   in the name of respondent no.1 in this Commission within four weeks from today.

15.  In case, petitioner fails to deposit the cost within the prescribed period, it shall be

liable to pay interest @ 9% p.a., till realization.

\16.  However, the cost shall be paid to respondent no.1, only after expiry of the period

of appeal or revision preferred, if any.[

17.  List for compliance on 13.12.2013.   ……………………………………….J

     (V.B. GUPTA)      PRESIDING MEMBER

 …………………………………………

     (REKHA GUPTA)      MEMBER                                                                Sg

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

FIRST APPEAL NO. 141 OF 2009  

(Against the order dated 27.11.2008 in Complaint No. 170/2001 of the Delhi State Consumer Disputes Redressal Commission) 

New India Assurance Co. Ltd. Registered & Head Office New India Assurance Building 87, Mahatma Gandhi Road Fort, Mumbai-400001 Also at J-129, Kirti Nagar New Delhi-110075

 Also at Delhi Regional Office-I Jeevan Bharti Building Connaught Circus New Delhi

…    Appellant

Versus

Ram Avtar S/o Shri Khachauri Mal R/o 4/420, Bhola Nath Nagar Shahdara, Delhi -110032

…    Respondent

 BEFORE:

          HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER  

 For Appellant                        :             Mr. P.K. Seth, Advocate

For Respondent                    :             Mr. A.K. Verma, Advocate    

 Pronounced on 11 th   November, 2013  

ORDER 

PER VINEETA RAI 

        This First Appeal has been filed by New India Assurance Co. Ltd., Appellant herein

and Opposite Party before the Delhi State Consumer Disputes Redressal Commission

(hereinafter referred to as the State Commission) against the order of that Commission

which had allowed the complaint filed against it on grounds of deficiency in service by

Ram Avtar, Respondent herein and Complainant before the State Commission.

2.       In his complaint before the State Commission, Respondent/Complainant had

contended that his Tata Sumo vehicle which was financed by M.G.F. India Ltd. and

insured by Appellant/Insurance Company for a period of one year i.e. from 19.08.1997

to 18.08.1998, was stolen on 24.02.1998 when it was parked near

Guru Teg Bahadur Hospital, Shahdara, Delhi. Respondent/Complainant on the same

date lodged an FIR under Section 379 IPC at Police Station Seemapuri, Delhi. On

20.03.1998 Respondent/Complainant also submitted a claim form to the

Appellant/Insurance Company and requested that an Investigator be appointed to look

into the case of theft of the insured vehicle.  On receipt of this information,

Appellant/Insurance Company appointed one Sanjeev Nijhawan as Investigator, who

sought certain clarifications of the theft of the insured vehicle which were replied to by

the Respondent/Complainant.  However, despite this, vide letter dated 19.03.1999

Appellant/Insurance Company unjustifiably repudiated the claim, after which

Respondent/Complainant made a complaint to the Grievance Cell of the

Appellant/Insurance Company, which was also rejected.  It was further contended that

the Police also could not recover the stolen vehicle and sent an untraced report on

25.05.1998.  Being aggrieved by the deficiency in service on the part of

Appellant/Insurance Company, Respondent/Complainant filed a complaint before the

State Commission seeking a total compensation of Rs.5,35,000/- from the

Appellant/Insurance Company, which included Rs.4,65,000/- being the insured value of

the vehicle, Rs.50,000/- on account of tension and mental agony and Rs.20,000/- as

litigation costs.

3.       Appellant/Insurance Company, on being served, filed a written rejoinder denying

the allegation that the claim was wrongly rejected.  It was stated that the

Respondent/Complainant informed the Appellant/Insurance Company about the theft of

the vehicle only on 30.03.1998 i.e. approximately one month after the vehicle was

allegedly stolen which was against the terms and conditions of the insurance policy

which required the Insuree to give immediate intimation about the theft.  The

Investigator appointed by the Appellant/Insurance Company to enquire into the nature,

cause, circumstances and genuineness of the claim after conducting the necessary

enquiries concluded that there were serious reasons to doubt the genuineness of the

claim.  It appeared that the Respondent/Complainant took almost one month to give

intimation about the alleged theft with a view to hide various facts and avoid detection of

the fraud played by him on the Appellant/Insurance Company.  Specifically it was

contended that the Respondent/Complainant’s contention that the vehicle was stolen

outside Guru Teg Bahadur Hospital, where his brother was admitted for treatment, was

not correct because the brother had actually expired 9 months prior to the

theft.  Further, it came to light during enquiries made by the Investigator that the vehicle

which was hypothecated by the Respondent/Complainant in favour of M.G.F. India Ltd.

had a specific clause that it could not be used for hire or reward whereas enquiries

revealed that it was being used for hire and reward i.e. for commercial purpose and not

for his personal use.  In fact, the enquiries also revealed that the

Respondent/Complainant was not running a soap factory and had a very modest

financial status.  The above facts were communicated to the Respondent/Complainant

by the Appellant/Insurance Company vide letter dated 12.02.1999 specifically bringing

to his notice the various anomalies and contradictions found in the statements made by

him from time to time.  It was also pointed out that the inordinate delay in informing the

Appellant/Insurance Company about the theft of the vehicle was clearly against the

terms and conditions of the insurance policy, according to which information about the

theft should have been immediately conveyed to the Appellant/Insurance

Company.  Respondent/Complainant, however, did not reply to this letter and, therefore,

the claim was rightly repudiated by the Appellant/Insurance Company.   

4.       The State Commission, after hearing the parties, allowed the complaint and held

the Appellant/Insurance Company guilty of deficiency in service.  In its detailed order,

the State Commission inter alia concluded that the delay in informing the Insurance

Company was not a ground for rejecting the claim since this provision in the insurance

policy was of a “directory nature” and not a mandatory requirement.  The relevant part

of the order of the State Commission is reproduced:

“20.    The provision of informing the insurance company or lodging the report with the police immediately after the occurrence is of directory nature and not of mandatory nature. What is relevant and material for adjudicating the claim whether the theft had taken place or not and whether the occurrence took place within the subsistence of the insurance policy or not. The grounds raised are confused and immaterial and not to be taken into consideration as the insurance cover is against the theft of the vehicle.

 

21.     Once a criminal offence takes place and a report is lodged with the police, the police is the only statutory authority to investigate the case and no other authority and the final report of the police has to be acted upon. Some delay of few days in intimating about the information and lodging the claim by the insured to the appellant-company cannot form a ground for doubting the theft or burglary. If the insurance company finds that the report lodged by the insured was false it can always approach the police u/s 182 of the Cr.P.C.

 

22.     As regards the objection that the vehicle was being used as a commercial vehicle and not a private vehicle, the facts of each and every case have to be scrutinized and scanned on its own. It was a simple case of theft of vehicle and not a case where the breach of some provisions of Motor Vehicle Act were committed and if at all this was a case, the complainant could have been prosecuted under the Motor Vehicle Act but cannot deny the insurance claim covering the risk of theft.”

 The State Commission, therefore, directed the Appellant/Insurance Company to

pay to the Respondent/Complainant (i) the insured value of the vehicle less 5% as

depreciation value; (ii) Rs.50,000/- as compensation towards mental agony and trauma

and (iii) Rs.10,000/- as litigation costs.  The State Commission also directed the

Respondent/Complainant to take necessary steps to transfer the ownership of the

vehicle in the name of the Appellant/Insurance Company. 

 

5.       Hence, the present First Appeal by the Appellant/Insurance Company.

6.       Counsel for the parties made oral submissions.

7.       Counsel for the Appellant/Insurance Company contended that the State

Commission erred in allowing the Respondent/Complainant’s complaint despite

accepting the fact that the Respondent/Complainant had taken almost a month to inform

the Insurance Company about the theft of the vehicle by observing that the provision in

the insurance policy requiring the Insuree to immediately inform the Insurance Company

was of a directory nature and not of mandatory nature.  On the other hand, it is well

settled through a catena of judgments (including of the Hon’bleSupreme Court

in Oriental Insurance Co. Ltd. V. Parvesh Chander Chadha rendered in Civil Appeal

No. 6739 of 2010) that an insurance policy being a contract between the two parties, its

terms and conditions are binding on both parties.  Therefore, in accordance with the

terms and conditions of the insurance policy, Respondent/Complainant was required to

immediately inform the Appellant/Insurance Company about the theft of the insured

vehicle, which he failed to do.  Respondent/Complainant also had not been able to

successfully refute various contradictions and anomalies regarding the facts of the theft

as also his financial status, which further lent credence to the fact that the claim was not

genuine.

8.       Counsel for the Respondent/Complainant on the other hand stated that the

Respondent/Complainant had orally informed an officer of the Appellant/Insurance

Company about the theft of the vehicle on the same date and denied that he had filed a

bogus and fabricated claim.  It was further reiterated that the vehicle was purchased by

the Respondent/Complainant for his personal use. The State Commission on the basis

of credible evidence produced before it had rightly allowed his complaint.  The present

First Appeal may, therefore, be dismissed.

9.       We have heard the submissions made by the Counsel for the parties and also

considered the evidence on record.  The fact regarding the vehicle being insured by the

Appellant/Insurance Company for a period from 19.08.1997 to 18.08.1998 is not in

dispute.  It is also an admitted fact that although an FIR was lodged with the Police on

the same date, information in writing was conveyed to the Appellant/Insurance

Company 35 days after the theft of the vehicle. When we specifically asked the Counsel

for the Respondent/Complainant whether there was any plausible explanation for this

delay, he stated that the information about the theft was conveyed to the

Appellant/Insurance Company orally on the same date.  However, we note that this fact

was not mentioned in the complaint and no evidence to support this contention was

produced either before the State Commission or before this Commission; not even the

name of the official to whom the complaint was purportedly made was stated.   We have

perused the terms and conditions of the insurance policy and we note that the relevant

provision inter alia reads as follows :

“CONDITIONS1.       Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require.” 

Thus, as per the terms and conditions of the insurance policy, the Insuree was

required to immediately inform the Appellant/Insurance Company about the theft of the

vehicle which he admittedly failed to do.  We are unable to accept the finding of the

State Commission that this provision in the insurance policy is not mandatory but

directory in nature since this issue is squarely covered and decided by

the Hon’ble Supreme Court in Parvesh Chander Chadha (supra), in which case also

pursuant to a vehicle having been stolen between 18.01.1995 and 20.01.1995 an FIR

was lodged with the Police on 20.01.1995 but the Insuree did not inform the Insurance

Company immediately about the incident as required under the terms and conditions of

the insurance policy.  The relevant part of the judgment of the Hon’ble Apex Court is

as follows :

 “Admittedly, the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager.  In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation.  Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle.  It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident.  In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident.  On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same.  Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis.  In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.” 

10.     Respectfully following the above judgment of the Hon’ble Supreme Court, we are

unable to accept the order of the State Commission that the claim was wrongly

repudiated and, therefore, set aside the same in toto.  The present First Appeal is,

accordingly, allowed.  No order as to costs.      

   Sd/-

(D.K. JAIN, J.)

PRESIDENT

 Sd/-

(VINEETA RAI)

MEMBERMukesh

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI      CONSUMER COMPLAINT NO.     327 OF 2013

WITH I.A. No. 6522 OF 2013       & I.A. No. 6432 OF 2013

(Exemption for filing translation documents, additional fact)

 M/s.  Gaur Arunima Impex International Pvt. Ltd.  Through its Director, 71, Pandit Park, Krishna Nagar, New Delhi

… ComplainantVersus 

U. P. Housing & Development  Board Through its Commissioner 104, Mahatma Gandhi Marg Lucknow, Uttar Pradesh Also at :  Hall No.S-1, Vasundhara Complex Sector 16-A, Vasundhara, Ghaziabad

… Opposite Party 

BEFORE:

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

For the Complainants           :  Mr. Karunesh Tandon, Advocate

 PRONOUNCED ON _11.11.2013 

                                                O R D E R

JUSTICE J.M. MALIK

1.      The  controversy  in this  case is,  “Whether,  M/s.

Gaur Arunima Impex  International  Pvt. Ltd., is a  ‘consumer’ under Section 2(1)(d)(i)

(ii), read with explanation appended to it?”. The  complainant  company   transacts the

business of sale and  purchase of

land,  material  relating  to  construction,  etc. U.P.  Housing  and

Development  Board, the OP deals in the  development  of  residential colonies, along-

with all related benefits for the development of public,  at large. 

 

2.      The  OP,  vide  advertisement,  dated 03.07.2008  specified

four  plots  under  the  Category of the  Institutional Land,  demarcated  for  offices

only.  In  the  advertisement, it was pointed out that  the plots in question

are  without  any  encumbrances  but  the  allotment  of  plot  would be carried out

subject to procedure, terms and

conditions  of  the  tendered documents..  These  four plots were  required  to be

used  for  offices  only and specifically  mentioned their area in  sq.mts. along-with the

raised price, per sq.mt.  The  complainant took  part  in the auction, on

15.07.2008  for  plot  No.14/INS/Office-3,  admeasuring  1584.52 sq.mts.  That plot  was 

 allotted  in favour  of  the  complainant  on

12.08.2004. The  totalprice  of  the  plot  was  Rs.10,78,26,586/-.  The

complainant  deposited  the  Earnest  Money  of  10%  of  the  reserve price cost  and

rest of the amount  was to be paid in instalments.

3.      The complainant   was  shocked  to  note that  all  these  plots  were  situated

in  Khasra No.433/2,  Village Prahlad Garhi, and Legal  heirs of Shri  Om Prakash,  R/o

Village Prahlad Garhi, Ghaziabad, preferred a Suit,  bearing  No.327 of

2003,  titled  as Sukhbir  Singh  & Ors., Vs. U.P. Housing and Development Board,

before Civil Judge, Jr.Division, Ghaziabad and had sought permanent and mandatory

Injunction for dispossession  of  the land arising out of Khasra No.433/2.  It was not

an unencumbered  land.  The  contention raised  by  Sh.Sukhbir Singh & Ors., was  that

their  land was  never  acquired  by the Government.  The Civil Judge called

report  of  Ameen,  and  it reported  that  the possession of the  land  was

in  exclusive  possession  of  Sukhbir Singh & Ors.  These plots are situated adjacent to

BSNL Telephone Tower.  The Civil  Judge  rejected  the  claim  of  Sukhbir Singh

& Ors. and  the  appeal is pending.  In  the meantime,  Sukhbir  Singh & Ors, filed a Writ

Petition before the High Court  of  Allahabad.  The  Hon’ble High

Court  granted   stay  in favour  of  Sukhbir  Singh & Ors.  In view of  the

stay  granted  by  the  High  Court,  the   OP  was  not  entitled to have the

Earnest  Money.  The  OP,  in  the  notice  dated

16.11.2012,   demanded  an  interest  of  Rs.4,47,99,572/-  on   the  balance  considerat

ion of  Rs.10,29,26,586/-.

4.      Under  these  circumstances,  the  present  complaint  was filed  with the following

prayers :-

“In the aforesaid facts and circumstances, it is most  respectfully prayed that this Hon’ble Court may please to :-

a. Set aside the impugned demand of interest of Rs.4,47,99,572/- out of the total demand of Rs.14,77,26,158/-, as mentioned in notice dated 16.11.2012 and further allow the complainant to deposit the balance sale consideration of Rs.10,29,26,586/- pursuant to schedule of time prescribed in the letter of allotment dated 12.08.2008, with an undertaking that no matter   whatsoever is  sub-judice before any Court of law with regard to the plot in question and plot in question is free  from all charges/encumbrances.

b. Award compensation/damages on account of escalation in the rates of material/labour after holding an enquiry as required under Order XX of Code of Civil Procedure.

c. Award compensation of Rs.2.00 lacs on account of mental harassment.

d.Pass an interim order directing the respondent not to cancel and further allot, sale, create, mark any third party interest in the aforesaid plot.

e.Pass such and further order(s) as this Hon’ble Court may deem fit in the present facts and circumstances.

 

5.      We  have  heard  the  counsel for the complainant.  He has

invited our  attention  towards  the  Hon’ble Supreme  Court’s authority, reported

in Karnataka  Power Transmission Corporation & Anr Vs.  Ashok Iron

Works Pvt. Ltd., (2009) 3 SCC 240,  wherein it  was held that a ‘company’ is a ‘person’,

within the meaning of Section 2(1)(d), read with Section 2(1)(m) of the CP Act.

 

6.      This  must  be borne in mind that  cause of action in this

authority  pertains  prior  to 16.04.1992,  as it is apparent  from  para No.3 of  the

judgment.  Thereafter,  the law was amended w.e.f. 15.03.2003.   The definition

of ‘consumer’  was  wee  bit enlarged or curbed.   Section 2(1)(d) reads as follows:-

“d)  ‘Consumer’  means any person, who, --

(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  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     and services   availed by him

exclusively     for     the purposes of earning his

livelihood   by means of self-employment;]

              [EMPHASIS SUPPLIED]

 

7.      In view of  the  these  amendments,  the complainant  cannot be  said  to be a

‘consumer’.   In the case M/s. Purusharath Builders  Pvt. Ltd. Vs.

M/s. Uppal  Housing Ltd. &Anr., Consumer Complaint No.112 of  2012,  decided by

this Bench, on 05.07.2012, it was held :-

“11. 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.

12. The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law”.

8.      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”.

 

9. 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”. 

 

10.    In Satish Kumar  Gajanand  Gupta Vs. M/s.  Srushti  Sangam  Enterprises

(India) Ltd., & Anr., Consumer 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. 

 

11.  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 14.9.12.       

 

12.    In the  instant  case,  the complainant has made  a futile attempt  to

prove  that  it  is a  ‘consumer’.   Para 18 of the complaint runs, as  follows:-

“As stated  herein  above, the complainant  is  a ‘consumer’ and opposite party failed to provide the requisite service as undertook while publishing the advertisement and issuing the letter of allotment, therefore, the instant complainant falls within the jurisdiction of the Hon’ble Court.  Therefore, this Hon’ble Court has the jurisdiction to deal and try with the instant case”.

By  mere  using  the  word  ‘consumer’,  one  does not  become a ‘consumer’.   One has

to qualify all the conditions, specified in Section 2(1)(d). The complainant is

conspicuously silent about the same. 

 

13.    Secondly,  the complainant  itself admits that they transact  the business

of  sale,  purchase of  land, material relating to construction, etc.  This  clearly  goes to

show that these plots were taken for the

purposes of re-sale. 

 

14.    Moreover,  there  is no  inkling in  the  Resolution,  which  may go to

show  that  the  complainant is a ‘consumer’.  The  Resolution, dated 11.07.2003,  runs

as follows:-

“In the  meeting of the Board of Directors

held on 11.07.2013, it was resolved that Shri Sanjeev Gaur, S/o Late Shri Ved Prakash Gaur, R/o Arunima Palace, GH-4,

Sector-4, Vasundhara, Ghaziabad, has been authorised to under the Company Act, 1956 and inter alia engaged in the business of sale purchase of land, material relating to construction, etc., and he can file the complaint, if required, any.

 

 

15.    After  evaluating  the  pros  and cons  of  this case, we are of the considered view

that the complainant is not a

‘consumer’.  Consequently,  the   complaint   case  is  hereby dismissed at the stage of

admission.   No order  as  to costs.  However, the complainant  can take

support  from  the  case  of M/s.Laxmi  Engineering  Works Vs.

P.S.G.  Industrial Institute (1995) 3 SCC, 583,  to  seek  redressal of  its

grievances  from  an  appropriate forum or civil court, as per law.   

.…..…………………………

(J. M. MALIK,J.)

                                              PRESIDING MEMBER 

.…..…………………………

(DR.S. M. KANTIKAR)

                MEMBER

dd/17

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHICONSUMER COMPLAINT NO. 200 OF 2012

 

M/s. Rajankumar & Bros (IMPEX) 1st Floor, Sugar House 93/95, Kazi Sayed Street, Masjid Bunder Mumbai – 400003

…  Complainant

Versus The Oriental  Insurance  Co. Ltd. Oriental House, A-25/27, Asif Ali Road New Delhi Through Its Divisional Office No.7 Magnet House, 3rd Floor N.M. Marg, Ballard Estate, Mumbai – 400038

… Opposite Party

 BEFORE:

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

      HON’BLE DR. S.M. KANTIKAR,  MEMBER

 

For the Complainant  : Mr.Syed Naqui, Advocate

                                     With Mr. Prem Prakash & Mr.Deepesh, Advocates

 

For  the Opposite Party :   Mr. Arvind Gupta, Advocate

 

Pronounced     on     12 th     November, 2013

ORDER 

JUSTICE J.M. MALIK

1.    The  emphatic  view  taken by the Hon’ble Apex Court is  that  in a contract  of

insurance,  the rights  and  obligations  are  governed  by  the  said  terms of  the

contract. Therefore, the terms of a contract  of  insurance  have to be strictly

construed  and no exception can be made on the ground of equity.   In interpreting the

documents  relating  to  a contract of  insurance,  the duty of the Court

is  to  interpret  the ‘words’, in  which  the  contract  is expressed by the parties because,

it is not for the court to make a new  contract, however  reasonable,  if the

parties  have  not  made  it themselves.  It  needs  little  emphasis  that  in  construing

the terms of the  contract  of  insurance,  the ‘words’  used therein, must be given

paramount  importance  and  it is not open for the Court  to add, delete or

substitute  any  words.  It is also well settled  that since upon issuance  of  an insurance

policy, the insurer undertakes to indemnify the loss  suffered  by  the  insured  on

account of risks covered by the policy, its terms have to be strictly construed to

determine the extent of liability of the insurer. Therefore, the endeavor of the court

should always be to interpret the words in which the contract  is  expressed  by the

parties.  This  view was taken in a catena of judgments by the Hon’ble Supreme Court

in Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. &

Anr., (2010) 10 SCC 567, General Assurance Society Ltd. Vs.  Chandmull Jain,

1966 ACJ 267  (SC) 23, Harchand

Rai Chandan Lal’s case, 2005 ACJ 570 (SC), etc.

 

2.     The  main  question  in  this case swirls  around the question  whether  the

consumer complainant  has stated the truth in this case.  It must be borne in mind that

insurance  policy is a contract of insurance falling under the category of contract of

uberrimae fidei, meaning thereby, a contract of utmost good faith, by the

assured.  [Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd., IV (2009) CPJ 8

(SC)].

 

3.      The facts of this case are these. M/s. Rajankumar & Bros., (IMPEX) is

a  partnership  firm  which transacts  the  business as Importers and Exporters of

various commodities, including  steel coils.  The Oriental  Insurance  Co. Ltd.,

issued  a  Marine  Cargo  Cover  dated 14.05.2010 for an

insured  sum  of  Rs.6,25,62,500/- only  covering  the voyage from any port  in China

to  Taloja, Navi Mumbai, via Mumbai  Port,  India, in  respect  of  the  said  cargo

covered  under B/L No.K4, both dated 11.06.2010.  The  perils covered  were as per the

Institute Cargo  Clauses ‘A’  War  and  SRCC  terms against  the payment of

premium  amount  of   Rs.34,504/-  vide

premium  receipt  Ex.A.  The  complainant  vide  its  letter dated  26.05.2010  forwarded  

to  the  OP the particulars of  the   ship, Vessel,  namely, Khalijia -III,

was  built  in  March, 1985,  Class  of   Vessel  as  IRS and other particulars  vide Ex.’B’

and ‘C’.  The   complainant  also  informed  Kirtanlal  & Sons,  intending agents

of  the  Overseas Sellers vide Ex.’C1’. 

 

4.      Hangzhou  Cogeneration (Hong Kong) Co.  Ltd.  through M/s. Kirtanlal & Sons,

shipped  80-prime hot rolled steel coils weighing 2000 MT on Board the Vessel Khalijia-

III from the Caofeidian Port, China to  the  complainant  for discharge  at Mumbai Port

cargo totally valued  at  USD 1263712.50 for  the

said  consignment  under  Bill  of  Lading  No.K-4, dated

11.06.2010  and  issued  their  commercial  Invoice  dated 07.06.2010 to the

complainant.  The above said Sellers  negotiated  the  shipping documents, including

the certificate that the said Vessel was registered  with approved

classification  Society  as  per the Institute  Classification  Clause  and  Class

Maintained  equivalent  to Lloyds 100 AI and  that  the said Vessel  was  sea-

worthy  which  was  not  more  than 30 years’ old.  The  shipping details  were furnished

to M/s. Sun Insurance Brokers Ltd., of the OP,  with a request  to issue the policy,  who,

in turn, vide its letter dated 02.07.2010,  forwarded  the  same  to  the  

OP against  the cover  note Ex.’D’.  The  OP  accepted  the  above

said  particulars  and  specified  that  the  above  said  particulars  and  specified  that  t

he  cover  issued  was as per the  Insurance Cargo Clause ‘A’.  No  other terms and

conditions, clauses and/or  warranties were  attached thereto.  The

premium  was  accepted.

 

5.      The  said  Vessel  carried  on Board  some other consignments of Prime

Hot  Rolled Steel Coils  of  seven other importers who purchased

and  imported  the  same  from the same Sellers.

The  total   of  such   coils  on  Board  of  the  said Vessel  was 1484   coils

weighing  about  30924.02 MTs.  The said Vessel completed  the

Voyage  and  reached Mumbai  Port , on or about, 06.07.2010 and was  allotted  berth

on 14.07.2010,  for  discharge of  the cargo  on Board. On account of  the  failure

of  Vessel’s  crane during discharge,  further  discharge did not  take place and the

Vessel was removed by  an order of  the port  authorities from  her Berth.

 

6.      On 19.07.2010, the  complainant  came  to know  from a

Newspaper  report  that  the  Vessel  had run aground on the midnight  of 18.07.2010.

Apprehending  damage to their consignment on Board,  to aid the

grounded  Vessel,  the complainant  immediately  sent a  letter  dated 20.07.2010 to the

OP informing about the  said policy  vide  copy  Ex.F.  It also came to light  that  Owners

of  the  Vessel  had  engaged  services  of  Salvors, M/s. Smit Singapore  Private Ltd.,

for  salving  the  said Vessel and  the   cargo  on  Board.  On/or about  22.07.2010,   the

complainant  also  learnt  that  M/s.Richards Hogg Lindley (Piraeus, Greece) were

appointed  as General Average Adjustor, in short, ‘GAA’.  By an e-mail, dated

22.07.2010  sent  to  the  complainant  and  the OP  by the said GAA, it was stated,

inter alia, that the situation  had given rise to General Average and  the ship

owners  had declared  General Average Security and  had appointed  their Piraeus

Office to collect  the  General  Average  Security  prior  to  the  delivery of  the  cargo

at  the destination. 

7.      The  complainant  requested  the OP to  issue  General Average Guarantee, Form

‘B’ as required by the said General Average Adjusters  because  the

cargo  could  not  be released to the

Cargo  Receivers,  until  they  furnished  the  security  documents  and  the

Salvors  had  received  satisfactory  salvage  security.  Cargo was to be released

immediately in order to avoid heavy port demurrage   charges  and  further  damage  to

the  consignment.  The OP agreed  and  undertook  to  pay  to  the ship  owners  or to

the said General  Average  Adjustors  on  behalf  of  the complainant in

contribution  towards  general average  and  which  salvage/ expenses  charges and/or

special charges  which  may  be ascertained  to be properly due in

respect  of  complainant’s consignment.   The complainant  took all

those  documents  to the  concerned  authority.  OP  also gave  the   requisite  separate

salvage security.   In  addition to the general  average security to be

furnished  in  the  amount of 25% of C.I.F., value of  the cargo  on Board  the Vessel or

equivalent  to USD 256880.

8.      On the other hand,  the OP appointed M/s. W.K. Webster & Co., London

as  their   claim  settling  agents/representatives  in London

for  the  cargo  insured  by  them  on  the said  Vessel.   By  e-mail  dated  09.08.2010,

Mr. J.P.Vajpai of the OP2, Regional Office, Mumbai, informed  Stephen

Fernandez  of  M/s. Richard Hogg Lindley India Ltd.,  Mumbai, Mr. Mark  Meredith of

M/s.W.K.Webster & Co., OP’s claim settling agent/representatives  in London, the

Salvors, M/s. Smith Pvt. Ltd.,  Singapore,  Ms.Diana  Bowles  of Lloyds, London, Mr.

Alex Pinto of  M/s. Richard Hogg of Singapore and  Mr.R.K. Joshi of OP 1 & 2  that  the

OP had  received  all  the  compliances as required  under  Section

64VBA  of Insurance  Act  and  confirmed that the same were in order. 

 

9.      On 08.08.2010,  it was  reported  that  on 07.08.2010, there was

collusion   between  the  said  Vessel MV Khalijia –III  with a Navy  Vessel  MV

Chitra,  in waters on JNPT, Mumbai Port,  resulting, inter alia,  in oil spill from

the  Vessel,  MSC Chitra.  It is  alleged that the OP did not comply with their obligation

to issue a  separate salvage security as required by the said GAA  thereby  resulting

in  withholding  all  the  instructions  from  release of the complainant’s

consignment  at  Mumbai

Port,  though  the  complainant’s  said consignment  had  been  discharged  into  Mumb

ai  Port Trust   premises.  On 13.08.2010, M/s. Smith Pvt. Ltd., the  Salvors,  claimed  a

maritime lien on  the  said  cargo.  As the OP did  not  issue a separate  salvage

security as required, the complainant’s  said  consignment  remained uncleared  in the

Mumbai Port Trust  premises   incurring  heavy   demurrage and   being  exposed  to

likelihood of further  damages. 

 

10.    In the meantime, Salvors had commenced Arbitration

proceedings  against   the  Owners  of  the  said Vessel and  the cargo  interests  in

London and obtained an ex-parte order dated 16.08.2010  restraining  the

cargo  owners  from  removing  the  cargo  from  the Mumbai Port Trust until a  salvage

security to the tune of USD 70.00  lakhs was furnished to the said Salvors, M/s.Smith

Pvt. Ltd., Singapore.  The Salvors, M/s. Smith Pvt. Ltd., Singapore,

filed  arbitration  petition  against the owners of the Vessel, Mumbai Port  Trust  and the

cargo owners, including the complainant herein,  under  Section 9  of  the Arbitration

and  Conciliation Act, 1996 in the Hon’ble High  Court,  Mumbai and  obtained an  ex-

parte  interim order dated 13.08.2010,  restraining the  complainant   and  other cargo

owners  from,  in any  manner,  directly  or indirectly,  removing, taking

away  and/or  releasing their respective  consignments  and  also restraining the

Mumbai Port Trust from giving  delivery or releasing the cargo to the complainant and

other cargo owners.  However,   the Hon’ble High Court  declined  to continue  with

the  order  dated  13.08.2010  vide its order dated 18.08.2010.  But the Hon’ble High

Court, Mumbai, by order dated 18.8.2010 continued the earlier interim reliefs,  till

24.08.2010.

11.    On 18-19.08.2010, the Complainant received a letter from M/s.Richard  Hogg

Lindley (Hellas) Ltd., the  General Average Adjustors revised  their demand for

Salvage  from USD 256880 to USD 423864 based  on  the  said order  dated

16.08.2010, in the arbitration  proceedings  in  London.  On 23.08.2010, the

complainant  received  a letter from OP informing them  that OP 1 were

purportedly   withdrawing   the General Average  Guarantee  Form  ‘B’  issued

by  their  Divisional Office in respect of the

said   complainant’s  consignment insured  by  them  on the said Vessel MV Khalijia-

III.  The Hon’ble High Court of  Mumbai  vide  its  order  dated

24.08.2010,  directed  that  complainant and other cargo owners

would be  permitted  to  remove  their  respective  consignments from Mumbai

Port  Trust  premises on

furnishing  security  in  the  Form  of  Bank  Guarantee  in  the  aggregate  sum of

Rs.14.00 crores and each of  the  cargo   owners  were to furnish separate

guarantees,   proportionate to the quantity mentioned in respect of the respective Bill of

Lading.  The Complainant  furnished  Bank  Guarantee  and took delivery  of  the said

consignment  from  Mumbai  Port  Trust  on 03.09.2010.   On 02.12.2011 the learned

Arbitrator passed the Award.

12.    The  complainant  vide  its letter  dated 02.02.2012, called  upon  the OP to

clear  the loss of  Rs.1,60,23,982/-. The  documentary  evidence was also

annexed.  The complainant also forwarded the  copy

of  the  arbitration  award   dated  02.02.2011 and called upon  the OP to clear the

losses.  Legal  notice  was sent on 21.06.2012, reminder  was  also sent  on

04.07.2012, but  which  went  unresponded.   Consequently,  this

complaint  was  filed  with the following prayers :-

“i.  A sum of Rs.1,61,32,953/- (Rupees one crore sixty one lakhs thirty two thousand nine hundred fifty three only) as compensation for the loss  suffered by the complainant together with interest @ 18% p.a. thereon from 20.08.2010 on the said claim.

ii.   A sum of Rs.1,00,00,000/- (Rupees one crore only) towards compensation for the loss caused and deficiency in services of the OP together with interest @ 18% p.a. thereon.

iii.  A sum of Rs.5,00,000/- (Rupees five lakhs only) being the legal and other incidental expenses incurred and to be incurred by the complainant.

iv.  to hold and declare  the OP to  be guilty of deficiency in service and unfair trade practice as per provisions of the C P Act, 1986.

v.  to direct the OP to rectify the defects in its service and pay the complainants a sum of Rs.1,61,32,953/-  as compensation for the loss claimed by the complainant together with interest @ 18% p.a. thereon from 20.08.2010 on the said claim.

vi.  to direct the OP to additionally pay to the complainants a sum of Rs.1,00,00,000/- towards compensation for the inconvenience suffered by the complainant due to the deficiency in services of the OP.

vii. to direct the OP to rectify the defects in its service and to further pay to the complainant a sum of Rs.5,00,000/-  being the legal and other incidental expenses incurred by the complainant for the present complaint.

viii.  For such other and further relief that this Hon’ble Commission may deem fit and proper in the nature and circumstances of the case”.

 

13.    The OP could not file the written statement within 45 days from its

service.  Consequently, the right to file the written version was forfeited,  vide order

dated 14.05.2013. Thereafter, the counsel for OP argued that the written arguments

filed by him should be considered. The request of the OP was again dismissed vide

order dated 01.07.2013,  while placing  reliance on the three Judges’ Bench

of  the  Hon’ble Apex Court,  reported in  Dr.J.J.Merchant &

Ors. Vs. Shrinath Chaturvedi, III (2002) CPJ 8 (SC).

 

14.    Aggrieved by the order dated 01.07.2013, Special Leave to Appeal (Civil)

No.24705/2013  was filed by the Oriental Insurance Co., the OP, before the Hon’ble

Supreme Court . The Apex Court vide its order dated 13.08.2013, dismissed the said

SLP.

 

15.    However, we have  heard  both the counsel  because the OP was permitted to

raise the arguments  on the legal questions only.    The OP tried to  make  submissions

on various legal points.  However, in  our  opinion, the key question is whether the ship

in question  was  having a ‘class’?”.  The main grounds mentioned in the

repudiation  letter dated 20.08.2010 which appear to be valid, run as follows:-

“Re: Withdrawing the General Average Guarantees issued in respect of your cargo on Board M.V. Khalijia-3.       

Dear Sirs,

This  is to inform you that we are withdrawing the General Average (GA) Guarantees issued by  our  Divisional  Offices  in respect  of   your

Cargo insured by them on M.V. Khalijia-3.

After we had issued the GA Guarantees to the Average Adjusters appointed by the Ship owners, we have been advised by the Surveyors appointed by us, that the Vessel was NOT classed in accordance with the Classification Clause, attached to and forming part of the Policy of Insurance issued to you.

Since there is a breach of the terms and conditions of the Policy, we have no liability and hence our decision to withdraw the GA and Salvage Guarantees issued/arranged for by us.  This letter is issued without prejudice to our rights, privileges, liberties and immunities under law and contract, as applicable.

Sd/-

For The Oriental Insurance Co. Ltd”.

 

16.    It must be borne in mind that it is the complainant and nobody else who is to carry

the ball, in proving its case.  We have gone through  a number of documents filed by it.

Counsel for the complainant has invited our  attention towards letter written by the

complainant   dated  26.05.2010,  wherein  it was  mentioned as under :-

“With reference to the above, we would like to request you that our goods shipped from China to Mumbai by Vessel Khalijia-3, Qty: 2000 M/Tons.

We are sending herewith  shipped particulars with full details. Please kindly inform us whether this steamer is accepted by insurance company”.

 

17.    There is no inkling that the said letter was

actually  sent  or  was  responded  by  the OP.  We will assume that,  that the

said  letter was not responded  by  the OP.  There is no evidence worth  the name,

which may go to show that the  second  letter,   in this regard  or  reminder  was also

sent.  The  complainant  has  produced on record, the ship particulars which mention

“Class - IRS”, which stands for  ‘Indian Registrar  of Shipping’.   Our only finding is that

this representation was falsely made.  There was no such ‘Class’.  Consequently, the

value of the claim made  by the complainant  stands  evanesces.   Mere ipse  dixit  on

the part  of  the  complainant,  will not do.  There must be some solid  and  unflappable

evidence.  This is  one  of  the conditions  of  the policy  dated 14.05.2010, wherein it

was specifically mentioned :

“Term of Insurance : The risks under this policy are covered as per the following Clauses, current on  date of sailing or dispatch and/or other conditions/warranties otherwise stated herein and attached hereto:

Important Notice

Procedure in The Event  of  Loss/Damage

Institute War Atomic and Nuclear Exclusion

Institute Radioactive Contamination Exclusion Clause

Freight Brokers Warranty

Cargoism Clause

Termination Clause

Computer Millennium Cargo Clause

Institute Classification Clause

Institute Cargo Clauses (A)

Institute Tpnd Clause

Institute War Clauses (Cargo)

Institute Strike Clauses (Cargo)”.

 

18.    We  have  also  gone through the Oriental Insurance Company’s  letter which is

part of Ex. P-1, at page 59-A.  The Insurance Co. came to the following conclusion :-

“Classification  and Age

Our investigation reveals that the Khalijia-3 was classed with Lloyd’s until 10 Oct 2007, after which class was withdrawn by Lloyd’s.  We do not have a copy of your insurance certificate/policy.  However, we believe that it may incorporate the Institute Classification Clause. If it does, the relevant shipment would seem to fall outside the scope under the   Main Identity”.

 

 

19.    The moment this conclusion has been drawn by the Oriental

Insurance  Co. Ltd., it  was  the duty of  utmost importance on the part of  the

complainant  to  produce the certificate from IRS.  Why did the Lloyd not extend the

‘Class’?. 

 

20.    Both the counsel could not throw more light on this issue.  Consequently, we took

the  help of  the internet and found out  the text of  the

Institute  Classification  Clause,  dated 01.07.1978, the relevant portion of which,  runs

as follows:-

“Cargoes and/or interests  carried by mechanically self-propelled vessels not falling within the classification of the above are held covered subject  to a premium and on conditions to be agreed.

Vessels over 15 years’ old, under 1000 G.R.T. and not classed by any one of the above classification societies attract additional rates provided in the tariff. 

It is possible to waive  additional premium for vessels over 15 years old but not over 25 years of age and engaged in overseas (import/export) voyages, if they are declared as ‘Liners’.  For this, it is necessary for the ship owner  on  the  steamer  agent   in India  to submit an application to the Advisory Committee, requesting  them  to declare  the vessel as a ‘Liner’.   The present rule should have completed at least one voyage to Indian Ports during the last 12 months.

Age Limitation:

2. Cargoes and/or interests carried by Qualified Vessels (as defined above) which exceed the following age limits will be insured on the policy or open cover conditions subject to an additional premium to be agreed.

Bulk or combination carriers over 10 years of age or other vessels over 15 years of age, unless they :-

 

2.1 have been used for the carriage of general cargo on establish and regular pattern of trading between a range of specified ports, and do not exceed 25 years   of age, or

2.2 were constructed  as container ship, vehicle carriers or double-skin open-hatch gantry crane vessels (OHGCS) and have been continuously used as such on an established and regular pattern of trading between a range of specified ports, and do not exceed 30 years of age”.

 

The case of complainant does not show that his case is covered under Clause 2.2.  

 

21.    It must be borne in mind that date of loss is 18.07.2010, the date of built of ship in

question is March, 1985.  The loss occurred  after a period of more than 25 years.  The

complainant  submitted that its Class is

IRS.  This  is  a  stoke  and  shaky  explanation.  It was  the  bounden

duty  of  the  complainant to produce the Certificate from  IRS,  even though  its  case is

covered under Clause 2.2.  Its absence rocks the boats to a dangerous

extent.  Attempts  were made in vain to sweep  the truth under the mat.  The court is not

to be deceived by this lie.  The court  has to be empherical and  practical  in

confronting  the reality.  The  complainant  has tried to kick against  the pricks.  The

complaint  is sans  merit and deserves  dismissal which we hereby direct.  No order as

to costs.

 

..…………………..………J

    (J.M. MALIK)

      PRESIDING MEMBER

  ……………….……………

                                                        (DR.S.M. KANTIKAR)

                                                                           MEMBER

 dd/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO.2874 OF 2012(From the order dated 19.04.2012 in First Appeal No.35/2008 of theHaryana State Consumer Disputes Redressal Commission, Panchkula) Rugs India (100 percent EOU) A partnership firm having its office at: Plot No.183, A and B, Sector 25, Part-II, HUDA, Panipat, Haryana Through its partner: Mr. Lalit Goel

..…. Petitioner

                                               VersusM/s ICICI Lombard General Insurance Co. First Floor, SCO 24025, Sector 8-C, Madhya Marg, Chandigarh

..... Respondent BEFORE:HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER 

For the Petitioner                :  Mr. Manorajan Sharma, Advocate

For the Respondent                        :  Mr. Amit Tyagi, Advocate 

PRONOUNCED   ON     :     13 th       November,     2013

                                                  ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision petition is directed against the order of the State Commission

dated 19.4.2012 whereby the State Commission accepted the appeal of the

respondent/opposite party against the order of the District Forum and dismissed the

complaint. 

2.       Briefly put, the facts relevant for the disposal of this revision petition are that the

complainant- firm obtained an insurance policy from the opposite party for period from

15.6.2005 to 14.6.2006. On 8.5.2006 fire broke in the insured premises due to which the

petitioner/complainant suffered loss. Incident was intimated to the insurance company.

A surveyor was deputed who after conducting necessary survey and investigation

assessed the loss suffered by the complainant to the tune of Rs.30,76,654/-. Pursuant

to the survey report the respondent/opposite party sentcheque for the even amount to

the petitioner with a covering letter dated 01.09.2006, which reads thus: - 

“We are pleased to inform you that your claim referred above has been approved for full settlement amount of Rs.30,76,654/. We are hereby enclosing the Cheque of Rs.30,76,654/- vide Cheque No.104140 dated 29- August- 2006 drawn on ICICI Bank Ltd. We thank you for the opportunity to serve you and assured you best the services at all times.”

 

3.       The complainant encashed the cheque and sent a protest letter to the respondent

which reads thus:- 

“Sir,          We have received your cheque No.104140 of

Rs.30,76,654.00 dated 29.08.2006 towards our above said claim. We have received your cheque under protest since our claim is for Rs.44,04,015.00. You are therefore requested to send/provide us copy of Surveyor Report alongwith copy of work sheet, how this amount has been arrived.

Kindly provide the above information/document under Right to Information Act 2005 failing which we shall be compelled to take legal action under the said Act. We are enclosing herewith draft of Rs.50.00 in the favour of ICICI Lombard General Insurance Co. Ltd. No.084783 Dated 04.092006 payable at Mumbai towards fee payable to you for providing the information under the said Act.”

  

4.       The respondent/opposite party failed to pay to the petitioner the difference of the

claim of the petitioner to the tune of Rs.44,04,015/- and the amount of the cheque. This

led to the filing of the consumer complaint by the petitioner alleging deficiency in service

on the part of the opposite party. 

5.       The opposite party resisted the claim by filing the written statement wherein a

plea was taken that the cheque for Rs. 30,76,654/- was sent to the complainant in the

full and final settlement of the claim and by accepting the cheque the complainant has

agreed to settle the claim and as such it is estopped from reopening the matter. 

6.       The District Forum on consideration of the pleadings of the parties and evidence

found deficiency in service on the part of the opposite party and allowed the complaint

with following directions: - 

“For the reasons recorded above, we accept the present complaint and direct the OPs to make the payment of Rs.8,90,000-00 together with interest at the rate of 9% per cent from 29.8.2006 the date when the OPs made the payment earlier to the petitioner till realization and a sum of Rs.3300/- as litigation expenses within a period of thirty days from the date of receipt of this order. Parties concerned be communicated of the order accordingly and file be consigned to the records after due compliance.”

 

7.       Feeling aggrieved by the order of the District Forum, respondent/opposite party

preferred an appeal before the State Commission and the State Commission without

referring to the merits of the case allowed the appeal on technical ground with following

observations: - 

“On behalf of the appellant it has been argued that the amount of Rs.30,76,654/- was paid to the complainant vide cheque No.104140 dated 29.8.2006 which was drawn from ICICI Bank Ltd. In favour of M/s Rugs India and therefore after receiving the aforesaid amount, the complainant has no right to reopen its claim.”

 

8.       Shri Manoranjan Sharma Advocate, learned counsel for the petitioner has

contended that the impugned order of the State Commission is based upon incorrect

reading of the judgment of the Supreme Court in the matter

of Bhagwati   Prasad   Pawan   Kumar vs. Union of India  (2006) 5 SCC 311. Expending

on the argument learned counsel for the petitioner contended that the State

Commission failed to appreciate that in Bhagwati   Prasad   Pawan   Kumar  case (supra)

the Indian Railways had forwarded the cheque against the claim of

 

the claimant of that case making it clear in the forwarding letter that in case the offer of

the Railway was not acceptable the cheque should be returned forthwith failing which it

would be deemed that the claimant has accepted the offer in full and final settlement of

his claim. Learned counsel argued that in the instant case no such condition was

mentioned in the covering letter of the cheque. Therefore the acceptance of cheque by

the petitioner under protest cannot be termed as full and final settlement of the claim by

the petitioner. Learned counsel for the petitioner thus urged us to accept the revision

petition and set aside the impugned order of the State Commission and restore the

order dated 29th October, 2007 passed by the District Forum, Panipat. 

9.       Shri Amit Tyagi Advocate, learned counsel for the respondent on the contrary has

argued in support of the impugned order. He has drawn our attention to the covering

letter dated 01.09.2006 vide which the cheque for Rs.30,76,654/- was sent to the

petitioner- Company and argued that the letter clearly mentions that the aforesaid

amount has been approved for full and final settlement claim of the petitioner and

therefore by accepting the cheque the petitioner has entered into full and final

settlement. As such the State Commission has rightly held that the petitioner is

estopped from reopening its claim by filing the consumer complaint.

 

 

10.     The only question for determination in this revision petition is whether the

acceptance of cheque of Rs.30,76,654/- sent to the petitioner alongwith covering letter

dated 01.09.2006 amounts to the acceptance of the amount in full and final settlement

of the claim of the petitioner and that as a consequence, the petitioner is estopped from

re-agitating his claim by filing the insurance claim?

11.     In order to find answer to the above question, it is necessary to have a careful

look on the letter dated 01.09.2006 vide which the cheque of Rs.30,76,654/- was sent to

the petitioner.  On reading of the contents of the aforesaid letter reproduced in para 2 of

this order, we find that vide this letter, the respondent had informed the petitioner that

they have approved a sum of Rs.30,76,654/- for full settlement of his claim.  This in our

view only amounts to conveying the information about the amount approved against the

insurance claim and it cannot be taken as an offer for full and final settlement of the

dispute particularly when there is nothing on the record to suggest that prior to issue of

this letter, any negotiation for amicable settlement of the claim between the parties was

going on.  It is pertinent to note that as per record within three days of said letter, the

petitioner had written a protest letter dated 04.09.2006 asking the opposite party

insurance company to send copy of the surveyor report alongwith copy of the

calculation sheet indicating the manner in which the amount of loss has been

quantified.  The aforesaid conduct of the petitioner in immediately sending a protest

letter is clear indication of the fact that he accepted the cheque as on account payment

against its claim of Rs. 44,04,015/- under protest.  The State Commission in our view

has misread the judgment of the Supreme Court in the matter of Bhagwati Prasad

Kumar (supra) and it failed to appreciate that the aforesaid judgment is based upon the

entirely different facts.  In that case, Indian Railways had send the cheque to the

claimant in full and final settlement of the claim making it clear that if the offer was not

acceptable, the claimant should return the cheque.  In the instant case, there is no such

stipulation in the letter dated 01.09.2006.  Therefore, use of words “claim has been

approved for full settlement” cannot be termed as an offer given to the petitioner for full

and final settlement of the insurance claim.  Thus, in our view, the

State Commission  has committed a grave error in holding that acceptance of cheque

sent by the insurance company amounts to offer of full and final settlement by the

petitioner. 

12.     Considered from the other angle, admittedly the petitioner had taken a standard

fire and special peril policy from the opposite party on payment of premium. As per the

insurance contract the opposite party has agreed to indemnify the petitioner for the loss,

if any, caused because of fire besides other reasons. Admittedly, the petitioner has filed

a claim of Rs.44,04,015/- and that the respondent/opposite party on the basis of the

report of assessor approved the payment of Rs.30,76,654/- against the claim.  Merely

because, there was a mismatch between the amount claimed by the petitioner and the

loss assessed by the Surveyor, the opposite party was not justified to withhold the

payment and send the cheque of the approved amount with a rider that aforesaid

amount was approved as full settlement of the claim.  In all fairness, since the opposite

party had entered into a contract to indemnify the petitioner for the loss suffered,   it was

required to remit the amount of loss quantified and approved by it on the basis of the

assessor report unconditionally to the petitioner. By imposing the condition and using

the words that the amount of Rs.30,76,654/- was “approved in full settlement of the

claim”, the opposite party has impliedly exerted pressure on the petitioner by indicating

that the claimant should accept the amount as full settlement or have recourse to legal

remedy.  This offering of the cheque subject to the condition, in our view, amounts to

unfair trade practice as also coercion.  Thus the acceptance of

the cheque sent alongwith the letter dated 01.09.2006 under protest by the petitioner is

fully justified and cannot be taken as full and final settlement of insurance claim.

13.     In view of the discussion above, we are of the opinion that impugned order of the

State Commission is based upon incorrect appreciation of facts and misreading of the

judgment of the Supreme Court.  Revision petition is, therefore, accepted and impugned

order is set aside.  Since the State Commission has not considered the merits of the

appeal, we remand the matter back to the State Commission with direction to rehear the

appeal and decide the same on merits. 

14.     Parties are directed to appear before the State Commission on 27.11.2013. 

15.     Since this is an old matter, State Commission is requested to decide the appeal

within three months. 

                                                       ………………………….     (AJIT BHARIHOKE, J)      (PRESIDING MEMBER)

                                                                    …………………………                                                        (SURESH CHANDRA)                                                                            MEMBER Raj

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

FIRST APPEAL NO.780 of 2006(From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the StateConsumer Disputes Redressal Commission, Delhi)

 M/s. State India Express (Regd.) 20-1, Hansraj Damodar Wadi, Near Kennedy Bridge, Mumbai-400004

..  AppellantVs.

1.      M/s. Ranutrol Ltd. F-85, Okhla Industrial Area, Phase-I New Delhi-110020 2.      New India Assurance Co. Ltd. Bajaj House, Fourth Floor, Nehru Place, New Delhi

..Respondents 

AND FIRST APPEAL NO.116 of 2007(From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the StateConsumer Disputes Redressal Commission, Delhi)

 M/s. New India Assurance Co. Ltd. Jeewan Bharti Building Connaught Place, New Delhi-110001

..  Appellant Vs.

1.      M/s. Ranutrol Ltd. F-85, Okhla Industrial Area, Phase-I New Delhi-110020 2.      M/s. State India Express (Regd.) 1619, Madrasa Road, Kashmere Gate, Delhi-110006

..Respondents 

BEFORE: -HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT

 HON’BLE MRS. VINEETA RAI, MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

 For the Appellant in FA No.           : Mr. K.S. Singh and Ms.780/06 and Respondent No.2          Tripta, Advocatesin FA No.116/07 For the Appellant in FA No.           : Mr. Nitesh, Advocate116/07 and Respondent No.2         in FA No.780/06 For the Respondent No.1 in          : Mr. Aditya Kumar,both the Appeals                                        Advocate O R D E R(Pronounced on  18th    November, 2013) D.K. JAIN, J., PRESIDENT

 

          These two appeals under section 19 of the Consumer Protection Act, 1986

(for short “the Act”) are directed against common order dated 03.11.06, passed by

the State Consumer Disputes Redressal Commission, Delhi (for short “the State

Commission”) in Complaint Case No. C-213/96.  By the impugned order, the State

Commission has awarded to the Complainant, a compensation of `4,54,272/- for the

actual loss suffered by them due to the negligence of M/s. State India Express

(Regd.), (for short, “the Courier”), the appellant in F.A No. 780/2006, on account of

non-delivery of the goods booked with them to the consignee. The State

Commission has also directed that the amount of compensation as also the cost of

proceedings, quantified at `10,000/-, would be shared equally by New India

Assurance Co. Ltd. (for short, “the Insurance Company”), the Appellant in F.A No.

116 of 2007, with the Courier.

2.      The complainant Company, engaged in the manufacture of various goods

including thermostats, booked a consignment of 50 boxes, containing 6000 pieces

of thermostats, with the Courier on 09.06.1994 vide receipt No. 7824, on door

delivery basis at Bombay. The consignee was M/s Godrej GE Appliances. As per the

goods receipt the goods were valued at`4,54,272/-. The courier charges

were `8,000/- on FOR basis.  Admittedly, the consignment was insured with the

Insurance Company.  

3.      On being informed by the consignee about non-receipt of the goods, the

Complainant vide letter dated 26.6.1994 requested the Courier to look into the

matter and take steps to trace the consignment.  Having failed to get any response,

vide letter dated 04.07.1994, the Complainant again asked the Courier to arrange for

immediate delivery of goods, urgently required by the consignee. The Courier was

also warned that in the event of any claim by the consignee due to non-delivery of

the goods, they would be responsible.    

4.      Responding to  letter dated 04.07.1994,  the Courier,  vide their letter dated

13.07.1994, informed the Complainant that one, Anil Sharma, an employee of the

Complainant, had personally taken the delivery of the consignment on 11.06.1994

by producing the original goods receipt (GR) issued at the time of its booking, after

making   cash payment of `8,500/- towards cargo charges. It was alleged that being

fully aware of delivery of the consignment to the said Anil Sharma, the complainant

had never enquired from their delivery office about the whereabouts of the goods,

which showed some conspiracy at the end of the Complainant.  Thus, the Courier

denied their liability towards the consignment.  

5.      By letter dated 04.08.1994, the Complainant again advised the Courier to trace

out the consignment and deliver it to the consignee or in the alternative pay a sum

of  `4,54,272/- being the value of the goods.  It was stated that if they do not get

response from the Courier within 20 days of the receipt of the letter, the Complainant

would be compelled to initiate legal proceedings against them.  On 12.08.1994, the

Complainant addressed yet another letter to the Courier asking them to make good

the loss of `4,52,272/-, being the value of the consignment. Legal action for wrong

delivery of consignment was also threatened.  Since, the said communication has

some bearing on the case, relevant portion of the same is reproduced below:-“           In this context, please refer our letter no. RL: 94-95/ 1515 dt. 4th August’ 94, wherein it has been made abundantly clear to you that we have not authorized you to make delivery of the consignment to any person and it was not at all appropriate on your part to deliver the goods on the basis of a telephone call.     You are, therefore, solely responsible for wrong delivery to an unauthorized person, and as such liable for consequent damages and loss.  Accordingly, we once again advise you to make good our loss and send us your cheque for Rs.4,54,272/- being value of the consignment without any further delay, failing which we shall be left with no other alternate but to proceed against you in the Court of Law. 

As has already been conveyed, we reserve our right to lodge further claim/damages due to wrong delivery of the consignment by you.”

 

Having failed to get any response from the Courier, a complaint u/s 17 of the

Act was filed by the Complainant. Since the copy of the complaint placed on record

is undated, from the verification it is clear that the complaint was filed on or after

12.08.1996.  

6.      The complaint was resisted by the Courier. The para-wise written statement

filed on their behalf was one of total denial.  It was reiterated that the consignment

was delivered to Anil Sharma as there was a specific endorsement of transfer in

his favour on top of the G.R. at the request of the Complainant. Objection regarding

territorial jurisdiction of the State Commission of Delhi was also raised. The

Insurance Company chose not to file reply to the complaint.

7.      As noted above, the stand of the Courier has not found favour with the State

Commission.  The State Commission has observed  that admittedly, the consignee

was  Godrej G.E. Appliances and the stand of the Courier that the consignment was

delivered to Anil Sharma on production of the Goods Receipt, could not be accepted

because they have failed to place on record any delivery report.  According to the

State Commission mere possession and production of GR was not sufficient to

establish that the consignment was actually received by Anil Sharma; as per the

terms of the contract between the Complainant and the Courier, which is binding on

the parties, the consignment had to be delivered directly to M/s Godrej G.E.

Appliances and any endorsement on the original GR to deliver it to Anil Sharma was

of no consequence.  Accordingly, finding the Courier guilty for deficiency in service,

the State Commission has awarded the afore-stated compensation. Being

aggrieved, both the Courier as well as the Insurance Company are before us in

these two appeals.

8.      We have heard Ld. counsel for the parties. Ld. Counsel appearing for the

Courier contended that the complaint was time-barred inasmuch as, vide their letter

dated 13.07.1994, while informing the Complainant about the delivery of the

consignment to Anil Sharma on 11.06.1994, the Courier had denied their liability qua

the Consignment. Yet, the complaint was filed only on 12.08.1996, i.e. beyond the

period of two years from the date on which the cause of action had arisen. It was

also urged that in absence of any evidence on record, the State Commission has

erred in assessing the loss to the complainant to the tune of `4,54,272/-.

9.      Ld. Counsel appearing for the Insurance Company submitted that since the

services of the Courier were availed of by the Complainant for commercial purpose,

the Complainant was not a “Consumer” within the meaning of Section 2(1)(d) of the

Act and, therefore, the Complaint under the Act was not maintainable.   The issue of

territorial jurisdiction of the Delhi State Commission was also raised.

10.    Ld. Counsel appearing for the Complainant, on the other hand, supported the

decision of the State Commission.  Written submissions on behalf of the

Complainant have also been filed.  Dealing with the issue of limitation, it is pleaded

that the cause of action in the matter arose and continued to arise from 11.06.1994,

i.e. the date on which the consignment was allegedly delivered by the appellant to

Anil Sharma.  Thereafter, the complainant was engaged in correspondence with the

Courier for a significant period and in any case till 12.08.1994, when the Courier was

once again called upon to make good the losses suffered by the Complainant. It is

thus asserted that even if the said letter is considered to be the last correspondence,

the complaint filed on 12.08.1996 was within the period of limitation, as prescribed in

Section 24A of the Act.  On merits, it is urged that the contract between the

Complainant and the Courier was for delivery of the goods to the consignee on door-

delivery basis and, therefore, the alleged handing over of the consignment to Anil

Sharma and that too without any contractual or otherwise understanding between

the contracting parties was a clear case of gross deficiency in service.  Controverting

the stand of the Courier that the evaluation of quantum of loss is without any basis, it

is pointed out that the value of the goods declared in the invoice,

i.e. `4,54,272/- which formed part of the complaint, was never disputed by the

Courier or the Insurance Company.   Contesting the stand of the Insurance

Company that they could not be made liable for the negligence of the Courier, it is

urged that the consignment under transit being fully insured with them,  its non-

delivery to the consignee in violation of the terms of the contract makes the insurer

equally liable under the transit insurance policy.

11.    Thus, the first and the foremost question for consideration is whether on facts

at hand, the complaint preferred by the Complainant was barred by limitation?

12.    Before dealing with the question, it is necessary to note that  neither in the

written statement filed on behalf of the Courier nor during the course of hearing

before the State Commission, objection as to the Complaint being time-barred was

raised. Hence, the State Commission had no occasion to deal with the

question.  Nevertheless, the question of limitation being a question of law which can

be raised at any stage of pending proceedings, we are of the opinion that in light of

the provision in Section 24A of the Act, it is obligatory on our part to examine the

issue irrespective of the fact as to whether such a plea had been raised before the

State Commission. Moreover, there is no dispute on facts, material for determination

of the question of limitation.

13.    Section 24A of the Act prescribes limitation period for admission of a complaint

by the Consumer Fora as under:-

“[24A. Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

 

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay].

 

14.    The aforesaid provision bars any fora set up under the Act, from admitting a

complaint, unless the complaint is filed within two years from the date on which “the

cause of action” has arisen.  The provision expressly casts a duty on all the fora not

to entertain a complaint which is filed beyond the period prescribed in the Section,

unless the complainant satisfies the consumer forum, that the complainant had

sufficient cause for not filing the complaint within the period of two years from the

date on which the “cause of action” had arisen. 

15.    In State Bank of India   Vs . B.S. Agriculture Industries (I) (2009) 5 SCC

121 explaining the mandatory nature of Section 24-A of the Act, the Supreme Court

has opined thus:-“11…. It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.  The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.  The expression, ‘shall not admit a complaint’ occurring in Section 24-A is sort of a legislative command to the consumer

forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder. 12.       As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.  In other words, it is the duty of the consumer forum to take notice of Section 24- A and   give effect to it.     If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”(Emphasis supplied by us)

 

16.    Recently, in V.N.   Shrikhande   (Dr.) Vs. Anita   Sena   Fernandes   (2011) 1 SCC

53, the Supreme Court has again explained the nature and scope of Section 24-A of

the Act. Referring to its earlier decisions in State Bank of India   Vs . B.S. Industries

(I) (Supra) and   Kandimalla   Raghavaiah   & Co. Vs. National Insurance Co. Ltd.

&   Anr . (2009) 7 SCC 768,   the Court held as under:-“           15.       Section 24-A(1) contains a negative legislate mandate against admission of a complaint which has been filed after 2 years from the date of accrual of the cause of action.  In other words, the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen.  This power is required to be exercised after giving opportunity of hearing to the Complainant, who can seek condonation of delay under Section 24-A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24-A(1).  If the complaint is per se barred by time and the Complainant does not seek condonation of delay under Section 24-A (2), the Consumer Forums will have no option but to dismiss the same.  Reference in this connection can usefully be made to the recent judgments in SBI Vs. B.S. Agriculture Industries (I) and Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. “

 

17.    Therefore, as a matter of law, Section 24-A of the Act mandates that before

admitting a complaint, all the forums, constituted under the Act, must examine

whether or not the complaint under the Act has been preferred within two years from

the date on which “the cause of action” has arisen. 

18.    The term “cause of action” has not been defined in the Act.  Therefore, the

term has to be interpreted keeping in view the context in which it has been used in

the Act and the meaning assigned to it by judicial pronouncements.

In Kandimalla   Raghavaiah   & Co.   Vs . National Insurance Co. Ltd. &   Anr .

(supra) explaining the meaning and import of the term “ cause of action” the

Supreme Court has observed as follows:-“18.     The term “cause of action” is neither defined in the Act nor in Code of Civil Procedure, 1908 but is of wide import.  It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual or right to sue.  Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for.  Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit.”

 19.    Thus, the term “cause of action” is cause of action which gives occasion for

and forms the foundation of the suit, which obviously has to be decided on the facts

of each case.  It has now to be seen as to when, on the facts of the instant case, the

“cause of action” accrued.

20.    As already noted, in response to Complainant’s letter dated 04.07.1994, the

Courier informed them that one Anil Sharma, an employee of the Complainant, had

taken delivery of the consignment on 11.06.1994.  In unequivocal terms they told the

Complainant that having delivered the goods on production of GR and payment of

cargo charges, they had no liability qua the subject consignment.  In so far as the

Courier was concerned, for them the matter stood closed on the date of delivery. It is

evident from the Complainant’s letters dated 04.08.1994 and 12.08.1994 (extracted

above) that the substratum of their complaint against the Courier was “delivery of

goods to an unauthorised person” viz. Anil Sharma and not the delivery at all. In this

regard, it would be useful to reproduce paragraph 9 of the complaint filed by the

Complainant with the State Commission, which reads:

“9. That the complainant resisted and objected against the conduct of respondent No. 1 for making delivery to an individual without proper authorization and without obtaining the booking receipt issued by respondent No. 1 and told them that you are fully responsible morally and legally for non-delivery of the consignment to the rightful consignee i.e. M/s Godrej, GE Appliances, Bombay.  A copy of this letter dt. 04.08.1994 was also sent to the respondent No. 2- stressing and lodging claim under open policy No. 2131060200556 and certificate No. 73233 dated 17.06.1994.  A copy of letter dt. 04.08.1994 is enclosed herewith and marked as Annexure ‘H’.”   

 21.    It is clear from the afore-extracted averment in the complaint and letters written

by the Complainant to the Courier that “cause of action” on the basis of which the

complaint was filed, was the alleged default on the part of the Courier in allegedly

delivering the goods to Anil Sharma.  Hence, the “cause of action” arose on that date

and the period of limitation for the purpose of Section 24-A of the Act began to run from

11.06.1994.  Even if it is assumed for the sake of argument that the Complainant

gained knowledge of delivery of consignment to Anil Sharma only on the receipt of

letter dated 13.07.1994 from the Courier, even then the complaint having been filed on

or after 12.08.1996 was clearly barred by time.

22.    We are convinced that on facts at hand the complaint preferred by the

Complainant on 12.08.1996, was clearly barred by limitation and in the absence of

an application forcondonation of delay in filing the same in terms of Sub-Section (2)

of Section 24-A of the Act, it could not be admitted for adjudication. We are

conscious of the observations of the Supreme Court in V.N.   Shrikhande’s   case (Supra) that before dismissing the complaint as time-barred, an opportunity of

hearing should be given to the Complainant, who can seekcondonation of delay

under Section 24-A (2) of the Act by showing that there was sufficient cause for not

filing the complaint within the prescribed time. However, neither in the written

submissions filed by the Complainant nor during the course of hearing such a prayer

was made as the Complainant still believes that the cause of action arose only on

12.08.1994, when the Courier was threatened of legal action by them.  Therefore,

the question of grant of an opportunity to the Complainant to seek condonation of

delay in filing the complaint does not arise.

23.    In view of our above conclusion, it is unnecessary to deal with the questions

relating to territorial jurisdiction or the quantum of compensation.

24.    In the result, both the appeals are allowed, the impugned order of the State

Commission is set aside and the complaint is dismissed.  No costs.

25.    The amount(s) deposited in terms of the second proviso to Section 19 of the Act

shall be refunded to the respective Appellants. 

…………….. . . . . .                                                        (D.K. JAIN, J.)

    PRESIDENT                                                        . . . . . . . . . . . . . . . .

        (VINEETA RAI)       MEMBER

                                                    . . . . . . . . . . . . . . . .

      (VINAY KUMAR)       MEMBER

  Yd /*

  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       

  

REVISION PETITION NO.   1380 OF 2012 (From the order dated 29.11.2011 in Appeal No. 1594/2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

                                                        Smt. Raj Bala W/o Late Sh. Jit Singh S/o Sh. Balbir Singh R/o Village: BhatgaonPanna: Malyan, Tehsil & Distt. Sonepat Haryana

…Petitioner/Complainant     

VersusLIC of India Through Branch Manager, Gohana Civil Road, Gohana, Haryana

…Respondent/Opp. Party (OP)

 BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. R.S. Malik, Advocate                            

For the Respondent    :     Mr. Arunav Patnaik, Advocate

                                      Ms. Mahima Sinha, Advocate

 

PRONOUNCED   ON     19 th   November,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 29.11.2012 passed by Haryana State Consumer

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

Appeal No. 1380 of 2012 – Smt. Raj Bala Vs. LIC of India by which, while dismissing

appeal, order of District Forum directing to pay paid up value was upheld.

 

2.      Brief facts of the case are that complainant/petitioner’s husband had purchased

two insurance policies from OP/respondent on 20.1.1999 for a sum of Rs.50,000/- and

Rs.2,00,000/-, respectively.  On 10.10.2001, complainant’s husband did not return back

to home from his office so; FIR was lodged on 3.11.2001 under Section 365 IPC.

Complainant also informed OP about kidnapping of her husband, but OP did not inform

the complainant regarding steps to be  taken. Complainant paid last premium of

Rs.3248/- on 13.1.2007 andRs. 3,211/- on 26.1.2008.  It was further alleged that

complainant filed Civil Suit No. 755/2009 in the Court of Civil Judge (JD), Sonepat for

declaration that her husband Jeet Singh is dead and decree to that declaration was

passed on 21.5.2010. Complainant also obtained death certificate on 2.8.2010 from

concerned Registrar.  It was further submitted that cheque of Rs.10,000/- issued by OP

was returned by complainant. Alleging deficiency on the part of OP, complainant filed

complaint before District Forum. OP resisted complaint and submitted that complainant

was asked to keep the policy in force by making payment of due premium vide Regd.

letter dated 16.5.2002.  It was further submitted that date of death of Jeet Singh will be

treated as 21.5.2010 and not 10.10.2001.  As both the policies had already lapsed,

complainant was entitled to receive paid up value of the policy and prayed for dismissal

of complaint.  Learned District Forum after hearing both the parties directed OP to pay

paid up value of the policies 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 parties finally at admission stage and perused

record. 

4.      Learned Counsel for the petitioner submitted that as petitioner’s husband was

missing from 10.10.2001 and declaration regarding death had already been obtained

from the Civil Court vide decree dated 21.05.2010, Jeet Singh’s death should be treated

from 10.10.2001 and complainant was entitled to receive full payment of policies, but

learned District  Forum has committed error in allowing only paid up value and learned

State Commission further committed error in dismissing appeal; hence, revision petition

be allowed.  On the other hand, learned Counsel for the respondent submitted that

order passed by learned State Commission is in accordance with law as policy had

already elapsed before death of Jeet Singh; hence, revision petition be dismissed. 

5.      It is admitted fact that petitioner’s husband obtained two insurance policies on

20.1.1999 and as per petitioner’s allegation, her husband was missing from 10.10.2001

and petitioner paid last premium on 13.1.2007 for the first policy and on 26.1.2008 for

the second policy. It is also not disputed that petitioner filed Civil Suit on 9.5.2009 for

declaration of death of her husband which was decided on 21.5.2010. 6.      Learned Counsel for the petitioner submitted that death should be presumed from

10.10.2001, whereas learned Counsel for the respondent submitted that death to be

presumed from 21.5.2010 or at the earliest from 9.5.2009 when Civil Suit for declaration

was filed.  Learned Counsel for the respondent has placed reliance on (2004) 10 SCC

131 – LIC of IndiaVs. Anuradha in which such type of controversy has been dealt at

length in paragraphs 14 to 16, which runs as under:

14. On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question, arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.

15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence -- direct or circumstantial and not by assumption or presumption. The burden of proof

would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.

16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.

 7.      Perusal of aforesaid judgement clearly reveals that death of petitioner’s husband

is to be presumed at the earliest from 9.5.2009 and certainly not from the date of

missing i.e. 10.10.2001.  Admittedly, premium of first policy was not paid after 13.1.2007

and premium of second policy was not paid after 26.1.2008 and both the polices lapsed

before filing Civil Suit on 9.5.2009 meaning thereby both policies lapsed during life time

of the deceased. In these circumstances, in the light of aforesaid judgement, petitioner

was entitled to receive only paid up value of the polices and not the maturity amount

and learned District Forum has not committed any error in allowing complaint only to

that extent and learned State Commission has not committed any error in dismissing

appeal and revision petition is liable to be dismissed.

 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission

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

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 899 OF 2013(From the order dated 09.04.2012 in Appeal No. 578/11 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

  1.       Jagrut Nagrik Through their TGrustee & Secretary Sh. P.V. Moorjani Near Prerna School, Sangam Crossing, Karelibaug, Vadodara 2.       Jagdish B.Dave 103/E, Kanak Kala Part 1, 100 Foot Ring Road, Satellite,

Ahmedabad…Petitioners/Complainants

  Versus1.       Manager, New India Assurance Co. Ltd. 1st Floor, Nobels, Ashram Road, Opp. Nehru Bridge, Ahmedabad

2.       Family Health Plan Ltd. 106, Sahjanand Complex, Opp. Bhagvati Chambers Near Swastik Crossing, Ahmedabad

…Respondents/Opp. Parties (OP)

 BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners        :  Mr. Akhil Dave, Advocate                            

For the Res.No.1        :    Dr. Sushil Kr. Gupta, Advocate

For the Res. No. 2      :   NEMO

                                     

PRONOUNCED ON         19 th     November,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 9.4.2012 passed by Gujarat State Consumer Disputes Redressal Commission,

Ahmedabad (in short, ‘the State Commission’) in Appeal No. 578 of 2011 – Jagrut

Nagrik & Anr. Vs. New India Ass.  Co. Ltd. by which, while dismissing appeal, order of

District Forum dismissing complaint was upheld.

 

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

Forum for reimbursement of expenses incurred in treatment as

Complainant-2/Petitioner No. 2 had obtained medi-claim policy.  Along with complaint,

complainant filed application under Section 24 of the C.P. Act for condonation of

delay.  Learned District Forum after hearing both the parties dismissed complaint as

barred by limitation.  Learned State Commission vide impugned order dismissed appeal

against which, this revision petition has been filed. 

3.      None appeared for Respondent no. 2 even after service.

4.      Heard learned Counsel for the petitioner and Respondent No. 1 finally at

admission stage and perused record. 

5.      Learned Counsel for the petitioner submitted that his application under Section 24

of the C.P. Act filed before District Forum has not been decided by learned District

Forum and erroneously complaint has been dismissed as barred by limitation and

learned State Commission committed error in dismissing appeal; hence, revision

petition be allowed and impugned order be set aside and matter may be remanded back

to District Forum.  On the other hand, learned Counsel for the Respondent No. 1

submitted that learned District Forum has discussed and found that complaint was not

within limitation, but admitted that application under Section 24 of the C.P. Act has not

been decided. 

6.      Apparently, complaint is time barred, but along with complaint, complainant has

filed application under Section 24 of the C.P. Act for condonation of delay of 164 days in

filing complaint. Perusal of record clearly reveals that learned District forum has not

decided this application. Only after dismissal of application under Section 24, complaint

could have been dismissed as barred by limitation and learned District forum has

committed error in dismissing complaint without disposal of application under Section 24

of the C.P. Act.  Learned State Commission also committed error in dismissing appeal

without looking the record and impugned order is liable to set aside. 

7.      Consequently, revision petition filed by the petitioner is allowed and impugned

order dated 1.4.2012 passed by learned State Commission in Appeal No. 578 of 2011 –

Jagrut Nagrik & Anr. Vs. New India Ass.  Co. Ltd. and order of District Forum dated

21.3.2011 passed in CMA No.16/10 – Mr. P.V. Murzani, Managing Trustee Jagrut

Nagrik Mandal & Anr. Vs. The New India Ass. Co. Ltd. & Anr. is set aside and matter is

remanded back to District Forum for deciding complaint after disposal of application

under Section 24 of the C.P. Act filed by the petitioner before the District forum after

giving opportunity of being heard to both the parties. 

8.      Parties are directed to appear before the District Forum on 20.12.2013. ……………………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 986 OF 2013(From the order dated 21.12.2012 in Appeal No. 1039/07 of the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad)

                                               M/s. Bharuka Medical Stores Through its Partner Manmohan Lalchand BharukaR/o Panchakki Road, Near Government Medical College & Hospital, Ghati, Aurangabad Maharashtra

                                                …Petitioner/Complainant    

VersusUnited India Insurance Co. Ltd. Through its Branch Manager, City Branch, House No. 15-5-72, Jagtap Complex, New Osmanpura, Aurangabad, Maharashtra

                             …Respondent/Opp. Party (OP)

 BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. Vatsalya Vigya, Advocate                            

For the Respondent    :     Mr. A.K.De, Mr. Zahid Ali & Mr. Rajesh

Dwivedi, Advocates

                                     

PRONOUNCED ON     19 th   November,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 21.12.2012 passed by Maharashtra State Consumer Disputes Redressal

Commission, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal

No. 1039 of 2007 – United India Ins. Co. Ltd. Vs. M/s. Bharuka Medical Stores by

which, while allowing appeal, order of District Forum allowing complaint was modified.

 

2.      Brief facts of the case are that complainant/petitioner was running a medicine

shop in the name of M/s. Bharuka Medical Stores at Shop No. 7, which was taken on

rent by Shri Shaikh Hussain from the Municipal Corporation, Aurangabad.  Complainant

obtained “Shopkeepers Insurance Policy” from OP/respondent for a sum of

Rs.5,10,000/- for a period commencing from 28.3.2006 to 27.3.2007.  Shop was

demolished by Municipal Corporation, Aurangabad on 13.6.2006 with the help of bull

dozer and JCB without any prior notice to the complainant on the ground of

unauthorized occupation of the premises.  In spite of injunction from the Court, the

entire shop along with goods and furniture & fixture was destroyed. Due to malicious act

on the part of Municipal Corporation, complainant sustained loss of

Rs.4,85,000/-.  Complainant preferred claim before OP which was repudiated.  Alleging

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

contested complaint and submitted that complaint was beyond the scope of policy as

loss was caused due to action initiated by the public authority and submitted that claim

was rightly repudiated and prayed for dismissal of complaint.  Learned District Forum

after hearing both the parties, allowed complaint and directed OP to pay a sum of

Rs.4,85,000/- along with compensation of Rs.5,000/-.  Appeal filed by the OP was partly

allowed by learned State Commission vide impugned order and learned State

Commission reduced the amount of compensation from Rs.4,85,000/- to Rs.1,00,000/-

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 in spite of proving loss of

Rs.4,85,000/-, learned State Commission has committed error in reducing amount of

compensation granted by District Forum; hence, revision petition be allowed and order

of District Forum be restored.  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.      Learned Counsel for the petitioner has placed reliance only on Trading Account

for period from 1.4.2006 to 12.6.2006 filed by petitioner and has not placed any other

record to substantiate his claim; even then, learned District Forum allowed claim in

toto.  Learned State Commission while modifying order of District Forum observed

rightly as under:   

 

“13.   Now we have to see whether the respondent is entitled to

receive the amount of Rs.4,85,000/- claimed by him. The only

document submitted in support of his claim by the respondent is the

statement of trading and profit and loss account for the period from

01.04.2006 to 12.06.2006.  As per this statement the closing stock

of goods is shown as Rs.4,82,566/-.  The said document has also

not been certified by any of competent authority.  This document

cannot be taken as an evidence to prove that the stock of the value

of Rs.4,82,566/- was existed at the time of demolition. Secondly,

even if we accept that the stock amounting to Rs.4,82,566/- was

existed at the time of demolition, it cannot be accepted that the

entire stock was damaged as there is no proof to that effect

submitted by the respondent. As contended by the appellant

Insurance Company there is no panchanama made by the police or

Revenue authority to substantiate the loss as claimed by the

respondent.  There are also no photographs of the incident

supporting the alleged loss of his goods. Thus there is absolutely

no evidence in support of the loss of said goods.

 

14.    It is also to be noted that the alleged loss is not resulted out of

any fire or natural calamities in which case there is a sudden

occurrence of the incident. In the instant case the loss is alleged

due to demolition of structure of shop by the officer of the Municipal

Corporation.  There is no proof on record that the respondent had

requested the officers of the Municipal Corporation to allow him to

shift his stock to the alternate place. It is also not the case of the

respondent that in spite of his efforts in that notice he was not given

any time to remove the  existing stock as to secure the same from

the probable loss.  The Forum below has awarded compensation of

Rs.4,85,000/- merely on the basis of the statement made by the

respondent. The District Forum has not bothered to see whether

the claim is proved and is properly justified. Thus the amount

awarded by way of impugned judgment and order is totally arbitrary

and baseless. In these circumstances, we cannot hold that the

respondent is entitled to receive the said compensation as claimed

by him.

 

15.    We are however of the view that the appellant Insurance

Company ought to have appointed surveyor to assess the loss.  But

on the basis of wrong presumption that the claim was decided

beyond the scope of the policy the appellant Insurance Co. avoided

to appoint Surveyor and settle the claim of the respondent which

amounts to deficiency in service. Therefore considering this lapse

on the part of Insurance Company and secondly considering certain

loss of stock of goods which might have caused in the process of

shifting of stock within a short period, we are of the opinion to allow

the lump sum compensation of Rs.1,00,000/- to the respondent”.

 

 

6.      Perusal of record further reveals that shop was demolished on 13.6.2006 whereas

intimation to insurance company was given on 21.6.2006.  In such circumstances, there

was no occasion for the respondent to appoint surveyor immediately for assessment of

loss caused by act of Municipal Corporation to the petitioner.

 

7.      We do not find any illegality, irregularity or jurisdictional error in the impugned

order and revision petition is liable to be dismissed.

 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.

 

 ……………………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER  

..……………………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

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

                                                   …Petitioner/Complainant    

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

                            …Respondents/Opp. Parties (OP)

 BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    In person                            

                                

PRONOUNCED   ON     19 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 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.  

7.      Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to costs.  

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 2802 OF 2013(From the order dated 20.02.2013 in Appeal No. 48/12 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

With IA/4813/2013 IA/4814/2013 IA/4815/2013 IA/6670/2013(Exemption from filing the certified copy, condonation of delay, Stay & Delay) 1.       Northern Power Distribution Co. Ltd. Re. by its Chief Managing Director Chaitanyapuri, REC, Warangal District, Andhra Pradesh2.      Northern Power Distribution Co. Ltd. Rep. by its Divisional Engineer,

Mahabubabad, Andhra Pradesh3.      The Assistant Engineer Marripeda Sub Station Northern Power Distribution Co.

Ltd. Marripeda (V & M) Warangal District (Andhra Pradesh)…Petitioners/Opp. Parties (OP)    

 

 Versus1.       Alwala Mangamma W/o late Krishnaiah

2.       Alwala Venkanna S/o late Krishnaiah

3.       Alwala Vijaya W/o Madhu

 All are R/o H. No. 3-1-53, Shivalayam Street Marripeda (V & M), Warangal District, Andhra Pradesh

               …Respondents/Complainants

BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners        :  Mr. G.N. Reddy, Advocate                            

                                     

PRONOUNCED ON           19 th   November,     2013

  O R D E R 

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

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

dated 20.02.2013 passed by A.P. State Consumer Disputes Redressal Commission,

Hyderabad (in short, ‘the State Commission’) in Appeal No. 48 of 2012 – Alwala

Mangamma & Ors. Vs. Northern Power Distribution Co. Ltd. & Ors. by which, while

allowing appeal, order of District Forum dismissing complaint was set aside and

complaint was allowed.

 

2.      Brief facts of the case are that complainants/respondents are wife and children of

deceased Alawala Krishnaiah.  It was further alleged that they own a house and

obtained electricity service connection for domestic purpose and were paying electricity

charges to OP/petitioners regularly. On 13.11.2010 at 5.30 p.m. deceased Alawala

Krishnaiah while taking towel came into contact with the service connection wire portion

in between the pole No. 28/T and electricity meter and died due to electrocution.  FIR

was lodged.  Notice was issued to OPs to pay compensation of Rs.10,00,000/-.  As no

response was received, alleging deficiency on the part of OP, complainants filed

complaint before District Forum.  OP No. 3 filed written statement and submitted that

Alwala Mangamma died due to his own negligence.  It was further submitted that

service connection was higher rated one and the same ought to have been decreased

to low rated electricity and due to higher rated electricity, the service wire and its

insulation melted resulting in the electrocution.  OP is responsible only for connection in

between pole to pole, but not pole to service meter and its wire.   Denying any

deficiency, OP prayed for dismissal of complaint. OP Nos. 1 & 2 adopted the same

written statement. Learned District Forum after hearing both the parties, dismissed

complaint.  Appeal filed by the complainants 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 petitioners on the application for condonation of

delay and perused record. 

4.      Petitioner filed application for condonation of delay along with revision petition and

later on filed another application No. 6670/2013 for condonation of delay and submitted

that copy of the impugned order which was dispatched on 25.2.2013 by the State

Commission was received by the petitioner on 12.3.2013.  Opinion of Counsel in the

State Commission was received on 25.3.2013 and Chairman accorded permission for

filing revision petition on 17.04.2013 and cheque of Rs.35,500/- was prepared on

26.4.2013.  It was further submitted that present Counsel was contacted in the first

week of May, 2013 and he received file on 10.5.2013, but due to summer vacations, he

was out of station and immediately after re-opening in the first week of July, 2013, he

prepared revision petition and filed it on 30.7.2013; so, delay of 70 days may be

condoned.  Learned Counsel for the petitioner submitted that on account of summer

vacations, revision petition could not be filed in time and delay of 70 days in filing

revision petition be condoned. 

5.      Perusal of application clearly reveals that file was received by the Counsel for the

petitioner on 10.5.2013, whereas revision petition has been filed on 30.7.2013.  No

explanation has been given for taking 80 days in preparation of revision petition.   It has

been mentioned in the application that due to summer vacations, Counsel for the

petitioner was out of station.  In this Commission, summer vacations were from

3.6.2013 to 28.6.2013, but the Registry was open.  As per submissions in the

application itself, Counsel for the petitioner prepared revision petition in first week of

July, 2013, but no reason has been given as to why was it not filed immediately instead

of 30th July, 2013, when everything was ready with him. 

6.      As there is inordinate delay of 70 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 further observed that condonation of delay is an

exception and should not be used as an anticipated benefit for the Government

departments. 

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

inordinate delay of 70 days. In such circumstances, application for condonation of delay

is dismissed.  As application for condonation of delay has been dismissed, revision

petition being barred by limitation is also liable to be dismissed.

 

12.    Consequently, the 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 )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   3648 OF 2013 (From the order dated 18.10.2012 in Appeal No. 40/10 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/6483/2013 (For condonation of delay) Central Bank of India Through Senior Manager Branch Dujana District JhajjarHaryana

                                                       …Petitioner/Opp. Party (OP)    

VersusShri Jagbir Singh S/o Deep Chand R/o Village Khungai, Tehsil & District Jhajjar Haryana

                                                      …Respondent/Complainant

 BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners        :  Mr. Yograj Gullaiya, Advocate                            

                                     

PRONOUNCED ON       19 th   November ,     2013

 O R D E R 

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 18.10.2012 passed by Haryana State Consumer

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

Appeal No. 40 of 2010 – Central Bank of India Vs. Jagbir Singh by which, while

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

 

2.      Brief facts of the case are that complainant/respondent purchased a tractor HR

14B 3913 after taking loan from OP/petitioner.  Complainant used to deposit the loan

amount and OP was charging insurance premium amount for insurance of the

tractor.  As per terms and conditions of the agreement, insurance premium was charged

till 25.5.2005, but thereafter, OP did not pay the insurance premium to Insurance

Company.  On account of accident, claim petition was filed against the complainant

before MACT, Delhi involving aforesaid tractor and MACT Court awarded amount

against the complainant which requires reimbursement by OP.  Alleging deficiency on

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

and submitted that it was the duty of the complainant to get the vehicle insured and

prayed for dismissal of complaint. Learned District Forum after hearing both the parties,

allowed complaint and ordered that OP is liable for legal consequences in the absence

of insurance of the vehicle.  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.

3.      Heard learned Counsel for the petitioner at admission stage on application

for condonation of delay and perused record.

4.      Petitioner submitted in the application for condonation of delay that impugned

order dated 18.10.2012 was dispatched by the State Commission on 19.11.2012 and

was received by the petitioner on 26.11.2012.  It was further submitted that the

petitioner-bank is at very remote village and due to shortage of staff, matter was taken

up with the Regional Office in the first week of December, 2012

and now  the permission for filing the present revision has been received and

immediately revision petition is filed.  It was further submitted that petitioner-bank is a

Nationalized Bank and process of obtaining permission has to go through various

channels on account of which, delay of 230 days occurred, which may be condoned.

5.      Learned Counsel for the petitioner submitted that as permission had to be taken

through various channels, delay of 230 days occurred in filing revision petition may be

condoned.

5.      Perusal of application clearly reveals that matter was taken up with the Regional

Office at Rohtak in the first week of December, 2012, but in the application nowhere it

has been mentioned that when permission for filing the revision petition was received.

Revision petition has been filed on 11.10.2013, meaning thereby, after 10 months of

taking the matter with the Regional Office.  Petitioner has not mentioned in the

application the dates and channels through which file proceeded for seeking permission

for filing revision petition.     

6.      As there is inordinate delay of 230 days in filing revision petition, 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 further observed that condonation of delay is an

exception and should not be used as an anticipated benefit for the Government

departments. 

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

inordinate delay of 230 days. In such circumstances, application for condonation of

delay is dismissed.  As application for condonation of delay has been dismissed,

revision petition being barred by limitation is also liable to be dismissed.

 

12.    Consequently, the revision petition filed by the petitioner is dismissed as barred by

limitation at admission stage with no order as to costs.   

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 3821 OF 2013

(From the order dated 20.09.2013 in First Appeal No. 255 / 2013 of Delhi State Consumer Disputes Redressal Commission)

 

Sh. P.N. Gupta 7/1 Dakshin Puri Ext. New Delhi – 110062.

                                     ...  Petitioner

  Versus

1.   The New India Assurance Co. Ltd. CDU/312000 B – 401, Ansal Chambers, Bhikaji Cama Place, New Delhi – 110066.

2.   M/s. Raksha Medical Division TPA Pvt. Ltd. 15/5 Mathura Road, Faridabad – 121003.

                                            … Respondents

 BEFORE

HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS

 

For the Petitioner(s)   Ms. Archna Sharma, Advocate

 

PRONOUNCED ON : 19 th   NOVEMBER 2013 O R D E R 

PER DR. B.C. GUPTA, PRESIDING MEMBER 

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

Protection Act, 1986 against the impugned order dated 20.09.2012 passed by the Delhi

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in

FA No. 255/2013, “P.N. Gupta versus The New India Assurance Co. Ltd. & Ors.”, vide

which the appeal filed by the present petitioner/complainant against the order dated

30.01.2013, passed by District Forum in the consumer complaint in question was

dismissed in default for the non-appearance of the petitioner/appellant/complainant. 

2.       Brief facts of the case are that the petitioner P.N. Gupta filed consumer complaint

in question on behalf of his daughter-in-law, Dr. Mrs. Meena Gupta, claiming a medi-

claim amount of `42,675/- from the respondent insurance company and compensation

of `50,000/- for physical/mental agony and `25,000/- as cost of litigation. 

3.       The District Forum vide their order dated 30.01.2013 stated that the complaint

was not maintainable because the complainant was not the policy-holder, rather his

daughter-in-law was the co-policy holder with her husband and son.  The complainant

was also not holding any position of any registered voluntary consumer

association.  The learned District Forum held that as per clause (v) of section 2(1)(b) of

the Consumer Protection Act, 1986, a legal heir or a representative could file a

complaint only in the case of death of consumer.  In the present case, the consumer

herself could have filed the complaint and hence, the present complaint was not

maintainable.  An appeal was filed against this order before the State Commission, but

the same was dismissed vide order dated 20.09.2013 for the non-appearance of the

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

3.       At the time of hearing, learned counsel for the petitioner maintained that the

policy-holder could give authority to her father-in-law for filing the complaint in

question.  She, however, could not explain any of the legal provisions under which the

complaint could be filed by father-in-law of the policy holder.  It has been mentioned in

the body of the petition that under clause, “one or more consumer having same interest

on behalf of,“ can file the complaint. 

4.       Learned counsel for the petitioner could also not explain any reason for the non-

appearance of the petitioner/appellant /complainant before the State Commission.  All

she stated was that petitioner could not appear before the State Commission due to

heavy traffic.  However, this ground does not find mention in the body of the petition. 

5.       I have examined the entire material on record and given a thoughtful

consideration to the arguments advanced before me.  The term complainant has been

defined under section 2(1)(b) of the Consumer Protection Act, 1986, as follows:-“(b)   "complainant" means— (i)       a consumer; or (ii)     any voluntary consumer association registered under the

Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

 

(iii)  the Central Government or any State Government, (iv)    one or more consumers, where there are numerous

consumers having the same interest; (v)  in case of death of a consumer, his legal heir or

representative; who or which makes a complaint; ”  

6.       It is very clear from a plain reading of the above provision that a representative or

legal heir can file a complaint only in the case of death of consumer.  Further, if there

are numerous consumers having the same interest, one or more consumers can file the

complaint.  In the present case, Dr. Mrs. Meena Gupta is the co-policy-holder along with

his husband and her son and she could have very well filed the present complaint.   I do

not see any reason to disagree with the findings of the District Forum that the present

complaint is not maintainable, having been filed by the father-in-law of the policy-holder.

 

7.       Further, the State Commission dismissed the appeal on the ground of non-

appearance of the petitioner/appellant before it.  No valid reason has been advanced for

the non-appearance of the counsel before the State Commission on that date.  In the

grounds of petition also, no such plea has been taken.  In the light of these facts, it is

held that there is no perversity in the order passed by the District Forum and State

Commission and hence there is no ground for interference in the said orders at the

revisional stage.  The present revision petition is, therefore, ordered to be dismissed

with no order as to costs.Sd/-

(DR. B.C. GUPTA)

PRESIDING MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2169 OF 2013

(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

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS

 

For the Petitioner   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 

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

Protection Act, 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. 

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

the 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)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 55 OF 2008

(From the order dated 03.10.2007 in First Appeal No. 1839/2006 of M.P. State Consumer Disputes Redressal Commission)

 

Dr. Pratibha Chaturvedi d/o late N.P. Chaturvedi Lecturer, Thakur Ranmat Singh Degree College, Rewa (Madhya Pradesh)

...  Petitioner

  Versus

1.     Union Bank of India through Regional Manager, Regional Office, Gangotri Complex, New Market, Bhopal

2.     Union Bank of India through Branch Manager, 12, Near Raniganj, Vyankat Road, Madhya Pradesh

3.     Umesh Dixit proprietor – M/s Printer House, Pushp Raj Nagar, Rewa (Madhya Pradesh)

                                      … Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS

 

For Petitioner(s)   Mr. Ashwani Kr. Dubey, Advocate

 

For Respondents 1 & 2   Mr. O.P. Gaggar, Advocate

 

For Respondent–3   Mr. Avinash Prasad, Advocate

 PRONOUNCED ON : 19 th   NOVEMBER 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 03.10.2007, passed by the

Madhya Pradesh State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FA No. 1839/2006, vide which the order dated 02.06.2006, passed by

District Consumer Disputes Redressal Forum, Rewa, allowing the consumer complaint

in question was set aside.  

2.       Brief facts of the case are that the petitioner/complainant deposited a sum of `1

lakh with the respondent Union Bank of India and a Fixed Deposit Receipt (FDR),

bearing number 7622508 was issued in her favour on 26.03.96. The respondent no. 3,

Umesh Dixit, Proprietor, M/s. Printer House, availed loan from the Union Bank of India

for his business, for which the petitioner/complainant was one of the guarantors.   It is

made out that the Bank adjusted the maturity amount of the FDR against the loan

amount of respondent no. 3 Umesh Dixit.  The main grievance expressed by the

petitioner in her consumer complaint says that the Bank should not have adjusted the

maturity amount of the FDR to settle the loan account of the respondent no. 3.   The

Bank sent a letter to the petitioner on 24.10.2002 that her deposit had matured on

26.09.2002, but it had been renewed for 15 days.  The said amount was pledged in the

account of M/s. Printer House and shall be adjusted in the said account on the due

date.  In reply to this letter, the petitioner wrote to the Bank on 28.10.2002 that the loan

matter of M/s. Printer House was pending in the court of Tehsildar, Tehsil and District

Rewa.  The Bank could not adjust the said amount till the time the said matter was

disposed of.  The Bank informed the petitioner through another letter on 30.10.2002 that

the amount of FD was pledged in the loan account of the Printer House and as per the

agreement, it shall remain pledged till the loan remained due and the Bank had the right

to adjust the same in the loan account.  On 16.11.2002, there is entry in the ledger book

relating to M/s. Printer House that an amount of `2,13,914/- had been adjusted in their

loan account, meaning thereby that the maturity amount of FDR was credited to the

account of M/s. Printer House.  Later on in June, 2004, a one-time settlement was

reached between the Bank and the Printer House, according to which the loan case

was to be closed on payment of `4,75,000/-.  Accordingly, after payment of the said

amount of `4,75,000/- a no due certificate was issued by the Bank on 13.07.2004 in

favour of respondent no. 3.  On the other hand, the petitioner wrote a letter dated

18.08.2004 to the Bank, requesting for return of her money because the loan case of

respondent no. 3 had been settled.  On the failure of the Bank to do so, the consumer

complaint in question was filed which was decided by the District Forum vide their letter

dated 2.06.2006, according to which they ordered the Bank to make payment of the

maturity amount of the disputed amount to the petitioner with interest.  An appeal

against this order filed before the State Commission was allowed and the order of the

District Forum was set aside.  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 loan account of the respondent no. 3 M/s. Printer House had been settled with the

Bank against the payment of `4,75,000/-.  The amount involved in the FDR belonging to

the petitioner was not a part of this settlement and hence this amount should be

returned to the petitioner by the Bank. Learned counsel has drawn our attention to a

letter dated 12.06.2004 written to respondent no. 3, Umesh Dixit by the Bank in which it

has been stated that the compromised amount was `4.75 lakh.  The learned counsel

has also drawn our attention to letter dated 18.08.2004, written by the petitioner to the

Bank saying that her FDR amount may be returned to them.  A registered notice was

also sent in this regard to the Bank, but the Bank in their reply refused to refund the said

amount.  The learned counsel further stated that there had been many discrepancies in

the account statement maintained by the Bank. 

3.       On the other hand, the learned counsel for the Bank stated that they had duly

informed the petitioner through their letter dated 24.10.2002, that the FDR was being

renewed for 15 days and at the expiry of this period, the maturity amount shall be

adjusted in the loan account of M/s. Printer House.  The petitioner through her letter

dated 28.10.2002 asked them not to do so, because a case was pending with the Court

of Tehsildar, but they have sent another letter dated 30.10.2002 to her, saying that the

said amount will be adjusted against the loan account of M/s. Printer House.  On

16.11.2002, the maturity value of the FDR, i.e., `2,13,914/- was credited to the account

of M/s. Printer House. The one-time settlement entered between the Bank and the

Printer House was made in June 2004 and the settled amount of `4,75,000/- was paid

by the loanee and his account was closed.  This settlement had nothing to do with the

maturity amount of FDR adjusted in the account of the loanee on 16.11.2002, i.e., one

and a half year back. 

4.       We have examined the entire material on record and given a thoughtful

consideration to the arguments advanced before us.  It has not been denied by the

petitioner/complainant anywhere that she was not the guarantor for the loan given to

M/s. Printer House.  The entries on record, make it very clear that the Bank decided to

adjust the maturity amount of the FDR belonging to the guarantor in the loan account of

M/s. Printer House.  After giving her due information vide their letter dated 24.10.2002

and again vide their letter dated 30.10.2002 in response to her letter dated 28.10.2002,

they took the necessary step and adjusted the said maturity amount in the loan account

of M/s. Printer House on 16.11.2002.  A perusal of the entries in the ledger account of

M/s. Printer House indicates that the said amount was adjusted on 16.11.2002 and the

outstanding balance of `8,44,985/- was reduced to `6,31,071/- after adjustment of

amount of `2,13,914/- which was the maturity value of the said FDR.  In so far as the

OTS is concerned, that reflects a later development, which took place in June 2004 and

according to which, the loan was to be settled after payment of `4.75 lakh to the

Bank.  The ledger entries indicate clearly that an amount of `2 lakh was deposited on

10.06.2004 and another amount of `2.75/- was deposited on 30.06.2004 in the loan

account of M/s. Printer House. An amount of `1,56,071/- was ordered to be written off

and there was ‘nil’ balance as on 10.07.2004. 

5.       It is made out from the above facts that there is no correlation between the

adjustment of the maturity amount of FDR belonging to the petitioner done in November

2002 and the OTS entered later on in June 2004.  The petitioner, therefore, does not

acquire any right to recover the amount of the said FDR from the Bank, after the OTS

was reached.  At the time of adjustment of maturity amount of `2,13,914/- of the FDR

belonging to the petitioner on 16.11.2002, the outstanding balance in the account of the

loanee was reduced from `8,44,985/- to `6,31,071/-.  The balance outstanding amount

as in June 2004 was settled by way of depositing a further amount of `4.75lakh and

writing off the remaining amount of `1,56,071/-.  It is obvious that the adjustment of the

maturity amount done quite some time back is regardless of one time settlement

reached later.

 

6.       In view of this situation, it is clear that the order passed by the State Commission

does not suffer from any infirmity, illegality or jurisdictional error.  The said order is,

therefore, upheld and the 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/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

FIRST APPEAL NO. 543 OF 2008  

(Against the order dated 12.09.2008 in Complaint No. 09/2004 of the Bihar State Consumer Disputes Redressal Commission) 

Obaid Hassan Khan S/o Sri A.H. Khan Mohallah – Shahgunj, Dargah Road P.S. Sultangunj Patna

                                                                              …    Appellant

                                                       Versus

1.  Smt. Jamila Rashid Director, Arsi Clinic P.O. Mahendru P.S. Sultangunj District Patna

2.  Dr. M.A. Rashid Arsi Clinic, P.O. Mahendru P.S. Sulatangunj District Patna

3.  Dr. U.C. Samal Yadav Bhavan Naya Tola Patna-4

4.  Kurji Holy Family Hospital Through it’s Manager P.O. Sadakat Ashram P.S. Digha District Patna

                                                                 …    Respondents

 BEFORE:

 

          HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER  

 

For Appellant                     :             Mr. Nirmal Kumar Ambastha, Adv.

 

For Respondents              :             Mr. Joy Basu, Sr. Advocate with

                                                          Mr. Rajiv Shankar Dwivedi, Adv. &

                                                          Mr. Indrajeet Sivan, Adv. for R-1&2

 

                                                          Mr. Brajesh Kumar, Advocate for R-3

 

                                                          Mr. Pankul Nagpal, Advocate for R-4

 

Pronounced   on     20 th   November, 2013  

ORDER 

PER VINEETA RAI 

This first appeal has been filed under Section 21(a)(ii) of the Consumer

Protection Act, 1986 by Obaid Hassan Khan, Appellant herein and Complainant before

the Bihar State Consumer Disputes Redressal Commission (hereinafter referred to as

the State Commission), challenging the order of that Commission, which had dismissed

his complaint of medical negligence, resulting in the death of Appellant/Complainant’s

wife, against Smt. Jamila Rashid, Director, Arshi Clinic, Patna and 3 others,

Respondents herein and Opposite Parties before the State Commission.  

2.      In his complaint before the State Commission, Appellant/Complainant had stated

that on 27.05.2004 his wife Smt. Tabassum Parveen (hereinafter referred to as the

Patient), who had been unwell for 4-5 days with complaints of vomiting, abdominal pain,

mild fever and “yellowish urine”, was taken by him to Dr.M.A. Rashid (Opposite Party

No.2), who practiced inArshi Clinic at Patna, of which his wife Smt. Jamila Rashid was a

Director, and although the Appellant/Complainant informed that he suspected that his

wife was suffering from jaundice, Dr. Rashid wrote “jaundice nil” and prescribed

antibiotics and Paracetamol for 5 days which were contraindicated in jaundice

patients.  The next day there was deterioration in Patient’s condition and symptoms of

jaundice became more visible.  Appellant/Complainant again took his wife to Opposite

Party No.2, who thereafter prescribed certain blood tests to be done on an empty

stomach.  The tests conducted on 29.05.2004 confirmed that Patient was suffering from

severe jaundice as the Bilirubin count was 11.4 mg whereas the maximum normal rate

is 1mg.  On 30.05.2004 on receipt of the above report Appellant/Complainant took the

same to Dr. Rashid, who advised that antibiotics and Paracetamol should be

discontinued.  When there was no improvement in Patient’s condition,

Appellant/Complainant took the advice of one Dr. U.C. Samal (Opposite Party No.3),

who prescribed Emeset injection to be administered twice a day to which Patient

reacted adversely and was referred to Kurji Holy Family Hospital (Opposite Party No.4),

where her Bilirubin count was found to be 19 mg and she went into a coma.  Since she

was having difficulty in breathing, two Doctors known to the Appellant/Complainant

i.e. Dr.S.A. Khan and Dr.Ghosh came to see the Patient and advised that she be

provided a ventilator, which was declined by the hospital on the grounds that Hepatitis

Patients are not provided ventilators because it may cause the spread of jaundice in the

hospital.  Because of the wrong diagnosis, administration of irrational drugs and lack of

ventilator support, Patient passed away, causing enormous mental and physical agony

to the Appellant/Complainant, who lost his spouse and to his three year old son who

was deprived of his mother’s love.  Patient, who was only 29 years old and a

Postgraduate, was earning Rs.6000/- per month and was also preparing for the

competitive exams.  Taking into account all these facts, Appellant filed a complaint on

grounds of medical negligence and deficiency in service on the part of Dr. M.A. Rashid

(Opposite Party No.2), Dr. U.C. Samal (Opposite Party No.3), Kurji Holy Family Hospital

(Opposite Party No.4) as also the Director of the Arshi Clinic Smt. Jamila Rashid

(Opposite Party No.1) and requested that the State Commission direct them to pay

Appellant/Complainant (i) Rs.40 Lakhs towards damages and earnings which Patient

would have earned in her life time; (ii) Rs.40,000/- incurred on her medical treatment;

and (iii) Rs.10,000/- as litigation costs, alongwith 18% interest on the above amounts.

3.      Respondents/Opposite Parties on being served filed written rejoinders denying the

allegations made against them and inter alia stated that there was no delay or

negligence in the treatment of the Patient which was done as per standard case

practice in the treatment of jaundice.  They also annexed various documents, citations

and extracts from medical books/literature in support of their contentions. It was

specifically contended by Dr. M.A. Rashid (Opposite Party No.2) that within a few hours

of Patient being examined by him, he advised necessary pathological tests to detect

jaundice.  Dr. U.C. Samal (Opposite Party No.3) stated that Emeset injection, which was

prescribed by him and was to be administered twice a day to check nausea and

vomiting, was not contraindicated since Emeset is safe for jaundice patients if the

dosage does not exceed 8 mg. per day, which it did not in this case. Kurji Holy Family

Hospital (Opposite Party No.4) stated that a conscious decision was taken not to put the

Patient on ventilator support since it was contraindicated because of her prolonged

convulsions and possible bleeding in the respiratory tract. She was, therefore, put on

oxygen inhalation and lack of ventilator support thus did not contribute to her death.

Opposite Parties contended that Patient died of fulminant hepatic failure despite

adequate medical care by well qualified doctors and proper management because

mortality is known to be very high in such cases.  Thus, there was no negligence or

deficiency in the line of treatment which was both appropriate and adequate.

4.      During the proceedings before the State Commission, Appellant/Complainant, in

support of his complaint of medical negligence, filed an affidavit of one Dr.  Arif Khan,

who had a M.D. degree and who after examining the Patient’s medical papers

concluded that the treatment was not appropriate and that negligence was writ large

and some of the medicines prescribed were clearly contraindicated in patients of

jaundice.  As a result of the cumulative negligence on the part of the concerned

Respondents/Opposite Parties, Patient died. Opposite Parties who had treated the

Patient assailed the affidavit of Dr. Arif Khan and stated before the State Commission

that he could not be considered as an expert since he had an MD degree in Pediatrics

and not in general or internal medicine.

          The State Commission, taking note of the above contradictory statements called

for the expert opinion from the Head of Department of Gastro-

Enterology and Hepatology (Dr.Amrendra Kumar) in the Indira Gandhi Institute of

Medical Sciences (IGIMS), who after examining all the reports, including the affidavit

filed by Dr. Arif Khan, opined that Dr. Khan could not be considered an expert in the

instant case since his Postgraduate degree was in Pediatrics.  Dr. Amrendra Kumar

further opined that Emeset injection is not contraindicated in jaundice if the dosage does

not exceed 8mg per day and that also the treatment given to the Patient by Opposite

Party No.4/Hospital was appropriate and her death was not attributable to any medical

negligence or deficiency in service.  He confirmed that fulminant hepatic failure has a

very high mortality and 70 to 80% of the patients die despite adequate medical care and

proper management. 

          Thereafter the State Commission following a request from the

Appellant/Complainant for calling expert opinion from a recognized institute of

excellence, preferably All India Institute of Medical Sciences, referred the matter to

IGIMS, which is the only superspeciality Institute in the region for expert opinion and

who appointed a committee of 5 Heads of Departments of different medical disciplines

in that Institute, who after scrutinizing the medical records furnished to it, opined that

there was no medical negligence in the treatment of the Patient.  The State Commission

taking cognizance of the above expert opinion concluded that there was no medical

negligence or deficiency in service on the part of Respondents/Opposite Parties and

that in fact it was the Appellant/Complainant who was negligent in delaying the

treatment of the Patient by 7 to 8 days.  Relevant parts of the order of the State

Commission are reproduced : “32.   …  From the medical records of KHFH it would transpire that the patient was not shown to any doctor during the first 4/5 days of her illness and the complainant indulged inself medication of the patient.  The Opposite Parties have naturally cast serious doubt on the conduct, intention, sincerity of the complainant in the matter of taking care of his unfortunate and ill fated life partner.  It does not stand to reason why the complainant was negligent and careless in the matter of treatment of his wife and why he did not get her admitted into a hospital where emergency treatment and round the clock monitoring was available till the evening on 02-06-2004 when O.P.No.3 chided him for his negligence andself medication and he declared her condition to be critical and he himself arranged for her admission into KHFH by contacting the authorities of the hospital on telephone.  One may on the basis of negligence and carelessness on the part of the complainant suspect intention of the complainant of getting rid of his wife. 33.     It may be mentioned that the complainant could not discharge onus that heavily lay on him to prove medical negligence of doctors with evidence or expert opinion or medical literature.  He could bring nothing on record to prove that proper medicines were not given or wrong line of treatment was adopted.  The complainant produced evidence on affidavit of an expert who could not be accepted and treated as such and his opinion was already rejected. 34.     Under the circumstance, the affidavits filed by the doctors/hospital (Ops. No. 2, 3 & 4) were acceptable as reliable.  On analysis and appreciation of the material based on record we arrive at the conclusion after taking into account the totality of the circumstances that no case is made out by the complainant and the complaint is thus devoid of merit and substance. 35.     Report of IGIMS fortifies prima-facie conclusion that there was no medical negligence at all on the part of the O.Ps. and hence the complaint is liable to be dismissed.”     

          Hence, the present Appeal.   

5.      Learned Counsel for the parties made oral submissions essentially reiterating the

facts as contended by the parties before the State Commission.

6.      Counsel for the Appellant/Complainant emphasized that there was initial delay in

the Patient’s treatment because Dr. M.A. Rashid (Opposite Party No.2) on the basis of a

perfunctory examination of the Patient on 27.05.2004 wrongly recorded that she did not

have jaundice and it was only on the insistence of the Appellant/Complainant on the

next day that he referred the Patient for blood tests.  It was 3 days before the results

could be obtained, which confirmed a very high Bilirubin count.  This initial delay

because of negligence on the part of Opposite Party No.2 was fatal because it resulted

in rapid deterioration of the Patient’s condition which could not be reversed.  The

situation was further aggravated by Opposite Party No.2 prescribing an

antibiotic Gatifloxacin, which as per medical literature filed in evidence is

contraindicated in the use of jaundice.  All these facts had been confirmed by the expert

evidence of Dr. Arif Khan, which erroneously was not relied upon by the State

Commission merely on the ground that since he had a Postgraduate degree in

Pediatrics he could not be called an expert to give his opinion in cases of jaundice.  The

State Commission also did not heed the request of the Appellant/Complainant to refer

the case for independent assessment to the All India Institute of Medical Sciences or an

Institute from South India and instead referred it to a local Institute whose bias in giving

its opinion could not be ruled out.

7.      Counsel for Dr. M.A. Rashid (Opposite Party No.2) while admitting that when

Opposite Party No.2 saw the Patient late in the evening on 27.05.2004 did record that

she was “nil for jaundice”, but within a few hours thereafter she was referred for blood

tests and on receipt of the pathological report Gatifloxacin and Paracetamol were

stopped.  Otherwise alsoGatifloxacin is a safe broad spectrum drug for treatment of

bacterial infection and only its long term use can lead to medicine induced

hepatitis/jaundice, which was not so in the instant case.  The delay in the diagnosis of

the Patient was insignificant and, therefore, not responsible for Patient’s death.  Further,

as was apparent from the medical records of Kurji Holy Family Hospital (Opposite Party

No.4) the delay in bringing the Patient to Opposite Party No.2 was on the part of

Appellant/Complainant who indulged in self-medication of the Patient for 4-5 days and

this fact was also confirmed by the State Commission. 

8.      Counsel for Dr. U.C. Samal (Opposite Parties No. 3) and Kurji Holy Family

Hospital (Opposite Party No.4) also reiterated that there was no medical negligence or

deficiency in service on their part.  The report of the medical experts from IGIMS has

also confirmed that there was no medical negligence or deficiency in service on the part

of Opposite Parties No. 3 and 4.

9.      We have considered the submissions made by Counsel for the parties and have

also gone through the evidence on record.  After carefully considering the same, we

agree with the finding of the State Commission that there was no medical negligence or

deficiency in service in the treatment of the Patient by the Opposite Parties based

substantially on the finding of experts, comprising a highly qualified team of Doctors

from IGIMS.  While admittedly Opposite Party No.2 initially recorded a finding of

“jaundice nil”, he rectified the same when he sent the Patient for pathological tests and

on receipt of the report confirming jaundice he immediately stopped the antibiotics that

he had prescribed.  This delay in initial diagnosis and medication did not adversely

affect the Patient’s condition as also indicated by the team of experts which did not find

any medical negligence in the treatment of the Patient.  So far as Opposite Party No.3 is

concerned, the allegation of the Appellant/Complainant that the

injection Emeset resulted in deterioration of the Patient’s condition is not borne out by

any medical literature or the expert medical evidence.  Emeset is prescribed to check

nausea and vomiting from which the Patient was suffering and is safe for jaundice

patients if it does not exceed 8mg per day which it did not in this case.   Opposite Party

No.3 also rightly put the Patient on saline drip and immediately referred her to a hospital

fully recognizing the seriousness of the case.  So far as the treatment at Opposite Party

No.4/Hospital is concerned, we note that the team of experts from IGIMS after carefully

scrutinizing the medical papers of the Patient from that hospital had clearly concluded

that there was no medical negligence or deficiency in service on the part of that hospital

and we see no reason to disagree with this medical expert evidence, particularly since it

has not been satisfactorily displaced by any evidence led by the

Appellant/Complainant.  In this context, we agree with the finding of the State

Commission that the evidence of Dr. Arif Khan produced as expert evidence by the

Appellant/Complainant cannot be given much credence since he did not have a

Postgraduate degree in either Gastro Enterology or internal medicine; nor had he

personally examined the Patient.  On the other hand, Dr. Amarendra Kumar, who was a

better qualified expert to give his opinion, had clearly indicated that there was no

medical negligence in the treatment of the Patient, which as stated earlier was also

confirmed by a team of experts from IGIMS.  We also do not find any substance in the

allegation of the Appellant/Complainant that the lack of ventilator support to the Patient

at Opposite Party No.4/Hospital also contributed to her death.  As has come in evidence

before the State Commission, the issue of putting her on ventilator was carefully

considered and a conscious decision was taken by the medical experts not to put her on

ventilator since that could have further deteriorated her condition which was already

critical.  From the evidence on record it is also established that it was the

Appellant/Complainant who brought the Patient to the Doctor after the Patient had been

unwell for 4-5 days and in fact he had also indulged in self-medication.

10.    Keeping in view the above facts, we agree with the order of the State Commission

that there was no medical negligence or deficiency in service in the medical treatment of

the Patient on the part of the Opposite Parties.  We, therefore, uphold the order of the

State Commission and dismiss the present Appeal with no order as to costs. 

 

                                                                                                                  Sd/-

(D.K. JAIN, J.)

PRESIDENT

 

 

Sd/-

(VINEETA RAI)

MEMBERMukesh                             

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI  

REVISION PETITION NO. 3376 OF 2012

(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

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS 

For the Petitioner(s)   Mr. 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 

PER DR. B.C. GUPTA, MEMBER 

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

Protection Act, 1986 by the petitioner against the impugned order dated 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 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”.

 

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/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.4028 OF 2012(From the order dated 16.7.2012 in Appeal No.1191/2011of the Haryana State Consumer Disputes Redressal Commission, Panchkula) 

1.  Hukam Singh S/o Shri Dharampal R/o Village Samaipur, Tehsil Ballabgarh, District Faridabad (Haryana)                2.  Giriraj S/o Shri Dharampal R/o Village Samaipur, Tehsil Ballabhgarh, District Faridabad (Haryana)

                                        .….. PetitionersVersus

United India Insurance Co. Ltd. Through its Branch Manager, Branch Office, Champa Bhawan, 1st Floor, GT Road, Palwal, Haryana Also at: M/s United India Insurance Co. Ltd. Through its Divisional Manager, 34, Neelam Bata Road, NIT, Faridabad, Haryana

                                                    ....... Respondent 

BEFORE:

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

 

For the Petitioners             :  Mr. Devendra Singh, Advocate

For the Respondent             :  Ms. Suman Bagga, Advocate

PRONOUNCED ON     :     22 nd   NOVEMBER, 2013

                                                  ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the Haryana State Consumer

Disputes Redressal Commission, Panchkula dated 16.7.2012 whereby the State

Commission accepted the appeal against the order of the District Consumer Forum,

Faridabad and dismissed the complaint.

2.       Briefly put, facts relevant for the disposal of this revision petition are that the

petitioners filed a consumer complaint in District Forum, Faridabad claiming that they

had purchased a tractor after taking loan from

Gurgaon Gramin Bank, Sikrona Branch, Ballabgarh, District Faridabad. The tractor was

insured with the respondent- opposite party for the period from 16.2.2007 to 15.2.2008.

The tractor was stolen on 7th September, 2007 regarding which FIR No.278 dated

8.9.2007 was lodged with the police station Sadar, District Palwal. It is claimed by the

petitioners that intimation of theft was also given to

the Gramin Bank, Sikrona Branch, Ballabhgarh. The insurance claim submitted by the

petitioners was repudiated vide letter dated 30 th March, 2009 on the ground that there

was a violation of terms and conditions of the insurance policy inasmuch as that the

theft was not intimated to the insurance company immediately but after five months in

the month of February, 2008. Claiming this to be deficiency in service the petitioners

filed the consumer complaint.

3.       Respondent- Opposite Party contested the complaint by filing written statement

wherein he justified the repudiation of claim in view of violation of the terms and

conditions of the insurance policy.

4.       District Forum, Faridabad on appraisal of pleadings of the parties and the

evidence adduced allowed the complaint and directed the respondent- opposite party to

indemnify the complainants as under: -

 “Accordingly, OPs are directed to reimburse the

complainant with the insured amount of Rs.(sic) on account of

(sic) within 30 days from the receipt of copy of this order with

interest @ 6% p.a. from the date of this complaint failing which

the amount shall carry interest @ 12% p.a. instead of 6%.”

 

5.       Feeling aggrieved of by the order of the District Forum, respondent- opposite

party preferred an appeal before the State Commission, Haryana and the State

Commission after due notice to the petitioner and hearing the parties accepted the

appeal, set aside the order of the District Forum and dismissed the complaint with

following observations: - 

“The core question for consideration before us is whether the delay w.e.f. 7.9.2007 till February, 2008 in giving information to the Insurance Company with respect to the theft of insured tractor, is fatal to the claim preferred by the complainant.

During the course of arguments learned counsel for the appellant-opposite party has argued that as the complainant violated the terms and conditions of the Insurance Policy in giving information to the Insurance Company after a gap of more than five months, he is not entitled to claim any compensation. In support of her argument learned counsel for the appellant has drawn our attention towards “General Conditions” wherein Claim Procedure has been given as under:-

“5.       Claim Procedure:-

i)                    The insured shall upon the occurrence of any event giving rise or likely to give rise to a claim under this policy.

a)      In the event of theft loge forthwith a complaint with the police and take all particulars steps to apprehend the guilty person or persons and to recover the property lost.

b)      Give immediate notice thereof to the company and shall within fourteen (14) days thereafter furnish to the company at his own expenses detailed particulars of the amount of the loss or damage together with such explanation and evidence to substantiate the claim as the company may reasonable required.”

 

Further reference has been made to the judgment delivered by the National Commission in case cited as DEVENDRA SINGH versus NEW INDIA ASUSRANCE CO. LTD. & ORS, III (2003) CPJ 77 (NC),wherein there was a delay of one month in giving information to the Insurance Company and therefore repudiation of complainant’s claim was held justified.

The facts of the instant case are fully attracted to DEVENDRA SINGH’s case (Supra). Undisputedly, in the instant case the intimation to the Insurance Company was given after more than five months. Thus, the complainant deprived the Insurance Company to investigate the matter in a proper manner and there was violation of the terms and conditions of the Insurance Policy.

By now it is well settled law that the terms and conditions of the Insurance Policy have to be construed strictly and if there is any violation of those terms and conditions, the party cannot claim any relief. Reference is made to case law cited as SURAJ MAL RAM NIWAS OIL MILLS (P) LTD. versus UNITED INDIA INSURANCE COMPANY & ANR, IV(2010) CPJ 38 (S.C.) wherein it has been held that:-

“22.     Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.”

“24.     Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.”

The facts and circumstances of the instant case are fully

attracted to Suraj Mal Ram Niwas Oil Mills (P) Ltd case (Supra).

In the instant case the complainant has violated the terms and conditions of the Insurance Policy by giving information to the Insurance Company after more than five months from the date of theft of his tractor and therefore, the Insurance Company cannot be held liable to pay any compensation to the complainant and the order passed by the District Forum cannot be allowed to sustain.

In view of our aforesaid discussion, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.”

 

6.       Learned Shri Devendra Singh, Advocate for the petitioner has contended that the

impugned order of the State Commission is not sustainable as it is based upon incorrect

appreciation of law and facts. It is argued that the State Commission has failed to

appreciate that the tractor was insured through the Bank and intimation of theft was

given immediately after noticing the theft toGramin Bank, Sikrona Branch, Ballabhgarh.

Thus, the petitioners cannot be faulted and it cannot be said that they have violated the

terms and conditions of the insurance policy.

7.       We do not find merit in the argument advanced on behalf of the petitioners.

Petitioners have not disputed that the intimation of theft of the tractor was given to the

insurance company with a delay of more than four months in February, 2008. The

intimation given to the financing Bank cannot be a substitute to the intimation required

to be given immediately to the insurance company. Purpose of such intimation of theft

to the insurance company is to enable the insurance company to take steps to protect

their interest by appointing investigators to trace the vehicle. The petitioners obviously

have failed to protect the interest of the insured by failing to immediately informing the

report of theft in terms of the general condition 5 (i) (b) of the insurance policy referred

to in the impugned order.  Thus, the State Commission in our considered view has

rightly dismissed the complaint relying upon the ratio of the judgment of the National

Commission in the matter ofDevendra   Singh vs. New India Assurance Co. Ltd.

&   Ors . III (2003) CPJ 77 (NC)  and Suraj   Mal Ram   Niwas   Oil Mills (P) Ltd. Vs. United

India Insurance Co. Ltd. &   Anr .   IV (2010) CPJ 38 (S.C.) .

8.       In view of the discussion above, we are of the considered view that the petitioners

have failed to point out any jurisdictional error, illegality or material irregularity in the

impugned order which may call for interference of this Commission in exercise of

its revisional jurisdiction.

9.       Revision petition is accordingly dismissed. …………………..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

                                                            

  ……………….……………

(SURESH CHANDRA)

MEMBERRaj/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION     PETITION   NO.     1776     OF     2012 (Against the order dated  10.10.2011  in  Appeal No.632/2009 of the State Commission, Haryana, Panchkula) 

 1.    Haryana Urban Development Authority Through its Chief Administrator

HUDA  Office, Sec. – 6, Panchkula                              

2.    Administrator, HUDA HUDA Office, Hisar 

3.    Estate Officer, HUDA HUDA Office, Hisar 

4.    Chief Administrator, HUDA Office Panchkula                                                        ....... Petitioners

                                                        Versus

 M.G.A. (Mela Ground Sector Area) Welfare Association Hisar Registered Office 80 P. Mela Ground Sector Hisar, Through its President, Shri Jai Karan Gheu

                        …... Respondent

BEFORE:

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

      HON'BLE MRS. REKHA GUPTA,  MEMBER      For the Petitioner             :         Mr. Anil Hooda, Advocate with

                                                Mr. Prashant Kumar, Advocate  

Pronounced   on :     25 th     November,     2013  ORDER

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

Petitioner/Opposite Parties has filed the present revision petition under Section

21 (b) of the Consumer Protection Act, 1986  (for  short, ‘Act’) against impugned order

dated 10.10.2011, passed in First Appeal No.632 of 2009 by Haryana State Consumer

Disputes Redressal Commission, Panchkula (short, “State Commission”). 

2.       Brief facts are that Respondent/Complainant is a Registered Association. Shri Jai

Karan has been authorized to file the complaint being its President.  It is stated

that Mela Ground Sector Area, Hissar was carved out in the year 1991-92 initially and it

was re-allotted in the year 2000 by the Petitioners.  The total plots in the above sector

are approximately 560 and only 60/62 plots have been constructed so far after allotment

and the construction is very slow due to non-availability of the basic amenities of life in

the sector which is incumbent on the petitioners to provide before offer of possession.

3.       It is stated that supply of canal water for the purpose of drinking and construction

of houses and its maintenance has not been provided, despite repeated request.  The

underground water (sub-soil) which  has been provided so far is not bacteriologically fit

for human consumption.  The Saline water is being supplied which is also in scarcity

and it has caused adverse effect on the health of inhabitants as well as on the

construction of houses raised with huge expenditure and has also damaged the

underground water pipe line of the houses.  Further, there is no effective system for

disposal of water and waste.  It is alleged that waste water has been accumulated in the

sector in the drain as well as in the open which has caused damage to the houses and

has caused adverse effect on the health of inhabitants of the sector. The accumulation

of waste water due to non-functioning of sewerage system has resulted into epidemic

break and breeding of mosquitoes.  It is further averred that there is no facility of

community centre in the sector. However, this facility has been provided in every sector

of HUDA in Hisar. There is also no maintenance of park and green belt.  It is further

submitted that respondent/plot holders have been requesting continuously to the

petitioners to provide the above amenities which are necessary but petitioners did not

pay any heed So, forced by these circumstances, respondent has filed the complaint

complaining gross deficiency in service and negligence on the part of the petitioners

with the prayer that petitioners be directed to provide basic amenities of life viz. canal

water supply, disposal/sewerage system, maintenance and construction of road,

maintenance of park and green belt, construction of community centre and further

restraining the petitioners from charging the interest on the amount of cost of plots and

further to pay the interest on the amount deposited by the plots holders towards cost of

plots of their respective plots @ 18% per annum and to pay the compensation on

account of damages of houses constructed on their respective plots due to non-

availability of basic and necessary amenities to the plot holder.

4.       Petitioners in their written statement took certain preliminary objections. On

merits, it is stated that the completion of the development work in the area i.e. road,

sewerage, electrification and water supply, the offer of possession was offered to

the allottees of MGA, Hisar.  Basic amenities of roads, water supply, sewerage and

electrification etc. required to be provided by HUDA in sector MGA, Hisar stands

already completed before the offer of possession.  Thereafter, petitioners have taken

every action and provided the basic amenities to this sector.  It is further stated that a

well laid water supply system are provided in the area for the purpose of supply of water

for drinking and construction purpose etc. and was connected with Two Nos.

of tubewells installed in the sector before the offer of possession was made to

the allottees. The water supply in the sector is being regularly provided two times in a

day in the morning and evening and the water being supplied has got tested from the

water testing laboratory.  Further, it is nowhere incumbent upon the petitioners to

provide the canal water supply specially and the underground water supply in the area

is fit for human consumption and in every respect for washing of clothes,

bathing, construction of houses and for the plantation etc.  It is further submitted that the

internal sewerage system provided in that sector has been duly connected with the

main sewerage line laid along Hisar, Raipur Road and which ultimately join the

sewerage pumping station of the Hisar Town constructed and fully functioning behind

the main bus stand and the waste water never accumulated in this sector, so no

question arises that this water damages the houses and has caused adverse effect on

the health of the inhabitants of the sector.  Even otherwise, the respondent never made

any complaint regarding the above fact. 

5.       It is further stated that the roads of the sector are well laid and maintained and

have been constructed with standard metalled width of 12 feet and petitioners are

regularly maintaining the roads as per the requirement.  Further, as per approved layout

plan of this sector, there is no provision of  community centre and petitioners are

maintaining the park and green belt in this sector. In the end, it is

stated that  plots holders are not entitled for any interest on the amount deposited by

them and they are not entitled for any damages and prayed for the dismissal of the

complaint.

6.       District Consumer Disputes Redressal Forum, Hisar (for short, “District Forum”)

vide order dated 20.3.2009, passed the following directions ;

“We direct the respondents to give the regular supply of the canal water within one year from the date of order.  However, it is made clear here that if the respondents fail to give the regular supply of the canal water after one year then they will not be entitled to charge extension fees from the residents of the sector.  As far as other relief with regard to conversion of the name is concerned, it is the administrative job, so court should not interfere in such matters.  Other relief claimed is Community Centre.  Though, respondents have submitted that there is no provision for the Community Centre in the Layout Plan for this Sector but keeping in view the interest of the inhabitants of the sector, the Administration should take the sympathetic view with regard to this grievance.  The complaint is allowed in terms of above observations.  However, the respondents are hereby directed to pay a sum of Rs.5,500/- (Rupees five thousand five hundred only) to the complainant as cost of litigation within a period of one month.  Compliance of the order be made within the period as directed above.”

 

7.       Aggrieved by order of the District Forum, Petitioners filed an appeal before the

State Commission which dismissed the same, vide impugned order.

8.       Hence, this revision.

9.       We have heard the learned counsel for the petitioners and gone through the

record.

10.     The main ground taken in this revision petition is, that both the foras below

gravely erred in law in not taking into consideration the fact that the disputes raised by

the respondent is manifestly outside the purview of the Act.  Further, respondent is not a

consumer under the Act and as such  proceedings initiated by respondent

are nonest and null and void abinitio.

11.     District Forum in its order held ;

 “We have given our anxious thoughts to the facts and circumstances of the case and considered the pleadings, documents, arguments and law cited by the parties and are of the considered view that though the respondents have provided the water in the MGA sector and it has also been proved that water is potable and further from the perusal of various reports, it has also been revealed that this water is not fit for ornamental plants, crop and construction purposes.  Further, it has been stated by the SDO of the respondent that water in this sector is being supplied two times a day through tractor from canal and process for regular supply from the canal is in progress and the canal water will be supplied regularly after one year.” 

12.     The State Commission while dismissing the appeal observed ;

“Having considered the rival contentions on behalf of the parties and perusing the case file, we hardly find any ground to interfere with the well-reasoned order passed by the District Consumer Forum.  Annexure C-3 is the report of the Haryana Agricultural University, Hisar, wherein it has been mentioned that water is slightly salty and this water cannot be used for ornamental plants, grass, vegetables and pulse type crop. Annexure-C-5 issued by District Health Office, Hisar shows that on 31.3.2004 water sample were taken from House No.377, Mela Ground Sector and HUDA tubewell, Mela Ground, Hisar and the same were sent to State Bacteriologist, Haryana Government Public Health Laboratory, Karnal of Bacteriological Examination vide Karnal LaboratoryNo.KNL/2004/416 dated 5.4.2004 whereby the water of House No.377 Mela Ground Hisar and HUDA tubewell, Mela Ground Hisar were found unfit for human consumption.  In the same manner, the report dated 23.2.2007, Annexure C-8 issued by H.A.U. Hisar shows that the water cannot

be used for ornamental plants, crops, Annexure C-10 the report dated 15.3.2007 proved that the water colour sulphates etc. were not as per the specification.  The report of the Local Commissioner is Annexure C-11 proved that there was no canal water for drinking in the area. Thus, from the evidence brought on record it has been proved beyond doubts that the water was not fit for consumption.  We are further of the view that a period of one year was granted to the appellants to make arrangement for regular supply of the canal water but till date it has not been made available, rather, suggestion has been made by the appellants that the Government of Haryana may be approached for supply of the canal water.  In other words no suitable steps have been taken by the appellants in respect of the direction given by the District Consumer Forum. Under the circumstances explained above, there is nothing on the record to differ with the view taken by the District Consumer Forum while disposing of the complaint. 

In view of the above finding no merit in the instant appeal, it is dismissed.”

 13.     Regarding the issue as to whether members of respondent’s association are

consumer or not, it is pertinent to note that petitioners in their written statement have

admitted that they offered the possession of plots to the allottees of MGA, Hisar after

completion of the development in the area.  Therefore, under these circumstances

petitioners are the service provider and allottees of the plots are definitely consumers,

as per provisions of the Act.

14.     Now, it is to be seen as to whether there is any deficiency on the part of the

petitioners or not. 

15.     Main grievance of respondent is, that the petitioners are supplying drinking water

which is not fit for human consumption. Both the fora below, having relied upon the

reports Annexures C3, C5 and C10 and have categorically held that the drinking water

being supplied by the petitioners is not fit for human consumption.  Moreover, on behalf

of the petitioners there is no rebuttal to the above report.

16.     In the present case, Shri P.C. Vatia, SDO, Division No.1, HUDA, Hisar had made

a statement before the District Forum states ;

“that in Sector MGA, Hisar canal water is being supplied through tractor.  In spite of this fact to regular the supply of the water, the HUDA has constructed the Water Storage Tank in Sector 1,4, 3 and 5 Rising Main has been installed from Sector 1, 4 to Sector MGA and further Boosting Station has been made up in the MGA Sector and the work of Pump Set and Clearing Water Tank is under progress and in the end submitted that the Canal Water supply will be regularized, within one year.”

17.     Thus, it is apparent from the record that petitioners are back tracking from the

statement made by their own responsible official.  The attitude and conduct of the

petitioners is most deplorable as they want that their allottee should go on consuming

the water which is unfit for human consumption.  Thus, petitioners are playing with

health and lives of their own citizen.

18.     The District Forum, as early as in the year 2009, directed the petitioners to give

the regular supply of the canal water within one year from the date of order.  Petitioners

instead of complying with the above directions choose to file an appeal before the State

Commission, where it could not succeed.  Even after getting two adverse findings, the

petitioners refuse to supply water fit for human consumption to its allottee but preferred

to file present revision before this Commission.

19.     It is well settled that under Section 21 (b) of the Act, scope

of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission

can interfere with the order of the State Commission where such State Commission has

exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so

vested, or has acted in the exercise of its jurisdiction illegally or with material

irregularity.  

20.     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.”  

 

21.     It is well-settled that every litigation has to come to an end ultimately.  It is not that

every order passed by the judicial foras are to be challenged even when the same are

based on soundreasonings.  Here, both the fora below have giving a finding of fact that

petitioners are supplying water which is unfit for human consumption.  We find no

reason to disagree with them.

22.     This is a known fact that Courts across the country are saddled with large number

of cases.  Public Authorities indulgences further burden them.  Time and again, Courts

have been expressing their displeasure at the Government/Public Authorities

compulsive litigation habit but a solution to this alarming trend is a distant dream.  The

judiciary is now imposing costs upon Government/Public Authorities not only when

it pursue cases which can be avoided but also when it forces the public to do so.

23.     Public Authorities 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 Authorities are possibly an apt example of

being penny wise, pound-foolish.  Rise in frivolous litigation is also due to the fact that

Public Authorities though having large number of legal personnel under

their employment, do not examine the cases properly and force poor litigants to

approach the Court.

24.     The Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ

121 (Supreme Court) (CP) has made significant observations which have material

bearing, namely,

4.  “It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase.  Statutory Authorities exist to discharge statutory functions in public interest.  They should be responsible litigants.  They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner.  They cannot behave like some private litigants with profiteering motives.  Nor can they resort to unjust enrichment.  They are expected to show remorse or regret when their officers act negligently or in an overbearing manner.  When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation.  Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.

5.  This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.  We may refer to some of the decisions in this behalf.

5.1            In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):

     “The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals.  But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s

interest is to meet honest claims, vindicate a substantialdefence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.  The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak.  Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court.  The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf.  I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

5.2   In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:

“2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.  Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.”

5.3            In a three-Judge Bench judgment of Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.

“3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.”

6.  Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers.  They are:

(i)  All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.(ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation.  Their

reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making.  Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals.  The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation.  But, it is not sufficient if the Central Government alone undertakes such an exercise.  The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation.  Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.

7.  In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- .  But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allotteeshould have protested when it illegally laid the road in his plot.   It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court.  The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.”

 

25.     Further, Apex Court in Ramrameshwari Devi & Ors. Vs. Nirmala Devi

& Ors. (Civil appeal Nos.4912-4913 of 2011 decided on 4.7.2011 has laid down

the following guidelines while imposing costs ;

“54.        While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts.  We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

55.         The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts.  The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts  the appellants have also wasted judicial time of the various courts for the last 40 years.

56.         On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/judgment.  These appeals are consequently

dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.”

26.       Recently, Supreme Court in an appeal filed by Chennai Port Trust against an

order of the Madras High Court  observed ;

“For decades, courts across the country witness appeals on frivolous grounds, resulting in wastage of public money and consuming valuable time of the Courts.  This happens because officers involved in these frivolous appeals are not personally responsible and don’t pay from their pockets.

 

27.     The officials of the petitioner’s Authority in the present case are bent upon not to provide the water which is fit for human consumption to the allottees of the respondent and have acted in a very shameless manner. 

28.     Under these circumstances, we have no option but to dismiss the present revision petition.  Further, it is a fit case where punitive damages under section 14 of the Act should be imposed upon the petitioners. 

29.     Accordingly, we dismiss the present revision petition and impose punitive damages of Rs.5 lakhs  (Rupees five lakhs only) on the petitioners. Out of Rs.5 lakhs, Rs.2.5 lakhs (Rupees two lakhs and fifty thousand only) to be paid to the Respondent – M.G.A. Welfare Association, Hisar by way of demand draft in their name.  The balance of damages amount of Rs.2.5 lakhs (Rupees two lakhs and fifty thousand only) be deposited by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within six weeks.  In case, petitioners fail to deposit the aforesaid damages within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.

30.     Further, petitioners shall recover the damages amount from its delinquent officials who had been pursuing this meritless litigation with the sole aim of wasting of the public ex-chequer.  An affidavit giving details of the officials from whose salaries the damages have been recovered be also filed, within six weeks.

31.     The demand draft of Rs.2.5 lakhs in favour of the respondent shall be paid

to it  only, after expiry of period of appeal/revision, preferred, if any.    

32.       List on 10.1.2014 for compliance.

.………………..………..J

(V.B. GUPTA)

PRESIDING MEMBER 

…………………..………..

(REKHA GUPTA)

MEMBER  

 Sg/St

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 3863 OF 2013 (From the order dated 29.08.2012 in Appeal No. 493/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/6869/2013 (For Condonation of delay)

 Naresh Kumar,S/o Sh. Natha R/o Village Gangesar Tehsil Gohana Distt. Sonepat                                                       …Petitioner/Complainant    

VersusThe Oriental Insurance Co. Ltd. Through its Managing Director/General Manager Registered & Head Office: A-25/27, Asaf Ali Road, New Delhi – 110002.

                                   …Respondent/Opp. Party (OP)

 BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :    Mr. Ajeet Pandey, Advocate                            

PRONOUNCED ON           25 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioner against the order

dated 29.08.2012 passed by Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 493 of 2012 –

The Oriental Ins. Co. Ltd. Vs. Naresh Kumar by which, while allowing appeal, order of

District Forum allowing complaint was set aside and complaint was dismissed

2.      Along with Revision Petition, petitioner has filed application for condonation of 334

days delay. 

 

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

4.      Paragraphs 2 & 3 of the petitioner’s application for condonation of delay runs as

under:“2.     That there is 334 days delay in filing of the revision petition

from the date of receipt of the revised order i.e. 29.8.2012.

 

3.      That due to the shifting of the advocate’s office, the file was

misplaced and it could not be located, which resulted in

delay in filing the revision petition within limitation”.

 

In this application for condonation of delay, petitioner has not even mentioned when

Advocate shifted office, when file was traced and when revision petition was

prepared.  There is inordinate delay of 334 days in filing revision petition and no

reasonable explanation has been given by the petitioner for condonation of inordinate

delay of 334 days.

5.      As there is inordinate delay of 334 days, this delay cannot be condoned in the light

of the following judgment passed by the Hon’ble Apex Court.

6.        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.”

 

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.      Hon’ble Supreme Court after exhaustively considering the case law on the

aspect  of condonation of delay observed in Oriental Aroma Chemical Industries

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

459 as under;“We have considered   the respective    submissions.  The

law of limitation is founded on public policy. The   legislature

does not prescribe limitation with the object of destroying the

rights of the parties but to ensure that   they    do not resort

to dilatory tactics and seek remedy without delay. The idea

is that every legal remedy must be kept alive for a period

fixed by the legislature. To put it differently, the law of

limitation prescribes a period within which legal remedy can

be availed for redress of the legal injury. At the same   time,

the courts are bestowed with the power to condone the

delay, if sufficient cause is shown for not availing the remedy

within the stipulated time.”       

 

9.      Hon’ble Apex Court in 2012 (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”.

  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. 

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

inordinate delay of 334 days. In such circumstances, application for condonation of

delay is dismissed.  As application for condonation of delay has been dismissed,

revision petition being barred by limitation is also liable to be dismissed.

 

11.    Consequently, the revision petition filed by the petitioner is dismissed as barred by

limitation at admission stage with no order as to costs.   ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI         

REVISION PETITION NO.   3930 OF 2013  (From the order dated 09.09.2013 in Appeal No. 483/2011 of the State Consumer Disputes Redressal Commission, Delhi)

           Chatur Behari Sharma House No. 1292, Vakil Pura Near Jama Masjid Delhi – 110006

                                            …Petitioner/Complainant    

Versus1. IDBI Bank Ltd. 51/3, D.B. Gupta Road Opposite Khalsa College Karol Bagh, New Delhi – 110005. 

2. The Deputy General Manager Domestic Resources Department IDBI Bank Ltd. IDBI Tower, WTC Complex, Cuffe Parade, Mumbai – 400005

…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. Gopal Sharma, Brother-in-law of  

                                      Petitioner along with petitioner in person

 

PRONOUNCED ON       25 th   November ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

            This revision petition has been filed by the petitioner against the order

dated 09.09.2013 passed by State Consumer Disputes Redressal Commission, Delhi

(in short, ‘the State Commission’) in Appeal No. 483 of 2011 – Chatur Behari Sharma

Vs. IDBI Bank Ltd. by which, while dismissing appeal, order of District Forum dismissing

complaint was upheld. 

2.      Brief facts of the case are that complainant/petitioner purchased a DV account

bond from the OP on 26.2.1992 for Rs.2700/-.  Against the bond, OP undertook to pay

Rs.1,00,000/- to the complainant on 31.3.17.  Complainant as well as OP,

both, had  option to encash/redeem the bond only at the end of each 5 years w.e.f.

31.3.91 for the face value given therein. Complainant further alleged that he received

letter dated 29.4.2009 from OP that OP had exercised call option on 31.3.2002 by

issuing the redemption  notice to the complainant on 30.9.01 to surrender duly

discharged bond for release of Rs.12,000/- and redemption amount is still lying with the

OP.  Complainant denied receipt of notice and asked OP to pay him face value of the

bond of Rs.25,000/- as due on  31.3.2009.  OP informed the complainant that

complainant may be paid interest @ 3.5% p.a. on quarterly compounding basis on the

redemption amount of Rs.12,000/- from 31.3.2002 date of exercising option, but

complainant refused.  Alleging deficiency on the part of OP, complainant filed complaint

before District Forum. OP contested the complaint and submitted that intimation was

given to the complainant under certificate of posting informing him to surrender the bond

by 31.12.2001 for receiving the value and further intimated that no interest will be

payable after 31.3.2002.  It was further submitted that this intimation was published

through various newspapers.  Denying deficiency, OP prayed for dismissal of

complaint.  Learned District Forum after hearing both the parties dismissed complaint

against which, appeal filed by the petitioner was also dismissed by impugned order

against which, this revision petition has been filed. 

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

4.      Perusal of record reveals that OP exercised option for redemption of bond and

intimation was given to the complainant under certificate of posting and redemption

notice was also published in various newspapers.  Learned District Forum while

dismissing complaint observed as under:“In the above mentioned circumstances, the complainant cannot

succeed to get redemption amount of Rs.25,000/- and other

charges as prayed in the complaint. The redemption option of the

bond as exercised by the IDBI was legal and the bank took enough

measures to inform the bond holders by issuing Public Notice in

leading Newspapers, regarding the redemption of the bond of the

value as on 31.3.2002.  The bond holders including the complainant

were informed individually also by sending notice under UPC.  The

bank is to pay interest @ 3.5% p.a. on quarterly compoundable

basis from 31.3.2002 on the redemption value of unclaimed

bond.  It is for the complainant to get the redemption value of his

bond along with interest as per extended policy of the bank.  He

may submit the duly discharged bond to get the redemption amount

with interest as referred above”.

 

5.      Learned State Commission observed as under:

The contention of the appellant is that he did not receive the

communication from the bank dated 30.9.2007 is per se

unacceptable, because he admits having received a

subsequent communication dated 29.4.2009 on same

address. Besides the bank issued Public Notice in various

Newspapers, which has been said on the affidavit. The bank

has also filed the postal receipt of certificate of posting of

communication sent to the complainant. In the face of all this

evidence, it cannot be said that the communication dated

30.9.2001 was not received by the complainant, and his plea

in this regard cannot therefore be accepted.

 

6.      In the light of aforesaid observations of District Forum and State Commission, 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 as intimation had already

been given to the petitioner regarding redemption. 

 

7.      Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.

 

 ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                                           

REVISION PETITION NO.   2968 OF 2008  (From the order dated 29.04.2008 in Appeal No. 1021/2008 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

 Uttar Haryana Bijli Vitran Nigam Ltd. Through its Sub Divisional Officer O.P. Sub Division Munak, District Karnal, Haryana                                                    …Petitioner/Opp. Party (OP)    

VersusOm Parkash S/o Shri Jai Lal R/o Village and Post Office Ballah, Tehsil and District Karnal, Haryana

…Respondent/Complainant BEFORE

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

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner             :         Mr. Arvind Nayar, Advocate

                                                Mr. Zartab Anwar, Advocate

For the Respondent         :         NEMO

                   

PRONOUNCED   ON     25 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

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

29.04.2008 passed by Haryana State Consumer

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

Appeal No. 1021 of 2008 – Uttar Haryana Bijli Vitran Nigam Ltd. Vs. Om Parkash by

which, while dismissing appeal, order of District Forum allowing complaint and quashing

demand was upheld.

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

3.       This complaint pertains to offence committed under Section 135 Indian Electricity

Act against the assessment made by assessment officer for the theft of electricity.  In

the light of judgment passed by Hon’ble Apex Court in Civil Appeal No. 5466 of 2012 –

U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, this complaint is not maintainable

before District Forum under Consumer Protection Act.

4.       Consequently, revision petition filed by the petitioner is allowed and impugned

order dated 01.02.2012 passed by learned State Commission in First Appeal No.

1179/2011 is set aside and complaint stands dismissed.

5.       Liberty is granted to the respondent to seek appropriate remedy available to him

before the appropriate Forum. ………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI FIRST APPEAL NO. 472 OF 2007(From the orders dated 10.04.2007 in Complaint No.37/2000 of the Delhi State Consumer Disputes Redressal Commission)

 

B.S. Walia R/o 338, Kailash Tower-I East of Kailash New Delhi-110065

                                     …      Appellant

 Versus 

M/s DLF Universal Limited DLF Centre Sansad Marg New Delhi-110001

                                     …      Respondent

 BEFORE :

        HON’BLE  MR. JUSTICE  D.K. JAIN,  PRESIDENT

        HON’BLE  MRS.  VINEETA  RAI,  MEMBER

 For the Appellant       :       Mr. B.S. Walia, Appellant in person

For the Respondent    :       Mr. R. Narain, Advocate with

Ms. Kanika, Advocate &

Mr. Siddharth Banthia, Advocate

 Pronounced : 27 th   November, 2013  

O R D E R PER VINEETA RAI 

        First Appeal No. 472 of 2007 has been filed by Shri B.S. Walia, Appellant herein

and Original Complainant before the Delhi State Consumer Disputes Redressal

Commission (hereinafter referred to as the State Commission) being aggrieved by the

order of that Commission which while concluding that there was a breach of Agreement

by M/s DLF Universal Limited, Respondent herein and Opposite Party before the State

Commission, had awarded a compensation of only Rs.50,000/- which was far less than

what was sought by the Appellant and warranted in the case.

2.     The facts as contended by the Appellant are that in June, 1993 he had booked a

flat in Beverly Park (II) in DLF Qutub Enclave, Gurgaon with the Respondent after being

assured that this flat was immediately below the penthouse.  Appellant thereafter made

the entire payment of Rs.24,55,182/- as per the prescribed schedule in the Agreement,

including miscellaneous charges.  However, he was “wonderstruck” when he was

informed on 24.09.1997 that the Respondent had suo motu and arbitrarily changed the

allotment of this flat to one storey below the agreed floor as a result of which it was not

immediately below the penthouse as applied for by the Appellant and confirmed by the

Respondent.  This clearly amounted to unfair trade practice.  Further, as per Agreement

the Respondent was to deliver the flat after three years but instead of handing over the

completed flat by the stipulated period, Respondent demanded escalation costs of

Rs.4,29,595/-, which the Appellant had no option but to pay under duress whereas

Respondent should have paid interest on the amount of over Rs.24,00,000/- already

deposited by the Appellant for the delayed period.  Respondent was, therefore, guilty of

deficiency in service on this count and liable for payment of interest @ 16.5% on this

amount for the delayed period in handing over possession of the flat amounting to

Rs.10,78,080/- since the flat was handed over only on 18.06.1999.  Being aggrieved by

the unfair trade practice and deficiency in service on the part of Respondent, Appellant

filed a complaint before the State Commission seeking (i) damages of Rs.5,00,000/-; (ii)

interest for the delay in handing over possession from July, 1996 to February, 1999

amounting to Rs.9,09,600/-; and (iii) compensation of Rs.2,00,000/- towards mental

agony and harassment.

3.     Respondent on being served filed a written rejoinder denying the allegations made

by the Appellant and inter alia contented that the allegation of unfair trade practice in not

allotting the flat as per the requirements of the Appellant is not borne out by the

documentary evidence on record.  Appellant himself had written a letter on 23.06.1993

to the Respondent stating that a flat be reserved for him on the 10 th floor or if it is

possible on the 11th or 12th floor. Subsequently in his formal application for allotment, he

again specifically indicated that the flat No.1410-A on the 10 th floor was acceptable to

him and it was also confirmed in the Apartment Buyer’s Agreement signed between the

parties.  There was never any request written or otherwise by the Appellant that he

should be allotted a flat just below the penthouse. In fact Respondent vide letters dated

26.06.1993, 24.09.1997, 19.12.1997, 10.07.1997, 09.09.1997 and 04.08.1999 had

clearly communicated to the Appellant that flat no. 1410-A had two floors above it,

including the penthouse on the top floor.   Regarding the allegation of the Appellant that

he was not liable to pay escalation costs because of the delay in handing over

possession of the flat, for which Respondent solely was to blame, it was clearly stated in

the Apartment Buyer’s Agreement that delay could be possible on account of various

factors beyond the control of the Respondent and in the instant case the delay in

handing over possession occurred because of time taken in getting necessary

government clearances.  The escalation charges demanded by the Respondent were

thus strictly in accordance with the terms of the Agreement and in fact no promise about

any particular date for handing over the flat was made. Appellant took possession of flat

no. 1410-A on 18.06.1999 and also sold the same.  Having done so, as per clause 20 of

the Agreement, he had no claim against the Respondent for any reason whatsoever

and, therefore, the present complaint filed by him was no longer maintainable.     

4.     The State Commission after hearing the parties and on the basis of evidence

produced before it observed as follows :

“8.    After hearing the counsel for the parties and according careful consideration to the documents on record as well as the version of the O.P. reproduced from the written submission of the O.P., we find that the O.P. had vide letter dated 10-07-1993 admitted the allotment of a floor which was required by the complainant, i.e. immediately below the penthouse. However, the O.P. is harping on the number of flat without realizing that it had already agreed to allot a flat below the penthouse to the complainant. Confusion is being created by the O.P. regarding the number of the flat. Thus, if the complainant has suffered any loss, it was on account of non-allotment of flat immediately below the penthouse but subsequently he was allotted the flat and it was sold also. …

 11.     Taking over all view of the matter and the breach of agreement by O.P., we deem that a lump sum compensation of Rs. 50,000/- would meet the ends of justice.”

 

        Hence, the present appeal.

5.     Appellant in person and Counsel for the Respondent made oral submissions.

6.     Appellant vehemently argued that the State Commission erred in granting him a

token compensation after having concluded that there was a clear breach of the

Agreement.  Appellant brought to our attention a letter dated 05.08.1999 in which

Respondent had admitted that there appeared to be some misunderstanding vis-à-vis

numbering of the flats as communicated to the Appellant vide Respondent’s letter dated

10.07.1993 indicating that there was no intervening floor between the flat allotted to

Appellant and the penthouse.  Appellant contended that he had opted for flat no. 1410-A

on the clear understanding that there was only the penthouse above his flat.  He had

clarified the same in writing to the Respondent on 16.07.1997 and also alleged that it

appeared that the building plans were arbitrarily changed and one more floor was

constructed between his flat and the penthouse.  Since Appellant was working abroad

he was not in a position to meet the Respondent frequently as a result of which he was

misled and the sale of the flat was foisted on him.  Appellant wanted to buy the flat for

his personal use and he had no option but to sell it because it was not as per his

requirement.  Appellant, therefore, requested that the order of the State Commission be

modified and he be given the compensation and relief sought by him before the State

Commission.

7.     Counsel for Respondent denied the above allegations and stated that even

Rs.50,000/- given to the Appellant by the State Commission as compensation was not

based on the merits of the case but Respondent paid this amount to avoid unnecessary

litigation.  More importantly Appellant had accepted the decree of the State Commission

without any reservations and, therefore, the present appeal for enhancement of

compensation is untenable.  It was reiterated that the Appellant without any reservation

had taken possession of the flat in question on 18.06.1999 and having done so as per

the Apartment Buyer’s Agreement he had no claim against the Respondent for any

reason whatsoever.  On merits, it was contended that Appellant after booking the flat

had never indicated that he wanted only a flat on a floor just below the penthouse.   In

this connection, Counsel for the Respondent brought to our notice the letter dated

23.06.1993 from the Appellant to the Respondent requesting that “you reserve a flat for

me in your building Windsor on the 10 th floor or if it is possible on the 11 th or

12thfloor”.  From this letter it is very clear that Appellant had made a specific request for

allotment on the 10th floor and reference to the higher floors was made only as an

alternative.  Regarding the allegation that there was delay in handing over possession

of the flat and also that the escalation charges were unwarranted, Counsel for the

Respondent reiterated that these were covered under various provisions in the

Apartment Buyer’s Agreement entered into between the parties and, thus, binding on

the Appellant.  In view of these facts, the present appeal having no merit deserves to be

dismissed.  

8.     We have carefully considered the submissions made by the parties and have also

gone through the evidence on record.  Appellant having booked a flat in Beverly Park

(II) in DLF Qutub Enclave, Gurgaon with the Respondent is not in dispute.   It is also a

fact that Appellant had signed the Apartment Buyer’s Agreement accepting allotment of

flat no. 1410-A on the 10 th floor and had consequently paid for the cost of the flat.   The

main point in dispute leading to filing of the present consumer complaint is that the

Respondent had misled the Appellant that the flat allotted to him was just one floor

below the penthouse whereas the Appellant after having accepted the flat and signed

the Apartment Buyer’s Agreement came to know only on 24.09.1997 that the

Respondent had suo motu and arbitrarily built two floors above the flat allotted to him,

as a result of which it was not immediately below the penthouse, as applied for by the

Appellant. Apart from this, Appellant has challenged the delay in handing over the flat

and the consequent escalation charges as not being warranted.    

        After going through the evidence on record, we are unable to accept the above

contentions of the Appellant.  In this connection, we note that vide letter dated

23.06.1993 written by Appellant to Respondent following discussions in the latter’s

office, Appellant had requested that he be reserved a flat on the 10 thfloor or if it is

possible on the 11th or 12 floors.  From this letter, it is obvious that the Appellant was

fully aware before having entered into the Apartment Buyer’s Agreement that there were

two floors above the 10th floor i.e. the 11th and 12th floors.  Subsequently, in the

application for allotment Appellant himself had specifically sought allotment on the

10th floor with no condition that it should be just below the penthouse.  Some confusion

regarding whether the flat was located on the 10th floor or the 11th floor may have arisen,

as observed by the State Commission, because of a letter from the Respondent dated

10.07.1993, in which Respondent had stated that the building has ground floor + 10

floors and, therefore, flat no. 1410-A is actually on the 11th floor but this error was

subsequently clarified in various letters written by Respondent to Appellant.  Also in the

Apartment Buyer’s Agreement entered into between the parties on 05.01.1994  it was

clearly stated that flat no. 1410-A was on the 10th floor.  Further, as stated earlier, there

is no evidence written or otherwise that the Appellant had insisted at the time of his

purchasing the flat that only a flat below the penthouse would be acceptable to him.   It

was only in 1997 when the construction was almost completed that this issue was

raised.  Appellant thereafter took possession of the flat without any protest in 1999 and

also sold the same, which lends further credence to the Respondent’s contention that

Appellant had no initial objection to the location of the flat on the 10 th floor irrespective of

whether it was one or two floors below the penthouse and this objection was only voiced

in 1997 i.e. three years after he had signed the Apartment Buyer’s Agreement. 

        Regarding the delay in handing over the possession of the flat and consequent

escalation charges levied by the Respondent and objected to by the Appellant, we note

that there are provisions pertaining to these possibilities under clauses 15, 16 and 17 of

the Apartment Buyer’s Agreement entered into between the parties and, therefore, we

do not find the Respondent guilty of any deficiency in service on this count as well.

9.     Keeping in view the above facts, we are unable to accept the present appeal and

dismiss the same with no order as to costs.    

  

Sd/-

                                                                          (D.K. JAIN, J.)

PRESIDENT

  

Sd/-

(VINEETA  RAI)

MEMBER

Mukesh          

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2078 OF 2013(From the order dated 26.2.2013 in  First Appeal No.138/2013 with Misc. Application No.225 of 2013 of the  Punjab State Consumer Disputes

Redressal Commission, Chandigarh)

 

1. Subhash Chand S/o Shri Mukand Lal 

2. Sushma Rani W/o Shri Subhash Chand R/o H.No.60, Patiala Gate Sangrur (Punjab)

..…. Petitioners

  Versus

 

1.  Punjab National Bank (Main) Patiala Gate Sangrur (Punjab) Through its Manager 2. Oriental Insurance Co. Ltd. Nabha Gate Bazar Sangrur (Punjab) Through its Manager 

3. Medi Assist India (TPA) Pvt. Ltd. SCO No.61, 2nd Floor Phase VII, Mohali Through its Managing Director

..... Respondents

 BEFORE:

 HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

 For the Petitioners                : In person

PRONOUNCED ON: 27 th   November, 2013  ORDER 

PER SURESH CHANDRA, MEMBER 

This revision petition has been filed by the petitioners who were the original

complainants against the impugned order dated 26.2.2013 passed by the State

Consumer Disputes Redressal Commission, Punjab, Chandigarh by which the State

Commission dismissed the M.A. No.225 of 2013 filed by the petitioners

for condonation of delay of 402 days in filing their First Appeal before the State

Commission. Resultantly, the State Commission also dismissed their F.A. No.138 of

2013 as being time-barred against the order dated 11.11.2011 passed by the District

Consumer Forum, Sangrur whereby the District Forum had dismissed the complaint

No.261 filed by the petitioners.

2.         Briefly stated, the petitioner No.1/complainant No.1 had taken

a mediclaim insurance policy for his wife, petitioner No.2 and his son from respondent

No.2 insurance co. in collaboration with respondent No.3 which is a Third Party

Administrator  (TPA) organisation. The policy was valid from 6.9.2010 to 5.9.2011. As

per the allegations, the petitioner No.2 fell ill on 22.9.2010 and was admitted in a

hospital at Sangrur for treatment but soon she had to be shifted to another hospital at

Ludhiana for further treatment on 28.9.2010 where she remained

admitted upto 16.10.2010. The petitioners spent an amount of Rs.14,360/- from

22.9.2010 to 28.9.2010 at the Sibia Hospital, Sangrur and Rs.1,87,260/- from 28.9.2010

to 16.10.2010 at DMC Hospital, Ludhiana on the treatment of petitioner No.2.

Petitioners sent claim in respect of the expenditure incurred by them to the opposite

parties but the same was rejected by them on the ground that as per the terms and

conditions of the policy, the expenditure on the treatment of hypertension and diabetes

was not payable if contracted in the first two years of the policy. Alleging deficiency in

service on the part of the OPs, the petitioners filed a consumer complaint seeking

direction from the District Consumer Forum to the OPs to make payment of Rs.1 lakh

towards reimbursement of medical bills and expenses along with interest @ 12% p.a.

from 16.10.2011 till realization. OPs-1 & 2 / R-1 & 2 herein respectively appeared before

the District Forum in response to notice while OP No.3 was proceeded ex parte.

Opposite Party No.1, i.e, Punjab National Bank, Sangrur admitted that the OP-2 had

issued a PNB-Oriental RoyalMediclaim Policy (Family Floater) for PNB account

holders/employees for the period 6.9.2010 to 5.9.2010 subject to the terms and

conditions of the policy and their son was also covered under the policy. However, it

was submitted by OP-1 that the real dispute was between OPs - 2 & 3 and the

petitioners. OP-2 opposed the complaint and the claim of the petitioners by stating that

the terms and conditions of the policy had been explained to the complainants before

issuing the policy in their favour and as per the terms of the policy, the claim  was not

payable under Exclusion Clause No.4.1 and feature 1.2 of the policy. It was further

stated that the patient / petitioner No.2 was a known case of diabetes and hypertension

with surgical intervention done on 2.4.2010 prior to the inception of the policy on

6.9.2010 and hence the expenses for the treatment of hypertension and diabetes are

not payable if contracted in the first two years of the policy.

On considering  the evidence adduced before it, the District Forum did not find any merit

in the claim made by the petitioners and dismissed the same. Aggrieved of the order of

the District Forum, the petitioners filed an appeal against it before the State Commission

which was dismissed by the State Commission in limine as being time-barred. It is in

these circumstances that the petitioners have approached this Commission against the

impugned order of the State Commission.

3.         We have heard Shri Subhash Chand, petitioner No.1 who has appeared for

himself and petitioner No.2 and perused the record. We may note that the State

Commission has dismissed the appeal of the petitioners on the ground of delay of 402

days in filing the appeal which the State Commission did not find appropriate to

condone. The petitioners have not placed a copy of their M.A. No.225 of 2013 which

they filed before the State Commission for condonation of delay in filing the appeal. It is

seen from the impugned order that the main contention of the petitioners before the

State Commission was that the delay in question was neither intentional nor deliberate

but due to the reason beyond the control of the petitioners because petitioner No.1 was

taking care of his wife/petitioner No.2 and as such he could not contact the counsel for

filing of the appeal and due to this reason, the delay of 402 days occurred in filing the

appeal. It was further pleaded by the applicant  that the petitioners would suffer

irreparable loss and prejudice will be caused if delay is not condoned and appeal is not

decided on merits. While dismissing the application of the petitioners for condonation of

delay in filing the appeal, the State Commission observed that the applicant had neither

mentioned name of the hospital where petitioner No.2 was admitted nor given the

details and dates of hospitalization supported by medical record or bills of the

hospital/medicines. In the absence of necessary details supported by the documents,

the State Commission held that sufficient cause had not been shown by the applicant

for condonation of delay of 402 days and hence the M.A. was dismissed. Consequently,

the State Commission dismissed the main appeal as barred by limitation. We may note

that as per the judgements of the Apex Court, while deciding an application

for condonation of delay, the court has to keep in mind that the specific period of

limitation has been prescribed under the Consumer Protection Act, 1986 for filing

appeal and the object of expeditious adjudication of the consumer disputes will get

defeated if the courts were to entertain highly belated appeals. It is also well-settled that

the applicant who approaches the court for condonation of delay in question has to

explain each and every day’s delay in a convincing and satisfactory manner so as to

provide sufficient cause for condoning the delay by the court as envisaged under the

law. In this case, we find that the petitioners miserably failed to explain the delay with

documentary evidence to convince the State Commission that there was sufficient

cause which led to the inordinate delay of 402 days occurred in filing their appeal. In our

considered view, the State Commission was justified in dismissing the application

for condonation of 402 days of delay and the main appeal. The petitioners have not

placed any material which would persuade us to take a different view.

4.         In view of the aforesaid discussion, we do not find any justification to interfere

with the impugned order dismissing the appeal of the petitioners on the ground of

limitation. Even on merits, we do not find any substance in the revision petition. The

District Forum has considered the contentions raised by the petitioners adequately and

has recorded its reasons in para 9 of its order while dismissing the complaint. No fault

could be found with the order of the District Forum on merits.

5.         In view of the aforesaid discussion, the revision petition is dismissed

in limine with no order as to costs.

……………Sd/-……..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER 

                                                              ……………Sd/-….……………

(SURESH CHANDRA)

MEMBERSS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.4544 OF 2012(From the order dated 09.08.2012 in  First Appeal No.402/2011 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

1. NATIONAL INSURANCE COMPANY LTD. Through its duly constituted attorney Manager R/o I Level-4, Tower-Ii, Jeevan Bharti , 124 Connaught Circus NEW DELHI – 110001

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

 Versus

1. GOPANABOINA SATHYAM S/o Srihari, R/o Thungathurty Village Kethepally Mandal, NALGONDA, A.P

2. Golden Multi Services Club Ltd., S.B Mansion, 16. R.N Mukherjee Road, KOLKATA – 700001 W.B

3. Golden Multi Services Club Ltd., Branch Office:2nd floor, Sangamitra Bank Complex, Prakasham Bazar NALGONDA, A.P

...........Respondent(s)

BEFORE:

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

 For the Petitioner         :       Mr.Abhishek Kumar, Advocate

For the Respondent     :

Mr. R. Santhnan Krishnan, Adv. for R-1

Mr. Kunal Chatterjee, Adv. for R-2 to R-3

PRONOUNCED ON :27 th   November, 2013  ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the petitioner Insurance Co. which was

opposite party at Sl. Nos.2 & 3 in the consumer complaint filed by respondent

No.1/complainant  before the District Forum,Nalgonda against the petitioner Insurance

Co. and the Golden Multi Services Club Ltd., Kolkata included in the complaint as

opposite party at Sl. Nos. 1 & 4. Challenge in the revision petition is to the impugned

order passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad

(‘State Commission’ for short) on 9.8.2012 in F.A. No.402 of 2011 whereby the State

Commission partly allowed the appeal filed by the petitioner co. against order dated

19.4.2011 passed by the District Consumer Forum, Nalgonda in consumer complaint

No.61 of 2010. By its order, the District Forum had partly accepted the complaint filed

by R-1 in terms of the following order:-

“In the result, the complaint is partly allowed. The Opposite Party No.2 is directed to pay to the Complainant Rs.78,000/- (Rupees Seventy eight thousand only) along with interest @ 9% p.a. from the date of the complaint till realization. Costs of this complaint quantified at Rs.2,000/-. Time for compliance one month from the date of communication of this order. Rest of the claim of the Complainant is dismissed.”

 

2.         The State Commission vide its impugned order slightly modified the order of the

District Forum by setting aside the award of compensation of Rs.3,000/- for deficiency in

service and maintained the rest of the award passed by the District Forum as

reproduced above.

3.         Briefly stated, the facts relevant for disposal of this revision petition are that the

complainant/respondent obtained a Group Jantha Personal Accident Policy from the OP

Insurance Co. for a sum of Rs.5 lakhs and the said policy was in force from 31.3.2004

to 31.3.2019. The complainant paid premium to the Insurance Co. through OPs 1 & 4.

On 19.8.2007, the complainant while travelling on his motorcycle to his village was

involved in an accident in which he sustained grievous injuries to both the upper and

lower limbs and a major injury to the head near his right eye. After the first aid, the

complainant was shifted to a super specialty hospital at Hyderabad where he was

treated for 10 days. Police case was also registered and charge sheet was submitted

against the driver of the tractor which allegedly caused the accident. The complainant

filed his insurance claim in November 2007 with the OP No.4 along with necessary

documents which was forwarded to the OP Insurance Co. In spite of furnishing further

documents as required by the OP Insurance Co., the claim of the complainant was

allegedly not settled and nor there was any response in spite of a no. of visits by the

complainant to the OP Insurance Co. Eventually, the complainant lodged a consumer

complaint with the District Forum praying for direction to the OPs to pay Rs.2,50,000/-

towards 50% of the assured sum together with interest and Rs.1 lakh by way of

damages and cost.

4.         OPs filed their written statements opposing the claim and denying the

allegations made in the complaint. OPs 1 & 4 admitted issuance of the policy to the

complainant by the OP Insurance Co. and also acknowledged that they had received

the claim in respect of the accident from the complainant and the same had been

forwarded by them to OP Insurance Co. However, they denied their liability to pay the

claim made by the complainant and hence prayed for dismissal of the complaint against

them. The OPs 2 & 3, i.e, the Insurance Co. filed a combined written version admitting

issuance of the policy subject to certain terms and conditions. It was contended by the

OP Insurance Co. that as per policy Clause “C” , the complainant is not entitled to any

compensation because there is no permanent disability. It was also stated by the

Insurance Co. that in spite of several letters to the complainant requiring certain

documents, the complainant did not comply with the requirements and as such they

could not settle the claim. Both the sides filed their evidence affidavits reiterating their

respective pleadings and after hearing the parties and considering the evidence on

record, the District Forum accepted the complaint in terms of the aforesaid order.

Aggrieved by that order, the OP Insurance Co. filed an appeal on several grounds

before the State Commission challenging the order of the District Forum and denying

any deficiency in service on their part and praying for setting aside of the order of the

District Forum and dismissal of the complaint. As stated above, the State Commission

vide its impugned order partly allowed the appeal  by giving some relief to the extent of

Rs.3,000/- in the matter of payment of compensation and upheld the  rest of the award

passed by the District Forum. Under these circumstances, the OP Insurance Co. has

now filed the present revision petition.

5.         We have heard Shri Abhishek Kumar, Advocate for the petitioners and Sh.

R. Santhnan Krishnan, Advocate for respondent/complainant. Learned

counsel Shri Kunal Chatterjee, Advocate has been heard for respondent Nos. 2 &

3. Learned counsel for the petitioners submitted that the State Commission has failed to

consider that the claim in question is not covered under the scope of the cover provided

by the policy inasmuch as the policy covers only the accidental death, permanent total

disablement, actual loss of one eye/eyes, hand/hands, foot/feet  but does not cover the

partial blindness, i.e., 30% as in the present case. He also submitted that the coverage

by the policy is limited to complete and actual loss of one eye or both the eyes in terms

of the conditions provided at Sl. No.1 to 1.1 and 2 to 2.9 in the table/chart provided

under the conditions. Learned counsel further argued that since admittedly no complete

and actual loss of one eye is caused to the complainant/respondent, the complainant

would not be entitled for any compensation strictly in terms of the conditions of the

policy. Learned counsel vehemently pleaded that in terms of the condition of the policy,

the loss of sight has to be full loss and keeping in view this specific condition, he said

that both the Fora below committed grave mistake in accepting the claim albeit

proportionately even though as per the certificate of the doctor the loss of sight was only

30%. He, therefore, submitted that the impugned order cannot be sustained in the eye

of law and is liable to be set aside being in violation of specific conditions of the policy.

6.         On the other hand, learned counsel for the complainant/respondent submitted

that 30% loss of sight suffered by the complainant/respondent during the accident is of

permanent and irrecoverable in nature and the same fact has not been denied. He

argued that condition Nn.2.7 which is relevant to consider the present claim does not

talk of total or full loss of sight of one eye but merely mentions payment of 50% of the

sum insured in case of “loss of sight of one eye”. He further submitted that if the

condition at 2.7 is read with the wordings used in the main condition at Sl. No.2, it would

be clear that the only thing which is required to be established is that the loss suffered

should be permanent  and of irrecoverable nature. He submitted that admittedly the loss

of sight of one eye was to the extent of 30%, but it is nobody’s case that it was not of

permanent and recoverable in nature. In this view of the matter, he submitted that

the Fora below were right in admitting the claim in proportion to the extent of loss

suffered and as such the impugned order needs to be upheld and the revision petition

dismissed.

7.         We have carefully considered the rival contentions. The only legal issue which

has emerged from the arguments is as to whether in terms of the scope of cover

provided for in the terms and conditions of the policy, proportionate compensation is

permissible. Learned counsel for the petitioners has placed reliance on

three judgements of the Apex Court in the cases of Oriental Insurance Co. Vs.

Sony   Cheriyan [(1999) 6 SCC 451], National Insurance Co. Ltd.

Vs.   Laxmi   Narain   Dhut   [2007 – 258 (02-03-2007) (SC)]  and United India

Vs.     Harchandrai   Chandan   Lal   [(2005) ACJ 570 (SC ) ] . We have considered the

observations of the Apex Court in these three cases referred to by the counsel. The

essence of the observations of Hon’ble Supreme Court is that the insurance policy

between the insured and the insurer represents contract between these parties and the

terms of the policy govern this contract. This being the position, it has been laid down

that we have to abide by the words used in the policy and there is no scope for adding

or subtracting the wordings of the policy as agreed to and accepted by the parties.

Applying the aforesaid principles laid down by the Apex Court to the present case, we

find that as per scope of the cover provided under the terms and conditions attached to

the policy, the case of the complainant is covered by para 2.7 read with the main para 2

which governs the sub-paras included under the main para. For the sake of better

appreciation, we may reproduce the chart of benefits available under the scope of cover as under:-

“1) Death 100% of sum insured

1.1) Permanent total disablement 100% of sum insured

2) Total and irrecoverable loss of : 100% of sum insured

2.1) Sight of both Eye 100% of sum insured

2.2) Actual loss by physical separation of two entire hands

100% of sum insured

2.3) Actual loss by physical separation of two entire feet

100% of sum insured

2.4) Actual loss by physical separation of hand and one entire foot

100% of sum insured

2.5) Actual loss of sight of one Eye and actual loss 100% of sum insured

by physical separation of one entire hand

2.6) Actual  loss of sight of one Eye and actual loss by physical separation of one entire foot.

100% of sum insured

2.7) Loss of sight of one Eye 50% of sum insured

2.8) Actual loss by physical separation of one entire hand

50% of sum insured

 

2.9) Actual loss by physical separation of one entire foot

 

50% of sum insured”

8.         We may note from the above that so far as loss of sight of one eye is concerned,

50% of the sum insured is payable. Since the complainant suffered only 30% loss of

sight of one eye, the Fora below have considered award of 30% of 50% of the sum

insured which comes to Rs.75,000/-. It is important to note that although there is further

elaboration of the nature and extent of loss under each of the sub-paras by adding

prefixes / adjectives like “actual”, “entire”, “physical”, etc. there is no further adjectives or

prefixes added before the words “loss of sight of one eye”. The contention of the

learned counsel for the petitioners is that the main clause which contains the words

“total and irrecoverable loss of” governs all the sub-clauses and hence it would exclude

the present claim which pertains to only 30% loss of sight. On the other hand, the

contention of learned counsel for respondent/complainant is that absence of the word

“full” or “total” in the beginning of the entry at Sl. No. 2.7 indicates that the claim under

this entry which cannot exceed 50% of the sum insured in cases of full loss of sight of

one eye has to be considered on proportionate basis in case of such loss which is of

total and irrecoverable in nature as contained in para 2. Learned counsel for the

complainant/respondent further said that if there was an intention to exclude

consideration of claims in case of partial loss, the entry would certainly have clarified it

by adding the prefix “full” and/or “total” before the word loss in this entry. In this view of

the matter,  he has submitted that the Fora below were right in accepting the claim on

proportionate basis in terms of the limits laid down by the terms and conditions.

9.         Having considered the respective pleas of the parties in the light of the words

used in the terms and conditions as mentioned in the policy and after looking at entry at

sub-para 2.7 along with entries in other sub-paras, we are of the view  that the claim

can be considered in terms of this sub-para even for proportionate loss of sight as long

as the loss is of irrecoverable and permanent nature. Admittedly it is not the case of the

petitioner Insurance Co. that 30% loss of sight suffered by the complainant in his right

eye is not of irrecoverable or  permanent nature. In view of this, no fault could be found

with the impugned order because the claim awarded is strictly in proportion to the loss

of sight. While on the subject, we have no hesitation in observing that that the

arguments put forth by the learned counsel do indicate that there is certain  amount of

lack of clarity or ambiguity in respect of the real purport of the benefits available

under para 2.7 under reference. If that be so, even then in all fairness, the benefit of

doubt must go to the insured. We have considered the present case from both the

angles and are of the opinion that going by the words used in the scope of cover under

the terms and conditions attached to the policy, the impugned order does not call for

any interference from us. Revision petition, therefore, stands dismissed with the parties

bearing their own costs.

……………Sd/-……..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER 

                                                            

  ……………Sd/-….……………

(SURESH CHANDRA)

MEMBERSS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

 

REVISION PETITION NO.   1252 OF 2008

(From the order dated 29.01.2008 in First Appeal No. A-08/18 and A-08/60 of Delhi State Consumer Disputes Redressal Commission)

 

M/s. Srilankan Airlines Ltd. Room No. 312, World Trade Centre, Barakhamba Avenue New Delhi – 110001.

                                          ...  Petitioner

  Versus

Subhash Chawla s/o late Sh. H.C. Chawla r/o 138, SFS Flat Dr. Mukherjee Nagar, Delhi – 110009.

                                                   … Respondent

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS

 For the Petitioner(s)   Mr. Shakti K. Pattnaik, Advocate 

For the Respondent(s)   Mr. Subhash Chawla, In person

 PRONOUNCED   ON :   27 th   NOVEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

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

Protection Act, 1986 by the petitioner against the impugned order dated 29.01.2008

passed by the Delhi State Consumer Disputes Redressal Commission (for short ‘the

State Commission’) in two appeals filed before them, i.e., Appeal No. A-08/18

“M/sSrilankan Airlines Ltd. versus Sh. Subhash Chawla” and Appeal No. A-08/60

“Sh. Subhash Chawla versus M/s Srilankan Airlines Ltd” vide which, while dismissing

both the appeals, the order dated 12.12.2007 passed by the District Consumer Disputes

Redressal Forum, K.G. Marg, New Delhi in consumer complaint no. CC/624/06 filed by

the present respondent allowing the complaint was upheld.  

2.     Brief facts of the case are that complainant Subhash Chawla along with his wife

and two children made an excursion tour of Singapore, Malaysia, etc. and booked

tickets from Srilankan Airlines through the agent M/s. D. Paul’s Travels.  They were

provided return air-tickets of Srilankan Airlines with confirmed seats booking from New

Delhi to Malaysia on 10.4.2006, Malaysia to Singapore on 15.4.2006 and from

Singapore to New Delhi on 21.04.2006.  For their return journey to Delhi on 21.04.2006,

when the complainant and his family reached Changi Airport, Singapore on 21.04.2006,

the staff of Srilankan Airlines refused to accept their baggage which included a Sony

television.  The television set had to be brought by another aircraft as unaccompanied

baggage for which they were charged Rs.22,671/- (equivalent to 775 Singapore

dollars). 

3.     As per the complainant, he could not get the benefit of custom duty free allowance

at Delhi Airport and had to further spend an amount of Rs.1,000/- on

transportation.  The version of the respondent was that the weight and measurement of

the television set was in excess of the permissible limits and moreover, the television

set, being an electronic item, was not permitted to be carried as accompanied baggage

by the Airlines.  The complainant filed a complaint before the District Forum and the

said Forum vide their order dated 12.12.2007 allowed the same and asked the

OP/petitioner to reimburse a sum of Rs.22,671/- for their wrongful refusal to carry the

television set on the aircraft.  The District Forum also allowed a sum of Rs.1,00,000/- as

compensation for mental agony and harassment to the complainant for deficiency in

service.  A sum of Rs.10,000/- was also allowed as cost of litigation.  Two appeals were

filed against this order, one by the complainant for enhancement of compensation and

the other by the petitioner, but both the appeals were dismissed vide impugned order.   It

is against this order that the present petition has been filed. 

4.     At the time of arguments before us, the learned counsel for the petitioner Airlines

stated that the complainant has no legal right to carry baggage more than 32 kg per

piece.  Moreover, under the general conditions of carriage (passengers and baggage)

of Srilankan Airlines Ltd. as contained in para 8.3.4 and 8.4.2 of these conditions, a

television set was not categorised as baggage and such conditions are applicable to all

passengers.  For ready reference, clause 8.3.4 and 8.4.2 of the General Conditions of

Carriage read as follows:-“8.3.4   You must not include in checked Baggage money,

jewellery, precious metals, computers, personal electronic devices, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples.

 8.4.2     We may refuse to carry as Baggage any item reasonably

considered by us to be unsuitable for carriage because of its size, shape, weight, content, character, or for safety or operational reasons, or the comfort of other passengers.  Information about unacceptable items is available upon request.”

 

5.     Learned counsel further stated that as per the documents by which the said

television set was brought as unaccompanied baggage, it is clearly mentioned that the

weight of the television set was 33 kg. but the chargeable weight was 67 kg.  This

document was issued by the Airports Authority of India.  Srilankan Airlines had,

therefore, not committed any deficiency in service.  

6.     The complainant/respondent who argued the case in person, stated that he and his

family were not told by the Airlines that a television set could not be brought as

accompanied baggage in the flight.  It was a matter of general practice that television

sets are allowed in the flights by the other Airlines.  The petitioner never informed them

about the terms and conditions governing their flights.  In case, there is no mention of

the conditions on the ticket or on the website maintained by the Airlines, it amounts to

deficiency in service on the part of the petitioner.  The complainant made reference to

the Baggage Rules in India, saying that there was no bar on carrying of electronic items

or a television set in the Aircraft.  The complainant/respondent has also drawn our

attention to the baggage policy followed by many other airlines like Air India, Thai

Airways, Singapore Airlines, etc., according to which, if there is an excess baggage, the

same is allowed by the airlines subject to charging additional money for the same at the

prescribed rates, as per the policy of the said airlines.  In the present case also, the

Airlines should not have refused to accept the television set in question, and if it was

found over-weight or over-sized, they should have been charged extra amount for the

same. 

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

consideration to the arguments advanced before us.  

8.     The basic issue involved in the present case is that a Sony-Ericsson television set

brought by the complainant to the Airport was not allowed by the SrilankanAirlines to be

brought as checked-in baggage and the same had to be brought by the complainant as

unaccompanied baggage through some other airlines, for which he had to incur an

additional sum of money.  The main ground taken by the Airlines says that as per the

general conditions of Carriage of the Srilankan Airlines, electronic devices are not

allowed to be carried as checked-in baggage and moreover the television set, in

question, was over-weight and over-sized.  It is clear from the airway bill issued by the

Airport Authority of India that the gross weight of the item in question was 33

kg. whereas its volumetric weight was 67 kg., considering the size of the television

set.  It is an admitted fact that a passenger travelling on Srilankan Airlines is allowed to

carry only 32 kg. of weight.  The stand of Srilankan Airlines that the baggage allowance

for more than one passengers travelling together, cannot be clubbed, is not disputed,

based on the general practice followed in this regard.  However, it is a matter of

common observation that if there is excess baggage, the Airlines charge extra amount

of money as per the rates preannounced by them in their policy for carrying such

baggage.  It is also clear that a television set is not a banned item and the airlines do

allow the carriage of television sets in checked-in baggage.  It is however open to the

Airlines to charge extra money for the excess baggage based on the volumetric weight.

As it was over-weight by 1 kg. and other airlines booked the luggage after charging

extra amount, petitioner should also have booked the television after charging extra

amount.  In such circumstances, it becomes clear that there is some deficiency in

service on the part of the petitioner which caused harassment to the respondent. 

9.     Though, the District Forum allowed Rs.1,00,000/- as compensation which was

affirmed by State Commission but looking to the nature of the case, we deem it

appropriate to reduce compensation to Rs.50,000/- from Rs.1,00,000/- as awarded by

the District Forum. 

10.   The District Forum also directed the petitioner to refund baggage charges of

Rs.22,671/- and the State Commission upheld that charge.  Respondent has incurred

this charge in booking television by another airlines.  Had he booked this television with

the petitioner he was also required to pay the similar charges to the petitioner.  In such

circumstances, respondent is not entitled to get refund of Rs.22,671/-.  The District

Forum has committed error in allowing refund of aforesaid charges.  The State

Commission further committed error in dismissing the appeal of the petitioner on this

count.  

11.   In the light of above discussion, this revision petition is partly allowed and the

petitioner is directed to pay compensation of Rs.50,000/- to the complainant in place of

Rs.1 lakh as allowed by the District Forum in their order dated 12.12.2007.  The

petitioner shall not be liable to pay Rs.22,671/- as baggage charges as discussed

above.  However, the petitioner shall pay Rs.10,000/- towards cost of litigation to the

complainant as allowed by the District Forum.  There shall be no order as to costs. 

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER 

 

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   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 700 069, 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

      …Respondent/Complainant

BEFORE

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

    HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner        :  Mr. Tapan Kumar Datta, Advocate

For the Respondent    :  NEMO

PRONOUNCED   ON     28 th   November,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            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. 

4.       Heard learned Counsel for the petitioner and perused record. 

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. 

9.       Consequently, revision petition filed by the petitioner is allowed and impugned

order dated 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/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2990 OF 2013

(From the order dated 22.05.2013 in First Appeal No. 228/2010 of Punjab State Consumer Disputes Redressal Commission, Chandigarh)

 

Sarabjit Singh S/o S. Gurmukh Singh R/o Gali Sheikhan Wali, Kapurthala

                                                           ...  Petitioner

  Versus

 Punjab Urban Development & Planning Authority Through its Estate Officer SCO 41, Ladowali Road, Jalandhar

                                                            … Respondent

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

APPEARED AT THE TIME OF ARGUMENTS 

For the Petitioner : Mr. Karan Dewan, Advocate

     

 

PRONOUNCED   ON :       28 th     NOVEMBER 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 22.05.2013 passed by the

Punjab State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FA No. 228/2010 vide which the order dated 30.10.2009 passed by

District Consumer DisputesRedressal Forum, Kapurthala, allowing the consumer

complaint in question, was set aside and the said consumer complaint was dismissed.

2.      Brief facts of the case are that the petitioner/complainant is the owner of plot bearing

no. 1261, measuring 400 sq. yards, situated in Atma Singh Urban

Estate, Kapurthala, Punjab. The said plot was earlier owned by Gurdarshan Kaur, from

whom, the petitioner purchased the plot and got a re-allotment letter issued by the

respondent after making payment of re-allotment fee of Rs. 31,000/-.  He made payments

of further instalments to the respondent as per their demand, under protest.  Thereafter, he

got the building plan sanctioned from the respondent and started construction over the said

plot.  He submitted application dated 16.05.2008 to the respondent, asking them to issue

completion certificate upto the plinth level (DPC).  He submitted another application dated

11.08.2008 requesting for completion certificate upto the roof level and then another

application dated 20.09.2008, asking for completion certificate upto the roof level of first

floor.  It has been stated in the complaint that the respondent issued certificate upto the

plinth level (DPC) in December, 2008, but he failed to issue the other completion

certificates as requested, rather the respondent refused to issue partial completion

certificates.  He, then, filed the consumer complaint in question, seeking directions to the

respondent to issue partial completion certificates and also seeking to refund certain

amounts of Rs. 21,000/- and Rs. 39,350/-, charged by the respondent, which according to

him were excessively charged.  The District Forum vide their order

dated 30.10.2009 directed the Opposite Party/Respondent to issue partial completion

certificate and also to pay compensation of Rs. 5,000/- for mental harassment and Rs.

3,000/- as costs of litigation.  The District Forum declined to grant relief for the amounts

alleged to have been charged excessively.  An appeal against the order of the District

Forum was accepted by the State Commission on 22.05.2013, and 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, learned counsel for the petitioner has drawn our

attention to rule 10 of the Punjab Urban Planning and Development Authority (Building)

Rules 1996, pleading that the partial completion certificate should have been issued by the

respondent in accordance with this rule.  The Revision Petition should, therefore, be

allowed and the order of the State Commission be set aside.

4.      A careful examination of the facts on record and orders passed by the State

Commission and the District Forum reveals that the petitioner/complainant has been

requesting for completion certificates from the respondent at various stages of construction

i.e. upto the plinth level (DPC level), roof level etc.  It is a matter of common knowledge that

completion certificate or occupation certificate can be issued by the competent authority

only after the construction work is completed and the building in question is fit for

habitation.  There is no such practice that completion certificates are issued at various

stages of construction for a building unit.  Rule 10 of the Punjab Urban Planning and

Development Authority (Building) Rules 1996 is reproduced as below:-

          “10. OCCUPATION CERTIFICATE.- [Section 180(2)(i)]- (1) Every applicant on completion of the building works according to the building plan shall give notice of completion in Form 'B' and furnish the completion certificate in Form 'C' through his architect to the Competent Authority for issuing the occupation certificate. 

(2) The Competent Authority shall, within thirty days from the date of receipt of the application shall either issue the occupation certification or reject the application giving reasons for such rejection in Form 'D':

Provided that the applicant shall remove or destroy and temporary building which might have been erected and the debris from the site and adjoining roads or vacant site before the occupation certificate is issued:

Provided further that partial occupation certificate may be granted for partially constructed building with one habitable room, one water closet and one bath room.”  

 

5.      A plain reading of the second proviso to the above rule says that a

partial occupation certificate may be granted for partially constructed building with one

habitable room, one water closet and one bath room.  It is very clear from this rule that

partial occupation certificate can not be given unless there is one habitable room.  In the

light of these facts, it is very clear that the petitioner is not entitled to get the partial

completion certificates at various stages of construction.

6.      In view of the discussion above, it is held that the order passed by the State

Commission is based on correct appreciation of the facts and circumstances on record and

there is no illegality, irregularity or jurisdictional error in the same.  The impugned order is,

therefore, upheld and the present Revision Petition is ordered to be dismissed, with no

order as to costs.

          

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

..……………………………

(DR. B.C. GUPTA)

MEMBERPSM/